EXHIBIT 10.1


 





STANDBY PURCHASE AGREEMENT


 


This STANDBY PURCHASE
AGREEMENT (this “Agreement”) is made and entered into on March 10, 2014, by and among Schuler Family Foundation
(the “Foundation”), Jack Schuler, Trustee of the Jack W. Schuler Living Trust (the “Trustee”)
(the Foundation and Trustee, collectively, the “Standby Purchasers,” and each individually, a “Standby
Purchaser”), and Accelerate Diagnostics, Inc., a Delaware corporation (the “Company”).


 


RECITALS


 


WHEREAS, the Company
proposes to distribute, at no charge, to each holder of record of shares of common stock, par value $0.001 per share, of the Company
(the “Common Stock”) on a record date to be set by the Board of Directors of the Company (the “Record
Date”) non-transferable rights (the “Rights”) to subscribe for and purchase additional shares of Common
Stock (the “Rights Offering”);


 


WHEREAS, the Company
desires to raise a total of $45,000,000 in connection with the Rights Offering;


 


WHEREAS, in connection
with the Rights Offering, the Company’s stockholders of record as of the Record Date will receive a specified fractional
number of Rights for each share of Common Stock held as of the Record Date (i.e., for each one (1) share of Common Stock held as
of the Record Date, the stockholder will receive less than one (1) Right, with the actual fraction being determined by reference
to the total amount of the Rights Offering and the total number of shares of Common Stock to be offered in connection therewith);


 


WHEREAS,
each whole Right will entitle the holder thereof to purchase one share of Common Stock (the
“Subscription Privilege”) at a specified price equal to 90% of the market price of the Common Stock as
reported by the NASDAQ Capital Market on the latest practicable date prior to the launch of the Rights Offering (the
“Subscription Price”); and


 


WHEREAS, in order to
facilitate the Rights Offering, the Company has offered to the Standby Purchasers the opportunity, and the Standby Purchasers have
agreed and committed, to purchase at the Subscription Price, subject to the terms and conditions of this Agreement, any shares
of Common Stock that are not exercised pursuant to the Subscription Privilege in the Rights Offering (the “Unsubscribed
Shares” and such offering, the “Standby Offering”).


 


AGREEMENT


 


NOW THEREFORE, in consideration
of the foregoing and the mutual covenants herein contained and other good and valuable consideration, the parties hereto agree
as follows:


 


Section 1.Standby Purchase Commitment.


 


(a)Standby Purchase
Commitment. If and to the extent Unsubscribed Shares are not purchased by the Company’s stockholders pursuant to the
exercise of Rights in connection with the Rights Offering, the Standby Purchasers hereby agree, on a joint and several basis, to
purchase from the Company at the Subscription Price all such Unsubscribed Shares, up to the full amount of shares of Common Stock
offered by the Company in the Rights Offering (the “Commitment Amount”). The Standby Purchasers (i) acknowledge
that the precise Commitment Amount is yet to be determined based on the Company’s pending determination of a Rights Offering
amount, and (ii) affirm their agreement to the Commitment Amount.


 


(b)Allocation
of Unsubscribed Shares. Promptly following the expiration of the Rights Offering, the Company will determine the amount of
Unsubscribed Shares. Upon the Company’s determination of the number of Unsubscribed Shares, the Company promptly will notify
the Standby Purchasers in writing of the amount of Common Stock to be purchased by them, which amount may be less than the Commitment
Amount (the “Allocated Amount”).


 






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(c)Closing.
On the basis of the representations and warranties and subject to the terms and conditions herein set forth, the closing of the
purchase and sale of the Allocated Amount (the “Closing”) shall take place at the offices of the Company at
10:00 a.m., Arizona time, on the third business day following the closing of the Rights Offering, or such other place, time or
date as may be determined by the parties hereto (the “Closing Date”). At the Closing, the Company shall deliver
or cause to be delivered to the Standby Purchasers (or their respective designees) one or more certificates (or evidence of book-entry
records) representing the shares of Common Stock issued to the Standby Purchasers (or their respective designees, it being understood
that the Standby Purchasers shall be permitted to instruct the Company to have such shares allocated between them as the Standby
Purchasers may specify in writing) in respect of the Allocated Amount, and the Standby Purchasers shall deliver (or cause to be
delivered) to the Company, in cash or other immediately available funds, the aggregate Subscription Price relating to such shares
of Common Stock.


 


(d)Withdrawal
and Termination. At any time prior to the Closing Date, the Company may in its sole discretion withdraw or terminate the Rights
Offering or the Standby Offering. In the event that the Company withdraws or terminates the Rights Offering or the Standby Offering,
the Company will return the Standby Purchasers’ payment, or portion thereof, if any, to the Standby Purchasers, without interest
or other income, promptly thereafter.


 


Section 2.Representations and
Warranties of the Standby Purchaser. Each Standby Purchaser, jointly and severally with the other Standby Purchaser, represents
and warrants to the Company as follows:


 


(a)Existence
and Good Standing; Authority. Each Standby Purchaser is validly existing and in good standing under the laws of the state of
its formation and has all requisite power and authority to carry on its business as now conducted.


 


(b)Authorization
of Agreement; Enforceability. This Agreement has been duly and validly authorized, executed and delivered by each Standby Purchaser.
This Agreement is valid, binding and enforceable against each Standby Purchaser in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights
and to general equity principals.


 


(c)Accredited
Investor. Each Standby Purchaser is an “accredited investor” as that term is defined in Regulation D promulgated
under the Securities Act of 1933, as amended (the “Securities Act”).


 


(d)Information;
Knowledge of Business. Through its trustee or officers, as applicable, each Standby Purchaser is familiar with the business
in which the Company is engaged. Each Standby Purchaser (through its trustee or officers) has knowledge and experience in financial
and business matters; is familiar with the investments of the type that it is undertaking to purchase; is fully aware of the problems
and risks involved in making an investment of this type; and is capable of evaluating the merits and risks of this investment.
Each Standby Purchaser acknowledges that, prior to executing this Agreement, it (and each of its representatives) has had the opportunity
to ask questions of and receive answers or obtain additional information from a representative of the Company concerning the financial
and other affairs of the Company.


 


(e)Availability
of Funds. Each Standby Purchaser has available sufficient funds to pay the full Commitment Amount if needed.


 


(f)Investment
Intent. Each Standby Purchaser is acquiring its shares of Common Stock for its own account, with the intention of holding such
shares for investment and with no present intention of participating, directly or indirectly, in a distribution of the shares,
and each Standby Purchaser will not make any sale, transfer or other disposition of the shares for a period of six months from
the Closing Date.


 


(g)No Manipulation
or Stabilization of Price. Neither Standby Purchaser has taken and neither Standby Purchaser will take, directly or indirectly,
any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of any security of the Company in order to facilitate the sale or
resale of any securities of the Company, and neither Standby Purchaser is aware of any such action taken or to be taken by any
person.


 






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Section 3.Representations and
Warranties of the Company.


 


(a)Existence
and Good Standing; Authority. The Company is a corporation validly existing and in good standing under the laws of the State
of Delaware and has all requisite corporate power and authority to carry on its business as now conducted.


 


(b)Authorization
of Agreement; Enforceability. This Agreement has been duly and validly authorized, executed and delivered by the Company. This
Agreement is valid, binding and enforceable against the Company in accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general
equity principals.


 


(c)Due Authorization
and Issuance of Shares. All of the shares of Common Stock to be issued pursuant to this Agreement will have been duly authorized
for issuance prior to the Closing, and, when issued and distributed as set forth in the prospectus to be filed by the Company with
the Securities and Exchange Commission (the “Commission”) in connection with the Rights Offering (the “Prospectus”),
will be validly issued, fully paid and non-assessable; and none of such shares of Common Stock will have been issued in violation
of the preemptive rights of any security holders of the Company arising as a matter of law or under or pursuant to the Company’s
Certificate of Incorporation, as amended, the Company’s Bylaws, as amended, or any material agreement or instrument to which
the Company is a party or by which it is bound.


 


(d)No Conflicts.
The Company is not in violation of its Certificate of Incorporation, as amended, or Bylaws, as amended, or in default under any
agreement, indenture or instrument to which the Company is a party, the effect of which violation or default could reasonably be
expected to have a material adverse effect on the Company, and the execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby will not conflict with, or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company pursuant
to the terms of any agreement, indenture or instrument to which the Company is a party which lien, charge or encumbrance could
reasonably be expected to have a material adverse effect on the Company, or result in a violation of the Certificate of Incorporation
or Bylaws of the Company or any order, rule or regulation of any court or governmental agency having jurisdiction over the Company
or any of its property; and, except as required by the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and applicable state securities laws, no consent, authorization or order of, or filing or registration with, any
court or governmental agency is required for the execution, delivery and performance of this Agreement.


 


Section 4.Conditions to Closing.


 


(a)Conditions
to Both Parties’ Obligations. The obligations of the Company and the Standby Purchasers to consummate the transactions
contemplated hereunder in connection with the Standby Offering are subject to the fulfillment, prior to or on the Closing Date,
of the following conditions:


 


(i)the
Rights Offering shall have been consummated in accordance with the terms and conditions described in the Prospectus; and


 


(ii)no
judgment, injunction, decree, regulatory proceeding or other legal restraint shall prohibit, or have the effect of rendering unachievable,
the consummation of the Standby Offering or the transactions contemplated by this Agreement.


 


(b)Conditions
to Company’s Obligations. The obligations of the Company to consummate the transactions contemplated hereunder in connection
with the Standby Offering are subject to the fulfillment, prior to or on the Closing Date, of the following conditions:


 


(i)the
representations and warranties of each Standby Purchaser in Section 2 shall be true and correct in all material respects
as of the date hereof and as of the Closing Date as if made as of such date; and


 






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(ii)the
Standby Purchasers shall have performed all of their obligations hereunder.


 


(c)Conditions
to Standby Purchasers’ Obligations. The obligations of the Standby Purchasers to consummate the transactions contemplated
hereunder in connection with the Standby Offering are subject to the fulfillment, prior to or on the Closing Date, of the following
conditions:


 


(i)the
representations and warranties of the Company in Section 3 shall be true and correct in all material respects as of the
date hereof and as of the Closing Date as if made as of such date; and


 


(ii)the
Company shall have performed all of its obligations hereunder.


 


Section 5.Survival. The
representations and warranties of the parties contained in this Agreement or in any certificate delivered hereunder shall survive
the Closing hereunder.


 


Section 6.Covenants.


 


(a)SEC Filings.
The Company agrees, as soon as reasonably practicable after the Company is advised or obtains knowledge thereof, to advise the
Standby Purchasers with a confirmation in writing, of (i) the time when any amendment or supplement to the Prospectus has been
filed, (ii) the issuance by the Commission of any stop order, or of the initiation or threatening of any proceeding, suspending
the effectiveness of the Registration Statement relating to the Rights Offering (the “Registration Statement”)
or any amendment thereto or any order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment
or supplement thereto, (iii) the issuance by any state securities commission of any notice of any proceedings for the suspension
of the qualification of the shares of Common Stock for offering or sale in any jurisdiction or of the initiation, or the threatening,
of any proceeding for such purpose, (iv) the receipt of any comments from the Commission directed toward the Registration Statement
or any document incorporated therein by reference, and (v) any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional information. The Company shall use its commercially
reasonable efforts to prevent the issuance of any such order or the imposition of any such suspension and, if any such order is
issued or suspension is imposed, to obtain the withdrawal thereof as promptly as possible.


 


(b)Information
About Standby Purchasers. The Standby Purchasers agree to furnish to the Company all information with respect to the Standby
Purchasers that may be necessary or appropriate and will make any information furnished to the Company for the Prospectus by the
Standby Purchasers not contain any untrue statement of material fact or omit to state a material fact required to be stated in
the Prospectus or necessary in order to make the statements therein, in the light of the circumstances under which they were made,
not misleading.


 


(c)Public Announcements.
Neither the Company nor the Standby Purchasers shall issue any public announcement, statement or other disclosure with respect
to this Agreement or the transactions contemplated hereby without the prior consent of the other party hereto, which consent shall
not be unreasonably withheld or delayed, except if such public announcement, statement or other disclosure is required by applicable
law or applicable stock market regulations, in which case the disclosing party shall consult in advance with respect to such disclosure
with the other parties to the extent reasonably practicable.


 


(d)NASDAQ Listing.
The Company shall cause the shares of Common Stock issued to the Standby Purchasers hereunder to be listed on the NASDAQ Capital
Market.


 


Section 7.Termination.


 


(a)By Standby
Purchasers. The Standby Purchasers may terminate this Agreement (i) upon the occurrence of a suspension of trading in the Common
Stock by the NASDAQ Capital Market, any suspension of payments with respect to banks in the United States or a declaration of war
or national emergency in the United States, or (ii) if the Company materially breaches its obligations under this Agreement and
such breach is not cured within five business days following written notice to the Company.


 






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(b)By Company.
The Company may terminate this Agreement (i) in the event the Company, in its reasonable judgment, determines that it is not in
the best interests of the Company and its stockholders to proceed with the Rights Offering and/or the Standby Offering, (ii) if
consummation of the Rights Offering and/or the Standby Offering is prohibited by applicable law, rules or regulations, or (iii)
if the Standby Purchasers materially breach their obligations under this Agreement and such breach is not cured within five business
days following written notice to the Standby Purchasers.


 


(c)Other.
Any of the parties hereto may terminate this Agreement if the transactions contemplated hereby are not consummated by May 31, 2014
through no fault of the terminating party. In addition, this Agreement shall terminate upon the parties’ mutual consent.


 


(d)Effect of
Termination. The Company and the Standby Purchasers hereby agree that any termination of this Agreement pursuant to this Section
7 (other than termination by one party in the event of a breach of this Agreement by the other party or a misrepresentation
of any of the statements made hereby by the other party), shall be without liability to the Company or the Standby Purchasers.


 


Section 8.Notices. All
notices, communications and deliveries required or permitted by this Agreement shall be made in writing signed by the party making
the same, shall specify the Section of this Agreement pursuant to which it is given or being made and shall be deemed given or
made (a) on the date delivered if delivered in person, (b) on the third (3rd) business day after it is mailed if mailed by registered
or certified mail (return receipt requested) (with postage and other fees prepaid) or (c) on the day after it is delivered, prepaid,
to an overnight express delivery service that confirms to the sender delivery on such day, as follows:


 


If to the Company:


 


Accelerate Diagnostics, Inc.

3950 South Country Club, Suite 470

Tucson, Arizona 85714

Attention: Chief Financial Officer

Fax: (520) 269-6580


 


With a copy (which shall not constitute
notice to the Company) to:


 


Snell & Wilmer L.L.P.

One Arizona Center

400 East Van Buren

Phoenix, Arizona 85004

Attention: Daniel M. Mahoney

Fax: (602) 382-6070


 


If to the Standby Purchasers, as
provided on the signature page hereto.


 


or to such other representative or at such
other address of a party as such party hereto may furnish to the other parties in writing in accordance with this Section 8.


 


Section 9.Entire Agreement.
This Agreement constitutes the entire agreement and understanding among the Standby Purchasers and the Company, and supersedes
all prior agreements and understandings relating to the subject matter hereof.


 


Section 10.Indemnification.
 To the fullest extent permitted by law, each Standby Purchaser hereby agrees to, jointly and severally with such other Standby
Purchaser, indemnify and hold harmless the Company, its affiliates, and their respective directors, officers and authorized agents
from and against any and all losses, claims, damages, expenses and liabilities relating to or arising out of any breach of any
representation, warranty, covenant or undertaking made by or on behalf of each Standby Purchaser in this Agreement.


 






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Section 11.Governing Law.
This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware.


 


Section 12.Amendments.
This Agreement may be modified or amended only with the written consent of the Company and the Standby Purchasers.


 


Section 13.Severability.
If any provision of this Agreement shall be invalid under the applicable law of any jurisdiction, the remainder of this Agreement
shall not be affected thereby.


 


Section 14.Miscellaneous.


 


(a)Notwithstanding
any term to the contrary herein, no person other than the Company or the Standby Purchasers shall be entitled to rely on and/or
have the benefit of, as a third party beneficiary or under any other theory, any of the representations, warranties, agreements,
covenants or other provisions of this Agreement.


 


(b)The headings
in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning of this Agreement.


 


(c)This Agreement
may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together,
shall constitute one and the same instrument.


 


(d)The Standby
Purchasers shall not assign this Agreement or any of their rights hereunder without the Company’s prior written consent.


 


(e)Each party to
this Agreement shall pay his, her or its own costs and expenses (including attorney fees) incurred in connection with the Rights
Offering, the Standby Offering and the other transactions contemplated by this Agreement.


 


[Signature Page Follows]


 




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IN WITNESS WHEREOF,
the Standby Purchasers have executed this Agreement on and as of the date first set forth above.


 





	 	STANDBY PURCHASERS:
	 	 	 
	 	SCHULER FAMILY FOUNDATION
	 	 	 
	 	 	 
	 	By:	/s/ Jack Schuler
	 	 	Jack Schuler
	 	 	President
	 	 	 
	 		
	 	 	                                                      
	 	Address for Notices:
	 	 	 
	 	                                                      
	 	                                                      
	 	 	 
	 	 	 
	 	 	 
	 	JACK W. SCHULER LIVING TRUST
	 	 	 
	 	 	 
	 	 	 
	 	/s/ Jack Schuler
	 	Jack Schuler, Trustee of the Jack W. Schuler Living Trust
	 	 	 
	 	 	 
	 	Address for Notices:
	 	 	 
	 	                                                      
	 	                                                      
	 	 	 













 


ACCEPTED AND AGREED:


 


ACCELERATE DIAGNOSTICS, INC.


 


 





	By:	/s/ Steve Reichling	 
	 	Steve Reichling	 
	 	Chief Financial Officer