Exhibit 10.74
STOCK PURCHASE
AGREEMENT
This STOCK PURCHASE AGREEMENT (this Agreement)
is dated as of the 16th day of June, 2009, by and between STAAR
Surgical Company, a Delaware corporation with its principal office
at 1911 Walker Avenue, Monrovia, California 91016 (the
“Company”), and each of the investors named on a
signature page hereto (each an “Investor” and,
collectively, the “Investors”).
WHEREAS, the Company has filed with the
Securities and Exchange Commission (the “Commission”) a
Registration Statement (as defined below) relating to the offer and
sale from time to time of the Company’s securities, including
shares of its Common Stock, $0.01 par value per share (the
“Common Stock”);
WHEREAS, the Company is offering for sale shares
of Common Stock (the “Offered Shares”) to the Investors
pursuant to the Registration Statement; and
WHEREAS, each Investor, severally and not
jointly, desires to purchase Offered Shares from the Company on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the recitals
(which are deemed to be a part of this Agreement), mutual
covenants, representations, warranties and agreements contained
herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1.
Definitions.
As used herein, the following terms
have the meanings indicated:
“Person” shall mean any individual, partnership, limited
liability company, joint venture, firm, corporation, association,
trust or other enterprise or any government or political
subdivision or any agency, department or instrumentality
thereof.
“Prospectus” shall mean the prospectus forming a part of the
Registration Statement and the prospectus supplement relating to
the Offered Shares in the form filed or to be filed pursuant to
Rule 424(b) under the Securities Act, as amended (the
“Securities Act”), as further amended or supplemented
prior to the execution of this Agreement, and shall include all
information and documents incorporated by reference in such
prospectus.
“Registration Statement”
shall mean the registration
statement on Form S-3 (File No. 333-159293), including a
prospectus, relating to the offer and sale of certain of the
Company’s securities, which was declared effective by the
Commission on June 12, 2009. References herein to the
term “Registration Statement” as of any date shall mean
such effective registration statement, as amended or supplemented
to such date, including all information and documents incorporated
by reference therein.
2.
Purchase of Common
Stock. Subject and pursuant to the terms
and conditions set forth in this Agreement, the Company agrees that
it will issue and sell to the Investor and the Investor agrees that
it will purchase from the Company, the number of Offered Shares set
forth below Investor’s name on the Investor Signature Page
hereto (the “Investor Shares”), at a purchase price of
$1.88 per share. The aggregate purchase price for the
Investor Shares (the “Aggregate Purchase Price”) is set
forth on the Investor Signature Page hereto. The closing
of the purchase and sale of the Investor Shares will be at 9:00
a.m., Eastern Daylight Time, on Friday, June 19, 2009, or at such
other date or time as the parties agree in writing (the
“Closing”).
3.
Deliveries at
Closing.
(a)
Deliveries by the
Investor . At
the Closing, each Investor shall deliver to the Company the
Aggregate Purchase Price by wire transfer of immediately available
funds to an account designated by the Company as set forth on
Schedule I hereto, which funds will be delivered to the
Company in consideration of the Investor Shares issued at the
Closing.
(b)
Deliveries by the
Company . At
the Closing, the Company shall deliver to each Investor the
Investor Shares through The Depository Trust Company’s
Deposit/Withdrawal at Custodian (“DWAC”) system to the
account that the Investor has specified on the Investor Signature
Page hereto.
4.
Representations, Warranties,
Covenants and Agreements .
(a)
Investor
Representations, Warranties and Covenants.
Each Investor, severally and not jointly, represents,
warrants and agrees as follows:
(i) Investor has
received copies of the Registration Statement and the Prospectus,
including all documents and information incorporated by reference
therein and amendments thereto, and understands that no Person has
been authorized to give any information or to make any
representations that were not contained in the Registration
Statement and the Prospectus, and Investor has not relied on any
such other information or representations in making a decision to
purchase the Investor Shares. Investor hereby consents
to receiving delivery of the Registration Statement and the
Prospectus, including all documents and information incorporated by
reference therein and any amendments thereto, by the
Company’s filing on the EDGAR database of the
Commission.
(ii) Investor
acknowledges that it has sole responsibility for its own due
diligence investigation and its own investment decision, and that
in connection with its investigation of the accuracy of the
information contained or incorporated by reference in the
Registration Statement and the Prospectus and its investment
decision, Investor has not relied on any representation or
information not set forth in this Agreement, the Registration
Statement or the Prospectus. Investor understands that
an investment in the Company involves a high degree of risk for the
reasons, among others, set forth under the captions “Risk
Factors” in the Prospectus.
(iii) The execution and
delivery of this Agreement by Investor and the performance of this
Agreement and the consummation by Investor of the transactions
contemplated hereby have been duly authorized by all necessary
(corporate, partnership or limited liability in the case of a
corporation, partnership or limited liability company) action of
Investor, and this Agreement, when duly executed and delivered by
Investor, will constitute a valid and legally binding instrument,
enforceable in accordance with its terms against Investor, except
as enforcement hereof may be limited by the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
or court decisions affecting enforcement of creditors’ rights
generally and except as enforcement hereof is subject to general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(iv) No state, federal
or foreign regulatory approvals, permits, licenses or consents are
required for Investor to enter into this Agreement or purchase the
Investor Shares.
(v) From the time
Investor became aware of the offering of the Offered Shares, until
such time that the Company publicly announces the transactions
contemplated by this Agreement (which the Company covenants and
agrees shall be no later than 8:30 a.m. Eastern Daylight Time on
June 22, 2009), Investor has not taken, and will not take, any
action, directly or indirectly, to do or agree to do any of the
following with respect to the securities of the Company: (1) to
sell any such securities; (2) to effect any short sale, whether or
not against the box; (3) to establish any “put equivalent
position” (as defined in Rule 16a-1(h) under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”));
(4) to acquire or grant any other right (including, without
limitation, any put or call option) with respect to the Common
Stock or with respect to a security that derives any significant
part of its value from the Common Stock; or (5) to engage in any
other transaction that hedges or may hedge the Investor’s
position in the Investor Shares or otherwise transfers the risk of
ownership of the Investor Shares.
(vi) Investor shall not
issue any press release or make any other public announcement
relating to this Agreement unless (i) the content thereof is
mutually agreed to by the Company and Investor, or (ii) Investor is
advised by its counsel that such press release or public
announcement is required by law.
(vii) If Investor is
outside the United States, Investor will comply with all applicable
laws and regulations in each foreign jurisdiction in which it
purchases, offers, sells or delivers the Investor Shares or has in
its possession or distributes any offering material, in all cases
at its own expense.
(viii) Investor
understands that nothing in this Agreement or any other materials
presented to Investor in connection with the offer and sale of the
Investor Shares constitutes legal, tax or investment
advice. Investor has consulted such legal, tax and
investment advisors of its own as Investor, in its sole discretion,
has deemed necessary or appropriate in connection with
Investor’s purchase of the Investor Shares.
(ix) Investor hereby
acknowledges that it is not acting as a member of a
“group” (as such term is defined in Rule 13d of
the Exchange Act) with any other investor, other than funds
affiliated with the Investor, in connection with the offering and
sale of the Investor Shares.
(x) Investor is a not
a “Benefit Plan Investor” as defined in
Section 3(42) of the Employee Retirement Income Security Act
of 1974 (“ERISA”), which includes an “employee
benefit plan” as defined in Section 3(3) of ERISA, that is
subject to Part 4 of Title I of ERISA, a “plan” covered
by Internal Revenue Code section 4975, or an entity whose
underlying assets include plan assets of either of the
foregoing.
(xi) There is no
broker, finder or other party that is entitled to receive from the
Company any brokerage or finder’s fee or other fee or
commission as a result of any transactions contemplated by this
Agreement.
(b)
Company Representations,
Warranties and Covenants. The Company hereby represents, warrants and
agrees as follows:
(i) The Company has
been duly incorporated and has a valid existence and the
authorization to transact business as a corporation under the laws
of the State of Delaware, with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, except for such jurisdictions wherein the failure to
be so qualified and in good standing would not individually or in
the aggregate have a material adverse effect on the business,
results of operations or financial condition of the Company and its
subsidiaries taken as a whole (a “Material Adverse
Effect”).
(ii) Each subsidiary of
the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, with corporate pow
