Exhibit 10.1
STOCK PURCHASE AGREEMENT
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This STOCK PURCHASE AGREEMENT (this "Agreement") is made as of August
15, 2002 by and between Strategic Diagnostics Inc., a Delaware corporation (the
"Company") and the undersigned parties (collectively, the "Purchasers").
WHEREAS, the Company desires to sell certain shares of its common
stock; and
WHEREAS, the Purchasers, being members of the Company's board of
directors, or their affiliates, desire to purchase certain shares of the
Company's common stock on the terms and conditions set forth herein.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties agreed as follows:
1. Investment.
(a) The Purchasers concurrently with the execution and
delivery of this Agreement shall purchase from the Company the number of shares
of the Company's common stock, par value $.01 per share ( the "Common Stock"),
set forth opposite their names on Schedule 1 attached hereto, at a purchase
price of $3.216 per share, which amount shall be paid to the Company within
three (3) days of the date hereof, in each case with payment to be made by each
Purchaser in immediately available funds by wire transfer to a bank account
designated by the Company.
(b) Promptly after the execution and delivery of this
Agreement, the Company shall deliver stock certificates to each Purchaser
representing the shares of Common Stock purchased by it hereunder.
2. Representation and Warranties of the Company. The Company hereby
makes the following representations and warranties to each Purchaser:
(a) The Company is a corporation, duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, with the
requisite corporate power and authority to own and use its properties and assets
and to carry on its business as currently conducted. The Company is duly
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, except where the failure to be
so qualified or in good standing, as the case may be, could not, individually or
in the aggregate, (x) adversely affect the legality, validity or enforceability
of any of this Agreement in any material respect, or (y) have a material adverse
effect on the results of operations, assets, prospects, or financial condition
of the Company (a "Material Adverse Effect").
(b) Assuming (without any independent investigation or
verification by or on behalf of the Company) the accuracy of the representations
and warranties of the Purchasers set forth in Section 3, the offer and sale of
the Shares are exempt from registration under Section 5 of the Securities Act of
1933, as amended (the "Securities Act"). Neither the Company nor any person
acting on its behalf has taken or will take any action which might subject the
offering, issuance or sale of the Shares to the registration requirements of
Section 5 of the Securities Act.
(c) The Company has not (i) distributed any offering
materials in connection with the offering and sale of the Shares other than the
Disclosure Materials (as defined below) and other filings by the Company
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act")
prior to the date hereof, or (ii) solicited any offer to buy or sell the Shares
by means of any form of general solicitation or advertising.
(d) The Company has filed all reports required to be filed by
it under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for the three years preceding the date hereof (or such shorter period as the
Company was required by law to file such material) (the foregoing material being
collectively referred to herein as the "SEC Documents" and, together with the
Schedules to this Agreement furnished by or on behalf of the Company and any
press releases issued by the Company subsequent to the Company's Annual Report
on Form 10-K, as amended, for the fiscal year ended December 31, 2001, the
"Disclosure Materials") on a timely basis, or has received a valid extension of
such time of filing. As of their respective dates, the SEC Documents complied in
all material respects with the requirements of the Securities Act and the
Exchange Act and the rules and regulations of the Securities and Exchange
Commission (the "Commission") promulgated thereunder, and none of the SEC
Documents, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The financial statements of the Company included
in the SEC Documents comply in all material respects with applicable accounting
requirements and the published rules and regulations of the Commission with
respect thereto. Such financial statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis during
the periods involved, except as may be otherwise indicated in such financial
statements or the notes thereto, and fairly present in all material respects the
financial position of the Company as of and for the dates thereof and the
results of operations and cash flows for the periods then ended, subject, in the
case of unaudited statements, to normal year-end audit adjustments. Since the
date of the financial statements included in the Company's last filed Annual
Report on Form 10-K, there has been no event, occurrence or development that has
had a Material Adverse Effect which is not specifically disclosed in any of the
Disclosure Materials.
(e) The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated hereby
and otherwise to carry out its obligations hereunder. The execution and delivery
of this Agreement by the Company and the consummation by it of the transactions
contemplated thereby have been duly authorized by all requisite corporate action
on the part of the Company. This Agreement has been duly executed and delivered
by the Company and constitutes a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principles of general application. The Company is not in
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violation of any of the provisions of its Certificate of Incorporation, as
amended (the "Certificate of Incorporation"), or By-Laws (the "By-Laws").
(f) As of the date hereof, the Company has a sufficient
number of shares of Common Stock authorized and duly reserved for issuance of
additional shares. When issued in accordance with the terms hereof, the Shares
will be duly authorized, validly issued, fully paid and nonassessable.
(g) The execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated thereby do not and will not (i) conflict with or violate any
provision of its Certificate of Incorporation or By-laws or (ii) conflict with,
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which the Company is a party, or (iii) result in a violation of
any law, rule, regulation, order, judgment, injunction, decree or other
restriction of any court or governmental authority to which the Company is
subject (including Federal and state securities laws and regulations), or by
which any material property or asset of the Company is bound or affected, except
in the case of each of clauses (ii) and (iii), such conflicts, defaults,
terminations, amendments, accelerations, cancellations and violations as could
not, individually or in the aggregate, have or result in a Material Adverse
Effect. The business of the Company is not being conducted in violation of any
law, ordinance or regulation of any governmental authority, except for
violations which, individually or in the aggregate, do not have a Material
Adverse Effect.
3. Representation and Warranties of the Purchasers. Each Purchaser
severally hereby represents and warrants to the Company as to itself as follows:
(a) Such Purchaser, if an individual, has the capacity to
enter into and to consummate the transactions contemplated hereby and otherwise
to carry out its obligations hereunder. Such Purchaser, if an entity, is a
limited partnership, corporation or other entity, duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization with the requisite legal power and authority to enter into and to
consummate the transactions contemplated hereby and otherwise to carry out its
obligations hereunder. The purchase by the Purchaser of the Shares has been duly
authorized by all necessary action on the part of such Purchaser. This Agreement
has been duly executed and delivered by such Purchaser and constitutes the valid
and legally binding obligation of such Purchaser, enforceable against the
Purchaser in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights generally and to
general principles of equity.
(b) Such Purchaser acknowledges receipt of the Disclosure
Materials and further acknowledges that it has been afforded (i) the opportunity
to ask such questions as it has deemed necessary of, and to receive answers
from, representatives of the Company concerning the terms and conditions of the
offering of the Shares, and the merits and risks of investing in the Shares;
(ii) access to information about the Company and the Company's financial
condition, results of operations, business, properties, management and prospects
sufficient to enable it to evaluate its investment; and (iii) the opportunity to
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obtain such additional information which the Company possesses or can acquire
without unreasonable effort or expense that is necessary to make an informed
investment decision with respect to the investment and to verify the accuracy
and completeness of the information contained in the Disclosure Materials.
(c) The execution, delivery and performance of this Agreement
and the consummation by each Purchaser of the transactions contemplated hereby
or relating hereto do not and will not (i) conflict with, or constitute a
default (or an event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of any agreement, indenture or instrument to which
the Purchaser is a party, or result in a violation of any law, rule, or
regulation, or any order, judgment or decree of any court or governmental agency
applicable to the Purchaser or its properties (except for such conflicts,
defaults and violations as would not, individually or in the aggregate, have a
Material Adverse Effect on Purchaser). The Purchaser is not required to obtain
any consent, authorization or order of, or make any filing or registration with,
any court or governmental agency in order for it to execute, deliver or perform
any of its obligations under this Agreement or to purchase the Shares in
accordance with the terms hereof.
(d) During the sixty (60) day period ending on the date
hereof, neither such Purchaser nor, to its knowledge, any of its affiliates,
has, directly or indirectly, (i) engaged in any sales (including short sales) of
shares of Common Stock, (ii) acquired a "put equivalent position" (as the term
is defined in Rule 16a-1 of the Exchange Act) with respect to shares of Common
Stock; (iii) entered into a swap agreement or an agreement with respect to a
swap agreement ("derivative swap agreement") where the value of the swap
agreement or the derivative swap agreement increases as the value of the Common
Stock decreases; or (iv) made any recommendations to any third parties that such
third parties should take one or more of the actions set forth in (i) through
(iii) above.
(e) Any information provided by each Purchaser for inclusion
in the Registration Statement (as defined below) (or any amendment thereof or
supplement thereto) will not contain any untrue statement of material fact or
omit to state any material fact require to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they are made, not misleading.
(f) Such Purchaser has not sold any equity security of the
Company during the six (6) month period ending on the date hereof.
(g) At the time such Purchaser was offered the Shares, it
was, and at the date hereof, it is, and at the closing an "accredited investor"
as defined in Rule 501 under the Securities Act.
(h) Such Purchaser, either alone or together with its
representatives, has such knowledge, sophistication and experience in business
and financial matters so as to be capable of evaluating the merits and risks of
the prospective investment in the Shares, and has so evaluated the merits and
risks of such investment.
(i) Such Purchaser is able to bear the economic risk of an
investment in the Shares, and, at the present time, is able to afford a complete
loss of such investment.
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(j) Such Purchaser acknowledges receipt of the Disclosure
Materials and further acknowledges that it has been afforded (i) the opportunity
to ask such questions as it has deemed necessary of, and to receive answers
from, representatives of the Company concerning the terms and conditions of the
offering of the Shares, and the merits and risks of investing in the Shares;
(ii) access to information about the Company and the Company's financial
condition, results of operations, business, properties, management and prospects
sufficient to enable it to evaluate its investment; and (iii) the opportunity to
obtain such additional information which the Company possesses or can acquire
without unreasonable effort or expense that is necessary to make an informed
investment decision with respect to the investment and to verify the accuracy
and completeness of the information contained in the Disclosure Materials.
(k) The Shares being purchased by such Purchaser are not
being acquired, directly or indirectly, with the assets of any "employee benefit
plan" within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended.
(l) Such Purchaser understands and acknowledges that (i) the
Shares are being offered and sold to such Purchaser without registration under
the Securities Act in a private placement that is exempt from the registration
provisions of the Securities Act under Section 4(2) of the Securities Act or
Regulation D promulgated thereunder and (ii) the availability of such exemption,
depends in part on, and the Company will rely upon the accuracy and truthfulness
of, the foregoing representations and such Purchaser hereby consents to such
reliance.
4. Other Agreements of the Parties.
(a) If applicable, the Company shall notify The Nasdaq Stock
Market, in accordance with its rules and regulations, 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 of the Shares to the Purchaser or
subsequent holders.
(b) The Company will cause its Common Stock to continue to be
registered under Sections 12(b) or 12(g) of the Exchange Act, will comply in all
respects with its reporting and filing obligations under the Exchange Act, will
comply with all requirements related to any registration statement filed
pursuant to this Agreement, and will not take any action or file any document
(whether or not permitted by the Securities Act or the Exchange Act or the rules
promulgated thereunder) to terminate or suspend such registration or to
terminate or suspend its reporting and filing obligations under the Exchange Act
or Securities Act, until the Registration Statement is filed with the Commission
for the Shares.
(c) As long as any Purchaser owns any Shares, the Company
covenants to timely file (or obtain extensions in respect thereof) all reports
required to be filed by the Company after the date hereof pursuant to Section
13(a) or 15(d) of the Exchange Act. If the Company or a successor to the Company
is not at the time required to file reports pursuant to such sections, the
Company will prepare and furnish to each Purchaser annual and quarterly
financial statements, together with a discussion and analysis of such financial
statements in form and substance substantially similar to those that would
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otherwise be required to be included in reports required by Section 13(a) or
15(d) of the Exchange Act in the time period that such filings would have been
required to have been made under the Exchange Act. The Company shall use its
best efforts to at all times comply with Rule 144(c) promulgated under the
Securities Act.
5. Indemnification.
(a) The Company agrees to indemnify, defend and hold harmless
each Purchaser (and their directors, officers, fund managers, affiliates,
agents, successors and assigns and each person, if any, who controls the
Purchaser within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act) from and against any and all losses, claims,
liabilities, deficiencies, costs, damages and expenses (including, without
limitation, reasonable attorneys' fees, charges and disbursements) (collectively
"Losses") as incurred by the Purchaser as a result of or arising from (i) any
inaccuracy in or breach of the representations, warranties, covenants and/or
agreements made by the Company herein; and/or (ii) (A) any untrue statement or
alleged untrue statement of a material fact contained, or incorporated by
reference, in the Disclosure Materials, or (B) the omission or alleged omission
to state in the Disclosure Materials, or any document incorporated by reference
therein, any material fact required to be stated herein or necessary to make the
statements therein not misleading; provided, however, that, with respect to (ii)
above only, the Company shall not be liable to any Purchaser for any Loss to the
extent that a final judgment by a court or body of proper jurisdiction, as to
which no appeal is pending and the time for all appeals has expired, determines
that any such Loss arises out of or is based upon information provided by such
Purchaser in writing for use in connection with the Disclosure Materials. The
Company agrees to pay all costs and expenses, including reasonable attorneys'
fees and expenses, which may be incurred by the Purchasers in successfully
enforcing this paragraph (a).
(b) Each Purchaser, severally and not jointly, agrees to
indemnify and hold harmless the Company and its directors, officers, affiliates,
agents, successors and assigns from and against any and all losses, liabilities,
deficiencies, costs, damages and expenses (including, without limitation,
reasonable attorneys' fees, charges and disbursements) incurred by the Company
as result of any inaccuracy in or breach of the representations, warranties or
covenants made by the Purchaser or based upon any untrue statement or alleged
untrue statement of a material fact provided by the Purchaser for inclusion in
the Disclosure Materials.
(c) In the event that any person entitled to indemnification
under paragraph (a) or (b) under this Section 5 (an "Indemnified Party") becomes
subject to any claim under Section 5 above that may result in Losses, such
Indemnified Party shall notify the person obligated to indemnify such
Indemnified Party under this Section 5 (the "Indemnifying Party") (a "Notice of
Claim") as soon as possible, but in any event within ten (10) days of written
receipt of such claim. Failure to give such timely Notice of Claim shall relieve
the Indemnifying Party of its obligations under Section 5 to the extent the
Indemnifying Party is prejudiced by such delay.
(d) In connection with Section 6 above, the Indemnifying
Party may elect to assume the defense of a claim made against an Indemnified
Party, in which case the Indemnifying Party shall not be liable for any expenses
(including, but not limited to, attorneys' fees) incurred by the Indemnified
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Party in connection with the defense of such claim, unless (i) the Indemnified
Party reasonably determines that there would be a conflict if such defense were
assumed; or (ii) the Indemnifying Party does not notify an Indemnified Party
that it is assuming such defense within ten (10) days of receipt from
Indemnified Party of the Notice of Claim, in either of which cases it shall
reimburse such Indemnified Party for its reasonable legal fees and expenses, as
incurred, on a monthly basis. Anything in this paragraph to the contrary
notwithstanding, the Indemnifying Party shall not be liable for any settlement
of, or expenses incurred with respect to, any such claim or action effected
without its written consent, which consent shall not be unreasonably withheld.
6. Rights and Obligations of Purchasers Several, not Joint. The
rights and obligations of the Purchasers under this Agreement are several and
not joint.
7. Miscellaneous.
(a) The Company shall pay the expenses incurred by the
Company incident to the negotiation, preparation, execution, delivery and
performance of this Agreement. Each Purchaser shall be responsible for its own
legal fees and tax liability that may arise as a result of the investment
hereunder or the transactions contemplated by this Agreement.
(b) This Agreement contains the entire understanding of the
parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect to such matters.
(c) Any notice or other communication required or permitted
to be given hereunder shall be in writing and shall be deemed to have been
delivered (i) upon receipt, when delivered personally; (ii) when sent by
facsimile, upon receipt if received on a Business Day prior to 5:00 p.m. (EST),
or the first Business Day following such receipt if received on a Business Day
after 5:00 p.m. (EST); or (iii) upon receipt, when deposited with a nationally
recognized overnight express courier service, fully prepaid, in each case
properly addressed to the party to receive the same. The addresses and facsimile
numbers for such communications shall be:
If to the Company: Strategic Diagnostics Inc.
000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Fax: 000.000.0000
Attn: Xxxxxxx Xxxxxxxxx
If to the Purchasers: To the address set forth next to their names on
the signature page to this Agreement
or such other address or facsimile number as may be designated in writing
hereafter, in the same manner, by such person.
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(d) No provision of this Agreement may be waived or amended
except in a written instrument signed, in the case of an amendment, by both the
Company and the Purchasers; or, in the case of a waiver, by the party against
whom enforcement of any such waiver is sought. No waiver of any default with
respect to any provision, condition or requirement of this Agreement shall be
deemed to be a continuing waiver in the future or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission of
any party to exercise any right hereunder in any manner impair the exercise of
any such right accruing to it thereafter.
(e) The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
(f) This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted assigns. Neither the
Company nor any Purchaser may assign this Agreement or any rights or obligations
hereunder without the prior written consent of the other. The assignment by a
party of this Agreement or any rights hereunder shall not affect the obligations
of such party under this Agreement.
(g) This Agreement is intended for the benefit of the parties
hereto and their respective permitted successors and assigns and is not for the
benefit of, nor may any provision hereof be enforced by, any other person.
(h) This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of Delaware without
regard to the principles of conflicts of law thereof.
(i) The representations and warranties of the Company and the
Purchasers contained herein shall survive closing.
(j) This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other parties, it being understood that all
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the executing party with the same force and effect as if
such facsimile signature page were an original thereof.
(k) The Company and the Purchasers shall consult with each
other in issuing any press releases or otherwise making public statements with
respect to the transactions contemplated hereby and neither the Company nor the
Purchasers shall issue any such press release or otherwise make any such public
statement without the prior consent of the other, which consent shall not be
unreasonably withheld or delayed, except that no prior consent shall be required
if such disclosure is required by law, in which such case the disclosing party
shall provide the other parties with prior notice of such public statement.
(l) In case any one or more of the provisions of this
Agreement shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Agreement shall not
in any way be affecting or impaired thereby and the parties will attempt to
agree upon a valid and enforceable provision which shall be a reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Agreement.
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IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be duly executed as of this date first written above
STRATEGIC DIAGNOSTICS INC.
By:___________________________
AGREED TO AND ACCEPTED BY:
FOR ENTITIES:
_____________________________
Print Name of Holder
Dated:________________ By:__________________________
Name of Authorized Officer
Attest:________________ Title:________________________
Address of Entity Holder for Notices:
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______________________________
______________________________
______________________________
FOR INDIVIDUALS:
Dated:___________________ By:__________________________
Signature
Witness:_________________ _____________________________
Print Name
Print Name:______________
Address of Individual Holder for Notices:
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______________________________
______________________________
______________________________
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