EXHIBIT 4.4
SECURITYHOLDERS AGREEMENT
AGREEMENT, dated as of February 13, 1998, among SeraCare, Inc., a
Delaware corporation (the "Company"), the investors listed on Exhibit I.A
hereto (the "Investors") and the shareholders of the Company listed on Exhibit
I.B hereto (the "Shareholders").
RECITALS
WHEREAS, the Company is concurrently herewith entering into a
Securities Purchase Agreement with the Investors and the Guarantors, dated as
of the date hereof (the "Securities Purchase Agreement"), authorizing the
issuance and delivery of (i) $16,000,000 of 12% Senior Subordinated Debentures
(the "Debentures") and (ii) Warrants to purchase Common Stock (as defined in
the Securities Purchase Agreement),
WHEREAS, it is a condition to the execution of the Securities
Purchase Agreement that the parties hereto enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and mutual
covenants and agreements contained herein, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1. DEFINITIONS. Capitalized terms used but not defined
herein shall have the meaning ascribed to them in the Securities Purchase
Agreement. As used herein, the following terms shall have the following
meanings:
"AFFILIATE" shall mean, with respect to any person or entity, (i) any
other person or entity which, directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with
such person or entity, (ii) any other person or entity which, directly or
indirectly, beneficially owns or holds 5% or more of any class of voting stock
of such person or entity, or (iii) any person or entity of which, directly or
indirectly, such person or entity owns or holds 5% or more of any equity
security (as defined in
the Securities Act). The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
and policies of a person or entity, whether by virtue of the ownership of
voting stock, by contract or otherwise.
"COMPANY" shall have the meaning set forth in the preamble.
"DEBENTURES" shall have the meaning set forth in the first recital.
"INVESTORS" shall have the meaning set forth in the preamble.
"OTHER PERMITTED TRANSFEREE" shall mean with respect to any
Shareholder who is a natural person:
(i) Any person related by lineal or collateral consanguinity
to such Shareholder or to the spouse of such Shareholder;
(ii) the spouse of such Shareholder or of any person described
in clause (i) above; and
(iii) all persons related to those persons described in clause
(i) or clause (ii) by lineal or collateral consanguinity.
For purposes of this definition of Other Permitted Transferee (i) adopted
persons shall be considered the natural born child of their adoptive parents;
(ii) lineal consanguinity is that relationship that exists between persons of
whom one is descended (or ascended) in a direct line from the other, as
between son, father, grandfather, great-grandfather; and (iii) collateral
consanguinity is that relationship that exists between persons who have the
same ancestors, but who do not descend (or ascend) from the other, as between
uncle and nephew, or cousin and cousin.
"OWNED" as to any Shares shall mean all Shares as to which any Person
would be deemed to be a beneficial owner, within the meaning of Rule 13d-3 of
the Exchange Act.
"SECURITIES" shall mean the Debentures and the Warrants.
"SECURITIES PURCHASE AGREEMENT" shall have the meaning set forth in
the first recital.
"SHAREHOLDER(S)" shall have the meaning set forth in the preamble.
"SHAREHOLDER RELATION" shall mean (i) any Other Permitted
Transferee of an individual Shareholder, (ii) any inter-vivos trust whose
principal beneficiary is such individual Shareholder or any Other Permitted
Transferee of such individual Shareholder created during their respective
lifetimes and not as a result of death, (iii) any family limited partnership
in which an individual Shareholder is a general or limited partner, and (iv)
the legal representative or guardian of such individual Shareholder or any
Other Permitted Transferee of such individual Shareholder appointed during
their respective lifetimes and not as a result of death.
"SHARES" shall mean the shares of Common Stock and any other shares
of capital stock of the Company.
"TRANSFER" shall have the meaning set forth in Section 2.1 hereof.
"TRANSFEREE" shall mean any Person acquiring Shares from the
Shareholder and any subsequent transferee of any such Person herein referred to
as a "Transferee" of such Person.
"WARRANTS" shall have the meaning set forth in the first recital.
ARTICLE II.
RESTRICTIONS ON TRANSFER
Section 2.1. TRANSFER OF SHARES. During the term of this
Agreement, each Shareholder shall not, directly or indirectly, offer, sell,
assign, transfer, grant a participation interest in, pledge, encumber or
otherwise dispose of (including, without being limited to, any disposition of
voting or investment control over), or place in trust (voting or otherwise)
(each such transaction being herein called a "Transfer") any Shares Owned by
the Shareholder, except that, each Shareholder may over the term
of this Agreement Transfer in the aggregate the number of Shares listed next
to such Shareholder's name on Schedule 1 hereto. The prohibition on Transfer
contained in this Section 2.1 (a) shall not apply to a transfer of any Shares
owned by the Shareholder, either during his lifetime or on death by will or
intestacy, to a Shareholder Relation, provided, in each such case, that (i)
the transferring Shareholder shall retain voting and investment power with
respect to such Shares, (ii) such transferee shall receive and hold such
Shares subject to the provisions of this Agreement and (iii) there shall be
no further transfer of such Shares in accordance herewith and (b) shall
terminate at such time as (i) the Company has completed a Qualifying Public
Offering and (ii) the Debentures are no longer outstanding.
Section 2.2. AGREEMENT TO BE BOUND. No Transfer of Shares by any
Shareholder shall be effective unless (i) the certificates representing such
Shares issued to the Transferee shall bear the legend provided in Section 2.3
and (ii) the Transferee (if not already a party hereto) shall have executed
and delivered to each Investor, as a condition precedent to such Transfer, an
instrument or instruments reasonably satisfactory to such parties confirming
that the Transferee agrees to be bound by the terms of this Agreement in the
same manner as such Transferee's transferor, except as otherwise provided in
this Agreement.
Section 2.3. RESTRICTIVE LEGEND. Each certificate evidencing
Shares Owned by the Shareholder shall be conspicuously stamped or otherwise
imprinted with a legend in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO RESTRICTIONS ON TRANSFER AND CAN BE TRANSFERRED ONLY
PURSUANT TO THE TERMS OF A SECURITYHOLDERS AGREEMENT DATED AS OF
FEBRUARY 13, 1998 AMONG THE COMPANY AND CERTAIN HOLDERS OF ITS
SECURITIES. A COPY OF SUCH AGREEMENT WILL BE FURNISHED WITHOUT
CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST.
Section 2.4. IMPROPER TRANSFER. Any attempt to Transfer any
Shares not in compliance with this Agreement shall be null and void and
neither the Company nor any transfer agent shall give any effect in the
Company's stock records to such attempted Transfer.
ARTICLE III.
MISCELLANEOUS
Section 3.1. BOARD OF DIRECTORS. (a) As long as (x) any Senior
Debentures are outstanding, (y) the Investors hold any combination of (i)
Warrants exercisable into or (ii) shares obtained upon exercise of Warrants
representing, at least 25% of the shares of Common Stock issuable upon
exercise of the Warrants as of the date hereof (or, if an adjustment pursuant
to Section 4 of the Warrants shall occur, then at least 25% of the shares of
Common Stock issuable upon exercise of the Warrants, after giving effect to
any such adjustment) or (z) holders of Securities hold Warrants exercisable
into at least 25% of the shares of Common Stock issuable upon exercise of the
Warrants as of the date hereof (or, if adjustment pursuant to Section 4 of
the Warrants shall occur, then at least 25% of the Shares of Common Stock
issuable upon exercise of the Warrants, after giving effect to any such
adjustment), the Company and the Shareholders shall take all action within
their respective power, including, but not limited to, the voting of capital
stock of the Company and any Subsidiary, as the case may be, Owned by them,
required to (i) cause the Board of Directors of the Company and each
Subsidiary to at all times consist of one nominee designated by the Investors
(the "Designee"). The Shareholders and the Company agree to vote any of the
shares of capital stock of the Company and any Subsidiary Owned by them,
including but not limited to their Shares, which are outstanding at all
meetings of stockholders of the Company and its Subsidiaries (or any written
consents in lieu thereof) in which directors are elected in favor of the
Designee.
(b) In the event that a Designee (the "Withdrawing Director"),
designated in the manner set forth in Section 3.1(a) above is unable to
serve, or once having commenced to serve, is removed or withdraws from the
Board of Directors of the Company or any Subsidiary such Withdrawing
Director's replacement (the "Substitute Director") on the Board of Directors
of the Company or Subsidiary, as the case may be, will be designated by the
holders of Securities. The Company and the Shareholders agree to take all
action within their respective power, including, but not limited to, the
voting of outstanding capital stock of the Company to cause the election of
such Substitute Director as soon as practicable following his or her
designation.
(c) In the event the holders of Securities entitled to designate a
Director pursuant to this Agreement cease to be so entitled, the vacancy
resulting therefrom shall be filled by the remaining directors or by the
stockholders in the manner provided by the Company's bylaws and by applicable
law, or the number of directors constituting the Board shall be reduced. In
the event the Investors entitled to designate a Director pursuant to this
Agreement choose not to designate a Director, such directorship shall remain
vacant.
Section 3.2. TERMINATION OF AGREEMENT. This Agreement shall
terminate upon the first to occur of the following events:
(a) upon the agreement of the Company, the Shareholders and the
Investors to terminate this Agreement; or
(b) on such date as there are no longer any Debentures or Warrants
outstanding and all shares of Common Stock which may be issued upon
exercise of the Warrants shall be free of any volume restrictions on
transfer, including, but not limited to, any restrictions pursuant to Rule
144 (other than as a result of the shareholder's affiliation with a
director of the Company or otherwise being classified as an Affiliate of
the Company), as such rule may be amended from time to time.
Section 3.3. REPRESENTATIONS. Each party hereto represents that (i)
the execution and delivery of this Agreement and the performance of such
party's obligations hereunder will not violate or conflict with any material
agreement to which such party is a party or any law, rule, license, regulation,
judgment, order, ruling or decree governing or affecting such party; (ii) no
consents or filings with any governmental authority or any other person are
required to be obtained or made in connection with such party's execution,
delivery and performance of this Agreement; and (iii) this Agreement
constitutes the valid and binding obligation of such party, enforceable against
such party in accordance with its terms.
Section 3.4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SHAREHOLDERS. Each Shareholder represents and warrants to the holders of
Securities that all shareholders of the Company who are Shareholder Relations
of such Shareholder or with whom
such Shareholder shares voting and/or investment power are parties to this
Agreement. Each Shareholder covenants that if after the date hereof any
person or entity who is or becomes a shareholder of the Company is or becomes
a Shareholder Relation of such Shareholder or a person with whom such
Shareholder shares voting and/or investment power, then such Shareholder
shall use all reasonable efforts to cause such person or entity to become a
party to this Agreement.
Section 3.5. SUCCESSORS AND ASSIGNS. All agreements contained
herein by or on behalf of the parties hereto shall bind and inure to the
benefit of the respective successors and assigns of the parties hereto whether
so expressed or not, including, without limitation, any Person who acquires any
Securities (or any securities issued upon exercise of any Warrant) from any
party.
Section 3.6. NOTICES. All communications provided for hereunder
shall be sent by first class mail or overnight courier and, if to any Investor,
addressed to the Investor in the manner in which its address appears on Exhibit
I.A hereto, with a copy to Xxxxxxx X. Xxxxx, Xx., Esq., at Xxxxxxx Xxxx &
Xxxxxxxxx, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; if to any
Shareholder, addressed to such Shareholder at the address set forth below such
Shareholder's name on Exhibit I.B hereto; and if to the Company, addressed to
it at SeraCare, Inc., 00000 Xxxxxxx Xxxx Xxxx, Xxx Xxxxxxx 00000, Attention:
Chief Executive Officer, or to such other address with respect to any party as
such party shall notify the other in writing.
Section 3.7. DESCRIPTIVE HEADINGS. The descriptive headings of the
several paragraphs of this Agreement are inserted for convenience only and do
not constitute a part of this Agreement.
Section 3.8. GOVERNING LAW. The corporate law of the State of New
York will govern all issues concerning the relative rights of the Company, on
the one hand, and the Shareholder and the Investors, on the other hand. All
other questions concerning the construction, validity and interpretation of
this Agreement will be governed by, and construed and enforced in accordance
with, the law of the State of New York without regard to the conflicts of laws
principles thereof.
Section 3.9. REMEDIES. In case any one or more of the provisions
set forth in this Agreement shall have been breached by the Company or any
Shareholder or Investor, the Company or the Shareholders or Investors (or any
of them), as applicable, may proceed to protect and enforce its or their rights
either by suit in equity and/or by action at law, including, but not limited
to, an action for damages as a result of any such breach and/or an action for
specific performance of any such provision contained in this Agreement. The
Company, or any Investor acting pursuant to this Section 3.9 shall be
indemnified against all liability, loss or damage, together with all reasonable
costs and expenses related thereto (including reasonable legal and accounting
fees and expenses) in accordance with paragraph 14B of the Securities Purchase
Agreement.
Section 3.10. ENTIRE AGREEMENT. This Agreement, the Securities
Purchase Agreement and the Registration Rights Agreement and the other writings
referred to herein or therein or delivered pursuant hereto or thereto contain
the entire agreement among the parties with respect to the subject matter
hereof and supersede all prior and contemporaneous arrangements or
understandings with respect thereto. This Agreement shall not constitute a
valid and binding agreement, enforceable in accordance with its terms, until it
has been executed and delivered by duly authorized representatives of each
party hereto.
Section 3.11. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 3.12. AMENDMENTS. This Agreement may not be changed orally,
but only by an agreement in writing signed by the party against whom
enforcement of any waiver, change, modification or discharge is sought.
Section 3.13. COUNTERPARTS. This Agreement may be executed 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, and it
shall not be
necessary in making proof of this Agreement to produce or account for more
than one such counterpart.
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/ Xxxxx X. Xxxxx
-------------------------------------------
Xxxxx X. Xxxxx, Chairman
of the Board, President and Chief Executive
Officer
SHAREHOLDERS:
/s/ Xxxxx X. Xxxxx
-------------------------------------------
Xxxxx X. Xxxxx
INVESTORS:
DELAWARE STATE EMPLOYEES'
RETIREMENT FUND
By: Pecks Management Partners Ltd.
Its Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxx X. Xxxxxx
Managing Director
DECLARATION OF TRUST FOR DEFINED
BENEFIT PLAN OF ICI AMERICAN HOLDING INC.
By: Pecks Management Partners Ltd.
Its Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxx X. Xxxxxx
Managing Director
DECLARATION OF TRUST FOR DEFINED
BENEFIT PLAN OF ZENECA HOLDING INC.
By: Pecks Management Partners Ltd.
Its Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxx X. Xxxxxx
Managing Director
THE X.X. XXXXXXXXX FAMILY FOUNDATION
By: Pecks Management Partners Ltd.,
Its Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxx X. Xxxxxx
Managing Director
EXHIBIT I.A (INVESTORS)
-----------------------
DELAWARE STATE EMPLOYEES'
RETIREMENT FUND
c/o Pecks Management Partners Ltd.
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
DECLARATION OF TRUST FOR
DEFINED BENEFIT PLAN OF ICI
AMERICAN HOLDINGS INC.
c/o Pecks Management Partners Ltd.
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
DECLARATION OF TRUST FOR
DEFINED BENEFIT PLAN OF
ZENECA HOLDINGS INC.
c/o Pecks Management Partners Ltd.
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
THE X.X. XxXXXXXXX FAMILY
FOUNDATION
c/o Pecks Management Partners Ltd.
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
EXHIBIT I.B (SHAREHOLDERS)
--------------------------
Name
----
Xxxxx X. Xxxxx
c/o SeraCare, Inc.
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000
SCHEDULE 1
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Xxxxx X. Xxxxx 188,768 shares
