EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of May 1, 1999 (this
"Agreement"), is by and between DIANON SYSTEMS, INC., a Delaware corporation
(the "Company"), and KYTO MERIDIEN DIAGNOSTICS, L.L.C., a New York limited
liability company ("KMD").
WHEREAS, pursuant to that certain Asset Purchase Agreement dated as
of April 7, 1999 by and among the Company, KMD, Kyto Diagnostics, L.P., Meridien
Diagnostics Labs, Inc., A. Bruce Shapiro and Ralph M. Richart, on the date
hereof, KMD became the owner of 300,000 shares of the Company's common stock,
par value $.01 per share (the "Shares");
WHEREAS, the Shares have not been registered under the Securities
Act (as hereinafter defined) or any state securities laws, and the certificates
representing the Shares bear a legend restricting their transfer; and
WHEREAS, in connection with the foregoing, the Company has agreed,
subject to the terms, conditions and limitations set forth in this Agreement, to
provide KMD and its successors, assigns and transferees as permitted herein with
certain registration rights in respect of the Shares.
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, the parties hereto agree as follows:
DEFINITIONS
1.1 Definitions. Capitalized words and phrases used and not
otherwise defined in this Agreement shall have the following meanings:
"Commission" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Common Stock" means the common stock, par value $.01 per share, of
the Company (including, without limitation, the Shares) and all shares hereafter
authorized of any class of common stock of the Company, and, in the case of a
reclassification, recapitalization or other similar change in such Common Stock
or in the case of a consolidation or merger of the Company with or into another
Person, such consideration to which a holder of a share of Common Stock would
have been entitled upon the occurrence of such event.
"Company" includes, in addition to the Company, any successor or
assignee corporation or corporations into which or with which the Company may be
merged or consolidated, any corporation for whose shares the Common Stock may be
exchanged and any assignee of or successor to all or substantially all of the
assets of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Holder" means KMD, and each Person who is a Permitted Transferee
of KMD.
"NASDAQ" means The Nasdaq Stock Market's Automated Quotation
System--National Market.
"Permitted Transferee" means any corporation, partnership, limited
liability company or other Person controlled by, controlling or under common
control with KMD to which KMD has Transferred the Shares. Notwithstanding any
Person's status as a Permitted Transferee, any Transfer of Registrable
Securities shall be subject to the provisions of Section 8.1.
"Person" means any individual, corporation, partnership, trust or
other entity of any nature whatsoever.
"Register," "registered," and "registration," when used with respect
to the capital stock of the Company, means a registration effected by preparing
and filing a registration statement or similar document in compliance with the
Securities Act with the Commission which has been declared or ordered effective
by the Commission in accordance with the Securities Act.
"Registrable Securities" means the Shares (and shall include all
shares of Common Stock received by the Holder in respect thereof pursuant to a
stock split, stock dividend or other recapitalization of the Company or pursuant
to any merger, consolidation or reorganization involving the Company). The
Shares shall cease to be Registrable Securities when (i) a registration
statement with respect to the sale of all of the Shares shall have become
effective under the Securities Act and the Shares shall have been disposed of
pursuant to such registration statement, (ii) the Shares shall have been sold or
otherwise distributed pursuant to Rule 144 (or any successor provision) under
the Securities Act in accordance with the volume and other limitations thereof,
or (iii) the Shares shall have ceased to be outstanding.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Transfer" means any transfer, sale, gift, assignment, distribution,
conveyance, pledge, hypothecation, encumbrance or other voluntary or involuntary
transfer of title or beneficial interest, whether or not for value, including,
without limitation, any disposition by operation of law or any grant of a
derivative or economic interest therein.
PIGGYBACK REGISTRATION
1.2 Notice of Registration. (a) If at any time after the date hereof, the
Company proposes to register any of its Common Stock, either for its own
account, or for the account of any Person other than the Holder, but not
including (i) a registration relating to employee stock option, purchase or
other employer plans or (ii) a registration on Form S-4 or Form S-8 or any
successor form thereto (a "Piggyback Registration"), the Company will:
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(X) promptly give written notice thereof to the Holder prior
to the proposed date of filing; and
(Y) use its best efforts to include in such Piggyback
Registration and in any underwriting involved therein up to all of the
Registrable Securities which the Holder requests in writing to be so included
within 30 days after receipt of such written notice from the Company, provided
that the Company may request the Holder to enter into such agreements and
documents as are customary in the securities business for an arrangement between
an underwriter and a company of the Company's size and investment stature and as
are reasonably requested to evidence the commitment of the Holder to participate
in the registration, including customary custody and indemnification
arrangements.
(b) The Holder shall have the right to exercise its right pursuant to
Section 2.1(a) only once; provided, however, that the Holder will be entitled to
exercise its rights pursuant to Section 2.1(a) more than once if (x) the number
of Registrable Securities that the Holder elected to include in any prior
registration was reduced by the managing underwriter(s) or the Company, as the
case may be, pursuant to Section 2.4, or (y) the Piggyback Registration in which
Registrable Securities were to be included was withdrawn, cancelled or
permanently suspended pursuant to Section 2.5 or Section 4.2.
Notwithstanding the foregoing, the Holder shall not be entitled to
exercise its Piggyback Registration right if the Company shall have filed and
maintained effective a shelf registration statement for the Registrable
Securities for at least 180 days.
1.3 Expenses. The Company shall pay, and shall reimburse Holder for
paying, any expenses incurred in connection with a Piggyback Registration
requested pursuant to Section 2.1(a), including, without limitation, all
registration, qualification, printing and accounting fees and all fees and
disbursements of counsel for the Company, provided that Holder shall pay all
underwriting discounts and commissions with respect to Registrable Securities
included in such registration statement as well as fees or disbursements of
counsel, accountants or other professionals for Holder.
1.4 Underwriting. If the registration of which the Company gives notice is
for a registered public offering involving an underwriting, the Company shall so
advise the Holder as a part of the written notice given pursuant to Section
2.1(a), and the right of the Holder to include Registrable Securities in such
registration shall be conditioned upon the Holder's participation in such
underwriting and the entry of the participating Holder (together with the
Company and other holders distributing their securities through such
underwriting) into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by the Company.
1.5 Priority. (a) If the managing underwriter(s) (in the case of an
underwritten registration) or the Company (in the case of non-underwritten
registration) should reasonably object to the exercise of the Holder's
registration rights as set forth herein or if the managing underwriter(s) (in
the case of an underwritten registration) or the Company (in the case of a
non-underwritten registration) should reasonably determine that the inclusion of
the Registrable Securities would adversely affect the offering contemplated in
such Registration Statement, and based on such determination recommends
inclusion in such registration of fewer or none of the
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Registrable Securities, then securities shall be included in such offering in
the following order of priority:
if such registration as initially proposed by the Company was solely a
primary registration of its securities, (x) first, the securities proposed by
the Company to be sold for its own account, (y) second, any securities of the
Company proposed to be included in such registration, allocated among the
holders thereof in accordance with the priorities then existing among the
Company and such holders, and (z) third, any Registrable Securities requested to
be included in such registration by Holder pursuant to Section 2.1., pro rata on
the basis of the number of Registrable Securities requested to be included by
Holder plus the number of any other securities of the Company proposed to be
included in such registration pursuant to any other Person's exercise of similar
"piggyback" registration rights granted by the Company;
if such registration as initially proposed by the Company was in whole
or in part requested by holders of securities of the Company, other than holders
of Registrable Securities in their capacities as such, pursuant to demand
registration rights, (x) first, such securities held by the holders initiating
such registration and, if applicable, any securities proposed by the Company to
be sold for its own account, allocated in accordance with the priorities then
existing among the Company and such holders, (y) second, any securities of the
Company proposed to be included in such registration, allocated among the
holders thereof in accordance with the priorities then existing among the
Company and such holders, and (z) third, any Registrable Securities requested to
be included in such registration by Holder pursuant to Section 2.1., pro rata on
the basis of the number of Registrable Securities requested to be included by
Holder plus the number of any other securities of the Company proposed to be
included in such registration pursuant to any other Person's exercise of similar
"piggyback" registration rights granted by the Company.
Any securities excluded pursuant to the provisions of this Section
2.4 shall be withdrawn from and shall not be included in such Piggyback
Registration.
(a) Notwithstanding the provisions of Section 2.4(a), the Company, in
its sole and absolute discretion upon approval of its Board of Directors, may
enter into agreements granting Persons other than the Holder the right to
include any securities issued or issuable to such Persons in a Piggyback
Registration on a pro rata basis with the inclusion of Holder's Registrable
Securities (to the extent such Persons do not expressly consent in writing to
the inclusion of such securities on a basis subordinate to Registrable
Securities).
1.6 Company's Obligations. The rights of Holder, under this Article II are
solely piggyback in nature, and nothing in this Agreement shall prevent the
Company from reversing a decision to file a Registration Statement or from
withdrawing or delaying any such Registration Statement before it has become
effective.
HOLDBACK AGREEMENTS
1.7 Restrictions on Public Sale by Holder. Holder agrees, if requested in
writing by:
the managing underwriter or underwriters in an underwritten offering of
Registrable Securities covered by a registration statement filed pursuant to a
Piggyback Registration; or
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the managing underwriter or underwriters in an underwritten primary
offering of securities of the Company made pursuant to the Securities Act;
not to effect any public sale or distribution of any Common Stock or any
securities convertible into or exchangeable or exercisable for Common Stock,
including a sale pursuant to Rule 144 (or any successor provision) under the
Securities Act (except to the extent included in any such offering or
distribution pursuant to Section 2.1), during the period starting with the date
10 days prior to and ending on the earlier of the date 90 days after the closing
date of any such offering, sale or distribution or 180 days following the
effective date of the registration statement filed in connection therewith.
1.8 No Participation in Other Securities Offerings. The rights granted by
the Company hereunder shall be the exclusive rights granted to Holder with
respect to Registrable Securities. Except as otherwise provided herein, Holder
shall have no rights to participate in any offering of securities by the Company
to third parties, including without limitation, any offering of Common Stock,
whether such offering is effected pursuant to registration under the Securities
Act or pursuant to an exemption from registration thereunder.
1.9 Release from Restrictions. The Company may, in its sole and absolute
discretion, elect to waive the applicability in any particular instance of the
provisions of Section 3.1 and Section 3.2.
REGISTRATION PROCEDURES
1.10 Registration Procedures. In the case of each registration to be
effected by the Company in which any Holder is participating pursuant to this
Agreement, the Company will keep the Holder advised in writing as to the
initiation of each registration and as to the completion thereof. In connection
with each such offering, the Company shall as expeditiously as possible, at its
sole expense:
(a) prepare (and afford counsel for the Holder up to 10 business
days' opportunity to review and comment thereon) and file with the Commission a
registration statement with respect to such Holder's Registrable Securities and
use its best efforts to cause such registration statement to become and remain
effective, for a period of at least 180 days or until the distribution described
in the registration statement relating thereto has been completed, whichever
shall first occur;
(b) furnish to the Holder and to the underwriters of the securities
being registered such number of copies of the registration statement,
preliminary prospectus, final prospectus and other documents incident thereto as
such underwriters and the Holder from time to time may reasonably request;
(c) prepare (and afford counsel for the Holder up to 10 business
days' opportunity to review and comment thereon) and file with the Commission
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 Securities Act with respect to
the disposition of all securities covered by such registration statement and to
keep the registration statement effective for the period specified in 4.1(a)
above;
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(d) use its best efforts to register or qualify the Registrable
Securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holder for the distribution of the Registrable Securities covered by the
registration statement to be sold by the Holder; 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 of process in any such
states or jurisdictions;
(e) enter into an underwriting agreement in customary form and
substance reasonably satisfactory to the Company, the Holder and the managing
underwriter or underwriters of the public offering of such securities, if the
offering is to be underwritten, in whole or in part;
(f) notify the Holder, at any time when a prospectus relating thereto
covered by such registration statement is required to be delivered under the
Securities Act, 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 a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing;
(g) furnish, at the request of the Holder on the date that any
Registrable Securities are to be delivered to the underwriters for sale in
connection with a registration pursuant to this Agreement, if such securities
are being sold through underwriters, or, if such securities are not being sold
through underwriters, on the date that the registration statement with respect
to such securities becomes effective, (i) an opinion, dated such date, of the
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holder and (ii) a
letter, dated such date, from the independent certified public accountants of
the Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the underwriters, if any, and to the Holder;
(h) make available for inspection by Holder, any underwriter
participating in any distribution pursuant to such registration statement, and
any attorney, accountant or other agent retained by such Holder or underwriter,
all financial and other records, pertinent corporate documents and properties of
the Company as shall be reasonably necessary to enable them to exercise their
due diligence responsibility, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such Holder,
underwriter, attorney, accountant or agent in connection with such registration
statement;
(i) use its best efforts to list all Registrable Securities covered
by such registration statement on NASDAQ or such other securities exchange where
the Company's securities are then listed as may be mutually agreed upon by the
parties and such securities exchange; and
(j) The Company will cause any restrictive legend imprinted on the
certificates evidencing the Shares to be removed at such time as all conditions
to transfer of restrictive securities, as applicable to such shares and the
holder thereof are satisfied. The Company may require an opinion of counsel
reasonably satisfactory to the Company to support the removal of such
restrictive legend.
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1.11 Suspension of Dispositions. Holder agrees that, upon receipt of any
notice (a "Suspension Notice") from the Company of the happening of any event of
the kind which, in the opinion of the counsel for the Company, requires the
amendment or supplement of any prospectus, such Holder will forthwith
discontinue disposition of Registrable Shares until Holder's receipt of the
copies of the supplemented or amended prospectus, or until it is advised in
writing by the Company that use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings which are incorporated
by reference in the prospectus, and, if so directed by the Company, Holder will
deliver to the Company all copies, other than permanent file copies of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice.
INDEMNIFICATION
1.12 Indemnification by the Company. In the event of any registration of
any Registrable Securities pursuant to this Agreement under the Securities Act,
the Company will, and hereby does, indemnify and hold harmless each
participating Holder, and each of its directors, officers and controlling
persons, if any, against any losses, claims, damages or liabilities, joint or
several, to which such participating Holder or any such Person may become
subject under the Securities 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 untrue
statement or alleged untrue statement of any material fact contained in the
registration statement under which such Registrable Securities were registered
under the Securities Act, any preliminary prospectus, final prospectus or
summary prospectus contained therein, or any amendment or supplement thereto, or
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and the Company will
reimburse each participating Holder and each such Person for any reasonable
legal or any other expenses incurred by them in connection with investigating or
defending any such loss, claim, liability, action or proceeding; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by any participating Holder or
any other Person who participates as an underwriter in the offering or sale of
such securities, in either case, specifically stating that it is for use in the
preparation thereof; and provided, further, that the Company shall not be liable
to any participating Holder to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
such participating Holder's failure to send or give a copy of the final
prospectus or supplement to the Persons asserting an untrue statement or alleged
untrue statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or omission was corrected in such final prospectus or supplement. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of any participating Holder or any such underwriter or
controlling person and shall survive the transfer of such securities by the
Holder.
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1.13 Indemnification by Participating Holders. Each of the participating
Holders whose Registrable Securities are included or to be included in any
registration statement, as a condition to including Registrable Securities in
such registration statement, agrees to indemnify and hold harmless (in the same
manner and to the same extent as set forth in Section 5.1) the Company, each
director of the Company, each officer of the Company who signs the registration
statement and each other Person, if any, who controls the Company within the
meaning of the Securities Act, and each other Person who participates as an
underwriter in the offering or sale of such securities and each other Person who
controls any such underwriter within the meaning of the Securities Act with
respect to any untrue statement or alleged untrue statement of a material fact
in or omission or alleged omission to state a material fact from such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, if such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by any participating Holder specifically stating that it is for use
in the preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement; provided, that the
liability of the Holders hereunder shall be limited to the proportion of any
such loss, claim, damage, liability or expense which is equal to the proportion
that the public offering price of the shares sold by such Holder bears to the
total public offering price of all securities sold pursuant to the registration
statement, but not to exceed the proceeds (net of the underwriting discounts and
commissions) received by such Holder from such sale. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of
the Company or any such director, officer, or any such underwriter or
controlling person and shall survive the transfer of such securities by any
participating Holder.
1.14 Notices of Claims. Promptly after receipt by an indemnified party of
notice of the commencement of any action or proceeding involving a claim
referred to in Section 5.1 or 5.2, such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party, give written notice
to the latter of the commencement of such action; provided, however, that the
failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under Section 5.1 or 5.2,
except to the extent that the indemnifying party is actually prejudiced by such
failure to give notice. In case any such action is brought against an
indemnified party, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may exist
in respect of such claim, the indemnifying party shall be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and 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 the
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation; provided that the indemnified party may participate in such
defense at the indemnified party's expense; and provided, further, that all
indemnified parties shall have the right to employ one counsel to represent them
if, in the reasonable judgment of such indemnified parties, it is advisable for
them to be represented by separate counsel by reason of having legal defenses
which are different from or in addition to those available to the indemnifying
party, and in that event the reasonable fees and expenses of such one counsel
shall be paid by the indemnifying party. If the indemnifying party is not
entitled to, or elects not to, assume the defense of a claim, it will not be
obligated to pay the fees and expenses of more than one counsel for the
indemnified parties with respect to such claim, unless
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in the reasonable judgment of any indemnified party a conflict of interest may
exist between such indemnified party and any other indemnified parties with
respect to such claim, in which event the indemnifying party shall be obligated
to pay the fees and expenses of such additional counsel for the indemnified
parties. No indemnifying party shall consent to entry of any judgment or enter
into any settlement without the consent of the indemnified party which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability in respect to such
claim or litigation. No indemnifying party shall be subject to any liability for
any settlement made without its consent, which consent shall not be unreasonably
withheld.
1.15 Other Indemnification. Indemnification similar to that specified in
the preceding Sections of this Article V (with appropriate modifications) shall
be given by the Company and any participating Holder with respect to any
required registration or other qualification of securities under any federal or
state law or regulation of any governmental authority other than the Securities
Act.
1.16 Indemnification Payments. The indemnification required by this
Article V shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
1.17 Contribution. If, for any reason, the foregoing indemnity is
unavailable, or is insufficient to hold harmless an indemnified party, then the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of the expense, loss, damage or liability (a) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and the indemnified party on the other
(determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission relates to
information supplied by the indemnifying party or the indemnified party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission), or (b) if the allocation
provided by clause (a) above is not permitted by applicable law or provides a
lesser sum to the indemnified party than the amount otherwise payable hereunder,
in the proportion as is appropriate to reflect not only the relative fault of
the indemnifying party and the indemnified party, but also the relative benefits
received by the indemnifying party on the one hand and the indemnified party on
the other, as well as any other relevant equitable considerations. No
indemnified party guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
indemnifying party who was not guilty of such fraudulent misrepresentation. The
liability of the holders under this Section 5.6 shall be limited to the
proportion of any contribution which is equal to the proportion that the public
offering price of the shares sold by such Holder bears to the total public
offering price of all securities sold pursuant to the registration statement but
not to exceed the proceeds (net of underwriting discounts and commissions)
received by such Holder from such sale.
INFORMATION BY PARTICIPATING HOLDERS
1.18 Information Regarding Participating Holders. If any Registrable
Securities are included in any registration, each participating Holder shall
furnish to the Company and any applicable underwriter such information regarding
such Holder and the distribution proposed by such Holder as the Company or such
underwriter may reasonably
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request in writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Agreement.
TRANSFER OF RIGHTS
1.19 Transfer or Assignment. The rights granted hereunder by the Company
may be assigned or otherwise conveyed to the Permitted Transferees of KMD. It
shall be a condition to any Transfer that (a) the Company shall have received an
opinion of counsel reasonably acceptable to it that such Transfer is effected in
accordance with applicable federal and state securities laws, (b) such
transferee or assignee becomes a party to this Agreement or agrees in writing to
be subject to the terms hereof to the same extent as if it were the Holder
hereunder, and (c) the Company is given written notice of said Transfer, stating
the name and address of said transferee and identifying the securities with
respect to which such registration rights are being assigned.
TERMINATION
1.20 Termination. This Agreement and the rights provided hereunder shall
terminate and be of no further force and effect with respect to each Holder on
such date as such Holder no longer holds any Registrable Securities.
MISCELLANEOUS
1.21 Remedies for Breach. It is expressly understood that the equitable
remedies of specific performance and injunction shall be available for the
enforcement of the covenants and agreements herein, and that the availability of
these equitable remedies shall not be deemed to limit any other right or remedy
to which any party to this Agreement would otherwise be entitled.
1.22 Successors and Assigns. Subject to the provisions of Section 7.1, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors, assigns and transferees of the parties.
If any successor, assignee or transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such Person
shall be conclusively deemed to have agreed to be bound by all of the terms and
provisions hereof.
1.23 Notices. All notices and other communications provided for hereunder
shall be in writing and sent by registered or certified mail, return receipt
requested, postage prepaid or delivered in person or by courier, telecopier or
electronic mail, and shall be deemed to have been duly given when received, by
the party to whom such notice is to be given at its address set forth below, or
at such other address for the party as shall be specified by notice given
pursuant hereto:
if to the Company, to:
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DIANON Systems, Inc.
200 Watson Boulevard
Stratford, Connecticut 06409
Attention: Chief Executive Officer
Fax: (203) 380-4138
with a copy to:
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, NY 10038
Attention: Dennis J. Block, Esq.
Fax: (212) 504-5557
If to a Holder, to such Holder at the address set forth for such
Holder in the stock records of the Company.
1.24 Governing Law. This Agreement and any controversy or claim arising
out of or relating to this Agreement shall be governed by the laws of the State
of New York, without giving effect to the principles of conflicts of laws.
1.25 Entire Agreement; Amendments and Waivers. This Agreement constitutes
the entire agreement among the parties pertaining to the subject matter hereof
and supersedes all prior agreements, understandings, negotiations and
discussions whether oral or written, of the parties. No supplement, modification
or waiver of this Agreement shall be binding unless executed in writing by all
parties. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provision hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver unless otherwise
expressly provided.
1.26 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Copies of executed
counterparts transmitted by telecopy or other electronic transmission service
shall be considered original executed counterparts for purposes of this Section
9.6.
1.27 Severability. In the event that any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement.
1.28 Headings. The headings of the Articles and Sections herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
1.29 Gender and Other References. Unless the context clearly indicates
otherwise, the use of any gender pronoun in this Agreement shall be deemed to
include all other genders, and singular references shall include the plural and
vice versa.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the day and year first above written.
DIANON SYSTEMS, INC.
By: /s/ Kevin C. Johnson
-----------------------
Name: Kevin C. Johnson
Title: President & CEO
KYTO MERIDIEN DIAGNOSTICS, L.L.C.
By:
/s/ Ralph M. Richart
----------------------------
Name: Ralph M. Richart
Title: President of General
Partner of Member
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