EXHIBIT 4.8
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of February 13, 1998, by and among SUTRO & CO. INCORPORATED, a
Delaware corporation, or its permitted assigns ("Sutro"), and SERACARE, INC., a
Delaware corporation (the "Company").
RECITAL
The Company is issuing to the Holder (as defined below), as of the date
hereof, that certain Warrant to purchase shares of Common Stock (as defined
below) of the Company (the "Warrant"), granting to the Holder the right to
purchase up to 131,286 shares (subject to adjustment) of the Company's Common
Stock, par value $.001 per share, for $3.00 per share (subject to adjustment).
The Company desires to grant certain incidental registration rights to the
Holder in connection with the shares purchasable upon exercise of the Warrant.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises and
covenants contained herein, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereby agree
as follows:
AGREEMENT
1. DEFINITIONS. Unless the context requires otherwise, the following
underlined terms shall have the following respective meanings:
1.1 AGREEMENT. This Registration Rights Agreement.
1.2 COMMON STOCK. The Company's common stock, par value $.001 per
share.
1.3 COMPANY. Seracare, Inc., a Delaware corporation.
1.4 EXCHANGE ACT. The Securities Exchange Act of 1934, as amended.
1.5 HOLDER OR HOLDERS. Sutro and its permitted assigns.
1.6 REGISTRABLE SECURITIES. The shares of Common Stock issued upon
exercise of the Warrant.
1.7 REGISTRATION EXPENSES. All expenses of registration, including
but not limited to registration and filing fees, including filing fees for
Nasdaq and all stock exchanges or quotation services on which the Common Stock
is listed or quoted, fees and expenses of
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complying with the Securities Laws, printing expenses, transfer agent fees,
and the fees and expenses of the Company's independent certified public
accountants, the Company's investment banker and underwriter and the
Company's legal counsel, but excluding the Holder's brokerage fees,
underwriting fees and discounts, transfer taxes, if any, and the fees and
expenses of any Selling Shareholder's legal counsel.
1.8 SEC. The United States Securities and Exchange Commission.
1.9 SECURITIES. The Warrant and the shares of Common Stock issuable
on exercise thereof of the Warrant.
1.10 SECURITIES ACT. The Securities Act of 1933, as amended.
1.11 SECURITIES LAWS. The Securities Act, the Exchange Act and all
applicable state securities laws, and all rules and regulations promulgated
thereunder.
1.12 SELLING SHAREHOLDER. With respect to any registration
statement, any Holder whose Registrable Securities are included therein.
1.13 SUTRO. Sutro & Co. Incorporated or its successors.
1.14 WARRANT. The Company's Common Stock Purchase Warrant dated
February 13, 1998, issued to the Holder and exercisable to purchase up to
131,286 shares (subject to adjustment) of Common Stock at $3.00 per share
(subject to adjustment).
2. REGISTRATION RIGHTS.
2.1 INCIDENTAL REGISTRATION RIGHTS.
(a) NOTICE OF REGISTRATION; REGISTRATION. Whenever the Company
proposes to file a registration statement under the Securities Act to offer
publicly shares of the Common Stock (other than in connection with any merger,
acquisition, exchange offer, dividend reinvestment plan, employee benefit plan,
or stock option plan), the Company shall give each Holder written notice of
such intention at least twenty (20) days prior to the anticipated initial
filing date of such registration statement. The Company shall use its best
efforts to include in such registration statement all Registrable Securities
requested to be so included by a Holder upon written notice to the Company
within ten (10) days of the Company's notice. If the registration statement is
for an underwritten offering, the Selling Shareholder shall sell its
Registrable Securities in such offering on the same terms and conditions as all
other shares of Common Stock being offered in such registration statement.
(b) HOLDBACK. If the notice of registration under this Section
2.1 is for an underwritten public offering and the Company is advised in
writing by the managing underwriter of such offering that in its reasonable
judgment the number of Registrable
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Securities for which incidental registration is requested pursuant to this
Agreement cannot be sold without impairing the ability to complete the
preestablished plan for distribution of the Common Stock (the grounds for
which shall be confidentially disclosed to any Selling Shareholder who so
requests and who agrees to maintain the confidentiality of such disclosure)
then the number of Registrable Securities to be sold by the Selling
Shareholder may be reduced as set forth below. The Company shall so advise
all Holders proposing to distribute their securities through such
underwriting and the number of shares of securities that may be included in
the registration and underwriting (other than on behalf of the Company) shall
be allocated (i) first, to those certain holders of contractual rights to
participate in such registration pursuant to that certain Registration Rights
Agreement, dated as of February 13, 1998, by and among the Company and the
investors listed on the signature page thereto, (ii) second, equally among
all Holders and (iii) third, among such other holders, if any, of contractual
rights to participate in such registration; provided, in the case of (ii) and
(iii) above, that such allocation be in each case in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities or other
securities requested to be included in such registration by such Holders and
such other holders, as the case may be. Notwithstanding the foregoing two
sentences, the Company shall require all officers, directors, and affiliates
exercising incidental registration rights in connection with such
registration statement to withdraw all securities from registration before
requiring the Selling Shareholder to reduce the number of Registrable
Securities to be sold. If the number of Registrable Securities of the Selling
Shareholder is reduced, the Selling Shareholder may withdraw all or part of
the Registrable Securities from registration without affecting such Selling
Shareholder's registration rights hereunder for the Registrable Securities so
withdrawn or reduced.
(c) UNDERWRITING AGREEMENT. As a condition for the inclusion
of any Registrable Securities in any registration statement, at the request of
the Company, the Selling Shareholder shall enter into an underwriting agreement
with the Company and the underwriter(s) with respect to the registration of its
Registrable Securities, in such customary form that is reasonably acceptable to
the Company, the Selling Shareholder and such underwriter(s), consistent with
the provisions of this Agreement.
(d) WITHDRAWAL BY THE COMPANY. The Company shall retain the
absolute right to withdraw any registration statement prior to the effective
date thereof, even if the Company shall have given notice to the Holder
pursuant to Section 2.1(a) hereof and the Selling Shareholder has requested
inclusion of its Registrable Securities therein.
(e) EXPENSES. The Company shall pay all Registration Expenses
for registrations under this Section 2.1. The Selling Shareholder shall pay
all brokerage fees, underwriting fees and discounts, transfer taxes, if any,
and the fees and expenses of the Selling Shareholder's legal counsel in
connection with the registration and sale of its Registrable Securities.
(f) TERM. The incidental registration rights granted pursuant
to this Section 2.1 shall terminate on the earliest of the sale of all
Registrable Securities by the Holder or the receipt by the Holder of the
written opinion of legal counsel for the Company that all of
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the Registrable Securities may be publicly sold pursuant to Rule 144, or
otherwise without the need for compliance with the registration provisions of
the Securities Laws.
2.2 REGISTRATION PROCEDURES.
(a) SELLING SHAREHOLDER INFORMATION. Each Selling Shareholder
shall provide the Company with such information about the Selling Shareholder
and its intended manner of distribution of the Registrable Securities, and
shall otherwise cooperate with the Company and the underwriters, if any, as may
be needed or helpful to complete any obligation of the Company hereunder.
(b) CONSULTATION. The Company shall supply drafts of any
registration statement to the Selling Shareholder prior to filing the
registration statement with the SEC, and shall reasonably consult with the
Selling Shareholder and its legal counsel with respect to the form and content
of such filing. The Company will amend such registration statement to include
such revisions as the Selling Shareholder or its legal counsel shall reasonably
request. If material revisions reasonably requested by the Selling Shareholder
or its legal counsel are not effected by the Company, the Selling Shareholder
may withdraw all or part of the Registrable Securities from registration
without affecting such Selling Shareholder's registration rights hereunder for
the Registrable Securities so withdrawn or reduced.
(c) PROVISION FOR PROSPECTUSES. The Company shall furnish the
Selling Shareholder with the number of copies of a summary prospectus or other
prospectus, including a preliminary prospectus in conformity with the
requirements of the Securities Act, and such other documents as the Selling
Shareholder may reasonably request, in order to facilitate the public sale or
other disposition of the Registrable Securities.
(d) STATE SECURITIES LAW COMPLIANCE. The Company shall use
reasonable efforts to register or qualify the Registrable Securities covered by
the registration statement under the Securities Laws of such states as the
Selling Shareholder may reasonably request in light of the costs of such
registration or qualification for the Company (provided, however, that the
Company shall not be required to consent to the general service of process for
all purposes in any jurisdiction where it is not then qualified to do business
or to qualify to do business) and do any and all other acts or things that may
be reasonably necessary or advisable to enable the Selling Shareholder to
consummate the public sale or other disposition of their Registrable Securities
in such states.
(e) AMENDMENTS. The Company shall use reasonable efforts to
prepare and file promptly with the SEC such amendments and supplements to the
registration statement filed with the SEC in connection with its registration
described in Section 2.1(a) hereof and the prospectus used in connection
therewith as may be necessary to keep such registration statement continuously
effective and in compliance with the Securities Act for up to six (6) months,
or until all Registrable Securities registered in such registration statement
have been sold, whichever is earlier.
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(f) PROSPECTUS DELIVERY. At any time when a sale or other
public disposition of Common Stock pursuant to a registration statement is
subject to a prospectus delivery requirement, the Company shall immediately
notify the Selling Shareholder of the occurrence 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 a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing. Upon receipt of such a notice, the Selling Shareholder shall
immediately discontinue sales or other dispositions of Registrable Securities
pursuant to such registration statement. The Selling Shareholder may resume
sales only upon receipt of an amended prospectus or after the Selling
Shareholder has been advised by the Company that use of the previous
prospectus may be legally resumed.
(g) OPINIONS. At the request of the Selling Shareholder, the
Company shall use reasonable efforts to furnish on the date that the
Registrable Securities are delivered to the underwriter for sale in
connection with an underwritten offering registration pursuant to this
Agreement (i) a letter from the legal counsel representing the Company for
the purposes of such registration giving the Selling Shareholder the right to
rely upon the opinion of such legal counsel delivered to the underwriter(s)
acting on behalf of the Company in connection with such registration insofar
as such opinion relates to the Selling Shareholder, and (ii) a letter from
the independent certified public accountants of the Company substantially the
same as the letter of such accountants delivered to the underwriter(s) acting
on behalf of the Company in connection with such registration, provided that
the Selling Shareholder provides to such accountants the opinion or
representation letter required by Statement of Auditing Standards No. 72.
(h) STOP ORDERS. The Company shall immediately notify the
Selling Shareholder of the issuance by the SEC of any stop order or order
suspending the effectiveness of any registration statement, the issuance by
any state regulatory authority of any order suspending the registration or
qualification of the Registrable Securities for sale in such jurisdiction, or
the initiation of any proceeding for such purposes. The Company, with the
reasonable cooperation of the Selling Shareholder, shall make every
reasonable effort to contest any such proceeding or to obtain the withdrawal
of any such order at the earliest possible date.
(i) REVIEW OF RECORDS. The Company shall make available all
financial and other records, pertinent corporate documents, and properties of
the Company for inspection by the Selling Shareholder or its underwriter,
legal counsel, or accountants, and shall cause the Company's officers,
directors, and employees to supply all information reasonably requested by
any such person in connection with any registration statement filed or to be
filed hereunder, so long as such person agrees to keep confidential any
records, information, or documents designated by the Company in writing as
confidential.
(j) COMPLIANCE WITH SECURITIES LAWS. In all actions taken
under this Agreement, the Company and the Selling Shareholder shall use their
best efforts to comply with all provisions of the Securities Laws.
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(k) MARKET STAND-OFF. If requested by the Company, the
Holder may not sell or otherwise transfer any Registrable Securities held by
the Holder, other than those Registrable Securities included in a
registration statement, during the one hundred and eighty (180) day period
following the effective date of a registration statement filed by the Company
under the Securities Act with respect to any underwritten offering. The
Company may impose stop-transfer instructions with respect to the Registrable
Securities subject to the foregoing restrictions until the end of such one
hundred and eighty day period.
2.5 SALES UNDER RULE 144. With the view to making the benefits of
Rule 144 under the Securities Act available to the Holder, the Company shall
use reasonable efforts to (a) ensure that there is adequate current public
information (as set forth in Rule 144(c)) available with respect to the
Company; (b) timely file with the SEC all reports and other documents
required to be filed by the Company under the Securities Act, the Exchange
Act, and the rules and regulations promulgated thereunder; and (c) promptly
furnish to the Holder upon request a written statement by the Company as to
the Company's compliance with these covenants and the provisions of Rule 144.
2.6 INDEMNIFICATION.
(a) THE COMPANY'S INDEMNIFICATION. The Company shall
indemnify, defend, save, and hold the Selling Shareholder (and any person who
controls the Selling Shareholder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act), with respect to which a
registration or qualification has been effected pursuant to this Agreement,
harmless from and against any and all liabilities, claims, damages, demands,
expenses, and losses, including but not limited to interest, penalties, court
costs, attorneys' fees, and settlements approved by the Company, which
consent shall not be unreasonably withheld, arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained
in any registration statement or prospectus, or any amendment or supplement
thereto, incident to any such registration or qualification, or based on any
omission (or alleged omission) to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading, or any violation
by the Company of the Securities Act applicable to the Company in connection
with any such registration or qualification, and the Company will reimburse
each such Holder, each of its officers and directors, and each person
controlling such Holder for any legal and any other expenses reasonably
incurred in connection with investigating, preparing or defending any such
claim, loss, damage, liability or action, provided that the Company will not
be liable to any such person in any case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on any untrue
statement or omission (or alleged untrue statement or omission), made in
reliance upon and in conformity with written information furnished to the
Company by such Holder or controlling person and stated to be specifically
for use therein or the preparation thereby.
(b) THE SELLING SHAREHOLDER'S INDEMNIFICATION. Each Selling
Shareholder with Registrable Securities included in a registration statement
under this
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Agreement shall indemnify, defend, save, and hold (i) the Company and its
directors, officers, and controlling persons (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act), (ii) the
underwriter(s), if any, and their controlling persons, and (iii) all other
selling shareholders participating in such offering (and their respective
officers, directors, underwriters, and controlling persons) harmless from and
against any and all liabilities, claims, damages, demand, expenses, and
losses, including but not limited to interest, penalties, court costs,
attorneys' fees, and settlements approved by the Selling Shareholder, which
consent shall not be unreasonably withheld, arising out of (i) any untrue
statement (or alleged untrue statement) of a material fact contained in any
such registration statement or a related prospectus, 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, (ii) or any violation by such Selling
Shareholder of the Securities Act in connection with such registration or
qualification, and will reimburse the Company, such Holders, such directors,
officers, persons, underwriters or control persons for any legal or any other
expenses reasonably incurred in connection with investigating, preparing or
defending any such claim, loss, damage, liability or action, in the case of
clause (i) above to the extent, but only to the extent that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement or in a related prospectus in reliance
upon and in conformity with written information furnished to the Company by
such Holder and stated to be specifically for use therein or the preparation
thereby.
(c) CONTRIBUTION. If the indemnification provided for in
this Section 2.6 from an indemnifying party is unavailable to an indemnified
party hereunder in respect to any liability, claim, damage, demand, expense,
or loss referred to herein, then the indemnifying party in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such liability, claim,
damage, demand, expense, or loss in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and the indemnified
party in connection with the statements or omissions that resulted in such
liability, claim, damage, demand, expense, or loss, as well as any other
relevant equitable consideration. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among other
things, whether the untrue statement of a material fact or the omission to
state a material fact relates to information supplied by such indemnifying
party or indemnified party and the parties' relative intent, knowledge,
access to information, and opportunity to correct or prevent such untrue
statement or omission. The amount paid or payable by a party as a result of
the liabilities, claims, damages, demands, expenses, and losses referred to
above shall be deemed to include any court costs, attorneys' fees, and other
expenses reasonably incurred by such party in connection with investigating
or defending any action, suit, or proceeding. The parties hereto agree that
it would not be just and equitable if contribution pursuant to this Section
2.6(c) were determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations
referred to in this Section 2.6(c). No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who is not also guilty of
such fraudulent misrepresentation.
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3. GENERAL PROVISIONS.
3.1 AMENDMENT. All amendments or modifications of this Agreement
shall be in writing and shall be signed by all of the parties hereto.
3.2 WAIVER. Any waiver of any right, power, or privilege
hereunder must be in writing and signed by the party being charged with the
waiver. No delay on the part of any party hereto in exercising any right,
power, or privilege hereunder shall operate as a waiver of any other right,
power, or privilege hereunder, nor shall any single or partial exercise of
any right power, or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, power, or privilege.
3.3 NOTICES. All notices or other communications required or
permitted to be given pursuant to this Agreement shall be in writing and
shall be delivered personally or sent by overnight courier, by telecopy with
confirmation by first-class mail, or by certified mail, return receipt
requested. Notices delivered personally or sent by overnight courier or by
telecopy with confirmation by first-class mail shall be effective on the date
first received, while notices sent by certified mail, return receipt
requested, shall be deemed to have been received and to be effective three
(3) business days after deposit into the mails. Notices shall be given to
the parties at the following respective addresses, or to such other addresses
as any party shall designate in writing:
If to the Company: SERACARE, INC.
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
With a copy to: O'Melveny & Xxxxx, LLP
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Fax No. (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
If to the Holder: Sutro & Co. Incorporated
00000 Xxxxx Xxxxxx Xxxx., 00xx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
3.4 SUCCESSORS AND ASSIGNS This Agreement and each of its
provisions shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, executors, administrators
successors, and assigns. The Holder may assign this Agreement and its rights
hereunder only in connection with a transfer or assignment of all or part of
the Warrant or the Registrable Securities.
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3.5 LAW GOVERNING. This Agreement has been negotiated, executed
and delivered and shall be performed in the State of New York and shall be
governed by and construed and enforced in accordance with the laws of the
State of New York, without regard for its conflict of laws rules.
3.6 ATTORNEYS' FEE. In any suit to interpret or enforce the terms
and provisions of this Agreement, the prevailing party shall be entitled to
recover court costs and attorneys' fees, in addition to any other remedy or
recovery to which such party may be entitled.
3.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, including by facsimile transmission, all of which together
shall constitute a single instrument.
3.8 SEVERABILITY OF PROVISIONS. In the event any one or more of
the provisions of 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 any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein.
3.9 CONSTRUCTION. The headings in the sections and paragraphs of
this Agreement are for convenience only and shall not constitute a part
hereof. Whenever the context so requires, the masculine shall include the
feminine and the neuter, the singular shall include the plural, and
conversely. The terms and all parts of this Agreement shall in all cases be
interpreted simply and according to their plain meaning and neither for nor
against any party hereto.
IN WITNESS WHEREOF, the parties have duty executed and delivered
this Agreement as of the date first written above.
SERACARE, INC. SUTRO & CO. INCORPORATED
By: /S/ Xxxxx X. Xxxxxxx By:
----------------------------- -----------------------------
Name: Xxxxx X. Xxxxxxx Name:
Title: Executive Vice President Title:
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