EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of February 13, 1998, among
SeraCare, Inc., a Delaware corporation (the "Company") and the investors whose
names appear under the heading "Investors" (the "Investors") on the signature
page hereof.
1. BACKGROUND. The Company is a party to a securities purchase
agreement, dated the date hereof (the "Securities Purchase Agreement"), entered
into with the Investors and the Guarantors, pursuant to which the Company
issued to the Investors (i) $16,000,000 of 12% Senior Subordinated Debentures
(the "Debentures") and (ii) Warrants to purchase Common Stock (as defined
herein) (the "Warrants").
In connection with the Securities Purchase Agreement, the Company
entered into this Registration Rights Agreement, to which the Investors who
received securities under the Securities Purchase Agreement became parties.
2. REGISTRATION UNDER SECURITIES ACT, ETC.
2.1. REGISTRATION OF REGISTRABLE SECURITIES ON REQUEST. (a)
REQUEST. During the term of this Agreement, the holder or holders of not less
than 50% (by number of shares) of the Registrable Securities shall twice have
the right to request in writing that the Company effect an underwritten
registration under the Securities Act of 1933, as amended (the "Securities
Act"), of all or part of such holders' Registrable Securities; PROVIDED, that
the aggregate Fair Market Value (as defined in the Securities Purchase
Agreement) of the Registrable Securities to be so registered is at least
$3,000,000. The Company will promptly give written notice of such requested
registration to all other holders of Registrable Securities, which holders
shall be entitled to include their Registrable Securities in such registration
subject to Sections 2.1(b) and 2.1(g) if they notify the Company of their
desire for their Registrable Securities to be included within 15 calendar days
of the date of the Company's notice. Thereupon the Company will use its best
efforts to effect the registrations under the Securities Act of:
(i) the Registrable Securities which the Company has been
so requested to register by such holders; and
(ii) subject to Sections 2.1(b) and 2.1(g), all other
Registrable Securities which the Company has been requested to
register by the holders thereof by written request given to the
Company within 30 days after the giving of such written notice by the
Company (which request shall specify the intended method of
disposition of such Registrable Securities) all to the extent
requisite to permit the disposition of the Registrable Securities so
to be registered.
(b) REGISTRATION OF OTHER SECURITIES. Whenever the Company shall
effect a registration pursuant to this Section 2.1, no securities other than
Registrable Securities shall be included among the securities covered by such
registration unless the managing underwriter of such offering shall have
advised each holder of Registrable Securities to be covered by such
registration in writing that the inclusion of such other securities would not
in the underwriter's reasonable judgment adversely affect the marketing or the
selling price of the Registrable Securities to be covered by such registration
and the holders of a majority of Registrable Securities to be covered by such
registration shall have consented in writing to the inclusion of such other
securities. The Company will not grant to any person at any time on or after
the date hereof any right to be included among the securities registered
pursuant to this Section 2.1 that is inconsistent with this Section 2.1(b).
(c) REGISTRATION STATEMENT FORM. Registrations under this Section
2.1 shall be on such appropriate registration form or prospectus of the
Commission (i) as shall be selected by the Company and as shall be reasonably
acceptable to the holders of more than 50% (by number of shares) of the
Registrable Securities so to be registered and (ii) as shall permit the
disposition of such Registrable Securities in accordance with the intended
method or methods of disposition specified in their request for such
registration. The Company agrees to include in any such registration statement
all information which holders of Registrable Securities being registered shall
reasonably request.
(d) EXPENSES. The Company will pay all Registration Expenses in
connection with the registration requests made pursuant to this Section 2.1.
(e) EFFECTIVE REGISTRATION STATEMENT. A registration requested
pursuant to this Section 2.1 shall not be deemed to have been effected and
shall not count as a requested registration pursuant to Section 2.1 (a) hereof
(i) unless a registration statement with respect thereto has become effective,
(ii) if a registration statement has been filed with the Commission and prior
to its becoming effective a majority of holders of the Registrable Securities
to be registered has decided to terminate the registration process but only if,
in such case, each such holder pays to the Company its pro rata share of any
expenses directly incurred by the Company in connection with the preparation of
such registration statement (except for expenses incurred as payment of
compensation to employees of the Company), (iii) if after it has become
effective, such registration is interfered with by any stop order, injunction
or other order or requirement of the Commission or other governmental agency or
court for any reason not the fault of a holder of Registrable Securities and
the Registrable Securities covered thereby have not been sold, or (iv) if
the conditions to closing pertaining to the Company specified in the selling
agreement or underwriting agreement entered into in connection with such
registration are not satisfied or waived by the parties thereto other than a
holder of Registrable Securities.
(f) UNDERWRITERS. Any registration effected pursuant to this
Section 2.1 shall at the election of the holders of at least 50% (by number of
shares) of the Registrable Securities so to be registered be an underwritten
public offering on a firm commitment basis or a best efforts basis. The
managing underwriter or underwriters thereof shall be selected by the Company
and such underwriter as well as the price, terms and provisions of the offering
shall be subject to the approval of the Company and the holders of more than
50% (by number of shares) of the Registrable Securities so to be registered.
(g) APPORTIONMENT IN REGISTRATIONS REQUESTED. If, in connection
with a registration requested pursuant to this Section 2.1, the managing
underwriter shall advise the Company in writing (with a copy to each holder of
Registrable Securities requesting registration) that, in its opinion, the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering within a price range acceptable to
the holders of more than 50% (by number of shares) of the Registrable
Securities requested to be included in such
registration, the number of securities that are otherwise entitled to be
included in such registration shall be allocated in the following manner:
(i) all securities other than Registrable Securities shall be reduced, on a
pro rata basis (based on the number of securities requested to be included in
such registration) and (ii) if, after the exclusion of all such securities
(if necessary), further reductions are still required, the Registrable
Securities requested to be included in such registration shall be reduced pro
rata among the holders thereof requesting such registration on the basis of
the percentage of the Registrable Securities sought to be registered held by
such holders of Registrable Securities which have requested that such
Registrable Securities be included. If the pro ration as aforesaid results
in the exclusion of in excess of 25% of the Registrable Securities originally
sought to be registered, the request shall not be counted for purposes of
determining the number of registrations pursuant to Section 2.1 hereof.
2.2. REGISTRATIONS ON FORM S-3. The Company shall use its best
efforts to qualify for registration on Form S-3 promulgated under the
Securities Act or any successor form thereto ("Form S-3") for secondary sales.
Anything contained in Section 2.1 to the contrary notwithstanding, at such time
as the Company shall have qualified for the use of Form S-3, the holder or
holders of the Registrable Securities shall have the right to request in
writing an unlimited number of registrations on Form S-3 of Registrable
Securities, which request or requests shall (i) specify the number of
Registrable Securities intended to be sold or disposed of and the holders
thereof and (ii) state the intended method of disposition of such Registrable
Securities. A requested registration on Form S-3 in compliance with this
Section 2.2 shall not count as a registration statement initiated pursuant to
Section 2.1 but shall otherwise be treated as a registration initiated pursuant
to, and shall, except as otherwise expressly provided in this Section 2.2, be
subject to Section 2.1.
2.3. "PIGGYBACK" REGISTRATIONS. (a) RIGHT TO INCLUDE REGISTRABLE
SECURITIES. If the Company at any time proposes to register any of its
securities under the Securities Act whether or not for sale for its own
account, it will each such time give prompt written notice to all holders of
Registrable Securities of its intention to do so and of such holders' rights
under this Section 2.3. Upon the written request of any such holder made
within 10 days after the date of any such notice given in
accordance with Section 7 hereof, the Company will use its best efforts to
effect the registration under the Securities Act of all Registrable
Securities which the Company has been so requested to register by the holders
thereof, to the extent requisite to permit the disposition of the Registrable
Securities so to be registered, PROVIDED that if, at any time after giving
written notice of its intention to register any securities and prior to the
effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to register or
to delay registration of such securities, the Company may, at its election,
give written notice of such determination to each holder of Registrable
Securities and, thereupon, (i) in the case of a determination not to
register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation
to pay the Registration Expenses in connection therewith), without prejudice,
however, to the rights of any holder or holders of Registrable Securities
entitled to do so to request that such registration be effected as a
registration under Section 2.1 or Section 2.2, and (ii) in the case of a
determination to delay registering, shall be permitted to delay registering
any Registrable Securities for the same period as the delay in registering
such other securities. No registration effected under this Section 2.3 shall
relieve the Company of its obligation to effect any registration upon request
under Section 2.1 or Section 2.2. The Company will pay all Registration
Expenses in connection with each registration of Registrable Securities
requested pursuant to this Section 2.3.
(b) APPORTIONMENT IN "PIGGYBACK" REGISTRATIONS. If (i) a
registration pursuant to this Section 2.3 involves an underwritten offering of
the securities being registered, whether or not for sale for the account of the
Company, to be distributed (on a firm commitment basis) by or through one or
more underwriters of recognized national or regional standing (as reasonably
determined by the Company) under underwriting terms appropriate for such a
transaction, and (ii) the managing underwriter of such underwritten offering
shall inform the Company and the holders of the Registrable Securities
requesting such registration by letter that marketing considerations require a
limitation on the number of securities that can be included in such
registration, then the Company may include all securities proposed by the
Company to be sold for its own account or the maximum amount that the
underwriter considers saleable and such limitation on any remaining securities
that may, in the opinion
of the underwriter, be sold will be imposed (x) first, upon holders of
securities other than Registrable Securities and (y) second, pro rata among
holders of Registrable Securities requested to be included in such
registration statement on the basis of the percentage of the Registrable
Securities sought to be registered held by such holders of Registrable
Securities. To the extent that any Registrable Securities or other
securities are excluded from the registration pursuant to this Section
2.3(b), no shares of Common Stock issued to management of the Company after
the date hereof pursuant to a stock option (or any other type of benefit
plan) ("Option Shares") shall be included in such registration.
Notwithstanding the foregoing, if the registration referred to herein
involves an underwritten offering of securities being registered for sale by
holders of securities other than Registrable Securities (pursuant to the
exercise by such holders of demand registration rights or otherwise), the
Company will include in such registration the securities proposed by such
holders to be sold and may decrease the number of Registrable Securities and
such other securities exercising "piggyback" registration rights proposed to
be sold in such registration on a pro rata basis based upon the amount
requested by all sellers of securities exercising piggyback rights to the
extent necessary to reduce the number of securities to be included in the
registration to the level recommended by the managing underwriter. In such
case, (x) no securities shall be offered for sale by the Company and (y) no
Option Shares shall be included in such registration.
2.4. REGISTRATION PROCEDURES. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Sections 2.1, 2.2 and 2.3,
the Company will as expeditiously as possible:
(i) prepare and (as soon thereafter as possible or in any
event no later than 60 days after the end of the period within which
requests for registration may be given to the Company) file with the
Commission the requisite registration statement to effect such
registration and thereafter use its best efforts to cause such
registration statement to become effective, PROVIDED that the Company
may discontinue any registration of its securities which are not
Registrable Securities (and, under the circumstances specified in
Section 2.3(a), its securities which are
Registrable Securities) at any time prior to the effective date of
the registration statement relating thereto;
(ii) prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions of
the Securities Act with respect to the disposition of all securities
covered by such registration statement until such time as all of such
securities have been disposed of in accordance with the intended
methods of disposition by the seller or sellers thereof set forth in
such registration statement;
(iii) furnish to each seller of Registrable Securities
covered by such registration statement such number of conformed
copies of such registration statement and of each such amendment and
supplement thereto, such number of copies of the prospectus contained
in such registration statement (including each preliminary prospectus
and any summary prospectus) and any other prospectus filed under Rule
424 or Rule 430A under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents, as such
seller may reasonably request;
(iv) use its best efforts to register or qualify all
Registrable Securities and other securities covered by such
registration statement under such other securities or blue sky laws
of such jurisdictions as each seller thereof shall reasonably
request, to keep such registration or qualification in effect for so
long as such registration statement remains in effect, and take any
other action which may be reasonably necessary to enable such seller
to consummate the disposition in such jurisdictions of the securities
owned by such seller, except that the Company shall not for any such
purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not but for the
requirements of this subdivision (iv) be obligated to be so qualified
or to consent to general service of process in any such jurisdiction
or subject itself to
be required to pay any franchise or income taxes in any such
jurisdiction;
(v) use its best efforts to cause all Registrable
Securities covered by such registration statement to be registered
with or approved by such other governmental agencies or authorities
as may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Registrable Securities;
(vi) furnish to each seller of Registrable Securities a
signed counterpart, addressed to such seller, except as provided in
(y) below (and the underwriters, if any), of
(x) an opinion of counsel for the Company, dated
the effective date of such registration statement (and, if such
registration includes an underwritten public offering, dated the
date of the closing under the underwriting agreement),
reasonably satisfactory in form and substance to counsel for all
such sellers or, if such registration includes an underwritten
public offering, to such underwriter, covering substantially the
same matters with respect to such registration statement (and
the prospectus included therein) as are customarily in opinions
of issuer's counsel to underwriters and
(y) a "comfort" letter, dated the effective date
of such registration statement (and, if such registration
includes an underwritten public offering, dated the date of the
closing under the underwriting agreement), signed by the
independent public accountants who have certified the Company's
financial statements included in such registration statement,
addressed to each seller, to the extent the same can be
reasonably obtained, and addressed to the underwriters, if any,
covering substantially the same matters with respect to such
registration statement (and the prospectus included therein)
and, in the case of the accountants' letter, with respect to
events subsequent to the date of such financial
statements, as are customarily covered in accountants' letters
delivered to the underwriters in underwritten public offerings
of securities and such other financial matters as such seller
or such holder (or the underwriters, if any) may reasonably
request;
(vii) notify each seller of Registrable Securities covered
by such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities
Act, upon discovery that, or upon the happening of any event as a
result of which, the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were
made, and at the request of any such seller or holder promptly
prepare to furnish to such seller or holder a reasonable number of
copies of a supplement to or an amendment of such prospectus as may
be necessary so that, as thereafter delivered to the purchasers of
such securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which
they were made;
(viii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably practicable,
an earnings statement covering the period of at least twelve months,
but not more than eighteen months, beginning with the first full
calendar month after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act, and, in the case of a
registration requested pursuant to Section 2.1 or 2.2 hereof, will
furnish to each such seller at least two business days prior to the
filing thereof a copy of any amendment or supplement to such
registration statement or prospectus and shall not file any thereof
to which
any such seller shall have reasonably objected on the grounds that
such amendment or supplement does not comply in all material
respects with the requirements of the Securities Act or of the
rules or regulations thereunder;
(ix) provide and cause to be maintained a transfer agent
and registrar for all Registrable Securities covered by such
registration statement from and after a date not later than the
effective date of such registration statement; and
(x) use its best efforts to list all Registrable
Securities covered by such registration statement on any securities
exchange on which any of the Registrable Securities is then listed.
Notwithstanding the foregoing, the Company may defer its obligations
under Section 2.1 and Section 2.2 to file a registration statement, but not its
obligations to initiate the process of preparing the applicable registration
statement, for a period of no more than (i) 90 days in any 365-day period, if
the Company's Board of Directors determines in good faith based upon a written
opinion of counsel that filing such a registration statement would require a
public disclosure by the Company, which disclosure would interfere with a
material transaction then under consideration by the Company, PROVIDED that
once such information has been publicly disclosed, the Company shall promptly
proceed to fulfill its obligations under Section 2.1 and (ii) 180 days from the
most recent effective date of any registration statement of the Company filed
under the Securities Act and pursuant to Section 2.1 occurring prior to the
request for registration made pursuant to Section 2.1.
The Company may require each proposed seller of Registrable
Securities as to which any registration is being effected to promptly furnish
the Company, as a condition precedent to including such holder's Registrable
Securities in any registration, such information regarding such seller and the
distribution of such securities as the Company may from time to time reasonably
request in writing.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that upon receipt of any notice from the Company of the
happening of any event of the
kind described in subdivision (vii) of this Section 2.4, such holder will
forthwith discontinue such holder's disposition of Registrable Securities
pursuant to the registration statement relating to such Registrable
Securities until such holder's receipt of the copies of the supplemented or
amended prospectus contemplated by subdivision (vii) of this Section 2.4 and,
if so directed by the Company, will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in such holder's
possession of the prospectus relating to such Registrable Securities current
at the time of receipt of such notice.
2.5. UNDERWRITTEN OFFERINGS. (a) REQUESTED UNDERWRITTEN OFFERINGS.
If requested by the underwriters for any offering by holders of Registrable
Securities pursuant to a registration requested under Section 2.1, the Company
will enter into an underwriting agreement with such underwriters for such
offering, such agreement to be satisfactory in substance and form to the
Company, to holders of more than 50% (by number of shares) of the Registrable
Securities included in such registration and the underwriters and to contain
such representations and warranties by the Company and such other terms as are
generally prevailing in agreements of this type, including, without limitation,
indemnities to the effect and to the extent provided in Section 2.7. The
holders of the Registrable Securities will cooperate with the Company in the
negotiation of the underwriting agreement and will give consideration to the
reasonable requests of the Company regarding the form thereof, PROVIDED that
nothing herein contained shall diminish the foregoing obligations of the
Company. The holders of Registrable Securities to be distributed by such
underwriters shall be parties to such underwriting agreement and may, at their
option, require that any or all of the representations and warranties by, and
the other agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such holders of
Registrable Securities and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of such holders of Registrable
Securities. The Company shall use its best efforts to ensure that any such
holder of Registrable Securities shall not be required to make any
representations or warranties to or agreements other than representations,
warranties or agreements typical in an offering of that type, including those
regarding such holder, such holder's Registrable Securities, and such holder's
intended
method of distribution, any other information supplied by such holder to the
Company for use in the Registration Statement and any other representation
required by law.
(b) INCIDENTAL UNDERWRITTEN OFFERINGS. If the Company at any time
proposes to register any of its securities under the Securities Act as
contemplated by Section 2.3 and such securities are to be distributed by or
through one or more underwriters, the Company will, if requested by any
holder of Registrable Securities as provided in Section 2.3 and subject to
the provisions of Sections 2.3(a), 2.3(b) and 2.4, arrange for such
underwriters to include all the Registrable Securities to be offered and sold
by such holder among the securities to be distributed by such underwriters.
The holders of Registrable Securities to be distributed by such underwriters
shall be parties to the underwriting agreement between the Company and such
underwriters and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of,
the Company to and for the benefit of such underwriters shall also be made to
and for the benefit of such holders of Registrable Securities and that any or
all of the conditions precedent to the obligations of such underwriters under
such underwriting agreement be conditions precedent to the obligations of
such holders of Registrable Securities. The Company shall use its best
efforts to ensure that any such holder of Registrable Securities shall not be
required to make any representations or warranties to or agreements with the
Company or the underwriters other than representations, warranties, or
agreements typical in an offering of this type, including those regarding
such holder, such holder's Registrable Securities and such holder's intended
method of distribution, any other information supplied by such holder to the
Company for use in the Registration Statement and any other representation
required by law.
2.6. PREPARATION; REASONABLE INVESTIGATION. In connection with
the preparation and filing of each registration statement under the
Securities Act pursuant to this Agreement, the Company will give the holders
of Registrable Securities registered under such registration statement, the
underwriters, if any, and their respective counsel (such holders' counsel to
be appointed by the holders of more than 50% (by number of shares) of
Registrable Securities so to be registered, the opportunity to participate in
the preparation of such registration statement, each prospectus included
therein or filed with the Commission,
and each amendment thereof or supplement thereto, and will give each of them
such access to its books and records and such opportunities to discuss the
business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be
necessary, in the opinion of such holders' and such underwriters' respective
counsel, to conduct a reasonable investigation within the meaning of the
Securities Act.
2.7. INDEMNIFICATION. (a) INDEMNIFICATION BY THE COMPANY. In
the event of any registration of any securities of the Company under the
Securities Act, the Company will, and hereby does, indemnify and hold
harmless the seller of any Registrable Securities covered by such
registration statement, its directors and officers, each other Person who
participates as an underwriter in the offering or sale of such securities and
such other Person, if any, who controls such seller or any such underwriter
within the meaning of the Securities Act, against any losses, claims, damages
or liabilities, joint or several, to which such seller or any such director
or officer or underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which such securities were registered under the Securities
Act, any preliminary prospectus (unless such is corrected in the final
prospectus), final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and the Company will reimburse such
seller and each such director, officer, underwriter and controlling person
for any legal or any other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, liability, action or
proceeding; PROVIDED, HOWEVER, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, said
preliminary or final prospectus or said amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by
such seller, specifically for use in the preparation thereof. Such indemnity
shall remain
in full force and effect regardless of any investigation made by or on behalf
of such seller or any such director, officer, underwriter or controlling
person and shall survive the transfer of such securities by such seller.
(b) INDEMNIFICATION BY THE HOLDERS OF SECURITIES. The holders of
Securities will, and hereby do, severally and not jointly, indemnify and hold
harmless (in the same manner and to the same extent as set forth in
subdivision (a) of this Section 2.7) the Company, each director of the
Company, each officer of the Company and each other Person, if any, who
controls the Company within the meaning of the Securities Act with respect to
any statement or alleged statement in or omission or alleged omission from
such registration statement, any preliminary prospectus, final prospectus or
summary prospectus contained therein, or any amendment or supplement thereto,
if such statement or alleged statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such holders of Securities for use in the preparation of such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement. Such indemnity shall remain in full
force and effect, regardless of any investigation made by or on behalf of the
Company or any such director, officer or controlling Person and shall survive
the transfer of such securities by such Purchaser with respect to information
furnished by such Purchaser prior to such transfer.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section
2.7, such indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action, PROVIDED that the failure of any indemnified
party to give notice as provided herein shall not relieve the indemnifying
party of its obligations under the preceding subdivisions of this Section
2.7, except to the extent that the indemnifying party is prejudiced by such
failure to give notice.
In case any such action is brought against an indemnified party, unless in
such indemnified party's reasonable judgment a conflict of interest between
such indemnified party and indemnifying parties may exist in respect of such
claim, the indemnifying party shall be entitled to participate in and to
assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonable costs
of investigation. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation.
(d) OTHER INDEMNIFICATION. Indemnification similar to that
specified in the preceding subdivisions of this Section 2.7 (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration or other qualification
of securities under any Federal or state law or regulation of any
governmental authority other than the Securities Act.
(e) INDEMNIFICATION PAYMENTS. The indemnification required by
this Section 2.7 shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred.
2.8. ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company
will not effect or permit to occur any combination or subdivision of shares
which would adversely affect the ability of the holders of Registrable
Securities to include such Registrable Securities in any registration of its
securities contemplated by this Section 2 or the marketability of such
Registrable Securities under any such registration.
3. DEFINITIONS. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
COMMISSION: The Securities and Exchange Commission or any other Federal
agency at the time administering the Securities Act.
COMMON STOCK: All shares now or hereafter authorized and designated as
the Common Stock of the Company and stock of any other class with which
such shares may hereafter have been exchanged or reclassified.
DEBENTURES: As defined in Section 1.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
PERSON: A corporation, an association, a partnership, a limited liability
company, a business, an individual, a governmental or political
subdivision thereof or a governmental agency.
REGISTRABLE SECURITIES: The shares of Common Stock issuable upon exercise
of the Warrants held by the holders of Securities and/or their successors
and assigns and any additional shares of Common Stock received in respect
of such shares by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or
other reorganization or otherwise upon any required adjustments under the
Warrant.
As to any particular Registrable Securities, such securities shall cease
to be Registrable Securities when (a) a registration statement with
respect to the sale of such securities shall have become effective under
the Securities Act and such securities shall have been disposed of in
accordance with such registration statement, (b) they shall have been
distributed to the public pursuant to Rule 144 (or any successor
provision) or otherwise without registration under the Securities Act, or
(c) they shall have ceased to be outstanding.
REGISTRATION EXPENSES: All expenses incident to the Company's performance
of or compliance with Section 2, including, without limitation, all
registration, filing and National Association of Securities Dealers, Inc.
fees, all fees and expenses of complying with securities or blue sky laws,
all word processing, duplicating and printing expenses, messenger and
delivery expenses, the reasonable fees and disbursements of counsel for
the Company and of its independent public accountants, including the
expenses of any special audits or "cold comfort" letters required by or
incident to such performance and compliance, the reasonable fees and
disbursements of a single counsel retained by the holder or holders of
more than 50% (by number of shares) of the Registrable Securities being
registered, premiums and other costs of policies of insurance obtained by
the Company against liabilities arising out of the public offering of the
Registrable Securities being registered and any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities,
including reasonable fees of underwriters counsel incurred in the
qualification of the Securities under blue sky laws, but excluding all
agency fees and commissions, underwriting discounts and commissions and
transfer taxes, if any.
SECURITIES ACT: The Securities Act of 1933, as amended.
4. RULE 144. The Company will file the reports required to be
filed by it, and in the manner required to be filed by it, under the Securities
Act and the Exchange Act (or, if the Company is not required to file such
reports, will, upon the request of any holder of Registrable Securities, make
publicly available other information) and will take such further action as any
holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 under the Securities Act, as such Rule may
be amended from time to time or (b) any similar rule or regulation hereafter
adopted by the Commission ("Rule 144"). Upon the request of any holder of
Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements.
5. AMENDMENTS AND WAIVERS. This Agreement may be amended and the
Company may take any action herein prohibited or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the holder or
holders of a majority or more (by number of shares) of Registrable Securities.
Each holder of any Registrable Securities at the time or thereafter outstanding
shall be bound by any consent authorized by this Section 5, whether or not such
Registrable Securities shall have been marked to indicate such consent.
6. NOMINEES FOR BENEFICIAL OWNERS. In the event that any
Registrable Securities are held by a nominee for the beneficial owner
thereof, the beneficial owner thereof may upon the giving of written notice
to the Company, at its election, be treated as the holder of such Registrable
Securities for purposes of any request or other action by any holder or
holders of Registrable Securities pursuant to this Agreement or any
determination of any number or percentage of shares of Registrable Securities
held by any holder or holders of Registrable Securities contemplated by this
Agreement. The Company may require assurances reasonably satisfactory to it
of such owner's beneficial ownership of such Registrable Securities.
7. NOTICES. All communications provided for hereunder shall be
sent by first-class mail or overnight courier and (a) if addressed to a party
other than the Company, addressed to such party in the manner set forth in
the Securities Purchase Agreement, as the case may be, or at such other
address as such party shall have furnished to the Company in writing, or (b)
if addressed to any other holder of Registrable Securities, at the address
that such holder shall have furnished to the Company in writing, or, until
any such other holder so furnishes to the Company an address, then to and at
the address of the last holder of such Registrable Securities who has
furnished an address to the Company, or (c) if addressed to the Company, at
the address set forth for the Company in the Securities Purchase Agreement to
the attention of its President, or at such other address, or to the attention
of such other officer, as the Company shall have furnished to each holder of
Registrable Securities at the time outstanding.
8. ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors and assigns. In addition, and whether or not any express
assignment shall have been made, the provisions of this Agreement which are
for the benefit of the parties hereto other than the Company shall also be
for the benefit of and enforceable by any subsequent holder of any
Registrable Securities, subject to the provisions respecting the minimum
numbers or percentages of shares of Registrable Securities required in order
to be entitled to certain rights, or take certain actions, contained herein.
9. DESCRIPTIVE HEADINGS. The descriptive headings of the several
sections and paragraphs of this Agreement are
inserted for reference only and shall not limit or otherwise affect the
meaning hereof.
10. GOVERNING LAW. This Agreement shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the
laws of the State of New York.
11. COUNTERPARTS. This Agreement may be executed simultaneously in
any number of counterparts, each of which shall be deemed an original, but
all such counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized
as of the date first above written.
SERACARE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇, Chairman of the
Board, President and Chief
Executive Officer
THE PURCHASERS:
DELAWARE STATE EMPLOYEES'
RETIREMENT FUND
By: Pecks Management Partners Ltd.
Its Investment Advisor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Director
DECLARATION OF TRUST FOR DEFINED BENEFIT
PLAN OF ICI AMERICAN HOLDINGS INC.
By: Pecks Management Partners Ltd.
Its Investment Advisor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Director
DECLARATION OF TRUST FOR DEFINED BENEFIT
PLAN OF ZENECA HOLDINGS INC.
By: Pecks Management Partners Ltd.
Its Investment Advisor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Director
THE ▇.▇. ▇▇▇▇▇▇▇▇▇ FAMILY FOUNDATION
By: Pecks Management Partners Ltd.,
Its Investment Adviser
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Director