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SERACARE, INC.
Issuance and Sale of
__________ Shares of Common Stock
to
---------------------------------
Name of Investor
November ___, 2000.
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The Following documents were delivered in connection with the issuance
and sale by SeraCare, Inc., a Delaware corporation (the "COMPANY") of ______
shares of its Common Stock on November ___, 2000, to ________________________
_________________________________ (the "PURCHASER"):
1. Stock Purchase Agreement by and between the Company and the Purchaser,
dated as of November ___, 2000.
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement"), dated as of November ___,
2000, is made and entered into by and between SeraCare, Inc., a Delaware
corporation (the "Company"), and ______________________________________(the
"Purchaser").
B A C K G R 0 U N D
A. The Company desires to issue and sell to Purchaser
_____________ shares of the Company's Common Stock, $.001 par value per share
(the "Common Stock"), to be sold at a price of $2.50 per share (the "Per Share
Purchase Price"), in accordance with and subject to the terms and conditions set
forth in this Agreement.
B. Subject to the terms and conditions hereof and in reliance
upon the representations, warranties and agreements contained herein, Purchaser
desires to purchase the Common Stock at an aggregate purchase price of
____________________________________________.
A G R E E M E N T
In consideration of the above premises and the
representations, warranties, covenants and agreements contained in this
Agreement, and for other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
SECTION 1. PURCHASE AND SALE OF COMMON STOCK.
1.1 THE COMMON STOCK. Upon the terms and conditions contained
herein, the Company agrees to sell and issue to Purchaser, and Purchaser agrees
to purchase (the "Purchase") from the Company, at a purchase price of $2.50 per
share, ______________ shares of Common Stock (the "Shares"), at a closing to be
held as soon as practicable, and in no event later than _____________ __, 2000
(the "Closing"), on such date as the Company and the Purchaser may agree (the
"Closing Date") and shall be held at the offices of the Company or such other
place as the Company and Purchaser may agree to.
1.2 PAYMENT AND DELIVERY. At the Closing, the Company shall
deliver to Purchaser a stock certificate
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registered in such name or names as Purchaser may designate representing the
Shares against delivery to the Company by Purchaser of the purchase price in the
sum of $____________ _______________ (which represents the product of the $2.50
price per share and the number of Shares, the "Aggregate Purchase Price"), and
the Aggregate Purchase Price will be paid by wire transfer or by cashier's check
payable to the order of the Company.
Section 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser
that:
2.1 CORPORATE POWER. QUALIFICATION AND STANDING. The Company
is duly organized, validly existing and in good standing under the laws of the
State of Delaware and is qualified to transact business and is in good standing
in each jurisdiction in which its ownership of property or conduct of activities
requires such qualification, except where the failure to so qualify would not
materially adversely affect the operations of the Company taken as a whole. The
Company has all requisite corporate power and authority to enter into and to
carry out and perform its obligations under this Agreement.
2.2 SEC REPORTS; FINANCIAL STATEMENTS. The Common Stock of the
Company is registered under Section 12(b) or (g) of the Securities Exchange Act
of 1934 (the "1934 Act"). The Company has delivered to Purchaser its Annual
Report to stockholders and its Annual Reports on Form 10-K and its quarterly
reports on Form 10-Q filed with the SEC since the filing of the most recent Form
10-K (collectively, the "SEC Reports"). The SEC Reports did not (as of their
respective dates) contain any 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, in light of the circumstances under which they were made,
not misleading. The audited and unaudited financial statements of the Company
included in the SEC Reports (the "Financial Statements") have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis (except as stated in such Financial Statements or the notes thereto) and
fairly present the financial position of the Company and its consolidated
subsidiaries as of the dates thereof and the results of their operations and
changes in financial
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position for the periods then ended. The Company has timely filed with the SEC
all reports required to be filed by the Company under the 1934 Act since
February 29, 2000.
2.3 AUTHORIZATION; NO CONFLICT. The Company's execution and
delivery of this Agreement and issuance and sale of the Shares have been duly
authorized by all necessary corporate action, and the Shares, when issued and
paid for on the Closing Date, will be validly issued, fully paid and
non-assessable and the holders shall be entitled to all rights and preferences
accorded to a holder of Common Stock. The execution, delivery and performance by
the Company of its obligations under this Agreement do not and will not conflict
with or violate (i) the Restated Certificate of Incorporation of the Company,
dated February 6, 1996, as amended by the Certificate of Designations (the
"Restated Certificate of Incorporation") or Bylaws of the Company, (ii) in any
material respect any indenture, loan agreement, lease, mortgage or other
material agreement binding on the Company, (iii) any order of a court or
administrative agency binding on the Company, (iv) any applicable law or
governmental regulation; and such performance does not and will not require the
permission or approval of any governmental agency, and will not result in the
imposition or creation of any lien or charge against any assets of the Company.
2.4 BINDING EFFECT. This Agreement when duly executed and
delivered by the Company and is a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms (subject
to applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to creditor's rights generally and the application of equitable
principles in any action, legal or equitable, and except as rights to indemnity
or contribution may be limited by applicable law).
2.5 NO DEFAULTS OR VIOLATIONS. The Company is not, and
immediately after the Closing will not be, in default under or in violation of
(a) its Restated Certificate of Incorporation or Bylaws, as amended, (b) any
indenture, mortgage, loan agreement, or other material agreement to which it is
a party and which has been filed by the Company with the SEC (the "Material
Agreements"), (c) any statute, rule, writ, injunction, judgment, decree, order
or regulation of any court or governmental authority having jurisdiction over
it, or (d) any license, permit,
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certification or approval or requirement of any governmental authority or other,
in each case, in any way that could reasonably be expected to have a material
adverse effect on the business or condition (financial or otherwise) of the
Company, or the Company's ability to perform its obligations under this
Agreement.
2.6 NO MATERIAL ADVERSE CHANGE. Since February 29, 2000, there
have been no material adverse changes in the business or condition (financial or
otherwise) of the Company that are not reflected in the SEC Reports and the
Financial Statements.
2.7 NO CONFLICTING REGISTRATION RIGHTS. There are currently no
agreements which would preclude the Purchaser from participating in any
registrations of the Company's securities as permitted by the terms of Section
9.
2.8 MATERIAL LIABILITIES. Except for liabilities disclosed in
the Financial Statements or the SEC Reports, the Company and its Subsidiaries
have no material liabilities or obligations, absolute or contingent, other than
liabilities arising in the ordinary course of business, subsequent to the date
of the most recent audited Financial Statements or SEC Reports.
2.9 PROPERTIES. The Company and its Subsidiaries (i) have good
title to the properties and assets reflected in the Financial Statements as
owned by them, (ii) have valid leasehold interests in the properties leased by
them, and (iii) own or have the right to use under valid license agreements all
trademarks, trade names, copyrights, patents and other intellectual property
rights material to its business and regularly utilized by them, subject in each
case to no material liens, security interests or adverse claims, except as
disclosed in the Financial Statements or the SEC Reports.
2.10 LITIGATION. There are no material legal actions,
arbitrations, or administrative proceedings pending against the Company, except
for the matters disclosed in the SEC Reports and no actions or proceedings are
pending or, to the Company s best knowledge, threatened, which question the
validity of this Agreement or the Shares.
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2.11 TAX MATTERS. The Company has filed or is in the process
of filing all tax returns required to be filed by it and has paid its taxes and
has made adequate accruals for tax liabilities on the Financial Statements in
accordance with generally accepted accounting principles.
2.12 BROKERS. The Company has not entered into any agreements
requiring the Company or Purchaser to pay any broker's, finder's or similar fee
or commission in connection with the transaction contemplated hereby.
2.13 CAPITALIZATION. As of the October 31, 2000, excluding the
Shares to be issued in connection with this Agreement, there are: 8,738,642
shares of the Company's Common Stock; and 22,500 shares of Series C Convertible
Preferred Stock respectively, which are issued and outstanding. The Company has
no present intention to redeem any shares of outstanding Common Stock and no
holders of any shares of the Company's issued and outstanding Common Stock have
been granted any redemption rights with respect thereto.
2.14 REQUIRED APPROVALS. Plasma collection centers located in
Danville, Virginia and Providence, Rhode Island are operating under Reference
Numbers pending licensing by the FDA. Except as set forth herein, the Company
has obtained all permits, approvals and certificates necessary to operate its
business as presently conducted at each of its locations.
2.15 NO GENERAL SOLICITATION. Neither the Company, nor any of
its affiliates, or, to its knowledge, any person acting on its or their behalf,
has engaged in any form of general solicitation or general advertising (within
the meaning of Regulation D under the 1933 Act) in connection with the offer or
sale of the Shares.
2.16 NO INTEGRATED OFFERING. Neither the Company, nor any of
its affiliates, nor any person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any security or solicited any offers to
buy any security, under circumstances that would require registration of the
Shares under the Securities Act of 1933, as amended (the "1933 ACT").
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Section 3. INVESTMENT REPRESENTATIONS.
Purchaser acknowledges that the Shares are not being registered under the 1933
Act, based, in part, on reliance that the issuance of the Shares is exempt from
registration under Section 4(2) of the 1933 Act as not involving any public
offering. Purchaser further acknowledges that the Company's reliance on such
exemption is predicated, in part, on the representations set forth below made by
Purchaser to the Company.
(a) Purchaser is an "accredited investor" as such
term is defined under Rule 501(a) of the 1933 Act. Purchaser is
acquiring the Shares solely for Purchaser's own account, for investment
purposes only, and not with an intent to sell, or for resale in
connection with any distribution of all or any portion of the Shares
within the meaning of the 1933 Act;
(b) In evaluating the merits and risks of an
investment in the Shares, Purchaser has relied upon the advice of
Xxxxxxxxx's legal counsel, tax advisors, and/or investment advisors;
(c) Purchaser is experienced in evaluating and
investing in companies such as the Company. The Company has afforded
Purchaser or Purchaser's advisors the opportunity during the course of
negotiating the transactions contemplated by this Agreement to ask
questions of and secure such information from the Company and its
officers and directors as it deems necessary to evaluate the merits of
entering into this Agreement. Purchaser also acknowledges that the
Company has notified Purchaser that the Company is contemplating (i)
one or more acquisitions of companies in the same or related industries
as the Company, (ii) a possible financial restructuring including both
the revolving line of credit and the $16,000,000 subordinated
debentures and (iii) a possible private placement and/or public
offering of the Company's Common Stock at some point in the future,
however there can be no assurance that any acquisition, the financial
restructuring, or the private placement and/or public offering will
ever be completed;
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(d) Purchaser is aware that an investment in
securities of a thinly-traded corporation such as the Company may be
non-marketable and may require Purchaser's capital to be invested for
an indefinite period of time, possibly without return. Purchaser has no
need for liquidity in this investment, has the ability to bear the
economic risk of this investment, and can afford a complete loss of the
Aggregate Purchase Price;
(e) Purchaser understands that the Shares being
purchased hereunder are characterized as "restricted securities" under
the federal securities laws since the Shares are being acquired from
the Company in a transaction not involving a public offering and that
under such laws and applicable regulations such securities may be
resold without registration under the 1933 Act only in certain limited
circumstances. Purchaser represents that Purchaser is familiar with
Rule 144 promulgated under the 1933 Act, as presently in effect, and
understands the resale limitations imposed thereby and by the 1933 Act;
and
(f) At no time was Purchaser presented with or
solicited by any public or promotional meeting, newspaper or magazine
article, radio or television advertisement or any other form of general
advertising relating to the purchase hereunder.
Section 4. CONDITIONS TO OBLIGATIONS OF THE PURCHASER.
The obligation of the Purchaser to purchase the Shares is subject to
the fulfillment on or prior to the Closing Date of each of the following
conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company shall be true and correct in all material
respects on the Closing Date;
(b) PERFORMANCE. All covenants, agreements and conditions
contained in this Agreement to be performed or complied with by the
Company on or prior to the Closing Date shall have been performed or
complied with in all material respects;
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(c) NO INJUNCTION. No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority of
competent jurisdiction which prohibits the consummation of any of the
transactions contemplated by this Agreement; and
(d) PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings in connection with the transactions contemplated hereby and
all documents and instruments incident to such transactions shall be
satisfactory in form and substance to the Purchaser and its counsel.
Section 5. LIMITATIONS ON DISPOSITION.
Xxxxxxxxx agrees not to transfer the Shares except in accordance with the
express terms of this Section 5 and unless the proposed transferee agrees with
the Company in writing to be bound by Section 5.1 of this Agreement. Any
attempted transfer in violation of this Section 5 shall be void and of no
effect.
5.1 COMPLIANCE WITH SECURITIES LAWS. Without in any way limiting the
representations set forth above, Purchaser further agrees not to make any
disposition of all or any portion of the Shares, except in compliance with
applicable federal and state securities laws and unless and until:
(a) there is then in effect a registration statement under the 1933
Act covering such proposed disposition and such disposition is made in
accordance with such registration statement;
(b) such disposition is made in accordance with Rule 144 under the
1933 Act; or
(c) Purchaser shall have notified the Company of the proposed
disposition and shall have furnished the Company with a statement of the
circumstances surrounding the proposed disposition, and if requested by
the Company, Purchaser shall have furnished the Company with an opinion of
counsel acceptable to Company counsel, that such disposition will not
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require registration under the 1933 Act and will be in compliance with
applicable state securities laws.
Section 6. STOCK CERTIFICATE LEGEND.
Purchaser understands and acknowledges that the certificate evidencing the
Shares purchased by Purchaser hereunder (or evidencing any other securities
issued with respect thereto pursuant to any stock split, stock dividend, merger
or other form of reorganization or recapitalization) shall bear, in addition to
any other legends which may be required by this Agreement or applicable state
securities laws, the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("1933 ACT") NOR
HAVE THEY BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
LAWS OF ANY STATE. NO TRANSFER OF SUCH SECURITIES WILL BE
PERMITTED UNLESS A REGISTRATION STATEMENT UNDER The 1933 ACT
IS IN EFFECT AS TO SUCH TRANSFER, THE TRANSFER IS MADE IN
ACCORDANCE WITH RULE 144 UNDER The 1933 ACT, OR ZN THE
OPINION OF COUNSEL (WHICH MAY BE COUNSEL FOR THE COMPANY),
REGISTRATION UNDER The 1933 Act IS UNNECESSARY IN ORDER FOR
SUCH TRANSFER TO COMPLY WITH THE 1933 ACT AND WITH APPLICABLE
STATE SECURITIES LAWS.
Upon request of a holder of Shares the Company shall remove
the foregoing legend or issue to such holder a new certificate therefor free of
any such legend, if the Company shall have received either an opinion of counsel
or a "No-action" letter of the SEC, in either case reasonably satisfactory in
substance to the Company and its counsel, to the effect that such legend is no
longer required.
Section 7. COVENANTS
The Company covenants and agrees as follows:
(a) To file and keep available adequate current public information
as is required to be filed and kept available for holders of restricted
securities to be able to sell such securities pursuant
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to Rule 144 under the 1933 Act and any successor regulation;
(b) To file with the SEC in a timely manner all reports and other
documents required to be filed under the 1934 Act and to cause its shares
of preferred stock to continue to be traded on the OTC Bulletin Board,
NASDAQ or on a national securities exchange; and
(c) To notify the SEC and NASDAQ, in accordance with their
requirements, of the transactions contemplated by this Agreement, and
shall take all other necessary action and proceedings as may be required
and permitted by applicable law, rule and regulation, for the legal and
valid issuance and sale of the Shares issued to the Purchaser or
subsequent holder.
Section 8. MISCELLANEOUS.
8.1 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be an original, and all of which together
shall constitute one and the same agreement.
8.2 GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of California
without regard to the conflicts of laws principles thereof.
8.3 JURISDICTION. All parties hereto irrevocably submit to the
non-exclusive jurisdiction of any California or Federal court sitting in the
state of California over any suit, action or proceeding brought by any Purchaser
arising out of or relatinq to this Agreement or the Shares.
8.4 CONSENT TO SERVICE. The Company consents to service of
process in any suit, action or proceeding of the nature referred to in Section
8.3 by mailing a copy thereof by registered or certified mail, postage prepaid,
return receipt requested, to its address specified in or designated pursuant to
Section 8.7 herein. Such service (i) shall be deemed in every respect effective
service of process upon the Company in any such suit, action or proceeding and
(ii) shall, to the fullest extent permitted
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by law, be taken and held to be valid personal service upon and personal
delivery to the Company.
8.5 ASSIGNMENTS. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
8.6 SUBSCRIPTION. Purchaser acknowledges and agrees that if
for any reason the Purchase does not close or if Purchaser's subscription is
rejected for any reason, Purchaser shall have no claims against the Company,
its directors and officers, stockholders, agents and affiliates and shall have
no interest in the Company or in any property or assets of the Company other
than for the return of the Aggregate Purchase Price, or any portion thereof,
which has been previously delivered to the Company.
8.7 NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed given when actually
delivered by hand, messenger, facsimile or courier service or, if mailed, four
days after deposit in the U.S. mail, addressed (a) if to the Purchaser, as
indicated below the Purchaser's signature, or at such other address as the
Purchaser shall have furnished to the Company in writing, or (b) if to any
other holder of any Shares, at the address of such holder as shown on the
records of the Company, or (c) if to the Company, at its address set forth
below or at such other address as the Company shall have furnished to the
Purchaser and each such other holder in writing.
8.8 DELAYS OR OMISSIONS. No delay or omission to exercise any
right, power or remedy accruing to any party to this Agreement (including any
holder of Shares), upon any breach or default of another party under this
Agreement, shall impair any such right, power or remedy of such party nor
shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. All
remedies, either under this Agreement or by law or otherwise afforded to any
party, shall be cumulative and not alternative.
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8.9 SEVERABILITY. In any case any provision of this Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
8.10 FURTHER ASSURANCES. The Company agrees to take such
actions and execute such other documents which the Purchaser may reasonably
request to carry out the intent of this Agreement and the transactions
contemplated hereby.
Section 9. REGISTRATION RIGHTS.
9.1 REGISTRATION. Immediately upon the Closing Date of this
Agreement, the Company shall, at Company's expense, initiate the filing of a
Form S-3 Registration to register the Shares issued hereunder and shall use
their best efforts to insure an effective date for such registration statement
which is within 90 days of the Closing Date hereof. The Company shall also take
whatever actions are commercially reasonable and necessary to insure that such
registration statement remains effective for at least twenty four months from
the effective date thereof.
9.2 REGISTRATION COVENANTS. Whenever required under this Section 9
to effect the registration of any Shares ("Registrable Securities"), the Company
shall, as expeditiously as reasonably possible:
(i) Prepare and file with the SEC a registration statement or an
amendment thereto with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective
within 90 days and keep such registration statement effective for a period
of not less than twenty four months from the date of conversion.
(ii) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with
such registration statement as may be necessary to comply with the
provisions of the 1933 Act with respect to the disposition of all
securities covered by such registration statement.
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(iii) Permit the Holder the right to review and comment as to
information relating to Holder or the Registrable Securities included in
the registration statement and furnish to the Holder such numbers of
conformed copies of the registration statement and each amendment or
supplement, including each prospectus and preliminary prospectus, in
conformity with the requirements of the 1933 Act, and such other documents
as the Holder may reasonably request in order to facilitate the
disposition of Registrable Securities owned by Holder for so long as
Holder desires to dispose of the securities covered by such registration
statement (but not after Holder is free to sell such securities under the
provisions of Rule 144(k) under the 1933 Act).
(iv) Use its best efforts to register and qualify the securities
covered by such registration statement under the securities or blue sky
laws of such jurisdictions as shall be reasonably requested by Xxxxxx,
provided that the Company shall not be required in connection therewith or
as a condition thereto to qualify to do business or to file a general
consent to service and process in any such states or jurisdictions.
(v) Notify Holder of 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 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.
(vi) Furnish, at the request of Xxxxxx, an opinion of counsel of the
Company, dated the effective date or the closing date, as the case may be,
of the registration statement, as to the due authorization and issuance of
the securities being registered.
(vii) Notify the Holder promptly after the Company shall have
received notice thereof of the issuance of any stop order by the SEC
suspending the effectiveness of such registration statement and use
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its best efforts to obtain withdrawal if such stop order should be issued.
9.5 HOLDER COVENANT. The Holder will furnish to the Company in
connection with any registration under this Section 9 such information regarding
itself, the Registrable Securities and other securities of the Company held by
it, and the intended method of disposition of such securities as shall be
required to effect the registration of the Registrable Securities held by
Holder.
9.6 INDEMNIFICATION. The Company shall indemnify, defend and hold
harmless each Holder of Registrable Securities which are included in a
registration statement pursuant to the provisions of this Section 9, any
underwriter (as defined in the 1933 Act) for such Holder, and the directors,
officers and controlling persons of such Holder or underwriter from and against
any and all claims, suits, demands, causes of action, losses, damages,
liabilities, costs or expenses ("Liabilities") to which any of them may become
subject under the 1933 Act or otherwise, arising from or relating to (i) any
untrue statement or alleged untrue statement of any material fact contained in
such registration statement, any prospectus contained therein or any amendment
or supplement thereto, or (ii) the 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; provided, however, that the Company shall not be liable in any such
case to the extent that any such Liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission so
made in conformity with written information furnished by such person
specifically for use in the preparation thereof. This indemnification will
survive the transfer of the Shares.
Each Holder of Registrable Securities included in a registration
pursuant to the provisions of this Section 9 shall indemnify, defend, and hold
harmless the Company, its directors, officers and controlling persons with
respect to, any and all Liabilities to which any of them may become subject
under the 1933 Act or otherwise, arising from or relating to (i) any untrue
statement or alleged untrue statement of any material fact contained in such
registration statement, any prospectus contained therein or any amendment or
supplement thereto, or (ii) the omission
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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, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was so made in reliance upon and in
conformity with written information furnished by or on behalf of such Holder for
use in the preparation thereof. This indemnification shall survive the transfer
of the Shares.
Promptly after receipt by an indemnified party pursuant to the
provisions of this Section 9.6 of notice of the commencement of any action
involving the subject matter of the foregoing indemnity provisions, such
indemnified party shall, if a claim thereof is to be made against the
indemnifying party pursuant to the provisions of this Section 9.6, promptly
notify the indemnifying party of the commencement thereof; provided, however,
that the failure to so notify the indemnifying party shall not relieve it from
its indemnification obligations hereunder except to the extent that the
indemnifying party is materially prejudiced by such failure. If such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party shall have the right to
participate in, and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party, provided, however, if the
defendants in any action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that there is
conflict of interest which would prevent counsel for the indemnifying party from
also representing the indemnified party, the indemnified party shall have the
right to select separate counsel to participate in the defense of such action on
behalf of such indemnified party at the expense of the indemnifying party. 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 pursuant to this Section 9.5 for any expense of counsel
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation, unless (i) the indemnified
party shall have employed counsel in accordance with the provisions of the
preceding sentence,
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or (ii) the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after the notice of the commencement of the action. An indemnifying party
shall not be responsible for amounts paid in settlement without its consent,
provided that its consent may not be unreasonably withheld. Upon any settlement
or entry of final judgment, the indemnifying part will promptly indemnify the
indemnified party.
9.7 REGISTRATION EXPENSES. With respect to the inclusion of
Registrable Securities in a registration statement pursuant to this Section 9,
all fees, costs and expenses of and incidental to such registration shall be
borne by the Company. The fees, costs and expenses of registration to be borne
by the Company as provided in this Section 9.7 shall include, without
limitation, all registration, filing and NASD fees, printing expenses, fees and
disbursements of counsel and accountants for the Company, and all legal fees and
disbursements and other expenses of complying with state securities or Blue Sky
laws of any jurisdiction or jurisdictions in which securities are to be
registered and qualified. Fees and disbursements for counsel, accountants and
other costs of Purchaser, however, shall be borne by Purchaser.
9.8 ASSIGNMENT OF REGISTRATION RIGHTS. The rights of the Purchaser
to have the Company register for resale Registrable Securities shall be
automatically assignable by the Purchaser to any assignee or transferee,
provided that such transfer shall have been made in accordance with the
applicable requirements of this Agreement. Notwithstanding a transfer by
Purchaser to a third party of a portion of the Shares, Purchaser shall retain
its registration rights with respect to all Registrable Securities held by
Purchaser. If any Shares are transferred by a third party to a subsequent
transferee, such subsequent transferee shall have no registration rights with
respect to any shares of common stock which may be issued upon conversion of
such Shares.
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IN WITNESS WHEREOF, the parties have duly executed this agreement as
of the date first written above.
"The Company"
SeraCare, Inc.
A Delaware corporation
By:
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title:Executive Vice President
Notice Address:
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
"Purchaser"
By:
------------------------------
Name:
Title:
---------------------------
Notice Address:
19
