Exhibit 10.6
EXECUTION
STOCKHOLDERS
AGREEMENT
STOCKHOLDERS AGREEMENT
(this “ Agreement
”), dated as of March 26, 2009, by and among Safeguard
Delaware, Inc., a Delaware corporation, Safeguard
Scientifics, Inc., a Pennsylvania corporation, Safeguard
Scientifics (Delaware), Inc., a Delaware corporation
(collectively, the “ Safeguard Entities
”), and Oak Investment Partners XII, Limited Partnership, a
Delaware limited partnership (“ Oak ”).
Each of the Safeguard Entities and Oak are referred to as “
Stockholders ” herein.
WHEREAS, the Safeguard Entities are,
as of the date hereof, collectively the record and beneficial
owners of (i) 46,483,821 shares of the Common Stock, par value
$0.01 (“ Common Stock ”), of
Clarient, Inc., a Delaware corporation (the “
Company ”), and (ii) warrants to purchase
2,829,473 shares of Common Stock (“ Warrants
”);
WHEREAS, the Company and Oak
concurrently herewith are entering into a Stock Purchase Agreement
(the “ Stock Purchase Agreement ”), which
provides, among other things, for the purchase by Oak of an
aggregate of 5,263,158 shares the Company’s Series A
Convertible Preferred Stock, par value $0.01 (“
Series A Preferred Stock ”) at two closings and
up to an additional 1,315,790 shares of the Series A Preferred
Stock in one or more subsequent closings;
WHEREAS, all capitalized terms used
herein and not otherwise defined shall have the meanings ascribed
to such terms in the Stock Purchase Agreement;
WHEREAS, as a condition precedent to
the Initial Closing of the Stock Purchase Agreement, and in order
to induce Oak to enter into the Stock Purchase Agreement, each
Stockholder has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of
the foregoing and the mutual premises, representations, warranties,
covenants and agreements contained in this Agreement and the other
Transaction Documents, the parties, intending to be legally bound,
hereby agree as follows:
SECTION 1.
Representations and Warranties of the Stockholders .
Each Stockholder hereby severally, and not jointly, represents and
warrants, as of the date hereof and as of each Closing Date, as
follows:
(a)
Such Stockholder is duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, has
all requisite corporate, limited liability company or partnership
power and authority, as the case may be, to enter into this
Agreement and to consummate the transactions contemplated by this
Agreement. The execution and delivery of this Agreement by
such Stockholder and the consummation by such Stockholder of the
transactions contemplated by this Agreement have been duly
authorized by all requisite corporate, limited liability company or
partnership action, as the case may be, on the part of such
Stockholder.
(b)
This Agreement has been duly executed and delivered by such
Stockholder and constitutes a valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance
with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
of general application affecting enforcement of creditors’
rights generally, and (ii) the availability of the remedy of
specific performance or injunctive or other forms of equitable
relief may be subject to equitable defenses and would be subject to
the discretion of the court before which any proceeding therefor
may be brought.
(c)
Neither the execution and delivery of this Agreement nor the
consummation by such Stockholder of the transactions contemplated
hereby will result in a violation of, or a default under, or
conflict with, any contract, trust, commitment, agreement,
understanding, arrangement or restriction of any kind to which such
Stockholder is a party or by which it is bound or to which any
Securities held or controlled by such Stockholder are
subject. Except for any necessary filings under the
Securities Act and the Exchange Act or otherwise disclosed in the
Stock Purchase Agreement, consummation by such Stockholder of the
transactions contemplated hereby will not violate, or require
Approval under any Applicable Law applicable to such Stockholder or
such Securities.
(d)
Such Securities and the certificates representing such Securities
(if any) will be held by such Stockholder, or by a nominee or
custodian for the benefit of such Stockholder, free and clear of
all Liens (other than Permitted Liens, and lender liens), proxies,
voting trusts or agreements, understandings or other similar
arrangements other than pursuant to this Agreement and any transfer
restrictions set forth in any registration rights agreements and
stock purchase agreements.
SECTION 2.
Waiver of Anti-dilution Protection and Preemptive Rights
. The Safeguard Entities hereby waive all rights to
anti-dilution protection and preemptive rights (or similar rights)
in connection with the issuance of the Series A Preferred
Stock to Oak and the issuance of Common Stock upon the conversion
of such Series A Preferred Stock pursuant to the terms of the
Stock Purchase Agreement and/or the Certificate of Designations, as
applicable. This is a limited waiver and shall not be deemed
to constitute a waiver of any other rights or protections or be
applicable to any other issuance of securities by the
Company.
SECTION 3.
Right of First Offer .
(a)
Subject to the terms and conditions specified in this
Section 3, the Safeguard Entities hereby grant to Oak a
limited right of first offer with respect to any Block Transfer
proposed to be effected by the Safeguard Entities.
“ Block Transfer
” means a
privately negotiated Transfer of Common Stock and/or Warrants owned
by the Safeguard Entities or group of related Transfers that are
intended for the same Person, which represents more than five
percent (5%) or more of the issued and outstanding shares of Common
Stock (including the shares of Common Stock issuable upon
conversion of the Series A Preferred Stock). For the
avoidance of doubt, a bona fide public sale (i.e., a registered
public offering, a sale effected in accordance with Rule 144
under the Securities Act or otherwise where purchaser and seller do
not know each other and have no privity of contract, including
through any broker, dealer or underwriter acting in a capacity as
such, that purchase Securities for distribution) shall not be
considered a “Block Transfer.”
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(b)
Each time the Safeguard Entities propose to effect a Block
Transfer, the Safeguard Entities shall first make an offering of
such Securities to Oak in accordance with the following
provisions:
(i)
The Safeguard Entities shall deliver a written notice (the
“ Block Transfer
Notice ”) to Oak stating the
Safeguard Entities are contemplating initiating discussions
regarding the private sale of some or all of their Common Stock
and/or Warrants. Such Block Transfer Notice shall state the
portion of such securities which the Safeguard Entities are
considering selling;
(ii)
By written notification received by the Safeguard Entities within
fifteen (15) days after giving of the Block Transfer Notice, Oak
may make an offer to purchase the securities proposed to be
Transferred by identifying the definitive price and other material
terms on which it would propose to acquire such
securities;
(iii)
The Safeguard Entities will, within fifteen (15) days of the
receipt of any such Oak proposal, accept or reject such
proposal. If the Safeguard Entities reject the proposal, they
then may proceed to initiate third party negotiations concerning
the identified securities and to consummate any Transfer which may
be thereafter agreed to.
(iv)
Notwithstanding anything to the contrary contained herein, if the
Safeguard Entities or any of them is approached by a third party
wishing to acquire some or all of the Common Stock and/or Warrants
held by the Safeguard Entities and such approach is not the direct
result of negotiations with, or solicitations of, such third party
initiated by one or more of the Safeguard Entities, the Safeguard
Entities shall have no obligation to offer such securities to Oak
or to notify Oak of such offer or any matter related
thereto.
(v)
In the event that the Safeguard Entities propose to effect a public
sale of Common Stock that would otherwise be a Block Transfer if it
were not a public sale but instead a privately negotiated sale, the
Safeguard Entities shall use their good faith efforts to provide
Oak with at least one (1) days’ notice prior to such
Transfer so that Oak can have an opportunity to purchase such
shares of Common Stock in a negotiated private sale. If the
Safeguard Entities believe that market conditions or other
conditions do not allow such an opportunity to provide Oak with
such notice, then such a determination shall be deemed to satisfy
the good faith efforts of the Safeguard Entities pursuant to this
clause (v).
(vi)
A Permitted Transferee Sale shall be exempt from the foregoing
provisions.
SECTION 4.
Voting of Securities .
(a)
The Safeguard Entities shall vote the Securities they own of
record, or beneficially own, in favor of the NASDAQ Stockholder
Approval (which affirmative vote may be in the form of a written
consent, as may be requested by the Company).
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(b)
Unless (i) mutually agreed to by Oak and the Safeguard
Entities, (ii) the net proceeds (to the extent consisting of
cash or securities listed on a national securities exchange) per
share of Common Stock of the Company received at the closing of any
transaction described in this Section 4(b) will be equal
to or greater than $3.80 (as adjusted for any stock split,
consolidation, reorganization, merger, dissolution and the like
wit
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