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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 13D
Under the Securities Exchange Act of 1934
Barringer Laboratories, Inc.
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(Name of Issuer)
Common Stock, Par Value $.01 Per Share
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(Title of Class of Securities)
068508100
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(CUSIP Number)
Stephen A. Infante, Esq.
Howard, Darby & Levin
1330 Avenue of the Americas
New York, New York 10019
(212) 841-1000
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
May 8, 1998
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a Statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this Schedule because of Rule 13d-1(b)(3) or (4), check the
following box [ ].
Check the following box if a fee is being paid with the Statement [x].
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CUSIP No. 068508100 13D Page 2 of 6 Pages
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1 NAME OF REPORTING PERSON J. Francis Lavelle
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON N/A
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS PF
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) OR 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION United States
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Number of 7 SOLE VOTING POWER 666,302
Shares
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Beneficially 8 SHARED VOTING POWER -0-
Owned by
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Each Reporting 9 SOLE DISPOSITIVE POWER 666,302
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Person With 10 SHARED DISPOSITIVE POWER -0-
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
666,302
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.1%
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14 TYPE OF REPORTING PERSON IN
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CUSIP No. 068508100 13D Page 3 of 6 Pages
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ITEM 1. SECURITY AND ISSUER.
The class of equity securities to which this Statement relates is the
Common Stock, par value $.01 per share ("Shares"), of Barringer Laboratories,
Inc., a Delaware corporation (the "Issuer"), with its principal executive
offices located at 15000 West 6th Avenue, Suite 300, Golden, Colorado
80401-5047.
ITEM 2. IDENTITY AND BACKGROUND.
The person filing this Statement is J. Francis Lavelle (the "Reporting
Person") and he is a citizen of the United States of America.
The Reporting Person's principal occupation or employment is serving as
a managing director of The Nassau Group, Inc. ("Nassau"), an investment banking
firm which provides strategic advisory services to its corporate clients. The
Reporting Person also serves as a managing director of Green Field and Aspetuck.
Since July 12, 1996, the Reporting Person has been a director of the Issuer. The
Reporting Person's business address is c/o The Nassau Group, Inc., 18 Kings
Highway North, Westport, Connecticut 06880.
During the last five years, the Reporting Person has not (i) been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
The Reporting Person, John P. Holmes, III, Thomas A. Dippel and Timothy
C. deGavre (collectively, the "Former Group Members"), were deemed to be a
"group" within the meaning of Rule 13d-5 promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), by virtue of an
understanding between them to act together from time to time for the purpose of
acquiring holding, voting, or disposing of Shares. Accordingly, the Former Group
Members filed a Schedule 13D as a "group" within the meaning of Rule 13d-5
promulgated under the Exchange Act (the "Group Schedule 13D"). The Former Group
Members no longer have such an understanding and may no longer be deemed a
"group" within the meaning of Rule 13d-5 promulgated under the Exchange Act. The
amount of Shares held by the Reporting Person does not reflect any Shares held
by any other Former Group Member.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The aggregate purchase price for 615,833 of the 666,302 Shares
beneficially owned by the Reporting Person, including payment of commissions,
was $366,609.02. The purchase of these Shares was funded from cash available to
the Reporting Person. The Reporting Person acquired beneficial ownership of the
other 50,469 Shares pursuant to the issuance by the Issuer to the Reporting
Person of the Warrants described in Item 6.
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CUSIP No. 068508100 13D Page 4 of 6 Pages
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ITEM 4. PURPOSE OF TRANSACTION.
The Reporting Person acquired his Shares for investment purposes. The
Reporting Person believes that the Shares represent an attractive investment
opportunity. The Reporting Person will continue to evaluate his investment in
the Issuer on the basis of various factors, including the Issuer's business,
financial condition, results of operations and prospects, general economic and
industry conditions, the securities markets in general and those for the
Issuer's securities in particular, the Reporting Person's own financial
condition, other investment opportunities and other future developments. Based
upon such evaluation, the Reporting Person will take such actions in the future
as the Reporting Person may deem appropriate in light of the circumstances
existing from time to time. If the Reporting Person believes that further
investment in the Issuer is warranted, whether because of the market prices for
the Issuer's securities or otherwise, the Reporting Person may acquire
additional Shares or other securities (in addition to the warrants that the
Issuer has agreed to issue to the Reporting Persons as described in Item 6),
either in the open market or in privately negotiated transactions. Similarly,
depending on market and other factors, the Reporting Person may determine to
dispose of some or all of the Shares owned by the Reporting Person.
Except as set forth above in this Item 4 and in Item 6, the Reporting
Person has no plans or proposals with respect to any of the actions specified in
clauses (a) through (j) of Item 4 of Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) As of the close of business on April 30, 1998, the Reporting Person
beneficially owned 666,302 Shares representing approximately 20.1% of such class
of stock, based upon the 3,257,315 Shares outstanding as of April 30, 1998. This
amount includes 50,469 Shares that the Reporting Person has the right to acquire
upon exercise of the warrants described in Item 6.
(b) The Reporting Person has the sole power to vote or to direct the
vote and to dispose or to direct the disposition of 615,833 Shares that he
beneficially owns. Upon exercise of the warrants described in Item 6, the
Reporting Person will have sole power to vote or to direct the vote or to
dispose or to direct the disposition of the other 50,469 Shares that he
beneficially owns.
(c) On April 21, 1998, the Reporting Person purchased 395,833 additional
Shares from the Issuer at $.30 per share for an aggregate purchase price of
$118,750. On May 8, 1998, the Reporting Person purchased 25,000 additional
Shares in the over-the-counter market for an aggregate purchase price of
$9,934.95.
(d) No other person has the right to receive or the power to direct the
receipt of dividends from, or the proceeds from the sale of, any Shares which
the Reporting Person may be deemed to beneficially own.
(e) Not applicable.
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CUSIP No. 068508100 13D Page 5 of 6 Pages
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ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Green Field Capital Management, Inc. ("Green Field"), on behalf of
certain Former Group Members (including the Reporting Person), entered into a
letter of intent dated April 23, 1996 with D.M.F.R. Group USA Co. ("DMFR"), a
copy of which was attached to the Group Schedule 13D as Exhibit 1 (the "DMFR
letter of Intent") and is incorporated herein by reference, pursuant to which
certain Former Group Members (including the Reporting Person) purchased an
aggregate of 208,047 Shares.
On behalf of certain Former Group Members (including the Reporting
Person), Green Field also entered into a letter agreement dated May 13, 1996
with the Issuer, a copy of which was attached to the Group Schedule 13D as
Exhibit 2 (the "Issuer Letter") and is incorporated herein by reference,
pursuant to which the Issuer agreed to issue warrants to certain Former Group
Members (including the Reporting Person). In addition, the Issuer Letter
provides that the Issuer will issue to certain Former Group Members (including
the Reporting Person) additional warrants to purchase an aggregate of 80,000
Shares at $1.06 per Share and 25,000 Shares at $1.25 per Share. These warrants
were issued to the Reporting Person during the period from June 1996 through May
1997 at a rate of 2,003 per month.
On May 13, 1996, the Issuer issued to Reporting Person warrants to
purchase 26,435, a copy of which were attached to the Group Schedule 13D as
Exhibit 4 (the "Warrant"), and is incorporated herein by reference. The Warrant
is exercisable, in whole or in part, at any time or from time to time prior to
May 13, 2001 at a price per Share of $1.06. The Warrant also provides for
certain demand and incidental registration rights with respect to Shares
issuable upon exercise thereof.
Nassau entered into a letter agreement with the Issuer on May 13, 1996,
a copy of which was attached hereto as Exhibit 1 ("Engagement Letter"), pursuant
to which the Issuer engaged Nassau as its exclusive financial advisor and
consultant with regard to certain transactions, acquisitions, joint ventures,
mergers and other similar activities.
Except as described in this Statement, there are no contracts,
arrangements, understandings or relationships (legal or otherwise) between the
Reporting Person and any other person with respect to any securities of the
Issuer, including, but not limited to, transfer or voting of any of such
securities, finder's fees, joint ventures, loan or option arrangements, puts or
calls, guarantees of profits, division of profits or loss, or the giving or
withholding of proxies.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1 Engagement Letter dated May 13, 1996 between the Issuer
and Nassau.
All other exhibits referenced herein were originally attached to the
Group Schedule 13D and are hereby incorporated by reference.
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CUSIP No. 068508100 13D Page 6 of 6 Pages
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SIGNATURES
After reasonable inquiry and to the best of the knowledge and belief of
each of the undersigned, each of the undersigned certifies that the information
set forth in this statement is true, complete and correct.
Dated: May 12, 1998
/s/ J. Francis Lavelle
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J. Francis Lavelle
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Exhibit 1
CONFIDENTIAL
May 13, 1996
Barringer Laboratories, Inc.
15000 West 6th Avenue
Suite 300
Golden, Colorado 80401-5047
Attn.: Mr. Robert H. Walker
President
Dear Bob:
This confirms that Barringer Laboratories, Inc. (together with its
subsidiaries and affiliates, the "Company") has engaged The Nassau Group, Inc.
(together with its subsidiaries and affiliates, "Nassau") to act, except as
provided below, as its exclusive financial advisor and consultant with regard to
such transactions, acquisitions, joint ventures, mergers and other similar
activities. The parties acknowledge that agents and/or affiliates and principals
of Nassau may from time to time act as directors of the Company and agree that
nothing in this Agreement shall be construed to entitle Nassau to compensation
hereunder for services provided by such directors acting in such capacity.
Moreover, the parties acknowledge that the Company has retained TechKNOWLEDGEy
Strategic Group ("TSG") to provide services to the Company which may include
services to be provided hereunder. The parties agree that the Company's use of
TSG to perform such services shall not constitute a breach of this Agreement.
The engagement shall commence immediately and shall terminate on the
later of (a) June 1, 1998 or (b) 60 days after written notification of
termination by either party after the latest date specified below:
* If Nassau advises on a consummated Transaction (as defined below)
during the two years prior to June 1, 1998, then the engagement shall
automatically be extended to June 1, 1999.
* If Nassau advises on a consummated Transaction between June 1, 1998
and May 31, 1999, then the engagement shall automatically be extended
to June 1, 2000.
* If Nassau advises on a consummated Transaction between June 1, 1999
and May 31, 2000, then the engagement shall automatically be extended
to June 1, 2001.
Notwithstanding anything to the contrary to the foregoing, this
engagement may be terminated:
(a) On mutual agreement of the parties;
(b) By the Company, on thirty days written notice given at any time
after either J. Francis Lavelle or John Holmes cease to provide
services to Nassau; or
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(c) At any time, by the Company, for cause.
Cause shall include, but not be limited to, (i) dishonesty, (ii) willful
misfeasance or nonfeasance of duty intended to injure or having the effect of
injuring the reputation, business or business relationships of he Company or any
of its subsidiaries or any of their respective officers, directors, or
employees, (iii) the filing against either of J. Francis Lavelle or John Holmes
of any complaint alleging his commission of any crime involving moral turpitude
or which could reflect unfavorably upon the Company or any of its subsidiaries;
or (iv) the failure, neglect or refusal by Nassau to diligently perform the
duties and responsibilities undertaken pursuant to the terms of this Agreement.
Furthermore, during the term of this Agreement, the Company hereby
grants Nassau, on a case by case basis, the right of first refusal to provide
assistance on Capital Raising Transactions (as defined below) to the Company.
This right of first refusal shall mean that if the Company decides to raise debt
or equity capital in a Capital Raising Transaction pursuant to certain terms,
Nassau shall have the right to accept and advise on that assignment at those
terms. In the case that Nassau chooses not to accept such an assignment within
10 days of the Company's Board of Directors' decision, the Company shall be free
to select and hire another financial advisor or underwriter to assist it with
respect to that specific Capital Raising Transaction.
1. SERVICES. Nassau agrees to provide the Company with the following
services concerning its expansion into areas beyond the normal course of the
Company's current business activities:
(a)advisory services, including general business and financial analysis,
corporate strategy development, transaction feasibility analysis and
valuation analysis;
(b)assistance in the development of strategic priorities and transaction
criteria and identification of prospective candidates which satisfy
those criteria;
(c)assistance in negotiations, transaction structuring and related
strategy; and
(d)assistance in corporate capital planning, including the
identification of available financing.
2. FEES. Nassau shall be entitled to fees as follows (subject to
reduction for consideration paid to TSG, as described below).
Merger, Acquisition, Joint Venture, etc. Transaction
If the Company enters into an M&A Transaction (as defined below) at any
time during Nassau's engagement hereunder or, in cases in which the transaction
has been identified by Nassau to the Company or concerning which Nassau has
performed advisory services hereunder, during the 18 month period after the
termination of Nassau's engagement hereunder, the Company shall pay, or shall
cause to be paid, to Nassau, subject to amounts paid to TSG, a transaction fee
(the "M&A Transaction Fee") calculated according to the following schedule:
Percentage to be Applied to Portion
Consideration in Transaction of Consideration in Transaction
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Up to $1 million 5.0%, plus
Over $1 million up to $2 million 4.0%, plus
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Over $2 million up to $3 million 3.0%, plus
Over $3 million up to $4 million 2.0%, plus
Over $4 million 1.0%
Capital Raising Transaction
Subject to the right of first refusal described above and in cases when
the Company has retained Nassau without a right of first refusal, then in cases
in which the transaction has been identified by Nassau to the Company or
concerning which Nassau has performed advisory services hereunder, if the
Company enters into a Capital Raising Transaction (as defined below) at any time
during Nassau's engagement hereunder or during the 18 month period after
termination of Nassau's engagement hereunder, the Company shall pay, or cause to
be paid, to Nassau a transaction fee immediately upon closing of the Capital
Raising Transaction (the "Capital Raising Transaction Fee"), calculated
according to the following terms:
Percent of
Type of Capital Raising Transaction Consideration
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Equity Capital (as defined below): 5.0%
Debt Capital (as defined below): 2.0%
In the case of an M&A Transaction Fee or Capital Raising Transaction
Fee, Nassau and the Company, on a transaction by transaction basis, will
mutually agree on an allocation of the payment of the transaction fee among
cash, stock and/or warrant payments. In the event the parties cannot agree on an
allocation of the payment prior to consummation of a transaction, the M&A
Transaction Fee or Capital Raising Transaction Fee shall be payable in full in
cash and, if the Company is to receive Consideration on consummation of the M&A
Transaction, then the same shall be due and payable as the Company receives the
Consideration. To the extent the Consideration in respect thereof may be
increased by contingent payments, the portion of Nassau's fees relating thereto
shall be calculated and paid as and when such contingent payments are made. The
M&A Transaction Fee shall not be less than $25,000 for any consummated
transaction.
"Transaction" means an M&A Transaction or Capital Raising Transaction
(the latter as to which Nassau has been engaged), each as defined below.
"M&A Transaction" means any transaction (or series of transactions)
(other than a Capital Raising Transaction) which, directly or indirectly,
results in (i) the acquisition by the Company of all or any part of the capital
stock of a third party or all or any part of the assets of such third party (or
any securities convertible into or exchangeable for or other rights to acquire
all or any part of such capital stock or assets), or (ii) the acquisition by a
third party of all or more than 50% of the capital stock of the Company or all
or substantially all of the assets of the Company or any division or subsidiary
of the Company (including any securities convertible into or exchangeable for or
other rights to acquire all or any part of such capital stock or assets),
including in each such case, without limitation, (a) any such sale or exchange
of capital stock or assets (including cash and other liquid assets), (b) any
rights or options to purchase or sell such capital stock or assets, (c) any
merger or consolidation (including any such transaction in which the third party
is the surviving Company), or (d) the formation of any joint venture or
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partnership or any similar transaction; or (iii) the lending of debt capital by
the Company to a third party. With respect to (ii)(d), to be an M&A Transaction,
there must be a Capitalization equal to or exceeding $500,000. Capitalization
shall be defined to mean the total of all assets in the joint venture or
partnership or similar entity contributed by the parties at the time of closing
or within 12 months of closing.
"Capital Raising Transaction" means any transaction (or series of
transactions) (other than an M&A Transaction) which results in the sale of
capital stock of the Company to a third party in exchange for Equity Capital, or
which results in the Company receiving Debt Capital from a third party in
exchange for a repayment obligation from the Company. For purposes of this
definition, the Capital Raising Transaction shall include in each such case,
without limitation, any sale or exchange of capital stock, any rights or options
to purchase or sell capital stock, the issuance of any debt obligation by the
Company or the formation of any joint venture or partnership or any similar
transaction, in each case structured for the purpose of raising Debt or Equity
Capital in the Company or for the purpose of recapitalizing the Company's
current capital structure.
"Consideration" in an M&A Transaction means, with respect to such
Transaction, the total amount paid or payable (whether in cash, securities or
other property), directly or indirectly, upon the consummation of or otherwise
in connection with such Transaction, together with (i) all amounts paid or
payable in cancellation of stock options or other rights, (ii) the aggregate
principal amount of long-term indebtedness of the acquired company that, as a
result of such Transaction, becomes indebtedness of the acquiring company and
(iii) the aggregate redemption price or liquidation preference of any preferred
stock of the acquired company that, as a result of such Transaction, is redeemed
or becomes preferred stock of the acquiring company, as the case may be. For
purposes of this definition, long-term indebtedness shall be determined both as
to classification and amount on a consolidated basis for the entities acquired
or sold by the Company in accordance with generally accepted accounting
principles. In the event that the Consideration received in a Transaction is
paid or payable in whole or in part in the form of securities or other property,
the value of such securities or other property for purposes of calculating the
Consideration for such Transaction shall be the fair market value thereof, as
the parties hereto shall mutually agree, on the day prior to the consummation of
the Transaction.
With respect to a Capital Raising Transaction, "Consideration" shall be
defined to include the total amount paid or payable (whether in cash, securities
or other property), directly or indirectly, upon the consummation of or
otherwise in connection with such Capital Raising Transaction. In the event that
the Consideration received in a Transaction is paid or payable in whole or in
part in the form of securities or other property, the value of such securities
or other property for purposes of calculating the Consideration for such
Transaction shall be the fair market value thereof, as the parties hereto shall
mutually agree, on the day prior to the consummation of the Transaction. Such
Consideration includes any amounts pledged to be paid to the Company in tranches
subsequent to that capital initially made available to the Company upon closing
of the Capital Raising Transaction.
"Equity Capital" shall be defined as any capital investment into the
Company by a third party in exchange for any class of capital stock of the
Company (i.e. common stock, preferred stock or preferred stock which is
convertible into common stock at either the Company's or the third party's
option) for which the Company has no obligation of repayment to the third party,
excluding any interest or dividend payments or liquidation preferences which may
be included as rights for certain classes of stock.
"Debt Capital" shall be defined as any capital investment into the
Company by a third party in exchange for an obligation by the Company to repay
such investment to the third party according to terms agreed upon by the
parties, including any interest or dividend payments which may be associated
with
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certain types of debt instruments. This obligation may be defined as either
senior to or subordinate to any other issues of debt included in the Company's
capital structure at the time of issuance of the Debt Capital or any other
issues of debt raised by the Company in the future. The Debt Capital may also be
structured as an instrument which is convertible into Equity Capital at any time
in the future at either party's election. For purposes of the calculation of the
Capital Raising Transaction Fee, such a convertible instrument shall be treated
as Debt Capital until the date of conversion at which time it will be considered
to be Equity Capital. Upon conversion, the Company shall pay, or cause to be
paid, to Nassau the balance of the Capital Raising Transaction Fee even if such
conversion takes place after the termination of Nassau's engagement.
In the event that the Capital Raising Transaction is structured as a
combination of Equity Capital and Debt Capital, the above fee schedule shall be
applied to each portion of the transaction as if each portion were considered a
separate Capital Raising Transaction. For example, if $5 million were raised as
$3 million Debt Capital and $2 million Equity Capital, then the Capital Raising
Transaction Fee shall be $160,000, i.e. 2.0% on $3 million and 5.0% on $2
million.
In the event that the Capital Raising Transaction includes an issuance
of warrants, options or other rights to invest additional Equity or Debt Capital
in the Company, in addition to the Capital Raising Transaction Fee relating to
such Capital Raising Transaction, the Company shall be obligated to issue to
Nassau as an additional fee substantially similar rights in an amount equal to
5% of such rights. Upon the exercise of the third party's issuance of warrants,
options or other rights to invest additional Equity or Debt Capital in the
Company, Nassau shall receive a Capital Raising Transaction Fee according to the
fee schedule outlined above even if such Transaction takes place after the
termination of Nassau's engagement.
In the event TSG is under contract to the Company to provide advisory
services at the time of an M&A Transaction and provides consulting advisory
services to the Company in connection with an M&A Transaction, the total amount
of all consulting and transaction fees payable by the Company to Nassau
hereunder and to TSG will be allocated between Nassau and TSG on a 80%
(Nassau)/20% (TSG) basis. The Company agrees that in such a situation, the
Company shall pay any compensation due TSG directly to TSG and any compensation
due Nassau directly to Nassau. The Company will provide Nassau with prompt
notice of any involvement of TSG.
3. EXPENSES. Whether or not a Transaction occurs, the Company shall
reimburse Nassau for its reasonable out-of-pocket expenses incurred in
connection with Nassau's services hereunder or the subject matter hereof,
including, without limitation, legal, accounting, computer and information
databases, travel and internal administrative expenses. Such reimbursement will
occur on a regular monthly basis. In addition, the Company shall pay all costs
of Nassau, including reasonable fees and disbursements of counsel and any and
all reasonable expenses incurred in investigating, preparing or litigating any
claim by Nassau against the Company relating to payment of Nassau's fees and
expenses hereunder.
4. INDEMNIFICATION. The Company shall, whether or not a Transaction is
consummated, indemnify and hold harmless Nassau from and against, and on demand
shall pay or reimburse Nassau for, any and all losses, damages, claims,
liabilities or expenses (including, without limitation, the reasonable fees and
disbursements of counsel and any and all reasonable expenses incurred in
investigating, preparing or defending any pending action or proceeding or any
claim whatsoever) arising out of or relating to Nassau's services hereunder or
the subject matter hereof, except that the Company shall not be responsible
under this paragraph for any loss, damage, claim, liability or expense to the
extent it is finally determined by a court having jurisdiction to have resulted
primarily from Nassau's bad faith or gross negligence.
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If for any reason the foregoing indemnity is unavailable or insufficient
to hold Nassau harmless (except by reason of the bad faith or gross negligence
of Nassau), the Company shall contribute to amounts paid or payable by Nassau in
respect of any such losses, damages, claims, liabilities or expenses in such
proportion as is appropriate to reflect not only the relative benefits received
by the Company and its shareholders on the one hand and Nassau on the other, but
also the relative fault of the Company and Nassau, as well as any other
equitable considerations.
The Company agrees that the indemnification, contribution and
reimbursement commitments set forth in this Section 4 shall apply whether or not
Nassau is a formal party to any lawsuits, claims or other proceedings, and that
Nassau is entitled to retain separate counsel of its choice in connection with
any of the matters to which such commitments relate.
The foregoing provisions of this Section 4 shall extend, upon the same
terms and conditions, to the benefit of each affiliate of Nassau and each
director, officer, employee and agent of, and each person, if any, who may be
deemed to control, Nassau or any affiliate of Nassau, and to the benefit of each
director, officer, employee and agent of all such controlling persons and the
respective successors, assigns, heirs and personal representatives of each of
the foregoing persons. The indemnification, contribution and reimbursement
commitments set forth in this Section 4 shall be in addition to any liability
the Company may otherwise have to Nassau and shall survive the expiration or
termination of Nassau's engagement hereunder.
Each party agrees to notify the other party promptly of the assertion
against it or any other person of any claim or the commencement of any action or
proceeding relating to this engagement.
5. ENTIRE AGREEMENT; AMENDMENT; SURVIVAL. This agreement constitutes the
entire agreement of the parties with respect to Nassau's engagement and
supersedes all prior negotiations and understandings of the parties hereto with
respect to the subject matter hereof. This agreement may not be amended or
modified except in a writing signed by each party hereto. The provisions of
Sections 2, 3, 4 and 6 shall survive any termination of Nassau's engagement
hereunder.
6. REPRESENTATIONS AND WARRANTIES; ACCURACY OF INFORMATION; INTERESTS OF
OTHERS. The Company represents and warrants that all information furnished by
it or on its behalf to Nassau shall be complete and accurate in all material
requests and not misleading. The Company acknowledges and agrees that Nassau
will be using and relying upon such information supplied by the Company and its
officers, agents and others and any other publicly available information
concerning the Company without any independent investigation or verification
thereof or independent appraisal by Nassau of the Company or its business or
assets. The Company further represents and warrants that no broker,
representative or other person has an interest in compensation due Nassau
hereunder as a result of any act or omission of the Company or any of its
directors, officers, employees or agents, except as has been and will be
disclosed to Nassau with respect to TSG.
7. CONDITION PRECEDENT. This Agreement and the engagement described
herein is subject to the condition precedent that Nassau and/or Green Field
Capital Management, Inc. and/or its designees purchase, in total, ten percent
(approximately 165,000 shares) or more of the outstanding shares of the Company
within 30 days of the date of this letter agreement. If this condition precedent
shall fail, then this Agreement shall be void ab initio and of no force or
effect.
8. HEADINGS. Headings are provided solely for convenience and are not
intended to be a part of this agreement.
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9. GOVERNING LAW. This agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
If the foregoing is in accordance with your understanding, kindly sign
where indicated below and return an executed copy to us.
THE NASSAU GROUP, INC.
By /s/ Mr. J. Francis Lavelle
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Mr. J. Francis Lavelle
AGREED TO: Managing Director
BARRINGER LABORATORIES, INC.
By /s/ Mr. Robert H. Walker
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Mr. Robert H. Walker
President
