EXHIBIT 10.2
DEMAND REGISTRATION AGREEMENT
THIS DEMAND REGISTRATION AGREEMENT (the "Agreement") is made as of
August 15, 2002 by and among Strategic Diagnostics Inc. (the "Company"), a
Delaware corporation, and each of the shareholders listed on Schedule A hereto
(each a "Holder" and collectively, the "Holders").
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A. As of the date of this Agreement, the Holders are the record and
beneficial owners of the number of shares (the "Securities") of the common stock
of the Company, $0.01 par value (the "Common Stock) set forth next to each such
Holder's name on Schedule A.
B. As an accommodation to the Holders, and not as an inducement for the
Holders to purchase or retain the Securities, the Company is willing to register
under the Securities Act of 1933, as amended, and the rules and regulations
thereunder, or any similar successor statute (collectively, the "Securities
Act") the proposed sale or transfer of the Securities by the Holders.
In consideration of the mutual promises contained in this Agreement,
and intending to be legally bound, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement:
(a) The terms "register," "registered" and "registration"
refer to a registration effected by preparing and filing a registration
statement or statements or similar documents in compliance with the Securities
Act and pursuant to Rule 415 under the Securities Act or any successor rule
providing for offering securities on a continuous basis ("Rule 415"), and the
declaration or ordering of effectiveness of such registration statement or
document by the Securities and Exchange Commission (the "SEC").
(b) The term "Securities" means the shares of Common Stock
purchased by the Holders, pursuant to the Stock Purchase Agreement among the
Holders and the Company of each date herewith, and any Common Stock issued as
(or issuable upon the conversion or exercise of any convertible security,
warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, such
Common Stock of the Company, but shall not include any additional shares of
Common Stock acquired by the Holders from the Company or otherwise after the
date hereof.
2. Registration. Not later than five (5) years from the date of this
Agreement, the Holders of 51% of the then unsold securities may make one (1)
demand that the Company use commercially reasonable efforts to file a
registration statement on Form S-3 to effect the registration under the
Securities Act of the Securities; provided, however, that any Holder may inform
the Company in writing pursuant to this Agreement that such Holder does not want
the Securities held by such Holder to be included in such registration. Any such
notice must be received by the Company not later than five (5) days after such
demand notice has been received by the Company. In addition, it is understood
that this deadline shall be extended without liability in the event that the
Company's auditors are unable to grant its consent in a timely manner.
3. Obligations of the Company. If and whenever the Company is required
to effect the registration of the Securities under the Securities Act as
provided in this Agreement, the Company shall, as promptly as reasonably
possible:
(a) prepare and file with the SEC a registration statement or
statements or similar documents (the "Registration Statement") with respect to
the Securities, other than any registrable Securities excluded by Holders
pursuant to Section 2, and thereafter use its reasonable efforts to cause the
Registration Statement to become effective, and keep the Registration Statement
effective pursuant to Rule 415 for the period of time specified in Section 4(c)
of this Agreement;
(b) prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to the Registration Statement and the
prospectus used in connection with the Registration Statement as may be
necessary to keep the Registration Statement effective at all times during the
period of time specified in Section 4(c) of this Agreement, and, during such
period, comply with the provisions of the Securities Act with respect to the
disposition of the Securities covered by the Registration Statement;
(c) furnish promptly to the Holders such numbers of copies of
a prospectus, including a preliminary prospectus, and all amendments and
supplements thereto (in each case including all exhibits), in conformity with
the requirements of the Securities Act, and such other documents as the Holders
may reasonably request in order to facilitate the disposition of the Securities;
(d) use its commercially reasonable efforts (i) to register
and qualify the Securities covered by the Registration Statement under such
other securities or "blue sky" laws of such jurisdictions as shall be reasonably
requested by the Holders (provided, however, that the Company shall not be
required to so register or qualify the Securities in more than seven states)
(ii) to prepare and file in those jurisdictions such amendments (including
post-effective amendments) and supplements, and (iii) to take all other actions
necessary or advisable to enable the disposition of such securities in such
jurisdictions; provided, however, that the Company shall not be required in
connection therewith or as a condition thereto to: (A) qualify generally to do
business, (B) file a general consent to service of process in any such
jurisdictions, (C) subject itself to taxation in any such jurisdiction, or (D)
provide any undertaking or make any change in its charter or by-laws which the
Board of Directors determines to be contrary to the best interests of the
Company;
(e) notify the Holders at any time when a prospectus relating
to Securities covered by the Registration Statement is required to be delivered
under the Securities Act, of the happening of any event as a result of which the
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prospectus included in the Registration Statement, as then in effect, may
include an untrue statement of a material fact or may omit 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. Following the
request of the Holders of not less than 51% of the then unsold Securities
covered by the Registration Statement, the Company shall as soon as practicable
amend or supplement the Registration Statement to correct any such untrue
statement or omission so that, as thereafter delivered to the purchasers of such
securities, such prospectus, as supplemented or amended, 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
light of the circumstances under which they were made and furnish to each Holder
a reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary;
(f) notify the Holders (or, in the event of an underwritten
offering, the managing underwriter) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose. The Company will use its commercially
reasonable efforts to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible time;
(g) permit counsel designated by the Holders to review the
Registration Statement and all amendments and supplements thereto for a
reasonable period of time prior to their filing with the SEC; and
(h) take all actions reasonably necessary to facilitate the
timely preparation and delivery of certificates promptly following the sale of
Securities in accordance with the Registration Statement (not bearing any
restrictive legend) representing the Securities sold pursuant to the
Registration Statement and to enable such certificates to be in such
denominations and registered in such names as the Holders may reasonably
request.
4. Limitations on Registration Obligations; Holdback.
(a) The Company shall not be required to effect the
registration contemplated by this Agreement unless the Company and the
transaction proposed to be registered is eligible for registration on Form S-3
under the Securities Act, and/or any comparable short-form registration
statement providing for automatic incorporation by reference of reports filed
pursuant to the 1934 Act (as hereafter defined).
(b) The Company may delay the filing, delay the effectiveness
or suspend the effectiveness of the Registration Statement of the Company
covering the Securities or require the Holders to suspend sales or other
dispositions of the Securities under an effective Registration Statement, in
each case for such time as may be required by the Company, if (i) the Company
believes the sale of the Securities thereunder would interfere with or be
detrimental to a planned offering by the Company of any of the Company's
securities, (ii) the Company believes the sale of the Securities thereunder
would have a material adverse effect on the business, prospects, operations,
results of operations, assets, liabilities, or condition (financial or
otherwise) of the Company; (iii) the Company is engaged in discussions
concerning any possible merger, acquisition, financing, business combination,
restructuring or sale of all or any substantial portion of the Company or its
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assets, or any similar transaction or (iv) the Company would be required to
disclose in such Registration Statement material information that it would not
otherwise be required to disclose in its filings with the Commission pursuant to
the Exchange Act and that it has not then disclosed in such filings with the
Commission (each an "Allowed Delay"). In the event of an Allowed Delay, the
Company shall promptly (x) notify the Holders in writing (a "Delay Notice") of
the existence (but not the substance) of the Allowed Delay and (y) advise the
Holders in writing to cease all sales or other dispositions under such
Registration Statement until the expiration of the period provided for in the
Delay Notice. To the extent required by this Agreement, upon expiration of the
Allowed Delay, the Company shall again file, cause the effectiveness of, or
permit the resumption of sales and dispositions under the Registration
Statement.
(c) Notwithstanding anything to the contrary in this
Agreement, the Company shall only be required to use its commercially reasonable
efforts to maintain the effectiveness of any Registration Statement covering the
Securities for a period of one (1) year from the date the initial Registration
Statement covering the Securities is declared effective by the SEC or, if
earlier, until the Holders have sold or otherwise disposed of the Securities
covered by such Registration Statement.
(d) If the Company shall at any time register any of its
securities under the Securities Act, for offer or sale to the public, then the
Holders shall not make any sale, short sale, assignment, transfer, pledge,
hypothecation, gift or other disposition (including resales pursuant to Rule 144
and/or the grant of any option for sale) of any of the Securities without the
prior written consent of the Company for such period as may be designated by the
Company and, if the Company's offering shall be, in whole or in part, an
underwritten offering, the managing underwriter.
5. Obligations of the Holders. In connection with the registration of
the Securities, each of the Holders shall:
(a) furnish to the Company such information regarding itself,
the Securities held by it and the intended method of disposition of the
Securities held by it as shall be reasonably requested by the Company and shall
execute such documents in connection with such registration as the Company may
reasonably request;
(b) cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of a Registration
Statement or any amendment or supplement thereto;
(c) upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(e), and/or 4(a) of
this Agreement, immediately discontinue disposition of the Securities pursuant
to a Registration Statement covering such Securities until the Holder's receipt
of the copies of the supplemented or amended prospectus contemplated by such
Section 3(e) and, if so directed by the Company, deliver to the Company (at the
expense of the Company) or destroy (and deliver to the Company a certificate of
destruction) all copies in the Holder's possession, of the prospectus covering
such the Securities current at the time of receipt of the notice of the
happening of an event as described in such sections;
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(d) upon receipt of any Delay Notice, immediately discontinue
the sale or disposition of the Securities until the expiration of the Allowed
Delay or any extension thereof pursuant to a subsequent Delay Notice; and
(e) comply with all applicable laws and regulations in
connection with any sale, transfer or other disposition of the Securities.
6. Expenses.
(a) The Company shall pay all expenses incident to the
Company's performance of or compliance with this Agreement, including, without
limitation, all SEC, state "blue sky," securities exchange, The Nasdaq Stock
Market or NASD registration and filing fees, fees and expenses of compliance
with securities or "blue sky" laws, rating agency fees, printing expenses,
messenger and delivery expenses, fees and disbursements of counsel for the
Company, fees and disbursements of independent certified public accountants for
the Company (including the expenses of any special audit or other work required
by or incident to such performance), securities acts liability insurance (if the
Company elects to obtain such insurance), the reasonable fees and expenses of
any special experts retained by the Company in connection with such
registration, and fees and expenses of other persons retained by the Company.
(b) All underwriting discounts or commissions attributable to
the sale of Securities, and all fees and expenses of any counsel, accountants or
other agents for the Holders (or any of them), shall be borne by the Holders in
accordance with the terms of any underwriting, brokerage or other arrangements
made by the Holders, and the Company shall have no obligations or liabilities
with respect to such selling or other expenses.
7. Indemnification. In the event any Securities of the Company are
included in a Registration Statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder and each person, if any, who controls any such
Holder within the meaning of the Securities Act or the Securities Exchange Act
of 1934, as amended (the "1934 Act"), against any losses, claims, damages,
expenses or liabilities (joint or several) to which any of them may become
subject under the Securities Act, the 1934 Act or otherwise, insofar as such
losses, claims, damages, expenses or liabilities (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or are based
upon any of the following statements, omissions or violations (collectively, a
"Violation"): (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements 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;
and the Company will reimburse the Holders or controlling person for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability, action or proceeding;
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provided, however, that the indemnity agreement contained in this subsection
7(a) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the prior
written consent of the Company; nor shall the Company be liable in any such case
for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which is in conformity with
information furnished by or on behalf of the Holders or controlling person, as
the case may be. Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of the Holders or controlling person.
(b) To the extent permitted by law, each Holder, severally and
not jointly, will indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the Registration Statement, each
person, if any, who controls the Company within the meaning of the Securities
Act or the 1934 Act, and any other stockholder selling securities pursuant to
the Registration Statement or any of its directors or officers or any person who
controls such Holder, against any losses, claims, damages or liabilities (joint
or several) to which any of them may become subject, under the Securities Act,
the 1934 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 Violation, in each case to
the extent that such Violation occurs in conformity with information furnished
by or on behalf of such Holder or controlling person (as described in (a)
above); and such Holder will reimburse any legal or other expenses reasonably
incurred by any of them in connection with investigating or defending any such
loss, claim, damage, liability or action: provided, however, that the indemnity
agreement contained in this subsection 7(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of such Holder, which consent shall
not be unreasonably withheld.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnified party under this Section 7, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume control of the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that an indemnified
party shall have the right to retain its own counsel, with the fees and expenses
to be paid by the indemnifying party, if, in the reasonable opinion of counsel
for the indemnified party, representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall relieve such indemnifying party of any
liability to the indemnified party under this Section 7 only to the extent
prejudicial to its ability to defend such action, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section 7.
The indemnification required by this Section 7 shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, promptly as such expense, loss, damage or liability is incurred.
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(d) If the indemnification provided for in this Section 7 from
the indemnifying party is unavailable to an indemnified party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, 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 losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and the indemnified parties in connection with the actions which resulted
in such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and the opportunity to correct or prevent such action. The amount
paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include any legal
or other fees or expenses reasonably incurred by such party in connection with
any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 7(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
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 was not guilty of such fraudulent misrepresentation.
(e) If indemnification is available under this Section 7, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Section 7(a) and 7(b) without regard to the relative fault of said
indemnifying party or indemnified party or any other equitable consideration
provided for in Section 7(d).
8. Reports Under Securities Exchange Act of 1934. With a view to making
available to the Holders the benefits of SEC Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit the Holders to sell the Securities to the public without registration,
the Company agrees to:
(a) file with the SEC in a timely manner all reports and other
documents required of the Company under the 1934 Act; and
(b) furnish to each Holder, so long as such Holder owns any of
the Securities, promptly upon request: (i) a written statement by the Company
that it has complied with the reporting requirements of the 1934 Act, (ii) a
copy of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company pursuant to the requirements of
the 1934 Act, and (iii) such other information as may be reasonably requested in
availing the Holders of any rule or regulation of the SEC which permits the
selling of the Securities without registration.
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9. Transfer Restrictions; Restrictive Legend.
(a) Each Holder of the Securities agrees that such Holder
shall, prior to the consummation of any sale or transfer of any Securities, give
written notice to the Company of such Holder's intention to effect such a sale
or transfer. Each such notice shall (i) describe the manner and circumstances of
the proposed sale or transfer including, without limitation, such information as
is necessary to establish that the proposed transfer may be made in compliance
with the Securities Act, and (ii) if requested by the Company, be accompanied by
the written opinion, addressed to the Company and obtained at the sole expense
of the holder, of counsel for such Holder who is reasonably satisfactory to the
Company, in form and substance satisfactory to the Company, to the effect that
the proposed sale or transfer may be made in compliance with the Securities Act.
No Holder shall sell or transfer any of such Securities until such notice and,
if requested, such opinion of counsel has been given to and accepted by the
Company. Each certificate representing the Securities so transferred shall bear
the legend set forth in Section 9(b) below unless (i) such transfer is in
accordance with the provisions of Rule 144 (or any other rule or regulation
permitting public sale without registration under the Securities Act), (ii) in
such opinion of counsel, (x) registration of future transfers is not required by
the applicable provisions of the Securities Act and (y) such Securities may
immediately be sold by such Holder without taking any other actions to comply
with an applicable exemption from such registration requirements, or (iii) the
Company shall consent in writing that such legend may be removed.
(b) Each certificate representing the Securities shall, unless
otherwise specifically permitted by subsection 9(a) be stamped or otherwise
imprinted with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
UNDER ANY APPLICABLE STATE OR FEDERAL SECURITIES LAW. NO OFFER, SALE,
TRANSFER, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF SUCH SECURITIES
MAY BE MADE UNLESS SUCH SECURITIES ARE REGISTERED UNDER THE ACT AND ANY
OTHER APPLICABLE SECURITIES LAW, OR AN EXEMPTION FROM ANY SUCH
REGISTRATION REQUIREMENTS IS APPLICABLE TO SUCH TRANSACTION. IN
ADDITION, NOTICE IS HEREBY GIVEN THAT THE SALE, TRANSFER, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO AND RESTRICTED BY THE PROVISIONS OF A
REGISTRATION AGREEMENT DATED AUGUST ___, 2002."
10. Representations and Warranties.
(a) The Company represents and warrants to the Holders as
follows:
(i) The Company's execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby
by the Company are within the Company's corporate powers and duly authorized by
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all necessary corporate action on the part of the Company and do not require any
action by or in respect of, or filing with, any governmental or regulatory
authority, except as set forth in this Agreement or contravene, violate or
constitute a default under, any requirement of law applicable to Company or any
of its properties.
(ii) This Agreement has been duly executed and
delivered by the Company and constitutes the legal, valid and binding obligation
of the Company, enforceable in accordance with its terms, except to the extent
that enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws relating to or
affecting the rights and remedies of creditors generally and by general
principles of equity.
(b) Each of the Holders hereby severally, and not jointly,
represent and warrant to the Company as follows:
(i) The Holder's execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby
by the Holder are within the Holder's legal power and authority and do not
require any action by or in respect of, or filing with, any governmental or
regulatory authority, except as set forth in this Agreement or contravene,
violate or constitute a default under, any requirement of law applicable to the
Holder or any of their respective properties or any contract, understanding or
agreement to which the Holder or any of such Holder's properties is bound or
subject.
(ii) This Agreement has been duly executed and
delivered by the Holder and constitutes the legal, valid and binding obligation
of the Holder, enforceable in accordance with its terms, except to the extent
that enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws relating to or
affecting the rights and remedies of creditors generally and by general
principles of equity.
11. Joinder to Agreement. Each Holder's acceptance of this Agreement
shall be reflected by his execution of a Joinder Agreement, substantially in the
form attached to this Agreement as Exhibit A (the "Joinder Agreement"). The
parties to this Agreement hereby consent to the joinder of Holders from time to
time and acknowledge that, upon such joinder, such Holders shall be subject to
the terms and conditions of this Agreement. The Company may, in its sole
discretion, require any recipient of any Securities transferred by any Holder to
execute and deliver a Joinder Agreement; provided, that such recipient is then
or becomes the beneficial owner of the Securities equal to five percent (5%) or
more of the Company's then outstanding Securities.
12. Assignment. This Agreement shall be binding upon the successors and
assigns of each of the parties hereto and shall inure to the benefit of their
respective successors and permitted assigns. This Agreement shall not be
assignable by any Holder, by operation of law or otherwise, without the prior
written consent of the Company.
13. Amendment. Any provision of this Agreement may be amended and the
observance thereof may be waived (either generally or in a particular instance
and either retroactively or prospectively), only with the written consent of the
Company and the holders of a majority of the then unsold Securities. Any
amendment or waiver effected in accordance with this Section 13 shall be binding
upon each Holder and the Company.
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14. Termination of Obligations. The obligations of the Company pursuant
to this Agreement shall terminate [six (6) years] from the effective date of the
Registration Statement. The obligations of the Holders pursuant to this
Agreement shall continue until all of the Securities have been sold or otherwise
disposed of pursuant to the Registration Statement or otherwise.
15. Remedies. Any parties having rights under any provision of this
Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to the courts specified in Section 16(c) (without posting any bond or
other security) for specific performance and for other injunctive relief in
order to enforce or prevent violation of the provisions of this Agreement.
16. Miscellaneous.
(a) Notices required or permitted to be given hereunder shall
be in writing and shall be deemed to be sufficiently given when personally
delivered or sent by registered mail, return receipt requested, with proper
postage prepaid, or any nationally recognized overnight delivery service, with
proper charges prepaid, addressed to the Company at: Strategic Diagnositcs Inc.,
000 Xxxxxxxx Xxxxx, Xxxxxx, XX 00000, Attention: Xxxxxxx Xxxxxxxxx; or to the
Holders, at the address set forth under such Holder's name on its, his or her
applicable Joinder Agreement; or at such other address as each such party
furnishes by notice given in accordance with this Section 16(a).
(b) Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, will not operate as a waiver thereof. No waiver will be effective unless
and until it is in writing and signed by the party giving the waiver. The waiver
by any Holder, the Holders or the Company of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any other or
subsequent breach under this Agreement.
(c) This Agreement shall be enforced, governed by and
construed in accordance with the laws of the State of Delaware, notwithstanding
the choice of law rules of Delaware or any other jurisdiction. IN ADDITION, IN
THE CASE OF ANY DISPUTE UNDER OR IN CONNECTION WITH THIS AGREEMENT, EACH HOLDER
AND THE COMPANY HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE
COURTS OF THE STATE OF DELAWARE IN AND FOR THE COUNTY IN WHICH THE COMPANY
MAINTAINS ITS PRINCIPAL PLACE OF BUSINESS OR THE FEDERAL DISTRICT COURT FOR SUCH
GEOGRAPHIC LOCATION, PROVIDED THAT SUCH FEDERAL COURT HAS SUBJECT MATTER
JURISDICTION OVER SUCH DISPUTE, AND EACH HOLDER HEREBY WAIVES ANY CLAIM THAT
SUCH HOLDER MAY HAVE AT ANY TIME AS TO FORUM NON CONVENIENS WITH RESPECT TO SUCH
VENUE. Notwithstanding anything to the contrary set forth in the preceding
sentence, the Company shall have the right to institute any legal action arising
out of or relating to this Agreement in any appropriate court and in any
jurisdiction.
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(d) In the event that any provision of this Agreement is
invalid or unenforceable under any applicable statute or rule of law, then such
provision shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to conform with such statute or rule of
law. Any provision hereof which may prove invalid or unenforceable under any law
shall not affect the validity or enforceability of any other provision hereof.
(e) This Agreement is not intended to, and does not, create
any rights in or confer any benefits upon anyone other than the parties hereto.
(f) The headings used in this Agreement are for convenience
only and are not intended to define or limit the contents or substance of any
provision of this Agreement.
(g) The parties understand and acknowledge that they have each
been represented by (or have had the opportunity to be represented by) counsel
in connection with the preparation, execution and delivery of this Agreement.
This Agreement shall not be construed against any party for having drafted it.
(h) This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein. This Agreement supersedes all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof.
(i) This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties to this Agreement have caused
this Agreement to be duly executed as of the date first written above.
STRATEGIC DIAGNOSTICS INC.
By: ___________________________
Print Name: ___________________
Title: ________________________
[See Joinder Agreements For Holders]
JOINDER AGREEMENT
The undersigned has executed this Joinder Agreement (this
"Joinder") to join as a party in that certain Registration Agreement dated as of
August __, 2002 (the "Agreement") by and among Strategic Diagnostics Inc., a
Delaware corporation (the "Company"), and the Holders described therein, a copy
of which is attached to this Joinder, and intending to be legally bound hereby,
agrees that upon execution of this Joinder, the undersigned shall become a party
to and be bound in all respects by the Agreement and including, without
limitation, that the undersigned shall be deemed to be a "Holder" within the
meaning of the Agreement, and shall have agreed to the provisions of Section 9
(relating to restriction on transfer of Securities) and of Section 16(c) thereof
(relating to choice of law and consent to jurisdiction and venue).
FOR ENTITIES:
________________________________________
Print Name of Holder
Dated:__________________________ By: ____________________________________
Name of Authorized Officer
Attest:_________________________ Title: _________________________________
Address of Entity Holder for Notices:
-------------------------------------
________________________________________
________________________________________
________________________________________
-12-
FOR INDIVIDUALS:
Dated: _________________________ By: _____________________________________
Signature
Witness: _______________________ _________________________________
Signature Print Name
Print Name:_____________________
Address of Individual Holder for Notices:
-----------------------------------------
_________________________________________
_________________________________________
_________________________________________
