SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 18, 1999
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BARRINGER LABORATORIES, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE
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(State or other jurisdiction of incorporation)
1-8241 84-0951626
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(Commission File Number) (IRS Employer Identification No.)
15000 West 6th Avenue, Suite 300, Golden CO 80401-5047
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 303/277-1687
Not Applicable
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(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS
On or about October 18, 1999, the Registrant, Barringer Laboratories, Inc.
("Barringer"), has approved the sale and issuance of up to 8,333,333 shares of
its Common Stock, $.01 par value, at $.06 per share which will provide an equity
infusion to the company in amount of up to $500,000.00. Proceeds from the sale
of Common Stock is needed by Barringer for its immediate and anticipated near
term cash flow needs. The stock will be sold to certain of Barringer's existing
shareholders.
Barringer's Certificate of Incorporation, as amended, authorizes the
issuance of 10,000,000 shares of Common Stock and 1,000,000 share of Preferred
Stock, $2.00 par value. There are 6,830,958 shares of Common Stock outstanding.
Therefore, Barringer does not have a sufficient number of unissued shares of
Common Stock authorized in its Certificate of Incorporation needed to sell the
entire 8,333,333 shares, as approved. Accordingly, Barringer's shareholders will
be asked at the next shareholders' meeting to approve an amendment to
Barringer's Certificate of Incorporation to increase the number of authorized,
but unissued, shares of Common Stock. Pending such shareholder action, Barringer
has been authorized to raise up to $500,000.00 through the issuance of
convertible notes to those persons who subscribe to purchase shares of
Barringer's common stock. The form of the Convertible Note, together with the
Security Agreement and Registration Rights Agreement which are referenced
therein, are attached as Exhibit 10.4, Exhibit 10.5 and Exhibit 10.6,
respectively. Any and all discussion in this report of the Convertible Note, the
Security Agreement and the Registration Rights Agreement is qualified by
reference to Exhibit 10.4, Exhibit 10.5 and Exhibit 10.6. Barringer began
issuing Convertible Notes during the week of October 18, 1999, in connection
with its plans to cause an equity infusion in an amount of up to $500,000.00.
These securities have been issued pursuant to exemptions from registration under
the Securities Act of 1933 as well as exemptions from registration under
applicable state securities law.
Each Convertible Note issued will give Barringer the right, at its sole
option, to convert the balance thereof to shares of its Common Stock at a
conversion price of $.06 per share of Common Stock. Barringer has committed
itself under each Convertible Note to take all reasonable action to increase the
authorized and unissued shares of Common Stock so that it can convert the notes
to shares of Common Stock as soon as reasonably practicable. Each Convertible
Note has a maturity date of one year and will require the payment of interest at
the rate of ten percent (10%) per annum on the balance of the note only in the
event that the note is not converted to shares of Common Stock. Pursuant to the
terms of the Security Agreement, the obligations of Barringer arising under each
Convertible Note will be secured by a pledge of essentially all of Barringer's
assets.
Barringer contemplates having to raise at least an additional $200,000.00
in the near term for its anticipated cash flow needs. Barringer expects to raise
this amount through the sale of Common Stock at $.06 per share or by issuing
convertible notes in such amounts with terms similar to those represented by
Exhibit 10.4.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
The following exhibits are filed herewith:
Name of Exhibit Exhibit No.
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Convertible Note 10.4
Security Agreement 10.5
Registration Rights Agreement 10.6
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
Dated: March 2, 2000
BARRINGER LABORATORIES, INC.
By: /s/ J. Graham Russell
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J. Graham Russell, President
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EXHIBIT B
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
ANY STATE SECURITIES ACTS OR LAWS, AND HAVE BEEN ISSUED AND SOLD IN RELIANCE
UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SUCH ACTS AND LAWS,
INCLUDING BUT NOT LIMITED TO THE EXEMPTION CONTAINED IN SECTION 4(2) OF THE
SECURITIES ACT OF 1933. THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED UNLESS A
REGISTRATION STATEMENT HAS BECOME AND IS THEN EFFECTIVE WITH RESPECT TO SUCH
SECURITIES OR BARRINGER LABORATORIES, INC. HAS RECEIVED AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO IT, TO THE EFFECT THAT THE PROPOSED SALE OR TRANSFER
IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
ALL APPLICABLE STATE SECURITIES ACTS AND LAWS.
CONVERTIBLE NOTE
OF
BARRINGER LABORATORIES, INC.
$____________________ October __, 1999
BARRINGER LABORATORIES, INC., a Delaware corporation (the "Company"), for
value received, hereby promises to pay to the order of ________________ (the
"Investor") or his permitted assigns (in each case, the "Holder") at 15000 West
6th Avenue, Suite 300, Golden, Colorado 80401-5047, the sum of
$___________________. The Company shall only pay interest (to the extent
permitted by law) on any overdue principal on this Note at the rate of 10% per
annum, from the due date of such principal until payment in full thereof is
made. The principal amount then outstanding of this Note shall be due and
payable in full on the 365th day from the date hereof (the "Maturity Date").
This Note is originally being issued pursuant to a Subscription Agreement, dated
October ___, 1999 (the "Original Issue Date"), between the Company, the Investor
and, perhaps others (collectively, the "Investors") (each Investor's
Subscription Agreement are collectively referenced herein as the "Subscription
Agreement"). All Notes issued under the Subscription Agreement are referred to
herein as the "Notes."
The following is a statement of the rights of the Holder and the conditions
to which this Note is subject, and to which the Holder hereof, by the acceptance
of this Note, agrees:
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1. Security. The obligations evidenced by, arising under or in connection
with, this Note are secured by a security interest, created pursuant to a
certain Security Agreement, dated as of the date hereof (the "Security
Agreement"), among the Company and the Investors, in the Collateral (as defined
in the Security Agreement).
2. Financing Statements. The Company shall execute and deliver to the
Investor (i) the Security Agreement; (ii) Uniform Commercial Code Financing
Statements (Form UCC-1) or appropriate local equivalent in appropriate form for
filing under the Uniform Commercial Code or appropriate local equivalent of each
jurisdiction as may be necessary to perfect the security interests purported to
be created by the Security Agreement; and (iii) all other documents necessary
or, in the reasonable opinion of the Investor, desirable, to perfect the
security interests in the Collateral purported to be created by the Security
Agreement.
3. Amendments. This Note may not be amended, modified or waived in any
respect unless set forth in writing and signed by the Company and the Holder.
4. Notices. So long as this Note remains outstanding, the Company shall
maintain an office or agency (which shall initially be the principal place of
business of the Company located at 15000 West 6th Avenue, Suite 300, Golden,
Colorado 80401-5047) where notices, presentations and demands to or upon the
Company in respect of this Note may be given. All notices to be given by the
Company to the Holder in respect of this Note shall be delivered or mailed to
the address of the Holder set forth on the records of the Company or such other
address as shall be designated in writing by the Holder to the Company.
5. Events of Default. (a) The following shall constitute an "Event of
Default" under this Note:
(i) Default shall be made in any payment of principal of or
interest on this Note when the same shall become due and payable, and
such principal or interest shall remain unpaid for 30 days after the
date upon which such payment was due;
(ii) any representation or warranty made by the Company under or
in connection with the Subscription Agreement, the Security Agreement,
the Registration Rights Agreement, dated as of the date hereof,
between the Company and the Investors (the "Registration Rights
Agreement," and together with the Subscription Agreement and the
Security Agreement, the "Transaction Documents"), or any certification
or other instrument furnished in connection with any Transaction
Document or the transactions contemplated thereby, shall prove to have
been false or misleading in any material respect;
(iii) default shall be made in the due observance or performance
of any covenant or agreement (other than as contemplated by clause (i)
above) to be observed or performed by the Company or any of its
subsidiaries for the benefit of the Holder under this Note or any
Transaction Document and such default shall remain uncured and
unwaived for a period of 30 days after written notice thereof is given
to the Company by the Holder, unless the Holder determines that the
Company has diligently instituted and is continuing diligently to
pursue corrective action sufficient to cure such default;
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(iv) The Company shall (A) voluntarily commence any proceeding or
file any petition seeking relief under Title 11 of the United States
Code or any other Federal or state bankruptcy, insolvency or similar
law, (B) consent to the institution of any such proceeding or the
filing of any such petition, (C) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator or similar
official for the Company or such Subsidiary or for all or a
substantial part of its properties, (D) file an answer admitting the
material allegations of a petition filed against it in any such
proceeding, (E) make a general assignment for the benefit of
creditors, or (F) admit in writing its inability to pay its debts as
they become due;
(v) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (A) relief in respect of the Company, or of all
or a substantial part of the properties thereof, under Title 11 of the
United States Code or any other Federal or state bankruptcy,
insolvency or similar law, (B) the appointment of a receiver, trustee,
custodian, sequestrator or similar official for the Company or for a
substantial part of the properties thereof, or (C) the winding up or
liquidation of the Company; and an order or decree approving or
ordering any of the foregoing shall be issued by a court having
jurisdiction and continue unstayed and in effect for 60 days; or
(vi) an unappealed final judgment for the payment of money in
excess of $250,000 shall be rendered against the Company or and the
same shall remain undischarged or unbonded for a period of 60
consecutive days during which execution shall be effectively stayed.
(b) In case of any Event of Default and at any time thereafter during
the continuance of such Event of Default, the holders of a majority in principal
amount of the Notes then outstanding may, by written notice to the Company,
declare the Notes to be due and payable in full both as to principal and
interest, together with a prepayment premium equal to 1% of the principal amount
of the Note as of the date thereof; provided, however, that no notice need be
given to the Company if acceleration is based upon the Events of Default
described in clauses (v) or (vi) of paragraph (a) above, in either of which
cases this Note shall automatically become due and payable without any action on
the part of the holders.
(c) In case an Event of Default shall have occurred and be continuing,
the Holder may proceed to protect and enforce its rights either by suit in
equity or by action at law, whether for the specific performance of any covenant
or agreement contained in the Transaction Documents or this Note or in aid of
the exercise of any power granted in the Transaction Documents or in this Note,
or proceed to enforce the payment of this Note or to enforce any other legal or
equitable right of the Holder. No remedy conferred hereunder is intended to be
exclusive of any other remedy and each such remedy shall be cumulative and shall
be in addition to every other remedy given hereunder or currently or hereafter
existing at law or in equity or by statute or otherwise.
6. Conversion.
6.1 Election by Company. The Company has the right, at any time until
the Maturity Date, to convert this Note in accordance with the provisions of
Subsection 6.2 hereof, in whole or in part, into fully paid and nonassessable
shares of the Common Stock, par value [$0.01] per share, of the Company (the
"Common Stock"). The number of shares of Common Stock into which this Note may
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be converted at any given time shall be determined by dividing the unpaid
principal amount by the Conversion Price. As used herein, the term "Conversion
Price" shall mean a price of $0.06 per share, subject to adjustment as set forth
in Section 8.
6.2 Conversion Procedure. The Company anticipates that will be in
position to take all action as is necessary to increase the authorized but
unissued shares of its common stock during the first quarter of fiscal year
2000, if not sooner. Therefore, if not sooner than or during the first quarter
of fiscal year 2000, the Company shall, as soon as reasonably practicable,
convert this Note into shares of Common Stock and shall issue and deliver to the
Holder a certificate or certificates for the number of Shares so converted to
which the Holder is entitled in accordance with the terms and conditions of the
Subscription Agreement. Such conversion shall be deemed to have been made
immediately prior to the close of business on the date that the Company issues a
certificate or certificates representing such Shares and the person or persons
entitled to receive the Shares shall be treated for all purposes as the record
holder or holders of such Shares as of such date. On such date that the full
outstanding principal balance of this Note is converted to Common Stock as
provided herein, this Note shall be deemed to be paid in full. On such date, the
Holder shall take reasonable action to surrender this Note to the Company and to
reflect that it has been paid in full.
6.3 No Fractional Shares. No fractional shares of Common Stock shall
be issued upon conversion of this Note. In lieu of the Company issuing any
fractional shares to the Holder upon the conversion of this Note, the Company
shall pay to the Holder in immediately available funds the amount of outstanding
principal that is not so converted. Upon conversion in whole of this Note and
the proper issuance of a certificate or certificates representing the Shares and
payment in lieu of fractional shares, the Company shall be forever released from
all its obligations and liabilities under this Note.
7. Reservation of Common Stock. If not sooner, than during as or reasonably
practicable after the first quarter of fiscal year 2000, the Company shall take
all action as is necessary to increase the amount of authorized but unissued
shares of Common Stock. Thereafter, the Company shall at all times duly reserve
a sufficient number of shares of authorized Common Stock for issuance upon
conversion of all Notes. Upon issuance, sale and delivery of a certificate or
certificates representing the Shares, such Shares shall be validly issued and
outstanding, fully paid and nonassessable with no personal liability attaching
to the ownership thereof, and shall not be subject to preemptive or any similar
rights of any person or entity.
8. Adjustment of Conversion Price. (a) If, at any time after the Original
Issue Date, the number of outstanding shares of Common Stock is (i) increased by
a stock dividend payable in shares of Common Stock or by a subdivision or
split-up of shares of Common Stock, or (ii) decreased by a combination or
reverse split of shares of Common Stock, then, following the record date fixed
for the determination of holders of Common Stock entitled to receive the
benefits of such stock dividend, subdivision, split-up, combination or reverse
split, the Conversion Price shall be adjusted to a new amount equal to the
product of (A) the Conversion Price in effect on such record date and (B) the
quotient obtained by dividing (x) the number of shares of Common Stock
outstanding on such record date (without giving effect to the event referred to
in the foregoing clause (i) or (ii)) by (y) the number of shares of Common Stock
which would be outstanding immediately after the event referred to in the
foregoing clause (i) or (ii), if such event had occurred immediately following
such record date.
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(b) If, at any time after the Original Issue Date, the Company shall
issue or be deemed to have issued (as provided below) shares of Common Stock
without consideration or for a consideration per share less than the Conversion
Price in effect immediately prior to such issuance or deemed issuance, then such
Conversion Price shall be lowered to a price equal to the quotient obtained by
dividing (i) an amount equal to the sum of (A) the product of (x) the number of
shares of Common Stock outstanding immediately prior to such issuance or deemed
issuance and (y) the then existing Conversion Price, and (B) the total
consideration received or deemed received by the Company upon such issuance or
deemed issuance, by (ii) the total number of shares of Common Stock outstanding
immediately after such issuance or deemed issuance. For the purposes of any
adjustment of the Conversion Price pursuant to this paragraph, the following
provisions shall be applicable:
(i) In the case of the issuance of Common Stock for cash, the
consideration shall be deemed to be the amount of cash paid therefor
without deducting therefrom any discounts, commissions or other
expenses allowed, paid or incurred by the Company for any underwriting
or otherwise in connection with such issuance.
(ii) In the case of the issuance of Common Stock for no
consideration, the consideration shall be deemed to be $.01 per share.
(iii) In the case of the issuance of Common Stock for a
consideration in whole or in part other than cash, the consideration
other than cash shall be deemed to be the fair market value thereof as
determined in good faith by the Board of Directors, irrespective of
any accounting treatment.
(iv) In the case of the issuance of options to purchase or rights
to subscribe for Common Stock, securities by their terms convertible
into or exchangeable for Common Stock, or options to purchase or
rights to subscribe for such convertible or exchangeable securities:
(A) The shares of Common Stock deliverable upon exercise of
such options to purchase or rights to subscribe for Common Stock
shall be deemed to have been issued at the time such options or
rights were issued and for a consideration equal to the
consideration (determined in the manner provided in clauses (i)
through (iii) above), if any, received by the Company upon the
issuance of such options or rights plus the minimum purchase
price provided in such options or rights for the Common Stock
covered thereby.
(B) The shares of Common Stock deliverable upon conversion
of or in exchange for any such convertible or exchangeable
securities or upon the exercise of options to purchase or rights
to subscribe for such convertible or exchangeable securities and
subsequent conversions or exchanges thereof shall be deemed to
have been issued at the time such securities were issued or such
options or rights were issued and for a consideration equal to
the consideration received by the Company for any such securities
and related options or rights (excluding any cash received on
account of accrued interest or accrued dividends), plus the
additional consideration, if any, to be received by the Company
upon the conversion or exchange of such securities or the
exercise of any related options or rights (the consideration in
each case to be determined in the manner provided in the clauses
(i) through (iii) above).
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(C) Upon any change in the exercise price of shares of
Common Stock deliverable upon exercise of any such options or
rights or conversion of or exchange for such convertible or
exchangeable securities, other than a change resulting from the
antidilution provisions thereof, the Conversion Price shall be
readjusted to such Conversion Price as would have obtained had
the adjustment made upon the issuance of such options, rights or
securities not converted prior to such change been made upon the
basis of such change.
(D) Upon expiration of any such options or rights, the
termination of any such rights to convert or exchange, or the
expiration of any options or rights related to such convertible
or exchangeable securities, the Conversion Price shall be
readjusted to such Conversion Price as would have obtained had
such options, rights, securities or options or rights related to
such securities not been issued.
(E) No further adjustments of the Conversion Price shall be
made upon the actual issuance of such Common Stock or of such
convertible or exchangeable securities upon exercise of such
options or rights, or upon the actual issuance of such Common
Stock upon conversion or exchange of such convertible or
exchangeable securities.
(c) All calculations under this Section shall be made to the nearest
cent ($.01).
(d) Whenever the Conversion Price shall be adjusted as provided above,
the Company shall deliver to the Holder a statement, signed by its President or
Chief Financial Officer, showing in detail the facts requiring such adjustment
and the Conversion Price that shall be in effect after the adjustment.
9. Adjustment of Shares. Following any Corporate Reorganization (as defined
below) after the Original Issue Date, this Note shall be convertible into the
kind and number of shares of capital stock or other securities or property which
the Holder would have owned or have been entitled to receive with respect to the
Shares had this Note been converted immediately prior to such Corporate
Reorganization. The foregoing provision shall similarly apply to successive
Corporate Reorganizations. "Corporate Reorganization" means (i) any capital
reorganization or reclassification of the capital stock of the Company, other
than (A) a change in par value or from par value to no par value, or (B) as a
result of a stock dividend or subdivision, split-up, or combination of shares,
and (ii) any merger or consolidation of the Company pursuant to which the
stockholders of the Company are to receive cash, securities, or other properties
in exchange for the shares of capital stock of the Company then held by them.
10. Extension of Maturity. Should the principal of or premium or interest
on this Note become due and payable on other than a business day, the maturity
thereof shall be extended to the next succeeding business day, and, with respect
to the interest on the principal, interest shall be payable thereon at the rate
per annum herein specified during such extension. The term "business day" shall
mean any day that is not a Saturday, Sunday or legal holiday in the State of
Delaware.
11. Costs and Expenses. The Company agrees to pay all reasonable costs and
expenses, including reasonable attorneys' fees, incurred by the Holder in
collecting or enforcing this Note.
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12. No Waivers. No delay by the Holder in exercising any power or right
hereunder shall operate as a waiver of any power or right, nor shall any single
or partial exercise of any power or right preclude other or further exercise
thereof, or the exercise of any other power or right hereunder or otherwise.
13. Transfer of Note. Subject to the restrictions on transfer set forth
herein and in the Subscription Agreement, this Note and all rights hereunder are
transferable in whole or in part. Any transfer shall be effected by the Holder
in person or by duly authorized attorney by surrendering this Note, properly
endorsed, at the office of the Company. Each taker and holder of this Note, by
taking or holding the same, consents and agrees that this Note shall be deemed
negotiable, and, when appropriately endorsed the holder hereof may be treated by
the Company and all other persons dealing with this Note as the absolute owner
hereof for any purposes and as the person entitled to exercise the rights
represented by this Note, or to the transfer hereof on the books of the Company,
any notice to the contrary notwithstanding; but until such transfer on such
books, the Company may treat the registered holder hereof as the owner hereof
for all purposes, any notice to the contrary notwithstanding.
14. Governing Law. This Note shall be governed by and construed and
enforced in accordance with the laws of the State of Colorado. Whenever
possible, each provision of this Note shall be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of this Note
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Note.
15. Notices. All notices, demands or other communications hereunder shall
be in writing and shall be deemed given when delivered personally, mailed by
certified mail, return receipt requested, sent by overnight courier service, or
telecopied (transmission confirmed and a copy sent by personal delivery,
certified mail or overnight courier service) to the following addresses or such
other address as may be designated in writing by either party in accordance with
the terms of this provision:
Holder:
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Telecopier:
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The Company: Barringer Laboratories, Inc.
15000 West 6th Avenue
Suite 300
Golden, Colorado 80401-5047
Telecopier: (303) 277-1689
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IN WITNESS WHEREOF, the Company has caused this Convertible Note to be
issued as of the date first set forth hereinabove.
BARRINGER LABORATORIES, INC.
By:
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Name:
Title:
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SECURITY AGREEMENT
This Security Agreement ("Agreement") is entered into this ____ day of
October, 1999, by and between Barringer Laboratories, Inc., a Delaware
corporation, ("Barringer"), and _________________________ ( "Secured Party").
RECITALS:
A. Pursuant to the Subscription Agreement for Shares of Common Stock
between Barringer and Secured Party dated October __, 1999 ("Subscription
Agreement"), Secured Party has made payment to Barringer in consideration for
the purchase of ______________________ shares of Barringer's common stock, $.01
par value ("Shares").
B. Until such time as Barringer takes all necessary action to issue the
Shares, payment for the Shares is evidenced by a Convertible Note in the
principal amount of $___________________________("Note") dated as of the same
date hereof.
C. Until such time as Barringer takes all necessary action to issue the
Shares, Barringer has agreed to secure the payment of the Note by the grant of a
security interest in Barringer's assets under the terms of this Agreement.
NOW THEREFORE, for good and valuable consideration, the adequacy and
receipt of which are hereby acknowledged, the parties agree as follows:
1. Grant of Security Interest. (a) As collateral security for the prompt
payment in full when due of the Secured Obligations (hereinafter defined),
Barringer hereby grants, conveys, and assigns to Secured Party a security
interest in and to the Collateral (hereinafter defined). The security interest
in the Collateral is granted to secure and enforce the following (collectively,
the "Secured Obligations"):
(i) Payment of the Note in accordance with its terms; and
(ii) Performance of any and all of Barringer's other obligations to
Secured Party under: (A) the Note, (B) this Agreement, and (C) any and all
renewals, extensions for any period, rearrangements or refinancings of the Note
or of any other obligations under the Note or this Agreement.
(b) A copy of this Agreement may be used as a financing statement.
2. Property. The following property (collectively, "Collateral") is subject
to the security interest herein granted:
(a) All Receivables of Barringer now owned or hereafter acquired or
arising, together with all customer lists, original books and records, ledger
and account cards, computer tapes, discs, printouts and records, whether now in
existence of hereafter created. "Receivables" means all rights of Barringer to
the payment of money, whether or not earned and howsoever evidenced or arising,
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including (without limitation) all present and future "Accounts", accounts
receivable, "Chattel Paper", "Instruments," and rights to payment which are
"General Intangibles" (as those terms are used in the Uniform Commercial Code as
enacted in the State of Colorado ("Commercial Code")), all security therefor and
any goods represented by any of the foregoing including returned or repossessed
goods;
(b) All Inventory of Barringer, whether now owned or hereafter acquired and
wherever located. "Inventory" includes all Goods (as defined in Article 9 of the
Commercial Code) intended for sale or lease or to be furnished under contracts
of service, all raw materials and work in process therefor, all finished goods
thereof, all materials and supplies of every nature used or usable or consumed
or consumable in connection with the manufacture, packing, shipping,
advertising, selling, leasing or furnishing of such Goods, and all accessories
thereto and all documents of title therefor evidencing the same:
(c) All Equipment of Barringer, whether now owned or hereafter acquired and
wherever located. "Equipment" includes all of Barringer's Goods other than
Inventory, all replacements and substitutions therefor and all accessions
thereto, and specifically includes, without limitation, all present and future
machinery, equipment, vehicles, manufacturing equipment, shop equipment, office
and record keeping equipment, furniture, fixtures, parts, tools and all other
Goods (except Inventory) used or acquired for use by Barringer for any business
or enterprise;
(d) All General Intangibles and Deposit Accounts (as defined in Article 9
of the Commercial Code) of Barringer, whether now owned or hereafter acquired,
including (without limitation) all present and future domestic and foreign
patents, patent applications, trademarks, trademark applications, copyrights,
trade names, trade secrets, patent and trademark licenses (whether Barringer is
licensor or licensee), shop drawings, engineering drawings, blueprints,
specifications, parts lists, manuals, operating instructions, customer and
supplier lists, licenses, permits, franchises, the right to use Barringer's
corporate name and the goodwill of Barringer's business;
(e) All Investment Property (as defined in the Commercial Code) including
but not limited to stock and other securities evidencing ownership of any other
organization, company or entity as well as all amendments, extensions, renewals
and replacements of the above, together with all certificates, other
instruments, options, rights, interest, and other distributions issued as an
addition to, in substitution or in exchange for, or on account of, the same, all
whether now existing or hereafter arising and whether now owned or hereafter
acquired; and
(f) All products and proceeds of any and all of the foregoing and all
products and proceeds of any other Collateral including the proceeds of any
insurance covering any of the Collateral, as well as all Deposit Accounts (as
defined in the Commercial Code), money, cash, and the like.
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3. Barringer's Warranties, Representations, and Covenants. In addition to
any other warranties, representations, or covenants, Barringer warrants,
represents, and covenants that:
(a) It has the power and authority to enter into this Agreement, which
constitutes a legal, valid, and binding agreement enforceable against it in
accordance with its terms.
(b) It will not breach any other agreement or provision of law by entering
into or performing this Agreement.
(c) Upon Secured Party's reasonable request, Barringer shall take all
action and execute all documents necessary or appropriate to consummate and give
effect to this Agreement;
(d) Barringer shall not, without Secured Party's prior written consent,
which shall not be unreasonably withheld, create, incur, assume, or suffer to
exist any debt or other obligation for borrowed money other than current
accounts payable and similar current liabilities incurred in the ordinary course
of business from the date of this Agreement;
(e) Barringer shall use diligent efforts to protect and preserve the
Collateral, including to maintain in good standing, to enforce, and to not
breach, all existing and future contracts to which Barringer is a party; and
(f) Upon reasonable notice from Secured Party, it will permit Secured Party
or their representatives to inspect any of Barringer's corporate books and
financial records and discuss with its officers its affairs, finances, and
accounts.
4. Power of Attorney. Barringer hereby appoints Secured Party as
attorney-in-fact and grants Secured Party a proxy to do, after and during the
continuance of an Event of Default (as herein defined), any act that Barringer
is obligated by this Agreement to do and to exercise any and all rights and
powers as Barringer might exercise with respect to the Collateral. This power of
attorney is a power coupled with an interest and shall be irrevocable until the
Secured Obligations are satisfied. Secured Party shall be under no duty to
exercise or withhold the exercise of any of the rights, powers, or privileges
expressly or implicitly granted to Secured Party in this Agreement, and shall
not be liable for any failure to do so or any delay in doing so. Secured Party
shall not be liable for any act or omission or for any error of judgment or any
mistake of fact or law in its individual capacity or in its capacity as
attorney-in-fact except acts or omissions resulting from its willful misconduct
or gross negligence. This power of attorney is conferred on the Secured Party to
protect, preserve, and realize upon its security interest in the Collateral.
5. Events of Default. Any one or more of the following events constitutes
an event of default ("Event of Default"):
(a) Barringer's failure to pay on the due date any amount of principal or
interest owing under the Note.
3
<PAGE>
(b) The occurrence of a default, or of any event that with the giving of
notice or the passage of time could constitute a default, under any agreement of
Barringer evidencing an obligation of Barringer for borrowed money.
(c) A breach of or failure by Barringer to perform any of the terms of: (i)
the Note (other than the failure to make payment due under Note which payment is
the subject of subsection (a)), or(ii) this Agreement.
(d) Any levy, seizure, attachment, or similar legal service of or on the
Collateral not discharged by within ten (10) days, or any sale, transfer, or
disposition of any interest in the Collateral, other than in the ordinary course
of business, without Secured Party's prior written consent.
6. Remedies. (a) Upon the occurrence of any Event of Default, Secured Party
may in its sole discretion, with or without notice to Barringer and in addition
to all other rights and remedies at law or in equity:
(i) Declare the entire balance of the Note immediately due and
payable; and
(ii) Sell or otherwise dispose of the Collateral in accordance with
the terms hereof.
(b)(i) In addition to all other rights and remedies granted to Secured
Party in this Agreement and in any other agreement securing, evidencing, or
relating to the Secured Obligations, Secured Party shall have all of the rights
and remedies of a secured party under the Commercial Code Without limiting the
generality of the foregoing, Secured Party may:
(A) Without demand or notice to Barringer, collect, receive, or
take possession of the Collateral or any part thereof;
(B) Sell or otherwise dispose of the Collateral, or any part
thereof, in one or more parcels at public or private sale or sales, at Secured
Party's offices or elsewhere, for cash, on credit, or for future delivery; and
(C) Bid and become a purchaser at any sale free of any right or
equity of redemption of Barringer, which right or equity is hereby expressly
waived and released by Barringer.
(ii) Upon Secured Party's request, Barringer shall assemble
the Collateral and make it available to Secured Party at any place designated by
Secured Party that is reasonably convenient to Barringer and Secured Party.
4
<PAGE>
(iii) Secured Party shall have the right to determine the order in
which any or all of the Collateral shall be subjected to the remedies for which
this Agreement or the Note provide. Secured Party shall have the right to
determine the order in which any or all portions of the indebtedness secured by
this Agreement are satisfied from the proceeds realized upon the exercise of
such remedies. Barringer, any party who consents to this Agreement, and any
party who hereafter acquires a security interest in the Collateral and who has
actual or constructive notice of this Agreement, hereby waives any and all right
to require the marshaling of Collateral in connection with the exercise of any
of the remedies for which this Agreement or the Note provide.
(iv) Unless the Collateral threatens to decline speedily in value or
is of the type customarily sold on a recognized market, Secured Party shall give
Barringer reasonable notice of the time and place of any public sale or of the
time after which any private sale or other disposition of the Collateral is to
be made, and notice given at least ten (10) days before the time of the sale or
other disposition shall be conclusively presumed to be reasonable. Without
limiting what constitutes a sale of the Collateral in a reasonable manner, a
public sale in the following fashion shall be conclusively presumed to be
reasonable:
(A) Notice is given at least ten (10) days before the date of
sale by publication once in a newspaper of general circulation published in the
county in which the sale is to be held;
(B) The sale is held in a county in which the Collateral or any
part is located or in a county in which Barringer has its place of business;
(C) Payment is in cash or by certified check immediately
following the close of the sale;
(D) The sale is by auction, but need not be by a professional
auctioneer; and
(E) The Collateral is sold as is and without any preparation for
sale.
(v) Secured Party may adjourn any public or private sale from time to
time by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned. Barringer shall be liable for all expenses of retaking, holding,
preparing for sale, or the like, and all attorneys' fees and other expenses
incurred by Secured Party in connection with the collection of the Secured
Obligations and the enforcement of Secured Party's rights hereunder, all of
which expenses and fees shall constitute Secured Obligations.
(vi) Secured Party shall apply the Collateral against the Secured
Obligations in the following manner:
5
<PAGE>
(A) First, to Secured Party for any unpaid expenses owed to it by
Barringer under this Agreement or the Note;
(B) Second, for any unpaid interest owed to Secured Party by
Barringer under this Agreement or the Notes;
(C) Third, any surplus then remaining shall be paid to Secured
Party towards principal amounts owed to it by Barringer under this Agreement or
the Note; and
(D) Fourth, any surplus then remaining shall be paid to
Barringer.
(c) Secured Party may cause any or all of the Collateral held by it to
be transferred into Secured Party's name or the name or names of Secured Party's
nominee or nominees.
(d) Secured Party shall have no obligation to offer to sell the
Collateral. If Secured Party offers to sell the Collateral, it shall have no
obligation to consummate a sale of the Collateral if, in its reasonable business
judgment, none of the offers received by it reasonably approximates the
Collateral's fair value. If Secured Party elects not to sell the Collateral, it
may elect to follow the procedures set forth in the Commercial Code for
retaining the Collateral in satisfaction of Barringer's obligation, subject to
Barringer's rights under such procedures.
(f) Secured Party shall be entitled to the appointment of a receiver
for the Collateral as a matter of right regardless of whether the Collateral's
apparent value exceeds the outstanding principal amount of the Notes and any
receiver appointed may serve without bond. Employment by Secured Party shall not
disqualify a person from serving as receiver.
7. Obligations Absolute. Barringer's obligations under this Agreement shall
be irrevocable, absolute and unconditional and shall not be released,
discharged, reduced, or in any way impaired by any circumstance whatsoever,
including, without limitation, any amendment, modification, extension, or
renewal of the Secured Obligations, or any other document or instrument
evidencing, securing, or otherwise relating to the Secured Obligations, or any
release, subordination, or impairment of Collateral, or any waiver, consent,
extension, indulgence, compromise, settlement, or other action or inaction in
respect of the Secured Obligations, or any other document or instrument
evidencing, securing, or otherwise relating to the Secured Obligations, or any
exercise or failure to exercise any right, remedy, power, or privilege in
respect of the Secured Obligations.
8. Insurance. Barringer shall have and maintain, or cause to be maintained,
insurance at all times with respect to all Collateral against such risks as
Secured Party may reasonably require, in such form, for such periods, and
written by such companies as may be satisfactory to Secured Party. All policies
of insurance shall have endorsed a loss payable clause acceptable to Secured
Party and such other endorsements as Secured Party may from time to time
request, and Barringer will promptly provide Secured Party with the original
policies or certificates of such insurance. Barringer shall promptly notify
Secured Party of any loss or damage that may occur to the Collateral. Secured
6
<PAGE>
Party is hereby authorized to make proof of loss if it is not made promptly by
Barringer. All proceeds of any insurance on the Collateral shall be held by
Secured Party as a part of the Collateral. Such proceeds shall be paid out from
time to time upon order of Barringer for the purpose of paying the reasonable
cost of repairing or restoring the property damaged. Any proceeds that have not
been so paid out within one hundred twenty (120) days following their receipt by
Secured Party shall be applied to the prepayment of principal on the Note. In
the event of failure to provide insurance as herein provided, Secured Party may,
at Secured Party's option, provide such insurance at Barringer's expense.
9. Inspection; and Protection of Secured Party's Security. (a) Secured
Party may make or cause to be made reasonable entries upon and inspections of
Barringer's premises to inspect the Collateral.
(b) If Barringer fails to perform its obligations under this Agreement or
the Note, or if any action or proceeding is commenced that affects the
Collateral or title thereto or the interest of Secured Party therein, including
insolvency or arrangements or proceedings involving a bankrupt or decedent, then
Secured Party, at its option, may make such appearance, disburse such sums, and
take such action as it deems necessary, in its sole discretion, to protect its
interest, including but not limited to (i) disbursement of attorneys' fees, (ii)
entry upon Barringer's property to make repairs to the Collateral, and (iii)
procurement of satisfactory insurance. Any amounts disbursed by Secured Party
pursuant to this Section, with interest thereon, shall become additional
indebtedness of Barringer secured by this Agreement. Unless Barringer and
Secured Party agree to other terms of payment, such amounts shall be immediately
due and payable and shall bear interest from the date of disbursement at the
rate of eighteen percent (18%) per annum, be collected from Barringer under
applicable law. Nothing contained in this Section shall require Secured Party to
incur any expense or take any action.
10. Barringer and Lien Not Released. From time to time, Secured Party may,
at its option, without notice to Barringer or without Barringer's consent, and
without liability on Secured Party's part, and notwithstanding Barringer's
breach of any provision of this Agreement or the Note, extend the time for
payment of Barringer's indebtedness or any part thereof, reduce the payments
thereon, release anyone liable on any of said indebtedness, accept a renewal
note or notes therefor, modify the terms and the time of payment of said
indebtedness, release from the lien of this Agreement any part of the
Collateral, take or release other or additional security, reconvey any part of
the Collateral, consent to any plan of or relating to the Collateral, and agree
in writing with Barringer to modify the rate of interest or period of
amortization of the Note or change the amount of any installments payable
thereunder. Any actions taken by Secured Party pursuant to this Section shall
not affect the obligation of Barringer to pay the sums secured by this Agreement
and to observe the covenants of Barringer contained herein, shall not affect the
guaranty of any person for payment of the indebtedness secured hereby, and shall
not affect the lien or priority of lien hereof on the Collateral. Barringer
shall pay Secured Party a reasonable service charge, together with such
attorneys' fees as may be incurred at Secured Party's option for any such action
if taken at Barringer's request.
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<PAGE>
11. Forbearance by Secured Party Not a Waiver. Any forbearance by Secured
Party in exercising any right or remedy hereunder, or otherwise afforded by law,
shall not be a waiver of or preclude the exercise of any right or remedy.
Secured Party's acceptance of payment of any sum secured by this Agreement after
the due date of such payment shall not be a waiver of Secured Party's right to
either require prompt payment when due of all other sums so secured or to
declare a default for failure to make prompt payment. The procurement of
insurance or the payment of taxes or other liens or charges by Secured Party
shall not be a waiver of its right to accelerate the maturity of the
indebtedness secured by this Agreement, nor shall Secured Party's receipt of any
awards, proceeds or damages as provided in this Agreement operate to cure or
waive Barringer's default in payment of sums secured by this Agreement.
12. Uniform Commercial Code Security Agreement. This Agreement is intended
to be a security agreement pursuant to the Commercial Code for any of the items
specified above as part of the Collateral that, under applicable law, may be
subject to a security interest pursuant to the Commercial Code, and Barringer
hereby grants Secured Party a security interest in said Collateral. Secured
Party may file any appropriate document in the appropriate index as a financing
statement for any of the items specified above as part of the Collateral.
Barringer shall execute and deliver to Secured Party, upon its request, any
financing statements, as well as extensions, renewals and amendments thereof,
and reproductions of this Agreement in such form as Secured Party may require to
perfect a security interest with respect to said items. Barringer shall pay all
costs of filing such financing statements and any extensions, renewals,
amendments, and releases thereof, and shall pay all reasonable costs and
expenses of any record searches for financing statements Secured Party may
reasonably require. Consistent with but not as a limitation on Barringer's
covenants under Section 3(b) and 3(h)(i), without Secured Party's prior written
consent, Barringer shall not create or suffer to be created any other security
interest in the Collateral, including replacements and additions thereto. Upon
the occurrence of an Event of Default, Secured Party shall have the remedies of
a secured party under the Commercial Code, and at Secured Party's option may
also invoke the other remedies for which this Agreement or the Note provide. In
exercising any of said remedies, Secured Party may proceed against any part of
the Collateral separately or together and in any order whatsoever, without in
any way affecting the availability of its remedies under the Commercial Code or
of the other remedies for which Agreement or the Note provide.
13. Acceleration in Event of Barringer's Insolvency. If either:
(a) Barringer voluntarily files a petition under the federal Bankruptcy
Act, as such Act may from time to time be amended, or under any similar or
successor federal statute relating to bankruptcy, insolvency, arrangements or
reorganizations, or under any state bankruptcy or insolvency act, or files an
answer in an involuntary proceeding admitting insolvency or inability to pay
debts, or if Barringer shall be adjudged a bankrupt,
(b) A trustee or receiver is appointed for Barringer's property,
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<PAGE>
(c) Any of the Collateral becomes subject to the jurisdiction of a federal
bankruptcy court or similar state court,
(d) Barringer makes an assignment for the benefit of its creditors, or
(e) There is an attachment, receivership, execution or other judicial
seizure of any of the Collateral,
then Secured Party may, at its option, declare all sums secured by this
Agreement to be immediately due and payable without prior notice to Barringer,
and Secured Party may invoke any remedies permitted by this Agreement. Any
attorneys' fees and other expenses incurred by Secured Party in connection with
Barringer's bankruptcy or any of the other events described in this Section
shall be additional indebtedness of Barringer secured by this Agreement.
14. Notices. All notices, demands or communications ("Notices") under this
Agreement shall be in writing and shall be addressed to the party as set forth
below. All Notices shall be given by: (i) personal delivery, (ii) electronic
communication, provided the transmitting device used by the party provides
documentary confirmation of receipt, (iii) certified mail return receipt
requested, or (iv) a nationally recognized overnight courier service. All
Notices shall be effective and shall be deemed delivered (i) if by personal
delivery or by overnight courier, on the date of delivery if delivered on or
before 4:30 p.m. on such day; otherwise, it shall be deemed to have been
delivered on the next business day following delivery, (ii) if by electronic
communication, on the day of receipt unless received after 4:30 p.m., in which
event it shall be deemed to have been received on the next business day
following receipt of the electronic communication, and (iii) if solely by mail,
on the first to occur or actual receipt or the third business day following the
date of posting (as evidenced by the postal receipt for the posting). A party
may change its address by Notice to the other party.
If to Secured Party:
-------------------------
-------------------------
-------------------------
-------------------------
Telephone No.:
Telecopier No.:
If to Barringer:
Barringer Laboratories, Inc.
15000W. 6th Avenue
Golden, Colorado 80401
Attention:
Telephone No: (303) 277-1687
Telecopier No.: (303) 277-1689
9
<PAGE>
15. Further Assurances. Without further consideration, each party shall
take such further actions and execute such further documents as may be
reasonably requested by the other party in order to effectuate the purpose and
intent of this Agreement.
16. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the Laws of Colorado, except to the extent its laws would
otherwise apply the laws of another jurisdiction.
17. Entire Agreement; Successors and Assigns; Amendment and Waiver. This
Agreement contains the entire understanding of the parties and supersedes all
prior agreements and understandings between the parties relating to the subject
matter hereof. No amendment or modification to this Agreement shall be effective
unless be in writing and signed by all parties. No waiver by a party of any
breach by any other party of any provision of this Agreement shall be deemed a
waiver of any preceding or succeeding breach of the same or any other provisions
hereof. No such waiver shall be effective unless in writing and then only to the
extent expressly set forth in writing.
18. Other Remedies. Regardless of whether or not provided in other Sections
hereof, no right or remedy expressly conferred herein shall be exclusive of any
other right or remedy now or hereafter available at law or in equity. No
provision of this Agreement regarding remedies shall be construed as a
limitation on the nature of the remedies to which a party may be entitled with
respect to a breach of other provisions of this Agreement.
19. Section and Other Headings; Pronouns; and Construction. The section and
other headings contained in this Agreement are for reference only and have no
legal significance. The use of pronouns is generic and they shall mean any
gender as appropriate. The terms "include" or "including," or similar
terminology, shall be construed as meaning without limitation as to the nature
or scope of the referenced matters. This Agreement shall be deemed to have been
drafted by both parties, and therefore the rule against construing ambiguities
against the party drafting a contract shall be inapplicable to this Agreement.
20. Severability. If any provision of this Agreement is held to be invalid
or unenforceable in whole or in part in any jurisdiction, such provision, only
to the extent invalid or unenforceable, shall be severable from this Agreement,
and the other provisions of this Agreement (along with the provision at issue,
to the extent that it would be valid and enforceable, and such provision shall
be deemed to be so reformed) shall remain in full force and effect in such
jurisdiction and the remaining provisions hereof shall be liberally construed to
carry out the purpose and intent of this Agreement. The invalidity or
unenforceability, in whole or in part, of any provision of this Agreement in any
jurisdiction shall not affect the validity or enforceability of such provision
in any other jurisdiction, nor shall the invalidity or unenforceability of any
provision of this Agreement with respect to any person or entity affect the
validity or enforceability of such provision with respect to any other person or
entity.
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<PAGE>
21. Assignment. Secured Party may at any time and from time to time assign
its rights and obligations under this Agreement and the Collateral and any
portion of the Collateral. In each case, the assignee shall be entitled to all
of the rights and remedies of Secured Party under this Agreement in relation
thereto.
22. Attorney's Fees. If a suit or action is brought by Secured Party under
this Agreement to enforce any of its terms, Secured Party shall be entitled to
reasonable attorneys fees.
23. Termination. Upon the full performance and the full and irrevocable
payment of the Secured Obligations, this Agreement shall terminate.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first above written.
SECURED PARTY:
- ---------------------------------
- ---------------------------------
BARRINGER:
BARRINGER LABORATORIES, INC.
By:
-------------------------------
Its:
-------------------------------
11
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT, dated as of October __, 1999
(the "Agreement"), between Barringer Laboratories, Inc., a
Delaware corporation (the "Company"), AND
--------------------------
(together, the "Investors").
The Company and the Investors have entered into Subscription Agreements
dated as of October ___, 1999, pursuant to which, among other things, the
Company sold, pursuant to the terms and conditions thereof, to the Investors in
the aggregate principal amount of __________ shares of Common Stock, par value
$.01 per share (the "Common Stock") for $---------------.
In consideration of the foregoing and of the covenants and obligations set
forth below, the parties agree as follows:
1. Registration on Request.
(a) Request. Subject to the limitations set forth in Section 1(b), upon
written notice to the Company by any Investor requesting registration of its
Registrable Securities (as defined in Section 9(b)), the Company shall use its
best efforts to effect the registration under the Securities Act of 1933 (the
"Securities Act") of all or part of the Registrable Securities in minimum
amounts of 25% of Registrable Securities held by each such requesting Investor
or Investors (each, an "Initiating Investor"). The Company promptly shall give
notice of such requested registration to all other Holders (as defined in
Section 9(b)) of Registrable Securities who are entitled pursuant to Section 2
to join in such registration and, thereupon, the Company shall use its best
efforts to effect, on the earliest possible date, the registration under the
Securities Act for public sale (in accordance with the method of disposition
specified in the notice from the requesting Holders) of: (i) the Registrable
Securities that the Company has been requested to register by such Initiating
Investor or Investors; and (ii) the other Registrable Securities that the
Company has been requested to register by the Holders thereof but only if
written notice was given to the Company within 20 days after the giving of such
notice by the Company.
(b) Limitations. The Company shall not be required to effect a registration
pursuant to Section 1(a) on more than a total of three occasions, with no more
than one request by any Investor; provided further, that a request may not be
made unless the requesting Investor can establish that at least 10% of the
Common Stock will be the subject of the requested registration; it being further
understood and agreed that a registration effected under Section 2 shall not be
counted as a registration under this Section.
(c) Effective Registration Statement. A registration requested pursuant to
this Section 1 shall not be deemed to have been effected, and shall not be
deemed a requested registration for purposes of Section 1(a) and Section 1(b):
(i) unless a registration statement filed under the Securities Act (a
"Registration Statement") covering all Registrable Securities specified in a
notice from an Initiating Investor has become effective and remained effective
in compliance with the provisions of the Securities Act with respect to the
disposition of all of such Registrable Securities covered by such Registration
Statement until the earlier of such time as all of such Registrable Securities
have been disposed of in accordance with the intended methods of disposition by
the seller or sellers thereof set forth in such Registration Statement; (ii) if
after it has become effective, such registration is interfered with by any stop
order, injunction or other order or requirement of the Securities and Exchange
Commission (the "Commission") or other governmental agency or court for any
<PAGE>
reason not attributable to the Initiating Investors; or (iii) if the conditions
to closing specified in the underwriting agreement, if any, entered into in
connection with such registration are not satisfied or waived, other than by
reason of a failure on the part of the Initiating Investors.
(d) Priority in Requested Registration. So long as the Initiating Investors
hold at least 25% of the Registrable Securities issued to the Investors on the
date of this Agreement, the Company shall have the right to include in any
Registration Statement initiated by an Investor pursuant to this Section 1, for
sale in accordance with the method of disposition specified by the requesting
Investors, Common Stock to be sold by the Company for its own account. If, in
the good-faith judgment of the managing underwriter of any underwritten offering
the inclusion of all of the Registrable Securities requested for inclusion
pursuant to this Section 1 and the Common Stock proposed to be sold by the
Company for its own account would adversely affect the successful marketing of
the proposed offering, then the number of shares of Common Stock to be included
in the offering shall be reduced to the required level, first, by excluding
Common Stock to be sold by the Company for its own account and second, by
reducing the participation of such Initiating Investors and other Holders in
such offering pro rata among such Initiating Investors and other Holders, based
upon the amount of Registrable Securities owned by such Initiating Investors and
other Holders. The Company will not cause any other registration statement with
respect to its Registrable Securities for its own account to become effective
less than 120 days after the effective date of any registration requested
pursuant to this Section 1, except in the case of: (i) a registration of
securities pursuant to a Registration Statement on Form S-8 or Form S-4 or any
successor form thereto; (ii) any registration statement covering only securities
proposed to be issued in exchange for securities or assets of another
corporation; (iii) any registration statement relating solely to employee stock
option, stock purchase, benefit or similar plans; or (iv) other registrations
required under Section 1.
2. Incidental Registration.
(a) Right to Include Registrable Securities. If at any time and from time
to time the Company proposes to register any shares of its capital stock under
the Securities Act, whether or not for sale for its own account, on a form and
in the manner that would permit registration of Registrable Securities for the
sale to the public under the Securities Act, the Company will give written
notice to all Holders of its intention to do so. Upon the written request of a
Holder given within 20 days after the giving of any such notice by the Company,
the Company will use its best efforts to cause to be included in such
Registration Statement all of the Registrable Securities so requested for
inclusion by Holders. If the Registration Statement is to cover, in whole or in
part, any underwritten distribution, the Company shall use its best efforts to
cause the Registrable Securities requested for inclusion pursuant to this
Section to be included in the underwriting on the same terms and conditions
(including any lock-up) as the shares otherwise being sold through the
underwriters.
(b) Priority in Incidental Registrations. If, in the good faith judgment of
the managing underwriter of any underwritten offering, the inclusion of all of
the Registrable Securities requested for inclusion pursuant to this Section 2
might adversely affect the successful marketing of the proposed offering, then
the number of shares of capital stock and Registrable Securities, if any, to be
included in such registration shall be reduced, such reduction shall be applied,
first by excluding (on a pro rata basis) capital stock of the Company to be sold
by persons other than the Holders, and Registrable Securities proposed to be
sold by all Holders and second, by excluding shares of capital stock to be sold
by the Company for its own account. Notwithstanding the foregoing provisions,
the Company may withdraw or discontinue any registration statement referred to
in this Section 2 without incurring any liability to Holders of Registrable
Securities.
3. Registration Procedures. If and whenever the Company is required by the
provisions of Section 1 or 2 to effect the registration of Registrable
Securities under the Securities Act, the Company will, at its expense, as
expeditiously as possible:
2
<PAGE>
(i) prepare and, in any event within 45 days after a request for
registration has been given to the Company, file with the Commission a
Registration Statement with respect to such Registrable Securities and use its
best efforts to cause such Registration Statement to become effective; provided
that the Company may withdraw or discontinue any registration of its securities
which is being effected pursuant to Section 2 at any time prior to the effective
date of the Registration Statement;
(ii) prepare and file with the Commission such amendments and supplements
to any Registration Statement referred to in clause (i) of this Section 3 and
the prospectus used in connection therewith as may be necessary to keep such
Registration Statement effective and updated until such time as all of the
Registrable Securities have been disposed of in accordance with the intended
methods of disposition by the Holder or Holders set forth in such Registration
Statement and to comply with the provisions of the Securities Act with respect
to the disposition of all Registrable Securities covered by such Registration
Statement during such period in accordance with the intended methods of
disposition by the Holder or Holders thereof set forth in such Registration
Statement; provided that before filing a Registration Statement or prospectus,
or any amendments or supplements thereto, the Company will furnish, at the
Company's expense, to one counsel selected jointly by the Holders holding a
majority of the Registrable Securities covered by such Registration Statement to
represent all Holder's of Registrable Securities covered by such Registration
Statement, copies of all documents proposed to be filed, which documents will be
subject to the review of such counsel;
(iii) furnish to each Holder of such Registrable Securities: (a) such
number of copies of any Registration Statement referred to in clause (i) of this
Section 3 and of each amendment and supplement thereto (in each case including
all exhibits); (b) such number of copies of the prospectus included in such
Registration Statement (including each preliminary prospectus and summary
prospectus), and any other prospectus filed under Rule 424 under the Securities
Act in conformity with the requirements of the Securities Act; and (c) such
other documents as such Holder may reasonably request,
(iv) use its best efforts to register or qualify such Registrable
Securities covered by any Registration Statement referred to in clause (i) of
this Section 3 under such other securities or blue sky laws of such domestic
jurisdictions as each Holder shall reasonably request, and do any and all other
acts and things which may be reasonably necessary or advisable to enable such
Holder to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller, except that the Company shall not for any such
purpose be required to qualify generally to do business as a foreign corporation
in any jurisdiction where, but for the requirements of this clause (iv), it
would not be obligated to be so qualified or to consent to general service of
process in any such jurisdiction;
(v) use its best efforts to cause such Registrable Securities covered by a
Registration Statement to be registered with or approved by such other domestic
governmental agencies or authorities as may be necessary to enable the seller or
sellers thereof to consummate the disposition of such Registrable Securities;
(vi) cause representatives of the Company to participate in any "road show"
or "road shows" reasonably requested by any underwriter of an underwritten or
"best efforts" offering of any Registrable Securities;
(vii) notify each seller of any such Registrable Securities covered by a
Registration Statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act or of the Company's becoming
aware that 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, and at
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the request of any such seller, prepare and furnish to such seller a reasonable
number of copies of an amended or supplemental prospectus as may be necessary so
that, as thereafter delivered to the sellers of such Registrable Securities,
such prospectus shall not include 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;
(viii) otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission, and make available to its Holders, as soon as
reasonably practicable (but not more than eighteen months) after the effective
date of the Registration Statement, an earnings statement which shall satisfy
the provisions of Section 11(a) of the Securities Act and the rules and
regulations promulgated thereunder;
(ix) use its best efforts to list such Registrable Securities on any
securities exchange or automated quotation system on which securities of the
same class are then listed, if such Registrable Securities are not already so
listed and if such listing is then permitted under the rules of such exchange or
system, and to provide a transfer agent and registrar for such Registrable
Securities covered by a Registration Statement not later than the effective date
of such Registration Statement;
(x) enter into such customary agreements (including an underwriting
agreement in customary form) and take such other actions as sellers of a
majority of such Registrable Securities or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable
Securities;
(xi) obtain a "cold comfort" letter or letters from the Company's
independent public accountants in customary form and covering matters of the
type customarily covered by "cold comfort" letters as the seller or sellers of a
majority of such Registrable Securities shall reasonably request;
(xii) obtain an opinion of counsel for the Company in customary form and
covering matters of the type customarily covered in opinions of issuer's counsel
as the seller or sellers of a majority of such Registration Securities shall
reasonably request; and
(xiii) make available for inspection by any seller of such Registrable
Securities covered by a Registration Statement by any underwriter participating
in any disposition to be effected pursuant to such Registration Statement and by
any attorney, accountant or other agent retained by any such seller or any such
underwriter, all pertinent financial and other records, pertinent corporate
documents and properties of the Company, and cause all of the Company's
officers, directors and employees to supply all information reasonably requested
by any such seller, underwriter, attorney, accountant or agent in connection
with such Registration Statement.
4. Expenses. With respect to each registration effected pursuant to Section
1 or 2, all Registration Expenses (defined below) in connection with such
registration and the public offering in connection therewith shall be borne by
the Company; provided that Holders participating in any such registration shall
bear their pro rata share of the underwriting discounts and selling commissions
(on the basis of the number of Registrable Securities of each such person
included in such registration). "Registration Expenses" shall mean any and all
expenses incidental to performance of or compliance with this Agreement,
including, without limitation, (i) all registration and filing fees of the
Commission or the National Association of Securities Dealers, Inc., (ii) all
fees and expenses of complying with securities or blue sky laws (including fees
and disbursements of counsel for the underwriters in connection with blue sky
qualifications of the Registrable Securities), (iii) all printing, messenger and
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delivery expenses, (iv) all fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange or automated
quotation system pursuant to Section 3(ix), (v) the fees and disbursements of
counsel for the Company and of its independent public accountants, including the
expenses of any special audits and/or "cold comfort" letters required by or
incident to such performance and compliance, (vi) the reasonable fees and
disbursements of one counsel selected (under Section 3(ii)) by the Holders of a
majority of the Registrable Securities being registered to represent all Holders
of the Registrable Securities being registered in connection with each such
registration, (vii) any fees and disbursements of underwriters customarily paid
by the issuers or sellers of securities, including fees and disbursements of
counsel for the underwriters, but excluding underwriting discounts and
commissions, (viii) liability insurance if the Company so desires or if the
underwriters so require, and (ix) the reasonable fees and expenses of any
special experts retained by the Company in connection with the requested
registration.
5. Indemnification and Contribution.
(a) Indemnification by the Company. In the event of a registration of any
Registrable Securities pursuant to Section 1 or 2, the Company will indemnify
and hold harmless each Holder of such Registrable Securities included in a
Registration Statement pursuant to the provisions of this Agreement and any
underwriter (as defined in the Securities Act) of such Registrable Securities,
and their respective Affiliates, and each of their successors from and against,
and will reimburse such Holder, underwriter and Affiliate with respect to, any
and all claims, actions, demands, losses, damages, liabilities, costs and
expenses to which such Holder, underwriter or Affiliate may become subject under
the Securities Act or otherwise, including, without limitation, the reasonable
fees and expenses of legal counsel (including those incurred in connection with
any claim for indemnity hereunder) insofar as such claims, actions, demands,
losses, damages, liabilities, costs or expenses (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 such Registration Statement, any prospectus contained therein or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they are made, not misleading or arise out of any
violation by the Company of any rule or regulation under the Securities Act or
any state securities laws applicable to the Company and relating to action of
inaction required of the Company in connection with such registration; provided
that the Company will not be liable in any case to the extent, but only to the
extent, that any such claim, action, demand, loss, damage, liability, cost or
expense arises out of or is based upon an untrue statement or omission made in
reliance upon and in strict conformity with information furnished by such Holder
or such underwriter in writing specifically for use in the preparation thereof.
This indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Holder, underwriter or Affiliate and
shall survive the transfer of such securities by such Holder or such
underwriter.
(b) Indemnification by the Holders. Each Holder of Registrable Securities,
severally and not jointly, which Registrable Securities are included in a
registration pursuant to the provisions of this Agreement, will indemnify and
hold harmless the Company, each person, if any, who controls the Company within
the meaning of the Securities Act, each officer of the Company who signs the
Registration Statement including such Registrable Securities, each director of
the Company, each underwriter and any person who controls the underwriter and
each of their successors from and against, and will reimburse the Company and
such officer, director, underwriter or controlling person with respect to, any
and all claims, actions, demands, losses, damages, liabilities, costs or
expenses to which the Company or such officer, director, underwriter or
controlling person may become subject under the Securities Act or otherwise,
insofar as such claims, actions, demands, losses, damages, liabilities, costs or
expenses arise out of or are based upon any untrue statement of any material
fact contained in such Registration Statement, any prospectus contained therein
or any amendment or supplement thereto, or arise out of or are based upon the
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they are made, not misleading; provided that such Holder will be liable in any
such case to the extent, but only to the extent, that any such claim, action,
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demand, loss, damage, liability, cost or expense arises out of or is based upon
an untrue statement or omission made in reliance upon and in strict conformity
with written information furnished by such Holder specifically for use in the
preparation thereof.
(c) Notices of Claims, etc. Promptly after receipt by a party to be
indemnified pursuant to the provisions of Section 5(a) or 5(b) (an "indemnified
party") of notice of the commencement of any action involving the subject matter
of the foregoing indemnity provisions, such indemnified party will, if a claim
thereof is to be made against the indemnifying party pursuant to the provisions
of Section 5(a) or 5(b), notify the indemnifying party of the commencement
thereof, but the omission to so notify the indemnifying party will not relieve
it from any liability which it may have to an indemnified party otherwise than
under this Section and shall not relieve the indemnifying party from liability
under this Section unless, and to the extent, such indemnifying party is
prejudiced by such omission. In case such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party shall have the right to participate in, and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party, and after the notice from the indemnifying party to such
indemnified party of its election to assume the defense thereof, the indemnified
party will not be liable to such indemnified party pursuant to the provisions of
this Section 5(a) and 5(b) for any legal expense subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided that, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be reasonable
defenses available to it that are different from or additional to those
available to the indemnifying party or if the interests of the indemnified party
reasonably may be deemed to conflict with the interests of the indemnifying
party, the indemnified party shall have the right to select a separate counsel
and to assume such legal defenses and otherwise to participate in the defense of
such action, with the expenses and fees of such separate counsel and other
expenses related to such participation to be reimbursed by the indemnifying
party as incurred. No indemnifying party shall be liable to an indemnified party
for any settlement of any action or claim without the consent of the
indemnifying party and no indemnifying party may unreasonably withhold its
consent to any such settlement. No indemnifying party will, except with the
consent of the indemnified party, consent to entry of any judgment or enter into
any settlement 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 and equitable claims in respect to such claim or litigation.
(d) Contribution. In order to provide for just and equitable contribution
to joint liability under the Securities Act in any case in which either: (i) any
Holder exercising rights under this Agreement or any underwriter makes a claim
for indemnification pursuant to this Section but it is judicially determined (by
the entry of a final judgment or decree by a court of competent jurisdiction and
the expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding the fact
that this Section provides for indemnification in such case; or (ii)
contribution under the Securities Act may be required on the part of any such
Holder or underwriter, as the case may be, in circumstances for which
indemnification is provided under this Section 5, then, and in each such case,
the Company on the one hand and such Holder or underwriter, as the case may be,
on the other, will nevertheless contribute to the aggregate claims, actions,
demands, losses, damages, liabilities, costs or expenses to which they may be
subject (after contribution from others) in such proportion as is appropriate to
reflect the relative fault of the Company on the one hand and of the Holder of
Registrable Securities or the underwriter, as the case may be, on the other, in
connection with the statements or omissions that resulted in such claims,
actions, demands, losses, damages, liabilities, costs or expenses, as well as
any other relevant equitable considerations. The relative fault of the Company
on the one hand and of the Holder of Registrable Securities or the underwriter,
as the case may be, on the other, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
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or omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or by the Holder of Registrable
Securities or the underwriter, as the case may be, on the other, and each
party's relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission; provided that, in any such case,
(A) no person or entity guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) will be entitled to contribution
from any person or entity who was not guilty of such fraudulent
misrepresentation and (B) no such Holder or underwriter will be required to
contribute any amount in excess of the proceeds received by such Holder or
underwriter, as the case may be, from the sales of Registrable Securities
covered by the Registration Statement.
(e) Other Indemnification. Notwithstanding the foregoing, to the extent
that the provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with the underwritten public
offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
6. Reporting Requirements Under Securities Exchange Act of 1934.
(a) Exchange Act Reporting. The Company shall keep effective its
registration under Section 12 of the Securities Exchange Act of 1934 (the
"Exchange Act"), and shall timely file such information, documents and reports
as the Commission may require or prescribe under the Exchange Act, or the
Company shall timely file such information, documents and reports as the
Commission may require or prescribe under Section 13 of the Exchange Act.
(b) Furnishing Information to Holders. The Company shall forthwith upon
request furnish any Holder of Registrable Securities (a) a written statement by
the Company that it has complied with such reporting requirements, (b) a copy of
the most recent Form 10-K or Form 10-Q filed by the Company and a copy of the
most recent annual or quarterly report of the Company distributed to its
shareholders, and (c) such other reports and documents filed by the Company with
the Commission as such Holder may reasonably request in availing itself of an
exemption for the sale of Registrable Securities without registration under the
Securities Act.
(c) Rule 144. The Company acknowledges and agrees that the purposes of the
requirements contained in this Section 6 are to enable any such Holder to comply
with the current public information requirements contained in paragraph (c) of
Rule 144 under the Securities Act should such Holder ever wish to dispose of any
of the securities of the Company acquired by it without registration under the
Securities Act in reliance upon Rule 144 (or any other similar or successor
exemptive provision). In addition, the Company shall take such other measures
and file such other information, documents and reports as shall hereafter be
required by the Commission as a condition to the availability of Rule 144 under
the Securities Act (or any similar or successor exemptive provision hereafter in
effect). The Company also covenants to use its best efforts, to the extent that
it is reasonably within its power to do so, to qualify for the use of Form S-3.
From and after the effective date of the first Registration Statement filed by
the Company, the Company agrees to use its best efforts to facilitate and
expedite transfers of Registrable Securities pursuant to Rule 144 under the
Securities Act (or any similar or successor exemptive provision hereafter in
effect), which efforts shall include timely instructions to its transfer agent
to expedite such transfers of Registrable Securities.
7. Shareholder Information. The Company may require each Holder of
Registrable Securities as to which any registration is to be effected pursuant
to this Agreement to furnish the Company in a timely manner such information
with respect to such Holder and the distribution of such Registrable Securities
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as the Company may from time to time reasonably request in writing and as shall
be required by law or by the Commission.
8. Specific Enforcement. All of the parties acknowledge that the parties
will be irreparably damaged in the event that this Agreement is not specifically
enforced. Upon a breach or threatened breach of the terms, covenants or
conditions of this Agreement by any of the parties hereto, the other parties
shall, in addition to all other remedies, be entitled to a temporary or
permanent injunction, without showing any actual damage, or a decree for
specific performance, in accordance with the provisions of this Agreement.
9. Section Headings; Definitions; Certain Interpretations.
(a) Section headings are for convenience only and shall not control or
affect the meaning or construction of any provision of this Agreement.
(b) As used in this Agreement, the following terms shall have the following
respective meanings:
"Affiliate" shall mean (a) any person or entity directly or indirectly
controlling, controlled by or under common control with another person or
entity; (b) any person or entity owning or controlling 10% or more of the
outstanding voting securities of such other person or entity; (c) any partner,
officer, director, employee or shareholder of such entity or any parent, spouse,
child, brother, sister or other relative with a relationship (by blood, marriage
or adoption) not more remote than first cousin of any of the foregoing; or (d)
any liquidating trust, trustee or other similar person or entity for any such
person or entity.
"Holder" shall mean (a) the Investors and (b) any other person to which the
rights of registration under this Agreement have been transferred or assigned by
the Investors or their respective transferees.
"Registrable Securities" shall mean (a) shares of Common Stock (including
shares issued upon the conversion of any Notes or the exercise of any other
exchange, conversion or similar right), and (b) any securities issued in respect
of any such shares by way of a stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger or consolidation or
reorganization; provided that, such securities shall cease to be Registrable
Securities when such securities have been sold to or through a broker or dealer
or underwriter in a public distribution or a public securities transaction.
(c) Except as otherwise expressly provided in this Agreement, the following
rules of interpretation apply to this Agreement: (i) the singular includes the
plural and the plural includes the singular, (ii) "or" or "any" are not
exclusive and "include' and "including" are not limiting; (iii) a reference to
any agreement or other contract includes permitted supplements and amendments;
(iv) a reference to a law includes any amendment or modification to such law and
any rules or regulations issued thereunder; (v) a reference to a person includes
its successors and assigns; and (vi) a reference in this Agreement to a Section
is to the Section of this Agreement.
10. Notices. All notices, requests and other communications to any party
hereunder shall be in writing and sufficient if delivered personally or sent by
facsimile (with confirmation of receipt) or by registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
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If to the Company: Barringer Laboratories, Inc.
15000 West 6th Avenue
Suite 300
Golden, Colorado 80401-5047
Attn: President
Facsimile: (303) 277-1689
If to the Investors:
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Facsimile:
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Facsimile:
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Facsimile:
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or to such other address or facsimile number as the party to whom notice is to
be given may have furnished to the other party in writing in accordance
herewith. Each such notice, request or communication shall be effective when
received or, if given by mail, when delivered at the address specified in this
Section or on the fifth business day following the date on which such
communication is posted, whichever occurs first.
11. Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
12. Enforceability. It is the desire and intent of the parties hereto that
the provisions of this Agreement shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated to be invalid or unenforceable, such provision
shall be deemed amended to delete therefrom the portion thus adjudicated to be
invalid or unenforceable, such deletion to apply only with respect to the
operation of such provision in the particular jurisdiction in which such
adjudication is made.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE (WITHOUT GIVING EFFECT TO ANY
CHOICE OR CONFLICT OF LAWS PROVISIONS).
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14. CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. EACH OF THE COMPANY AND
THE HOLDER HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF
ANY FEDERAL AND STATE COURT IN DELAWARE SITTING IN DELAWARE AND IRREVOCABLY
AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE LITIGATED EXCLUSIVELY
IN SUCH COURTS. EACH OF THE COMPANY AND THE HOLDER AGREES NOT TO COMMENCE ANY
LEGAL PROCEEDING RELATED HERETO OR THERETO EXCEPT IN SUCH COURT. EACH OF THE
COMPANY AND THE HOLDER IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING IN ANY SUCH
COURT AND HEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES NOT
TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION, SUIT OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE
HOLDER AND THE COMPANY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
15. Waivers, Amendments. No waiver of any right hereunder by any party
shall operate as a waiver of any other right, or of the same right with respect
to any subsequent occasion for its exercise, or of any right to damages. No
waiver by any party of any breach of this Agreement shall be held to constitute
a waiver of any other breach or a continuation of the same breach. All remedies
provided by this Agreement are in addition to all other remedies provided by
law. This Agreement may not be amended except by a writing executed by the
Company and by Holders holding at least 51% of the Registrable Securities;
provided that the provisions of this Section 16 may not be amended unless such
amendment is executed by each Holder.
16. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns. The Investors' rights, including the right to request registration
pursuant to Section 1, are assignable to any assignee or transferee of all or a
portion of the Registrable Securities held by the Investors. In addition, and
whether or not any express assignment shall have been made, the provisions of
this Agreement which are for the benefit of the parties hereto other than the
Company shall also be for the benefit of and enforceable by any subsequent
Holder of any Registrable Securities, subject to the provisions contained
herein.
17. Termination. This Agreement shall terminate upon the earliest to occur
of the following events:
(a) termination by mutual written agreement of the Investors and the
Company;
(b) all Registrable Securities have been sold to or through a broker or
dealer or underwriter in a public distribution or public securities transaction;
or
(c) the fifth anniversary of the date hereof.
18. Entire Agreement. This Agreement contains the entire agreement among
the parties with respect to the transactions contemplated by this Agreement and
supersedes all prior agreements or understandings among the parties.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
BARRINGER LABORATORIES, INC.
By:
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Name:
Title:
INVESTORS:
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Name: Name:
Title: Title:
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Name: Name:
Title: Title:
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