EXHIBIT 4.2
Execution Copy
DATED 2002
ARGONAUT TECHNOLOGIES, INC.
IN FAVOUR OF
XXXXXXX XXXXX XXXXX AND OTHERS
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POUND STERLING 7,650,000 LOAN NOTE INSTRUMENT CREATING PRINCIPAL
AMOUNT GUARANTEED LOAN NOTES 2004
GUARANTEED BY
BARCLAYS BANK PLC
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PAUL, HASTINGS, XXXXXXXX & XXXXXX LLP
19TH FLOOR, TOWER 42
00 XXX XXXXX XXXXXX
XXXXXX XX0X 0XX
TELE: 020 7562 4038
FAX: 000 0000 0000
REF: LDN/31769 -- LB2
THIS INSTRUMENT is made the day of February 2002 by ARGONAUT
TECHNOLOGIES, INC. (a Delaware Corporation) of 0000 Xxxxx Xxxxx, Xxxxxx Xxxx,
Xxxxxxxxxx 00000 (the "COMPANY") and by BARCLAYS BANK PLC (registered number
1026167) whose registered office is at 00 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (the
"GUARANTOR")
RECITALS:
A. The Company has by resolution of its board of directors passed on 18
December 2001 created up to Pound Sterling7,650,000 of Guaranteed Loan
Notes 2004 constituted in the following manner.
B. The Guarantor has agreed, at the request of the Company, to guarantee
the payment of principal and interest in respect of such loan notes on
the terms and subject to the limitations set out herein.
NOW THIS DEED WITNESSES as follows:
1. DEFINITIONS AND INTERPRETATION
In this Instrument (which includes the schedules) the following
definitions shall apply unless the context requires otherwise:
"BUSINESS DAY" means any day (except Saturdays and Sundays) when
clearing banks are open for business in England and Wales;
the "CERTIFICATES" means the certificates in respect of Notes;
the "CONDITIONS" means the conditions referred to in Clause 2 and set
out in Schedule 2;
"DEFAULT INTEREST" means interest at the rate of 12 per cent per annum;
the "DIRECTORS" means the board of directors of the Company from time to
time, or a duly authorised committee of the board;
"GUARANTEE" means the guarantee conditions set out in Schedule 3 as
varied, supplemented or replaced from time to time in accordance with
such conditions;
"INTEREST DATE" and "INTEREST PERIOD" are as defined in Condition 3.1;
"INSTRUMENT" means this instrument and the Schedules hereto;
the "NOTES" means the principal amount of Guaranteed Loan Notes 2004 of
the Company constituted by this Instrument, and references to any Notes
as "outstanding" mean that they are in issue, unredeemed and
uncancelled;
the "NOTEHOLDERS" means the several persons from time to time entered in
the Register as the holders of the Notes, and any references to a
holder's Notes mean Notes in respect of which he is so registered;
"REDEMPTION NOTICE" means a notice substantially in the form set out in
Schedule 1;
"REDEMPTION DATE" means 30 April 2004 or, if the Term is extended
pursuant to Condition 1.3, 30 April 2006; and
"TERM" means the period from the date of issue of the Notes until the
Redemption Date.
References to persons shall include natural persons, bodies corporate,
unincorporated associations, partnerships and other entities; references
to the singular shall include the plural, and vice versa; and references
to clauses and schedules are (unless expressly stated otherwise) to
clauses of, and schedules to, this Instrument.
Headings are for convenience only and are not to affect interpretation.
2. CONSTITUTION OF THE NOTES
2.1 The principal amount of the Notes constituted by this Instrument is
limited to Pound Sterling7,650,000. The Notes may be issued in
denominations of any amount and shall be transferable in whole or (in
amounts and integral multiples of Pound Sterling50,000) in part, as
provided in the Conditions.
2.2 This Instrument shall operate for the benefit of all Noteholders, each
of whom may xxx for the performance or observance of its provisions in
his own right so far as his holding of Notes is concerned, and for all
persons claiming through or under them. The Company shall comply with
the terms of the Notes and the Conditions and the Notes shall be held
subject to the Conditions. The Conditions and schedules shall be deemed
to be incorporated in this Instrument and shall be binding on the
Company and the Noteholders and all persons claiming through or under
them.
2.3 Until such time as the Notes are redeemed or repurchased in accordance
with the provisions of this Instrument, the Company will pay to the
Noteholders interest (less any applicable taxes) on the principal amount
of the Notes outstanding at such rate, at such intervals and in such
manner as is provided in the Conditions.
2.4 The Notes may be issued whenever, to whomever, and on whatever terms and
conditions the Directors please. When issued and while they are
outstanding, the Notes shall rank pari passu equally and rateably
without discrimination or preference and as a guaranteed, but otherwise
unsecured, obligation of the Company.
3. CERTIFICATES
The Certificates shall be executed by the Company and shall be in the
form or substantially the form set out in Schedule 1. Each shall refer
to this Instrument and bear a denoting number and have the Conditions
endorsed on it or attached to it, together with a form of Redemption
Notice in the form (or substantially in the form) set out in that
schedule.
4. AMENDMENTS
4.1 Subject to Clause 4.2, the Company may from time to time (by deed
expressed to be supplemental to this Instrument) amend any provisions of
this Instrument (including the Conditions) if the amendment is
previously either sanctioned by a resolution of Noteholders representing
not less than three-fourths of the principal amount
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outstanding under the Notes or considered, in the opinion of a merchant
bank or stockbroker appointed for the purpose by the Company, not to be
prejudicial to the holders of outstanding Notes and to be of a formal,
minor or technical nature or to be necessary to correct a manifest
error.
4.2 No modification to this Instrument and no modification, abrogation or
compromise of the rights of the Noteholders which would have the effect
of increasing the liability of the Company and/or the Guarantor in
respect of the Notes, or which would be prejudicial to the rights of the
Guarantor against, or to the security interests granted to the Guarantor
by, the Company, shall be made without the written consent of the
Guarantor having first been given to the Company.
4.3 The Company will at all times allow any holder of outstanding Notes to
inspect a copy of this Instrument during normal business hours on
reasonable notice and (provided the Company's reasonable expenses in
doing so are paid) will on request supply any Noteholder as soon as
reasonably practicable with a copy of this Instrument.
5. THIRD PARTY RIGHTS
Nothing in this Instrument is intended to confer on any person any right
to enforce any term of this Instrument which that person would not have
but for the Contracts (Rights of Third Parties) Xxx 0000.
6. GOVERNING LAW AND JURISDICTION
6.1 This Instrument and the Notes shall be governed by and construed in
accordance with the laws of England.
6.2 Any dispute which may arise out of or in connection with this Instrument
shall be referred and finally resolved by arbitration under the rules of
the London Court of International Arbitration (the "LCIA RULES") which
are deemed to be incorporated by reference to this clause. The
procedural law governing any arbitration arising hereunder (insofar as
not governed by the LCIA Rules) shall be English law. Article 69 of the
Arbitration Xxx 0000 shall not apply to any arbitration proceeding
conducted in relation to this Deed. The place of the arbitration shall
be London.
IN WITNESS of which the Company and the Guarantor have executed this instrument
as a deed and have delivered it upon dating it.
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SCHEDULE 1
LOAN NOTE CERTIFICATE
ARGONAUT TECHNOLOGIES, INC. (THE "COMPANY")
(a Delaware Corporation)
Pound Sterling 7,650,000 Principal Amount Guaranteed Loan Notes 2004
(the "Notes")
Subject to the Conditions endorsed hereon (the "Conditions") the Notes were
issued pursuant to the charter and by-laws of the Company and created by a
resolution of the Board of Directors passed on 18 December 2001
THIS IS TO CERTIFY that the under mentioned person is the registered holder of
this Note which Note is subject to the Conditions.
CERTIFICATE NO. NAME AND ADDRESS AMOUNT OF NOTE
OF NOTEHOLDER (POUND STERLING)
EXECUTED as a Deed and delivered )
by the Company acting by: ) .............................
) Director
)
)
) .............................
) Director/Secretary
NOTES: 1. This Note must be surrendered before it may be
transferred. The Noteholder may transfer all or part of
this Note and then only subject to and in accordance with
Condition 6.
2. This Note has not been and will not be registered under
the US Securities Act of 1933, as amended, or under any US
state securities laws and is issued in reliance upon US
federal and state exemptions for transactions not
involving any public offering.
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REDEMPTION NOTICE
NOTICE OF EXERCISE OF REDEMPTION RIGHTS
To: The directors of Argonaut Technologies, Inc.
I/We, the registered holder(s) of the Notes represented by this Certificate,
give notice of my/our desire to exercise my/our right to require repayment by
the Company of the whole/Pound Sterling* of the principal amount of such Notes
in accordance with the Conditions, together with accrued interest (less any
applicable taxes), on [ date ].
I/We authorise the despatch of a cheque payable in my/our favour in respect of
the principal moneys and interest due to me/us and
(in the case of a redemption of part of the principal moneys represented by this
Certificate) either this Certificate duly endorsed with a memorandum of the
amount and date of the redemption or a fresh Certificate in my/our name(s) for
the balance of the principal moneys not repayable on this occasion to:
(Name)
----------------------------
(Address)
----------------------------
----------------------------
----------------------------
Signature(s) of Noteholder(s)
-----------------------------
-----------------------------
In the case of joint holdings all Noteholders must sign. In the case of a
corporation this form must either be under the common seal or under the hand of
some officer or attorney of the corporation duly authorised in that behalf.
Dated this day of 200[ ]
Delete or complete as appropriate. If this space is left blank the notice will
be treated as a request for repayment of the whole of the principal amount of
Notes represented by this Certificate.
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SCHEDULE 2
THE CONDITIONS
1.1 Unless previously redeemed under Condition 1.2 the Notes will be repaid
at par on the Redemption Date together with all interest accrued thereon
and then unpaid.
1.2 Notwithstanding any other provisions of this Note, each Noteholder will
be entitled to demand immediate redemption of his outstanding Notes at
par together with accrued but unpaid interest (less any applicable
taxes) on them in any of the following events:
1.2.1 the Company fails to pay when due any principal payable on
repayment of any of his Notes, or fails to pay within 14 days
after the due date for payment any interest payable on any of his
Notes; or
1.2.2 the Company is in default for more than 21 days (after
notification to the Company of any such default has been received
from any Noteholder) in the performance or observance of or
compliance with any of its other undertakings contained in this
Note and such default is materially prejudicial to the interest
of Noteholders generally; or
1.2.3 an order is made or an effective resolution is passed for the
winding-up of the Company (other than a solvent winding-up for
the purposes of amalgamation or reconstruction), or the Company
stops or threatens to stop payment of its debts, or the Company
ceases or threatens to cease to carry on its business; or
1.2.4 an administrator of the Company is appointed; or
1.2.5 a receiver or similar official is appointed in respect of the
whole or a substantial part of the undertaking and assets of the
Company; or
1.2.6 any distress or execution (or other similar process) is levied
upon or enforced against all or a substantial part of the assets
or property of the Company and is not fully paid out or
discharged within 90 days; or
1.2.7 the Company (i) files, or consents, by answer or otherwise, to
the filing against the Company of a petition for relief or
reorganization or arrangement or any other petition in bankruptcy
or insolvency under the laws of any jurisdiction, (ii) makes an
assignment for the benefit of creditors, (iii) consents to the
appointment of a custodian, receiver, trustee or other officer
with similar powers for it or him, or for any substantial part of
its property or (iv) is adjudicated insolvent; or
1.2.8 if any governmental body of competent jurisdiction enters an
order appointing, without consent of the Company, a custodian,
receiver, trustee or other officer with similar powers with
respect to the Company, or with respect to any substantial part
of its property, or if an order for relief relating to the
Company is entered in any case or proceeding for liquidation or
reorganization or otherwise to take advantage of any bankruptcy
or insolvency law of any jurisdiction, or ordering the
dissolution, winding-up or liquidation of the Company, or if any
petition for any such relief is filed against Company and such
petition is not dismissed or stayed within 60 days.
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Provided that a Redemption Notice specifying the event is received by
the Company while the event is continuing.
1.3 Each Noteholder shall be entitled at any time or times after 31 October
2002 to require redemption of such amount of Loan Notes as are then held
by such Noteholder together with accrued but unpaid interest (less any
applicable taxes) by serving upon the Company a Redemption Notice
specifying the amount of Loan Notes to be redeemed at least 20 days
prior to the date on which redemption is required to be made.
1.4 The Company shall, upon the written request of all or any of the
Noteholders, extend the term of the Note or Notes held by the
Noteholders making such request for a period of twenty-four months to 30
April 2006, on the terms in these Conditions, subject to paragraph 6(c)
of the Guarantee, and save that during the extended term of the Notes
(if any) there shall be deducted from the Interest on the Notes all
bank, legal and/or other third party costs, fees or expenses suffered or
incurred by the Company in respect of the Notes during the extended term
including, without limitation, the fees and costs of the Guarantor in
consideration for providing the Guarantee.
1.5 Upon receipt by the Company of a Redemption Notice the Company shall by
notice to the Noteholder fix a time and place in England for payment of
this Note (or, subject to this Condition 1.5, that part to be redeemed)
to be no later than 14 days, from the date of receipt of that notice,
and for delivery to the Company of this Note. At the time and place so
fixed the Noteholder shall deliver to the Company this Note (or an
indemnity in form and substance reasonably satisfactory to the Company
if this Note has been lost or destroyed) in order that the same may be
cancelled and upon such delivery and against a receipt for the principal
monies and all interest payable but unpaid in respect of this Note (or
the part to be redeemed) calculated down to the date of redemption, the
Company shall pay to the Noteholder such principal monies and interest
provided that if this Note is to be redeemed in part, a fresh Note for
the balance of this Note not redeemed on that occasion shall be issued
immediately, free of charge, to the Noteholder delivering this Note to
the Company.
2. This note, once redeemed by the Company, shall be cancelled and the
Company shall not be at liberty to keep the same alive for the purposes
of re-issue or to re-issue the same.
3. INTEREST AND RELATED DEDUCTIONS
3.1 Until the Redemption Date, the Company shall pay to the Noteholder
interest on the principal monies outstanding on the Note on 31 January,
30 April, 31 July and 31 October in each year (each an "INTEREST DATE")
in respect of each successive three month period ending on an Interest
Date (each an "INTEREST PERIOD"), the first such interest payment
becoming due on 30 April 2002 in respect of the period from the date
hereof to 30 April 2002.
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3.2 Interest on the Notes shall be calculated and shall accrue on a daily
basis from the date of issue and on the basis of a 365/366 day year and
will be payable for the twelve month period commencing on the date of
this Instrument at 3.9 per cent per annum and subsequently at the rate
equal to the published base rate of Barclays Bank PLC on the Interest
Date immediately prior to the commencement of the relevant Interest
Period, less the fees and costs charged by the Guarantor in
consideration for guaranteeing the Notes. Any interest or other amount
otherwise payable on a day which is not a Business Day, and any part of
the Note otherwise redeemable on any day which is not a Business Day
shall be paid on the immediately preceding Business Day and such day
shall be deemed the Interest Date or the Redemption Date in respect
thereof for all purposes.
3.3 Interest due on the Notes on any Interest Date shall be payable to those
Noteholders registered on the register of Noteholders referred to in
Condition 5.1 on the Business Day immediately preceding that Interest
Date.
3.4 If the Company shall fail to make any payment of interest within seven
Business Days following the relevant Interest Date, Default Interest
shall accrue on the amount of interest which remains unpaid until the
date on which such interest is paid to the Noteholders.
4. REDEMPTION
The Company may at its option repay a Noteholder, who has served his
notice of redemption, in US Dollars instead of Pounds Sterling, in which
case:-
4.1 The rate of exchange between the US Dollar and Pounds Sterling for the
purposes of calculating the amount of repayment shall be the spot rate
obtained by the Company from Barclays Bank PLC (being the rate at which
Pounds Sterling may be sold and US Dollars bought) on the twentieth
Business Day prior to the date of repayment (the "RATE OF EXCHANGE");
4.2 The redemption value shall be the US Dollar equivalent of one Pound
Sterling per Pound Sterling1 Nominal of Stock converted at the Rate of
Exchange less any reasonable fees or bank charges associated with the
conversion (the "REDEMPTION VALUE");
PROVIDED THAT
(i) in no circumstances whatsoever shall the Redemption Value
converted as set out in (ii) below be less than the 99.5 per cent
of the Sterling nominal value of the Loan Stock to be repaid; and
(ii) for the purposes of this proviso the Redemption Value shall be
converted into Pounds Sterling at the London closing rate of
exchange on the date of redemption.
4.3 Where the Company has elected to redeem a Noteholder's Loan Notes in US
Dollars in accordance with this Condition 4, it shall forthwith upon the
amount becoming available certify the Rate of Exchange to that
Noteholder.
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5. REGISTER OF NOTES
5.1 A register of the Notes will be kept by the Company and there shall be
entered in such register:-
5.1.1 the names and addresses of the holders for the time being of the
Notes;
5.1.2 the amount of the Notes held by each registered holder;
5.1.3 the date on which the name of each such registered holder is
entered in the register in respect of the Notes standing to his
name; and
5.1.4 the serial number of each Note issued.
Any change of the name or address of any Noteholder shall forthwith be
notified in writing, by registered post, to the Company and the register
shall be altered accordingly upon receipt of such notice by the Company.
5.2 Except as required by law the Company will recognise the person named in
the Register as the holder of any Notes as the absolute owner thereof
and shall not be bound to take notice or see to the execution of any
trust whether express, implied or constructive to which any Notes may be
subject and a receipt duly given in accordance with these Conditions for
any monies payable in respect of any Notes shall be a good discharge to
the Company notwithstanding any notice it may have whether express or
otherwise of the right, title, interest or claim of any other person to
or in such Notes or monies and the Noteholder shall indemnify and hold
harmless the Company from and against any loss, liability, damage,
claim, cost or expense arising out of the Company's observance of this
Condition 5.2.
5.3 The Guarantor shall, upon giving reasonable notice to the Company, be
entitled within normal working hours to inspect the register of Notes
held by the Company.
6. TRANSFER OF NOTES
6.1 Each Noteholder will be entitled to transfer, in whole, the Notes held
by him (a transfer of part being in an amount or an integral multiple of
Pound Sterling50,000) by an instrument in writing in the usual common
form under hand of the transferring Noteholder only, subject to the
prior written consent of the Company which consent shall not be withheld
or delayed provided that each such transferee shall have first executed
and delivered to the Company an Investment Representation Agreement
substantially in the form attached hereto as Schedule 5 and such other
transfer documents as the Company shall reasonably request. Upon
delivery of such instrument and this Note to the Company, the Company
shall issue a new Note to the transferee and in relation to a transfer
of part, a balance certificate to the transferor subject, in each case,
to the payment by such transferring Noteholder of all reasonable costs
and expenses incurred by the Company in completing and registering such
transfer.
6.2 The Guarantee will continue to apply to any notes transferred pursuant
to Condition 6.1 and to any new note issued to a transferor as a result
of any partial transfer.
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6.3 Notwithstanding the minimum amount of Pound Sterling50,000 for
part-transfers set out in Condition 6.1 above, each Noteholder shall, no
more than once in each calendar year, be entitled to make one transfer
of Notes having a principal value of less than Pound Sterling50,000
provided that (i) the amount of such Loan Notes transferred shall be no
less than Pound Sterling10,000; and (ii) this Condition 6 shall
otherwise apply in all respects to such transfers.
7. THE COMPANY'S POWERS
Without prejudice to all other powers, however arising, of the Company,
nothing in this Instrument shall prevent the Company from:
7.1 exercising its borrowing powers in any way, including by incurring any
indebtedness ranking pari passu with or in priority to the Notes, or by
creating and issuing further unsecured loan notes either so as to be
identical in all respects and form a single series with the Notes or
upon such terms as to interest, redemption and otherwise as its
Directors shall think fit; or
7.2 disposing of, granting security over or dealing in any other way with
any of its business and assets in whole or in part, or changing the
nature of its business in any way; or
7.3 procuring or permitting any of its subsidiaries to exercise its
borrowing powers in any way, or to dispose of, grant security over or
deal in any other way with any of its business or assets in whole or in
part, or to change the nature of its business in any way.
8. SUCCESSORS
Any person becoming entitled to this Note in consequence of the death or
bankruptcy of any holder of this Note shall (upon producing evidence
reasonably satisfactory to the Company, that he sustains the character
in respect of which he proposes to act under this provision or of his
title and delivering up this Note or an indemnity, in form and substance
reasonably satisfactory to the Company, if this Note has been lost or
destroyed) be entitled to a new Note in his name as the holder, or,
subject to Condition 6, may transfer this Note.
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SCHEDULE 3
GUARANTEE
1. The Guarantor hereby guarantees the due and punctual payment by the
Company to the Noteholders of the principal amount payable on any of the
Notes registered in their respective names and the interest payable
thereon on the terms and subject to the limitations set out in this
Guarantee.
2. If any principal amount payable on any of the Notes is not paid in full
by the Company on the date fixed for redemption thereof or such earlier
date as such Note shall become repayable or redeemable, or accrued
interest is not paid in full by the Company on an Interest Date, in each
case in accordance with the provisions of the Instrument, the Guarantor
shall (subject to the provisions of the Guarantee) pay to the relevant
Noteholder within 21 days after the receipt by the Guarantor of a demand
complying with the requirements of this guarantee, the amount of
principal and/or interest then payable but unpaid on such Note.
3. Every demand under this Guarantee shall be made to the Guarantor in the
manner set out in paragraph 11 and shall:-
(a) be in writing and be accompanied by the certificate(s) relating
to the Note(s) in respect of which such demand is made;
(b) be signed by or on behalf of the relevant Noteholder;
(c) have the signature thereon confirmed by the bankers, or, if the
Guarantor shall have given prior notice to the relevant
Noteholder, the solicitors, to such Noteholder;
(d) state:
(i) the full name and registered address of such Noteholder
and the amount of principal and/or interest which is
claimed and, in the case of a claim for interest, state
the principal amount on which interest is claimed and the
date from which interest is claim to have accrued and be
unpaid;
(ii) that none of the Notes in respect of which such demand is
made has been cancelled, redeemed or repurchased by the
Company;
(iii) that the sum demanded is due and payable by the Company,
all conditions and demands necessary in connection
therewith having been fulfilled and made; and grace period
relating thereto has elapsed; and the Company is not
contesting the liability in circumstances where the
Company is entitled to withhold payment;
(iv) that the Company is aware of its liability and has failed
to pay the sum demanded;
(e) be set out substantially in the form of Schedule 4; and
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(f) give full details of the bank account in the United Kingdom in
the name of the relevant Noteholder to which the sum so demanded
is to be paid by the Guarantor.
4. (a) Payment of any demand complying with the requirements of this
Guarantee shall be made by the Guarantor in pounds sterling to
such bank account in the United Kingdom as the relevant
Noteholder shall specify pursuant to paragraph 3(f).
(a) Upon payment the Guarantor shall enface the certificate(s)
relating to the relevant Note(s) with a memorandum of payment and
return the same to the relevant Noteholder by prepaid post to his
registered address at the risk of such Noteholder.
(b) If the Guarantor is so required by law, the Guarantor shall
deduct tax from any amount payable by it hereunder in respect of
interest unpaid on the relevant Note(s) and shall deliver to the
relevant Noteholder in respect of the amount so paid by it a
certificate as to the gross amount of such payment, the amount of
tax deducted and the actual amount paid and certifying that the
Guarantor has paid the amount of tax deducted to the Inland
Revenue. If the Guarantor is required to make such deduction of
tax in respect of interest unpaid on the relevant Note(s), the
Guarantor will not be required to make any additional payment to
the relevant Noteholder.
5. (a) Notwithstanding anything to the contrary herein, it is hereby
confirmed that this Guarantee constitutes the direct obligation
of the Guarantor to make payment in accordance with the terms of
this Guarantee without reference to the Company and without
examination of the liability of the Company in respect of any
Note. Any amounts due hereunder will be paid without reference to
any rights of set off or counter claim that the Company or the
Guarantor has against the relevant Noteholder or any rights of
set off which the Guarantor may have against the Company and
whether or not the Company disputes the truth or accuracy of any
statement given pursuant to paragraph 3(d) above.
(a) The Guarantor may rely on any demand or other document or
information believed by it to be genuine and correct and to have
been signed or communicated by the person by whom it purports to
be signed or communicated and the Guarantor shall not be liable
for the consequences of such reliance and shall have no
obligation to verify that the facts or matters stated therein are
true and correct.
(b) Payment by the Guarantor of a claim made in accordance with
paragraph 4 shall be deemed a valid payment for all purposes of
this Guarantee and shall discharge the Guarantor from its
liability hereunder to the extent of such payment and the
Guarantor shall not be concerned to see to the application of any
such payment.
(c) This Guarantee may be enforced by any Noteholder at any time
after he has made a demand on the Company for the payment of any
principal and/or interest due or owing to him on his Note(s)
without such Noteholder first taking any proceedings against the
Company.
6. (a) The maximum aggregate liability of the Guarantor in respect of
all claims under this Guarantee shall be limited to:
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(i) Pound Sterling 7,650,000 in the case of all claims in
respect of principal on all Notes; and
(ii) Pound Sterling 298,350 (less the fees and costs referred
to in Condition 3.2) in the case of all claims in respect
of interest on all Notes.
The above maximum amount of this Guarantee in relation to
principal shall be reduced to the extent of the aggregate
principal amount of any Notes which have been cancelled, redeemed
or repurchased by the Company, provided that reasonable details
of such cancellation, redemption or repurchase (as the case may
be) have been supplied in writing by the Company to the
Guarantor.
(b) No demand under this Guarantee shall be valid or result in any
liability on the part of the Guarantor hereunder unless it is
made, and received by the Guarantor, in accordance with the
provisions of this Guarantee, on or before the first Business Day
falling no more than 60 days after the date on which payment of
the relevant principal and/or interest in respect of which the
demand is made should have been made to the relevant Noteholder
by the Company.
(c) No demand under this Guarantee shall be valid or result in any
liability on the part of the Guarantor hereunder unless it is
made, and received by the Guarantor, in accordance with the
provisions of this Guarantee, prior to 11.00 a.m. (London time)
on the first Business Day falling no more than 60 days after the
Redemption Date. After the Redemption Date, this Guarantee shall
cease to have effect and the Guarantor shall have no liability
under it save to the extent of any demand delivered to the
Guarantor prior to such time which complies with the requirements
of this Guarantee.
7. This Guarantee is a continuing Guarantee and shall remain in force
notwithstanding the liquidation or dissolution of the Company, or the
appointment of an administrator of the Company or the appointment of a
receiver of all or any part of the assets of the Company.
8. (a) No compounding, indulgence or relief granted by a Noteholder or
any other matter or thing which but for this provision might
exonerate the Guarantor shall release or reduce the liability of
the Guarantor hereunder, provided that the Guarantor shall not be
bound by any such other matter or thing which would operate
either to increase its actual or contingent liabilities hereunder
or extend any due date for any of the Company's obligations under
the Notes.
(a) This Guarantee is irrevocable in respect of the Note(s) held by
each Noteholder save where a Noteholder gives to the Guarantor a
specific written release of the Guarantor's liability, in
relation to the whole or any, part of the Note(s) of such
Noteholder.
(b) All payments to be made by the Guarantor hereunder to a
Noteholder shall be made in full without set-off or counterclaim'
and free and clear of and without any deduction whatsoever except
to the extent required by law. The Guarantor will not be required
to make any additional payment in the case of deduction required
by law.
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9. The Guarantor shall be at liberty at all times to have recourse to and
enforce all rights possessed by the Guarantor as surety or otherwise
against the Company or others.
10. Any variation of the terms of this Guarantee in relation to any Notes
shall be considered valid and constituting part of this Guarantee
provided such variation shall be made in writing and signed by the
relevant Noteholder or (if such holder is a company) on its behalf by
an, director or the company secretary of such company, and on behalf of
the Guarantor.
11. Where a notice or demand is given by a Noteholder, it may be served by
leaving it or sending it by recorded delivery post to the Guarantor,
marked for the attention of the Branch Manager, at Barclays Bank PLC,
Corporate Banking Centre, XX Xxx 0000, 0xx Xxxxx, Xxxxxxx Court, 0
Xxxxxxx Xxxxx, Xxxxxxx XX00 0XX or such other address in the United
Kingdom as the Company may notify to the Noteholders from time to time,
at the request of the Guarantor.
12. (a) In the event of transmission to the legal personal representative
or other representative of the estate of any Noteholder on the
death, bankruptcy or insanity of such Noteholder, such
representative shall promptly produce evidence, satisfactory to
the Guarantor, of his authority to act for the Noteholder
whenever so requested by the Guarantor.
(b) Subject to production of the evidence of authority referred to in
paragraph 12(a), all references in this Guarantee to the
Noteholder shall be replaced by references to such
representative.
13. The person whose name appears on a certificate relating to any Note(s)
as the holder or, if more than one, the first such person, will be
regarded by the Guarantor as exclusively entitled to the benefit of the
relevant Notes and of this Guarantee and the Guarantor shall not be
bound to recognise any trust or equity affecting the title to the
relevant Notes. All dealings in connection with and payments under such
Notes or this Guarantee shall be made with and to such person.
14. This Guarantee is personal to the Noteholder and is not assignable
(except with the prior consent of the Guarantor which shall not be
unreasonably withheld.)
15. This Guarantee shall be governed by and construed to take effect in all
respects in accordance with English law.
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SCHEDULE 4
FORM OF DEMAND
To the Branch Manager
Barclays Bank PLC
[ ]
Dated [ ]
By Recorded Delivery
1. This demand is sent pursuant to the terms of an Instrument ("the
Instrument") entered into on [ ] day of [ ]
2002 by ARGONAUT TECHNOLOGIES, INC. ("the Company") and BARCLAYS BANK
PLC ("the Guarantor").
2. I/We am/are the registered holder of the relevant Notes issued under the
terms of the Instrument.
Name [ ]
Registered Address [ ].
3. I/We enclose [the Certificate(s) relating to] the Note(s) in respect of
which the demand is made.
4. I/we claim the following sums:-
(i) The amount of principal of [Pound Sterling] and/or
(ii) the amount of interest of [Pound Sterling ]
on the principal amount of [Pound Sterling ]
accruing from the [ ] to the
[ ].
5. I/We confirm that:-
(i) None of the Notes in respect of which such claim is made
has been cancelled, redeemed or repurchased by the
Company;
(ii) The sum demanded is due and payable by the Company and all
conditions and demands necessary in connection therewith
under the Instrument have been fulfilled and made; any
grace period relating thereto has elapsed; and the Company
is not contesting liability in circumstances where the
Company is entitled to withhold payment;
(iii) The Company is aware of its liability and has failed to
pay the sum demanded.
6. Payments under this demand should be made to the registered holder's
bank account at [ ] Bank Plc of [ ] to the
account number [ ].
7. Please acknowledge receipt of this demand and the enclosed
[Certificate(s)/Note(s) on the enclosed copy of the demand.
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Signed ...........................
By or on behalf of the
Registered Holder
Above Signature confirmed to be
the signature of Mr/Mrs [ ]
by ..........................................
Noteholders Bankers/Solicitors
Bank/Firm [ ]
Officer/Partner [ ]
Date [ ]
-16-
SCHEDULE 5
INVESTMENT REPRESENTATION AGREEMENT
[Buyer]
[Address]
Ladies and Gentlemen:
Reference is hereby made to the Sale and Purchase Agreement (the
"Purchase Agreement") by and among [Buyer], a Delaware
corporation ("Buyer"), [Rainbow] ("Target"), and the individuals
and entities listed on Schedule 1 to the Purchase Agreement (each
a "Seller" and collectively the "Sellers") and the Pound
Sterling7,650,000 Loan Note Instrument Creating Principal Amount
Guaranteed Loan Notes 2004 guaranteed by Barclays Bank PLC. In
connection with the proposed purchase by Buyer from the Sellers
of all of the outstanding capital stock of Target pursuant to the
Purchase Agreement (the "Transaction"), the undersigned,
_______________ (the "Stockholder" or the "Holder") acknowledges,
represents and warrants to Buyer as follows:
1. Acquisition Entirely for Own Account. Stockholder represents and
warrants that Stockholder is acquiring Buyer Common Stock and Loan
Note(s) (as Buyer Common Stock and Loan Notes are defined in the
Purchase Agreement) (the "Securities") solely for Stockholder's own
account for investment and not with a view to sale or distribution of
the Securities or any portion or component thereof, and Stockholder will
not sell, offer to sell or otherwise dispose of or distribute the
Securities or any portion or component thereof in any transaction other
than a transaction complying with the registration requirements of the
Securities Act of 1933, as amended (the "Act"), and applicable state
securities or "Blue Sky" laws, or pursuant to an exemption therefrom.
Stockholder also represents that the entire legal and beneficial
interest of the Securities that Stockholder is acquiring is being
acquired for, and will be held for Stockholder's account only, and
neither in whole nor in part for any other person or entity.
2. Information Concerning Buyer. Stockholder represents and warrants that
Stockholder has been provided with such information concerning Buyer
that Stockholder deems necessary and appropriate to enable Stockholder
to evaluate the financial risk inherent in making an investment in the
Securities. Stockholder further represents and warrants that Stockholder
has had an opportunity to review Buyer's Annual Report on Form 10-K for
the year ended December 31, 2000 and Buyer's Quarterly Report on Form
10-Q for the quarterly period ended September 30, 2001. Stockholder
further acknowledges that Stockholder has received satisfactory and
complete information concerning the business and financial condition of
Buyer in response to all inquiries in respect thereof.
3. Economic Risk and Suitability. Stockholder represents and warrants as
follows:
(i) Stockholder realizes that Stockholder's purchase of the
Securities involves a high degree of risk and will be a
highly speculative investment and that Stockholder is
able, without impairing Stockholder's financial
-17-
condition, to hold the Securities for an indefinite
period of time and to suffer a complete loss of
Stockholder's investment.
(ii) Stockholder has carefully considered and has had an
opportunity to discuss with Stockholder's professional,
legal, tax and financial advisors the suitability of an
investment in the Securities for the particular legal,
tax and financial situation of Stockholder and that
Stockholder and/or Stockholder's advisors have
determined that the Securities are a suitable investment
for Stockholder.
(iii) Stockholder, either alone or with his or her purchaser
representative(s), has such knowledge and experience in
business and financial matters as will enable
Stockholder to evaluate the merits and risks of an
investment in the Securities and to make an informed
investment decision.
(iv) If Stockholder is a partnership, trust, corporation or
other entity: (1) it was not organized for the purpose
of acquiring the Securities (or all of its equity owners
are Accredited Investors (as hereafter defined)); (2) it
has the power and authority to execute and comply with
the terms of this Agreement, and the person executing
said documents on its behalf has the necessary power to
do so; (3) its principal place of business and principal
office are located within the country and state, if
applicable, set forth in its address below; and (4) all
of its trustees, partners and/or shareholders, whichever
the case may be, are bona fide residents of said country
and state, if applicable.
(v) Except as provided Stockholder understands that neither
Buyer nor any of its officers/directors has any
obligation to register the Securities under any federal
or state securities act or law.
(vi) All information that Stockholder has provided concerning
himself or herself, his or her financial position and
(each of) his/her Stockholder Representative(s), if any,
is correct and complete as of the date set forth below,
and if there should be any material change in such
information, Stockholder will provide such information
to Buyer as soon as practicable thereafter.
(vii) Stockholder understands that Buyer is relying on the
truth and accuracy of the declarations, representations,
warranties and agreements made by Stockholder to Buyer
herein in transferring the Securities to Stockholder.
(viii) Stockholder confirms that Stockholder has received no
general solicitation or general advertisement and has
attended no seminar or meeting (whose attendees have
been invited by any general solicitation or general
advertisement) and has received no advertisement,
article, notice or other communication published in any
newspaper, magazine, or similar media or broadcast or
television or radio regarding the offering of the
Securities.
-18-
4. Restrictions on Transfer; Legends. Stockholder represents and warrants
that Stockholder understands that:
(a) The Securities that Stockholder is acquiring have not been
registered under the Act, and such securities must be held
indefinitely unless a transfer of them is subsequently registered
under the Act or an exemption from such registration is
available.
(b) Stockholder agrees that all certificates representing the Buyer
Common Stock shall have endorsed thereon a legend in
substantially the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
PURPOSES ONLY AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THE
SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM."
(c) Stockholder agrees that all Loan Notes shall have endorsed
thereon a legend in substantially the following form:
"THIS NOTE WAS ORIGINALLY ISSUED ON ____, 200_, AND HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE TRANSFER OF THIS
NOTE IS SUBJECT TO CERTAIN RESTRICTIONS SET FORTH IN THE Pound Sterling7,650,000
LOAN NOTE INSTRUMENT CREATING PRINCIPAL AMOUNT GUARANTEED LOAN NOTES 2004
GUARANTEED BY BARCLAYS BANK PLC. THE ISSUER OF THIS NOTE WILL FURNISH A COPY OF
THESE PROVISIONS TO THE HOLDER HEREOF WITHOUT CHARGE UPON WRITTEN REQUEST."
Stockholder acknowledges that the legend contained in this Section 4
shall be removed from a certificate in connection with any sale in compliance
with the terms of this Section 4 and pursuant to a Registration Statement, but
shall not be removed in any other circumstance without Buyer's prior written
consent, which consent shall be exercised in Buyer's sole discretion.
5. Non-U.S. Persons. If Stockholder is a Non-U.S. Person as defined
under Rule 902(k)(2) of the Act, Stockholder shall complete and sign Exhibit A
hereto.
6. Status of Stockholder. Stockholder represents and warrants that
Stockholder falls within the category (or categories) marked. Categories 1
through 16 set forth categories of "Accredited Investors", as defined in
Securities and Exchange Commission ("SEC") Rule 501. PLEASE INDICATE EACH
CATEGORY THAT YOU, STOCKHOLDER, SATISFY, BY PLACING AN "X" ON THE APPROPRIATE
LINE(S) BELOW.
_____ Category 1. A bank, as defined in Section 3(a)(2) of the Act,
whether acting in its individual or fiduciary
capacity; or
_____ Category 2. A savings and loan association or other institution
as defined in Section 3(a)(5)(A) of the Act,
whether acting in its individual or fiduciary
capacity; or
_____ Category 3. A broker or dealer registered pursuant to Section
15 of the Securities Exchange Act of 1934, as
amended; or
-19-
_____ Category 4. An insurance company as defined in Section 2(13) of
the Act; or
_____ Category 5. An investment company registered under the
Investment Company Act of 1940; or
_____ Category 6. A business development company as defined in
Section 2(a)(48) of the Investment Company Act of
1940; or
_____ Category 7. A small business investment company licensed by the
U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act
of 1958; or
_____ Category 8. A plan established and maintained by a state, its
political subdivisions or any agency or
instrumentality of a state or its political
subdivisions, for the benefit of its employees,
with assets in excess of $5 million; or
_____ Category 9. An employee benefit plan within the meaning of the
Employee Retirement Income Security Act of 1974 in
which the investment decision is made by a plan
fiduciary, as defined in Section 3(21) of such Act,
which is either a bank, savings and loan
association, insurance company or registered
investment advisor, or an employee benefit plan
with total assets in excess of $5 million or, if a
self-directed plan, the investment decisions are
made solely by persons who are Accredited
Investors; or
_____ Category 10. A private business development company as defined
in Section 202(a)(22) of the Investment Advisers
Act of 1940; or
_____ Category 11. An organisation described in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended, a
corporation, a Massachusetts or similar business
trust, or a partnership, not formed for the
specific purpose of acquiring the Securities, with
total assets in excess of $5 million; or
_____ Category 12. A director, executive officer or general partner of
Buyer; or
_____ Category 13. A natural person whose individual net worth, or
joint net worth with that person's spouse, at the
time of his/her purchase, exceeds $1 million; or
_____ Category 14. A natural person who had individual income in
excess of $200,000 in each of the two most recent
years or joint income with that person's spouse in
excess of $300,000 in each of those years and has a
reasonable expectation of reaching the same income
level in the current year; or
_____ Category 15. A trust, with total assets in excess of $5 million,
not formed for the specific purpose of acquiring
the Securities, whose purchase is directed by a
sophisticated person as described in Rule
506(b)(2)(ii) under the Act; or
-20-
_____ Category 16. An entity in which all of the equity owners are
Accredited Investors; or
_____ Category 17. A natural person who, either alone or with your
purchaser representative(s), has such knowledge and
experience in financial and business matters that
you are capable of evaluating the merits and risks
of the prospective investment; or
_____ Category 18. None of the above.
If you checked category 18 above, you acknowledge, by signing below,
that _____________ is Stockholder's purchaser representative as described in
Rule 501(h) under the Act, including in connection with evaluating the merits
and risks of the prospective Transaction.
7. Residency. The undersigned is a bona fide resident of the state or
country set forth in the undersigned's address at the end of this
Investment Representation Statement (the "Agreement").
IN WITNESS WHEREOF, the undersigned have executed this Agreement on this ___ day
of ___________, 2002.
------------------------- -------------------------
Signature of Stockholder Signature of Stockholder
------------------------- -------------------------
Printed Name of Stockholder Printed Name of Stockholder
Please sign as name(s) appear hereon. When signing as attorney, executor,
administrator, trustee or guardian, please give title as such. If joint
ownership, both joint tenants or all tenants in common must sign.
------------------------- -------------------------
Residence Address Residence Address
------------------------- -------------------------
City, State, Zip Code City, State, Zip Code
------------------------- -------------------------
Mailing Address Mailing Address
------------------------- -------------------------
City, State, Zip Code City, State, Zip Code
------------------------- -------------------------
Country Country
Tax Identification Number Tax Identification Number
and/or Social Security Number: and/or Social Security Number:
------------------------- -------------------------
------------------------- -------------------------
Purchaser Representative Purchaser Representative
-21-
This Agreement has been acknowledged and agreed to on ____________, 2002.
[RAINBOW]
By:
--------------------------
Name:
Title:
-22-
EXECUTED as a DEED by )
ARGONAUT TECHNOLOGIES, INC. )
acting by )
EXECUTED as a DEED by )
BARCLAYS BANK PLC )
acting by )
-23-
