Exhibit
10.10


 


REIMBURSEMENT
AND INDEMNITY AGREEMENT


 


This Reimbursement and
Indemnity Agreement (this “Agreement”) is
made as of the 11th day of March, 2005, by CHROMAVISION MEDICAL
SYSTEMS, INC. (“ChromaVision”), a Delaware
corporation, in favor of SAFEGUARD DELAWARE, INC., a Delaware corporation (“SDI”) and SAFEGUARD SCIENTIFICS
(DELAWARE), INC., a Delaware corporation (“SSI”)
and together with SDI (“Safeguard”).


 


BACKGROUND


 


A.                                   Pursuant
to a Loan Agreement dated as of February 13, 2003, by and between ChromaVision
and Comerica Bank, N.A. (the “Bank”) (as
amended from time to time, including by a Fourth Amendment thereto dated as of
even date herewith (“Amendment No. 4”), the
“Loan Agreement”) the Bank agreed
to provide to ChromaVision a revolving line of credit in the maximum aggregate principal
amount of $5,500,000 (the “Loan”).


 


B.                                     At
the request of ChromaVision, and as required by the Bank, Safeguard agreed to
guaranty all of the payment obligations of ChromaVision under the Loan
Agreement, pursuant to the terms of that certain Unconditional Guaranty
originally dated as of February 13, 2003 (as amended and affirmed from
time to time (the “Original Guaranty”)). In
connection with Amendment No. 4, Safeguard is contemporaneously herewith
entering into an Amended and Restated Guaranty (the “Guaranty”).


 


C.                                     In
consideration of Safeguard’s agreements as set forth above, ChromaVision has agreed
to pay certain fees to Safeguard, to reimburse Safeguard for any of the
obligations required to be paid or satisfied by Safeguard pursuant to the
Guaranty, and to hold Safeguard harmless from and against any claims made
against Safeguard on account of the Guaranty, on the terms and subject, to the
conditions set forth below.


 


D.                                   All
capitalized terms used and not otherwise defined herein shall have the respective
meanings ascribed thereto in the Guaranty.


 


AGREEMENT


 


NOW,
THEREFORE in consideration of the foregoing and of the covenants and mutual
agreements set forth below, and intending to be legally bound, the parties agree
as follows:


 


1.               Payments,
Performance, Covenants.


 


(a) In the event Comerica
makes any demand on ChromaVision, or ChromaVision is otherwise required to
perform any obligations under the Loan Agreement (including without limitation,
any payment obligation) or any other Loan Document, ChromaVision promptly shall
perform its obligations under the Loan Agreement or applicable Loan Document.


 


(b) In the event any such
amount is not timely paid or such obligation is not timely performed by
ChromaVision and Comerica seeks to enforce Safeguard’s Guaranty, ChromaVision
shall reimburse to Safeguard the aggregate amount of all funds advanced by
Safeguard on account of such obligation, together with interest on such amount
at an annual rate equal to the prime rate (as defined below) plus 4%, from the
date of payment by Safeguard until all such amounts have been repaid by
ChromaVision. For the purpose of this Agreement,
“prime rate” shall mean the variable rate of interest, per


 





















 


annum, most recently
announced by Comerica Bank, as its “prime rate,” whether or not such announced
rate is the lowest rate available from such bank.


 


(c)
ChromaVision will not agree to any amendment, modification, waiver or
supplement to the Comerica Loan Agreement or any of the documents, instruments
or agreements executed in connection therewith (collectively, the “Loan Documents”) without the prior
written consent of each of SDI and SSI.


 


2.               Fees. As
consideration for the Guarantee, ChromaVision agrees to pay to Safeguard the
following amounts:


 


(a) $27,500 (.5% of the
committed amount of the Loan) payable concurrently with the execution of
Amendment No. 4; and


 


(b) An amount equal to
1.125% of the daily weighted average of the principal amounts outstanding under
the line of credit during each calendar quarter of the term of the line of
credit.


 


The amount referenced in
clause (b) above will be payable within 30 days after the end of each calendar
quarter with respect to amounts outstanding under the line of credit during the
quarter preceding the payment date. Payments for fractional calendar quarters
at the beginning and end of the term of the line of credit will be prorated
based on the number of days in the fractional quarter included in the term of
the line of credit divided by the total number of days in the calendar quarter.
All payments will be made by wire transfer in immediately available funds to
such account as Safeguard shall designate from time to time.


 


3.               Obligations of
ChromaVision. The obligations of ChromaVision under this Agreement shall be
absolute, unconditional and irrevocable, shall apply to the fullest extent
authorized or permitted by any applicable law, under and shall be paid and
performed strictly in accordance with the terms of this Agreement, under all
circumstances whatsoever, including, without limitation, the following
circumstances:


 


(a)
Any lack of validity or
enforceability of this Agreement;


 


(b) The existence of any
claim, set-off, defense or other rights which ChromaVision may have at any time
against Safeguard or any other person or entity, whether or not in connection
with this Agreement; or


 


(c) Any other
circumstance or happening whatsoever, whether or not similar to any of the
foregoing.


 


4.               Representations
and Warranties of ChromaVision. ChromaVision hereby represents and warrants
to Safeguard as follows:


 


(a) Organization and
Standing. ChromaVision is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware and has all
requisite power and authority to carry on its business as now being conducted.


 


(b) Authority;
Enforceability. ChromaVision has all requisite power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby.


 


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(c) Execution of
Agreement. This Agreement has been duly executed and delivered by
ChromaVision. The execution, delivery and performance of this Agreement will
not cause any default, breach or violation of any provision of any material
agreement to which ChromaVision is a party or by which any of ChromaVision’s
assets are bound.


 


(d) Validity of
Agreement. This Agreement constitutes the legal, valid and binding
obligation of ChromaVision, enforceable in accordance with its terms.


 


(e) Approvals. No
approval, authorization, consent or other order or action of or filing with any
governmental or administrative entity or any other person is required for the
execution and delivery by ChromaVision of this Agreement or such other
agreements and instruments required hereunder or for the consummation by
ChromaVision of the transactions contemplated hereby or thereby.


 


(f) Violation of Laws
or Agreements. The making and performance of this Agreement and the other
documents, agreements and actions required hereunder or thereunder will not
violate any provisions of any law, federal, state or local rule or regulation,
or any judgment, decree, award or order of any court or other governmental
entity, agency or arbitrator to which ChromaVision is subject.


 


5.               Events of
Default. The occurrence of one or more of the following events shall
constitute an event of default hereunder (each, an “Event of Default”):


 


(a) If ChromaVision fails
to make any payment due to Safeguard under this Agreement, in each case within
five (5) days after demand therefor from Safeguard that the same shall be due
and payable.


 


(b) ChromaVision fails to
observe or perform any material covenant or agreement required to be observed
or performed by it under this Agreement within five (5) days after ChromaVision’s
Chief Executive Officer, Chief Financial Officer and/or Controller knew or
should have known of its failure to so observe or perform.


 


(c) If any representation
or warranty of ChromaVision under this Agreement shall be false or misleading
in any material respect when made.


 


(d) If custody or control
of any substantial part of the property of ChromaVision shall be assumed by any
governmental agency or any court of competent jurisdiction at the instance of any
governmental agency; if any material license or franchise shall be suspended,
revoked or otherwise terminated the effect of which would be to affect
materially and adversely the operations of ChromaVision; or if any governmental
regulatory authority or judicial body shall make any other final non-appealable
determination the effect of which would be to affect materially and adversely
the operations of ChromaVision.


 


(e) If ChromaVision:
becomes insolvent, bankrupt or generally fails to pay its debts as such debts
become due; is adjudicated insolvent or bankrupt; admits in writing its
inability to pay its debts; or shall suffer a custodian, receiver or trustee
for it or substantially all of its property to be appointed and if appointed
without its consent, not be discharged within thirty (30) days; makes an
assignment for the benefit of creditors; or suffers proceedings under any law
related to bankruptcy, insolvency, liquidation or the reorganization,
readjustment or the release of debtors to be instituted against it and if
contested by it not dismissed or stayed within sixty (60) days; if proceedings
under any law related to bankruptcy, insolvency, liquidation, or the
reorganization, readjustment or the release of debtors is instituted or
commenced by ChromaVision; or if any order for relief is entered relating to
any of the foregoing proceedings; if ChromaVision shall call a meeting of its
creditors with a view to arranging a


 


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composition or adjustment
of its debts; or if ChromaVision shall by any act or failure to act indicate
its consent to, approval of or acquiescence in any of the foregoing.


 


6.               Remedies Upon
Default. Upon the occurrence of any Event of Default, the entire amount of
reimbursement due hereunder, plus any and all interest accrued thereon at the
rate set forth in Section 1 hereof, plus all other sums due and payable to
Safeguard hereunder shall, at the option of Safeguard become due and payable
immediately without presentment, demand, notice of nonpayment, protest, notice
of protest, or other notice of dishonor, all of which are hereby expressly
waived by ChromaVision.


 


7.               Remedies
Cumulative, etc.


 


(a) No right or remedy
conferred upon or reserved to Safeguard hereunder or now or hereafter existing
at law or in equity is intended to be exclusive of any other right or remedy,
and each and every such right or remedy shall be cumulative and concurrent, and
in addition to every other such right or remedy, and may be pursued singly,
concurrently, successively or otherwise, at the sole discretion of Safeguard
and shall not be exhausted by any one exercise thereof but may be exercised as
often as occasion therefor shall occur.


 


(b) ChromaVision hereby
waives presentment, demand, notice of nonpayment, protest, notice of protest,
notice of dishonor and any and all other notices in connection with any default
in the payment of, or any enforcement of the payment of, all amounts due under
this Agreement. To the extent permitted by law, ChromaVision waives the right
to any stay of execution and the benefit of all exemption laws now or hereafter
in effect.


 


(c) ChromaVision agrees
that any action or proceeding against it to enforce the Agreement may be
commenced in state or federal court in any county in the Commonwealth of Pennsylvania
in which Safeguard and/or its successors or assigns has an office. ChromaVision
waives personal service of process and agrees that a summons and complaint
commencing an action or proceeding in any such court shall be properly served
and shall confer personal jurisdiction if served by registered or certified
mail in accordance with the notice provisions set forth herein.


 


(d) ChromaVision
acknowledges and agrees that Safeguard shall be subrogated to the rights of
Comerica, including, without limitation, with respect to the security interests
granted to Comerica in connection with the Loan Documents, in the event
Safeguard is required to make any payments on account of the Guaranty.


 


8.               Termination.
This Agreement shall remain in full force and effect and shall terminate on the
later to occur of (i) the date that the Guaranty is terminated or (ii) the date
that all obligations of ChromaVision to Safeguard, and all obligations of
ChromaVision hereunder have been paid in full and satisfied and; in each case,
after the expiration of the period during which any payment by ChromaVision is
or may be subject to rescission, avoidance or refund under the United States Bankruptcy
Code (or any similar state statute).


 


9.               Indemnification.


 


(a) ChromaVision hereby
agrees to indemnify, protect, defend and hold harmless Safeguard and its
officers, directors, employees, successors and assigns, (collectively, the “Indemnified Parties”), from and against
any and all claims, damages, losses, liabilities, costs or expenses of any kind
or nature and from any suits, claims or demands, including reasonable attorney’s
fees incurred in investigating or defending such claim, suffered by any of them
and caused by, relating to, arising out of,


 


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resulting from, or in any
way connected with this Agreement or the transactions contemplated hereby
(unless determined by a final judgment of a court of competent jurisdiction to
have been caused solely by the gross negligence or willful misconduct of the
Indemnified Parties) including without limitation:


 


(i)                                     by
reason of any breach of any representation or warranty of ChromaVision in this
Agreement;


 


(ii)                                  by
reason of, in connection with, or as a consequence of any default by
ChromaVision, in the performance or observance of any term, condition,
covenant, or undertaking contained in this Agreement or any other document to
be observed or performed by ChromaVision;


 


(iii)                               by
reason of or in connection with any litigation or other proceeding in any way restraining,
enjoining, questioning or affecting performance or obligation hereunder; and


 


(iv)                              by
reason of or in connection with its obligations under the Loan Documents and
its payment and reimbursement obligations contemplated by Section 1
hereof.


 


(b) In case any action
shall be brought against Safeguard or any other Indemnified Party in respect to
which indemnity may be sought against ChromaVision, Safeguard or such other
Indemnified Party shall promptly notify ChromaVision and ChromaVision shall
assume the defense thereof, including the employment of counsel selected by
ChromaVision and satisfactory to Safeguard, the payment of all costs and
expenses and the right to negotiate and consent to settlement. The failure of
Safeguard to so notify ChromaVision shall not relieve ChromaVision of any
liability it may have under the foregoing indemnification provisions or from
any liability which it may otherwise have to Safeguard or any of the other
Indemnified Parties except to the extent ChromaVision is materially prejudiced
thereby. Safeguard shall have the right, at its sole option, to employ separate
counsel in any such action and to participate in the defense thereof and retain
its own counsel, but the fees and expenses of such counsel shall be at the expense
of Safeguard unless (i) ChromaVision and Safeguard have agreed in writing to
the retention of such counsel; or (ii) the named parties to any such litigation
or proceeding (including any impleaded parties) include ChromaVision and
Safeguard and representation of both parties by the same counsel would, in the
opinion of counsel to Safeguard, be inappropriate due to actual or potential
conflicts of interests between ChromaVision and Safeguard, ChromaVision shall
not be liable for any settlement of any such action effected without its
consent, which consent shall not be unreasonably withheld, delayed or
conditioned, but if settled with ChromaVision’s consent, or if there shall be a
final judgment for the claimant in any such action, ChromaVision agrees to indemnify
and hold harmless Safeguard from and against any loss or liability by reason of
such settlement or judgment.


 


(c) The provisions of
this Section 9 shall survive the repayment or other satisfaction of the
obligations of ChromaVision hereunder.


 


10.         Notices. All
notices, requests, demands and other communications that this Agreement
requires or permits shall be in writing and shall be sent by overnight courier
providing delivery receipt, or by certified mail, return receipt requested, or
by telecopy or hand delivery to the following addresses:


 


	
  If
  to ChromaVision:

  	
   

  	
  ChromaVision Medical
  Systems, Inc.

  
	
   

  	
   

  	
  33171 Paseo Corvezon

  
	
   

  	
   

  	
  San Juan Capistrano, CA
  92675

  
	
   

  	
   

  	
  Attention: Steve Dixon

  
	
   

  	
   

  	
  Telephone:949.276.0121

  
	
   

  	
   

  	
  Fax:

  	
  949.443.3355 ext 221

  



 


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  If to Safeguard:

  	
   

  	
  c/o Safeguard
  Scientifics, Inc.

  
	
   

  	
   

  	
  435 Devon Park Drive

  
	
   

  	
   

  	
  800 The Safeguard
  Building

  
	
   

  	
   

  	
  Wayne, PA 19087

  
	
   

  	
   

  	
  Attention: Steven J. Feder, Senior Vice President and
  General Counsel

  
	
   

  	
   

  	
  Telephone: 610.975.4984

  
	
   

  	
   

  	
  Fax:

  	
  610.482.9105

  



 


All notices, requests,
demands and other communications provided in accordance with the provisions of
this Agreement shall be effective: (i) if sent by overnight courier or
telecopier, when received, (ii) if sent by certified mail, return receipt
requested, the third day after sending, and (iii) if given by hand delivery,
when delivered.


 


11.         Amendments. The
provisions of this Agreement may be amended only by a written agreement signed
by ChromaVision.


 


12.         Governing Law and
Jurisdiction. This Agreement shall be governed by, construed and enforced
in accordance with the laws of the Commonwealth of Pennsylvania, without regard
to the conflicts of laws provisions.


 


13.         Continuing Obligation.
This Agreement is a continuing obligation and shall (a) be binding upon
ChromaVision and its respective its successors and assigns, and (b) inure to
the benefit of and be enforceable by Safeguard against ChromaVision (and its
successors, transferees and assigns); provided, that ChromaVision may
not assign all or any part of their obligations hereunder without the prior
written consent of Safeguard, which consent shall not be unreasonably withheld.


 


14.         Savings Clause.
Whenever possible, each provision of this Agreement shall be interpreted in a
manner as to be effective and valid under applicable law, but if any provision
of this Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the remaining
provisions of this Agreement.


 


15.         Severability. In
case any one or more of the provisions contained in this Agreement shall, for
any reason, be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect the validity
of any other provision of this Agreement, and such provision(s) shall be deemed
modified to the extent necessary to make it enforceable.


 


16.         Jury Trial Waiver.
EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON
OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
ANY OTHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR SAFEGUARD’S
ENTERING INTO THIS AGREEMENT.


 


EACH
PARTY ACKNOWLEDGES THAT IT HAS HAD THE ASSISTANCE OF COUNSEL IN THE REVIEW AND
EXECUTION OF THIS AGREEMENT AND FURTHER


 


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ACKNOWLEDGES THAT THE
MEANING AND EFFECT OF THE FOREGOING WAIVER OF JURY TRIAL HAS BEEN FULLY
EXPLAINED BY SUCH COUNSEL.


 


17.         Survival of
Representations and Warranties. All representations and warranties
contained or incorporated herein or made in writing in connection herewith
shall survive the execution and delivery of this Agreement.


 


18.         Counterparts. This
Agreement may be executed in more than one counterpart, including by facsimile signature,
all of which, together, constitute one and the same instrument.


 


19.         No Third-Party Beneficiaries.
This Agreement is intended for the benefit of the parties hereto; there are no
third-party beneficiaries of this Agreement.


 


20.         Entire Agreement.
This Agreement embodies and reflects the entire agreement between the parties
with respect to the matters set forth herein, and there are no other
agreements, understandings, representations
or warranties between the parties other than those set forth in this Agreement.


 


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IN WITNESS WHEREOF, the
undersigned have executed this Agreement on the date first set forth above.


 


	
   

  	
  CHROMAVISION MEDICAL
  SYSTEMS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen T.D. Dixon

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title

  
	
   

  	
   

  
	
   

  	
  SAFEGUARD DELAWARE,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Steven J. Feder

  	
   

  
	
   

  	
   

  	
  Name: Steven J. Feder

  
	
   

  	
   

  	
  Title Vice President

  
	
   

  	
   

  
	
   

  	
  SAFEGUARD SCIENTIFICS
  (DELAWARE), INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Steven J. Feder

  	
   

  
	
   

  	
   

  	
  Name: Steven J. Feder

  
	
   

  	
   

  	
  Title Vice President

  



 


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