AMENDMENT NO. 2 TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER (this
"AMENDMENT") is made as of this 21st day of November, 2002, among Bioanalytical
Systems, Inc., an Indiana corporation ("BAS"), PI Acquisition Corp., a Maryland
corporation ("MERGERCO"), and PharmaKinetics Laboratories, Inc., a Maryland
corporation (the "COMPANY"). All capitalized terms used but not defined herein
shall have the meanings assigned to such terms in the Merger Agreement (as
defined below).
WHEREAS, BAS, MergerCo and the Company are parties to that certain
Agreement and Plan of Merger dated as of June 20, 2002, as amended by Amendment
No. 1 to Agreement and Plan of Merger dated as of July 24, 2002 (the "MERGER
AGREEMENT"); and
WHEREAS, BAS, MergerCo and the Company desire to amend certain portions
of the Merger Agreement pursuant to the terms and conditions of this Amendment;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and pursuant to Section 10.11 of the Merger Agreement, the Merger
Agreement is hereby amended by the parties as follows:
l. The "Index of Defined Terms" of the Merger Agreement is hereby
amended by adding the following after the term "PKLB Common":
"PKLB Note Section 9.1(d)(v)"
2. Exhibit 2.3 is hereby amended and restated in its entirety as set
forth on Exhibit 2.3 hereto.
3. Section A. of the Background Information is hereby amended by adding
", other than Parent," after "(x) the holders" and before "of common" in clause
(x) of the second sentence and the last sentence is hereby restated in its
entirety as follows "The holders of shares of PKLB Common (other than Parent),
Class A Preferred and Class B Preferred are sometimes hereinafter collectively
referred to as the 'SHAREHOLDERS'.".
4. Section 2.2 is hereby amended and restated in its entirety as
follows:
Section 2.2 Conversion of PKLB Common. At the Effective Time, by virtue
of the Merger and without any action on the part of MergerCo, the Company or the
holders of any shares of PKLB Common:
(a) Subject to the other provisions of this Section 2.2 and to
Section 3.1(k) and (1), other than shares of PKLB Common held by Parent
(which shall be treated as set forth in Section 2.2(c)), each share of
PKLB Common issued and outstanding immediately prior to the Effective
Time shall be converted into the right to receive one-twelfth (1/12) of
one share of Parent Common, upon surrender of the Common Certificate
(as defined below) representing such shares of PKLB Common.
(b) All such shares of PKLB Common, when converted as provided
in Section 2.2(a), shall no longer be considered outstanding and shall
automatically be canceled and retired and shall cease to exist, and
each Common Certificate previously evidencing such shares shall
thereafter represent only the right to receive the number of shares of
Parent Common set forth in Section 2.2(a). The holders of Common
Certificates (as defined below) previously evidencing shares of PKLB
Common outstanding immediately prior to the Effective Time shall cease
to have any rights with respect to the PKLB Common, except as otherwise
provided herein or by law, and, upon the surrender of Common
Certificates in accordance with Section 3.1, shall only have the right
to receive for their shares of PKLB Common the number of shares of
Parent Common as set forth in Section 2.2(a), without any interest
thereon.
(c) The parties acknowledge that Parent may own shares of PKLB
Common at the Effective Time and they hereby agree that, in such event,
any such shares of PKLB Common held by Parent shall, as of the
Effective Time, no longer be considered outstanding and shall
automatically be canceled and retired and shall cease to exist and
shall not entitle Parent to receive Parent Common or other Merger
Consideration. Parent shall not be considered to be a "Shareholder" of
the Company as that term is used in this Agreement.
5. Section 2.3(a) is hereby amended by deleting the phrase "Six Dollars
($6.00)" and replacing it with "Four Dollars and Eighty Cents ($4.80)".
6. Section 9.1(b)(iii) is hereby amended by deleting the phrase
"December 31, 2002" and replacing it with "March 31, 2003".
7. Section 9.1 (d) is hereby amended as follows:
a. The "." is deleted from the end of subsection (iii) and
";" is added in its place.
b. A new section (iv) is added as follows:
"(iv) if any holder of Class A Preferred has delivered written
notice to the Company that such holder intends to exercise or is
thereby exercising its right to convert all or any portion of the
Class A Preferred held by such holder into PKLB Common; or"
c. A new section (v) is added as follows:
"(v) if the registered owners of 100% of the Class B Preferred
fail to deliver written notice to the Company as described in
paragraph 5(b) of that certain Secured Convertible Revolving Note (the
"PKLB Note") issued bythe Company to Parent dated as of November 14,
2002, prior to such time as Parent may elect to exercise the
Conversion Rights (as defined in the PKLB Note) granted to it in the
PKLB Note."
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
executed by their duly authorized officers as of the date first above written.
BIOANALYTICAL SYSTEMS, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Ph.D.
Chief Executive Officer
PI ACQUISITION CORP.
BY /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Ph.D.
Director
PHARMAKINETICS LABORATORIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇, Ph.D.
President and Chief Executive Officer
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EXHIBIT 2.3
THIS SUBORDINATED CONVERTIBLE NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY STATE OR OTHER SECURITIES LAWS AND MAY NOT BE
OFFERED, SOLD, TRANSFERRED OR ASSIGNED (i) EXCEPT PURSUANT TO REGISTRATION
THEREOF UNDER SUCH LAWS, OR (ii) UNLESS, IN THE WRITTEN OPINION OF COUNSEL
ADDRESSED TO BIOANALYTICAL SYSTEMS, INC., FROM COUNSEL REASONABLY SATISFACTORY
TO BIOANALYTICAL SYSTEMS, INC., THE PROPOSED TRANSFER MAY BE EFFECTED IN
COMPLIANCE WITH APPLICABLE SECURITIES LAWS WITHOUT SUCH REGISTRATION.
THIS NOTE IS SUBORDINATED TO CERTAIN SENIOR INDEBTEDNESS OF BIOANALYTICAL
SYSTEMS, INC. THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND
AGREES THAT AMOUNTS OWING WITH RESPECT TO THIS NOTE SHALL BE SUBORDINATED IN
ACCORDANCE WITH THE PROVISIONS OF SENIOR DEBT (AS DEFINED HEREIN), AND THE
HOLDER ACCEPTS AND AGREES TO BE BOUND BY SUCH PROVISIONS.
6% SUBORDINATED CONVERTIBLE NOTE
$__________ Dated:_________, 2002
For value received, Bioanalytical Systems, Inc., an Indiana corporation
with its principal offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Purdue ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("MAKER"), hereby promises to pay to the order of
[NAME OF HOLDER] or [HIS/HER/ITS] assigns (the "HOLDER"), at [ADDRESS] or at
such other place as the Holder may direct in writing to the Maker, in lawful
money of the United States of America, the principal amount of Dollars ($) and
interest, as provided herein, all without relief from valuation or appraisement
laws. This Note is being delivered in connection with the Agreement and Plan of
Merger by and among the Maker, PI Acquisition Corp., and PharmaKinetics
Laboratories, Inc. dated as of June 20, 2002 (the "MERGER AGREEMENT").
1. Payment of Principal. Subject to acceleration or earlier payment as
provided for elsewhere in this 6% Subordinated Convertible Note (this "NOTE"),
the Maker shall pay to the Holder on January 1, 2008 (the "MATURITY DATE"), the
entire unpaid principal balance of this Note plus all accrued and unpaid
interest through and including that date.
2. Interest. For a period of one year from the date hereof, no interest
shall accrue on the principal amount of this Note. Beginning as of _______,2003
(the "ANNIVERSARY DATE"), interest on the unpaid principal balance hereof
existing from time to time shall accrue at the rate of 6% per annum. Interest
shall be calculated on the basis of actual daily balances of outstanding
principal for the exact number of days the principal remains outstanding and
shall be computed on the basis of a 365-day year. Subject to acceleration or
earlier payment as provided for elsewhere in this Note, interest shall be
payable by wire transfer to an account designated by the Holder, in arrears
biannually on the 15th day of July and the 15th day of January of each year
following the Anniversary Date, until the Maturity Date, on which date all
accrued and unpaid interest shall be due and payable.
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3. Prepayment. Upon twenty five (25) days prior written notice
delivered to the Holder (a "PREPAYMENT NOTICE"), the Maker may prepay all or any
portion of the unpaid principal balance hereof and accrued interest, without
premium or penalty; provided, however, all sums received in prepayment shall
first be applied in payment of accrued but unpaid interest and the excess, if
any, shall then be applied to the unpaid principal balance hereof. In the event
that the Maker elects to so prepay this Note, the Holder may elect, rather than
accept such prepayment, to convert the relevant portion of this Note in
accordance with Section 6 hereof, provided, however, that the Maker must receive
the Holder's Election Notice (as defined below) at least five (5) days prior to
the date specified in the Maker's Prepayment Notice for the Maker's prepayment
of this Note.
4. Default and Remedies.
(a) An "EVENT OF DEFAULT" under this Note shall mean the
occurrence of any of the following events: (i) the Maker
defaults in the payment of principal of or interest on this
Note when due and the Maker does not cure that default within
five (5) days after the due date; (ii) the Maker defaults in
the performance of any obligation under this Note (other than
the payment described in the immediately preceding clause) and
the Maker does not cure that default within thirty 30 days
after receipt by the Maker of written notice from the Holder
specifying the nature of such default; (iii) the Maker
commences proceedings in any court under the United States
Bankruptcy Code, or any other debtors' relief or insolvency
act, whether state or federal (the "BANKRUPTCY LAWS"), or any
other person commences proceedings under the Bankruptcy Laws
against the Maker and those proceedings are not stayed or
dismissed within one hundred twenty (120) days (each a
"BANKRUPTCY DEFAULT"); or (iv) any Change of Control (as
defined below) of the Maker. For purposes of this Section
4(a), the term "CHANGE OF CONTROL" shall mean any merger,
reorganization or other transaction in which control of a
person or substantially all of its assets is transferred, the
sale of substantially all of the capital stock of a person, or
any other sale of all or substantially all of the assets of a
person.
(b) If any Event of Default occurs and is continuing, then the
Holder shall have the right and option to declare, by notice
in writing sent by registered or certified mail to the Maker,
the full unpaid principal balance hereof, together with all
accrued and unpaid interest thereon, immediately due and
payable without further demand, notice, or presentment for
payment; provided, however, that, notwithstanding anything in
this Note to the contrary, in the event of a Bankruptcy
Default the entire principal balance of and all accrued
interest on this Note shall forthwith be due and payable
without demand, presentment for payment, protest, notice of
protest, notice of intent to accelerate, notice of
acceleration and all other notices and further actions of any
kind, all of which are hereby expressly waived by the Maker.
(c) If this Note is collected or attempted to be collected by the
initiation or prosecution of any suit or through any
bankruptcy court, or by any judicial proceeding, or is placed
in the hands of attorneys for collection, then the Maker
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shall pay, in addition to all other amounts owing hereunder,
all court costs and reasonable attorney's fees incurred by the
Holder.
5. Subordination.
(a) Subordination to Senior Debt. Notwithstanding anything to the
contrary contained in this Note, the Maker covenants and
agrees, and the Holder by acceptance of this Note likewise
covenants and agrees, that the Maker's indebtedness under this
Note shall be junior and subordinate to the Senior Debt (as
hereafter defined) to the extent and in the manner set forth
in this Section 5, except to the extent otherwise agreed to in
writing by the Holder and any Senior Lender (as hereinafter
defined) with respect to the Senior Debt held by or payable to
that Senior Lender. Each subsection of this Section 5 shall be
given independent effect so that if a particular payment or
action is prohibited by any one of these subsections, it shall
be prohibited although it otherwise would not be prohibited by
another subsection.
(b) Default on Senior Debt. The Maker may not make any Payment
with respect to this Note or any Distribution of Assets if (i)
there exists a default under any Senior Debt or there exists
an event (an "UNMATURED DEFAULT") which but for the lapse of
time of the giving of notice, or both, would constitute a
default under any Senior Debt, or (ii) a default or Unmatured
Default under any Senior Debt would exist upon giving effect
to such Payment or Distribution of Assets. The Maker may
resume Payments with respect to this Note and Distributions of
Assets, subject to the terms of the Senior Debt and this Note,
when (A) the subject default or Unmatured Default is cured or
waived in writing by the holders of the affected Senior Debt,
or (B) 180 days pass after the occurrence of the subject
default or Unmatured Default, but only if (a) the subject
default or the Unmatured Default is not the subject of
judicial proceedings and (b) the holders of the affected
Senior Debt have not declared acceleration of their Senior
Debt, but in either case only if this Section 5 otherwise
permits the Payment or Distribution of Assets at that time.
(c) Dissolution, Liquidation or Reorganization of Maker. In the
event of any insolvency, bankruptcy or receivership case or
proceeding or any dissolution, winding up, liquidation,
reorganization or other similar proceeding relating to the
Maker, its property or its operations (whether voluntary or
involuntary and whether in bankruptcy, insolvency or
receivership proceedings or otherwise), upon an assignment for
the benefit of creditors, or any other marshalling of the
assets of the Maker, then payment in full of all Senior Debt
then or thereafter to become due shall occur before the Holder
shall be entitled to receive or retain any Distribution of
Assets or Payment with respect to this Note. In any such
proceedings, any Distribution of Assets or Payment to which
the Holder would be entitled if this Note were not
subordinated to the Senior Debt shall be paid by the Maker or
the agent or other person making such payment or distribution,
or by the Holder if received by the Holder, directly to each
Senior Lender, pro rata, to the extent necessary to make
payment in full of all Senior Debt, after giving effect to
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any concurrent payment or distribution to or for the benefit
of the Senior Lenders. The Senior Lenders are authorized and
empowered, in the event of such insolvency, bankruptcy or
receivership case or proceeding or any dissolution, winding
up, liquidation, reorganization or other similar proceeding
relating to the Maker, to demand, ▇▇▇ for, collect and receive
every such payment or distribution referred to above, give
acquittance therefore, file claims and proofs of claim in any
statutory or non-statutory proceeding, vote such claims in any
such proceeding and take such other actions, in the name of
the Senior Lenders or in the name of the Holder or otherwise,
as the Senior Lenders may deem necessary or advisable for the
enforcement of the provisions for this Section 5. The Holder
agrees, in the event of such insolvency, bankruptcy,
receivership case or proceeding or any dissolution, winding
up, liquidation, reorganization, or other similar proceeding
relating to the Maker to take such action as may reasonably be
requested at any time and from time to time by the Senior
Lenders to collect this Note for the account of the Senior
Lenders and to file appropriate proofs of claim in respect
thereof and to execute and deliver such powers of attorney,
assignments or other instruments as the Senior Lenders may
reasonably request in order to enable the Senior Lenders to
enforce any and all claims upon or in respect of the
indebtedness of this Note and to collect and receive any and
all payments or distributions which may be payable or
deliverable at any time upon or in respect hereof. Any and
all monies so collected or received by the holders of the
Senior Debt shall be retained indefeasibly by the Senior
Lender for application to the Senior Debt until the Senior
Debt is fully, finally and irrevocably paid. In no event
shall the Senior Lenders be liable to the Holder for any
failure to prove any indebtedness of this Note, to exercise
any right with respect thereto or to collect any sums payable
thereon.
(d) Subrogation. No Distribution of Assets or Payment to which the
Holder would have been entitled except for the provisions of
this Section 5 and which is received by or paid over to the
Senior Lenders or their Representative (as hereinafter
defined) shall, as between the Maker and its creditors other
than the Senior Lenders and the Holder, be deemed to be a
payment by the Maker to the Senior Lenders or on account of
the Senior Debt, and the Holder shall be subrogated (without
any duty on the part of the Senior Lenders to warrant, create,
effectuate, preserve or protect such subrogation) to the then
or thereafter existing rights of the Senior Lenders to receive
Distributions of Assets or payments made on the Senior Debt
until this Note shall be paid in full.
(e) Payments Held in Trust. If the Holder receives any
Distribution of Assets or Payment which the Holder is not
entitled to retain under the provisions of this Section 5, any
such Distribution of Assets or Payment so received shall be
held in trust for the Senior Lenders, shall not be commingled
with any other assets of the Holder, and shall be paid to the
Senior Lenders, pro rata, to the extent necessary to make
payment in full, after giving effect to any concurrent payment
or distribution to or for the benefit of the Senior Lenders.
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(f) Changes in Senior Debt. Any Senior Lender may at any time and
from time to time with notice to the Holder: (i) with the
approval of the Maker, extend, renew, modify, waive or amend
the terms of the Senior Debt; (ii) as permitted by contract
between the Maker and such Senior Lender or by applicable
laws, sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing the Senior
Debt; (iii) release any guarantor or any other person liable
in any manner for the Senior Debt or, with the approval of the
Maker, amend or waive the terms of the Senior Debt; (iv)
exercise or refrain from exercising any rights against the
Maker or any other persons; (v) apply in any order any sums by
whomever paid or however realized to the Senior Debt; and (vi)
take any other action which otherwise might be deemed to
impair the Holder's rights. Any and all of such actions may
be taken by the Senior Lenders without incurring
responsibility to the Holder and without impairing or
releasing the Holder's obligations to the Senior Lenders.
(g) Except for scheduled payments of principal and interest on
this Note that are not prohibited under Section 5(b) and
except as provided in this Section 5 ,until the Senior Debt
shall have been fully, finally and irrevocably paid, (i) the
Holder will not ask, demand, ▇▇▇ for, take or receive from the
Maker, and the Maker will not make, give, or permit, directly
or indirectly, by setoff, redemption, purchase or in any other
manner, any payment on or security for the whole or any part
of the indebtedness of this Note, and, without the prior
written consent of the Senior Lenders, the Holder will not
take any action to enforce or collect amounts so owing against
the Maker or act as a petitioning creditor in any bankruptcy
proceeding filed against the Maker, (ii) the Holder shall not
have any right to possess any assets of the Maker or to
foreclose upon any such assets, whether by judicial action or
otherwise, and (iii) regardless of whether the Senior Debt is
secured or unsecured, the Senior Lenders shall be subrogated
to the Holder with respect to the Holder's claims against the
Maker, and the Holder's rights, liens and security interests,
if any, in any of the Maker's assets and the proceeds thereof.
(h) Third-Party Beneficiary, Etc. The foregoing provisions
regarding subordination are solely for the purpose of defining
the relative rights of the Senior Lenders on the one hand and
the Holder on the other hand. Such provisions are for the
benefit of the Senior Lenders (and their successors and
assigns) and shall be enforceable by them directly against the
Holder except to the extent otherwise agreed to in writing by
the Holder and any other Senior Lender.
(i) Further Assurances. The Holder covenants and agrees that at
any time, and from time to time hereafter, it will execute
such additional instruments and take such actions as may be
reasonably requested by any Senior Lender to confirm or
perfect or otherwise to carry out the intent and purposes of
this Section 5, including, but not limited to, a subordination
and standstill agreement or other similar document.
(j) Definitions. As used in this Section 5 (or as elsewhere used
in this Note) the following terms shall have the meanings
indicated:
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"DISTRIBUTION OF ASSETS" means any distribution of assets of the Maker
or any of its subsidiaries of any kind or character, whether a payment,
purchase or other acquisition or retirement for cash, property, or
securities, with respect to the Maker's obligations under this Note.
"PAYMENT" means payment of any obligation now or hereafter existing
under this Note (as it may hereafter be amended, supplemented, or
otherwise modified from time to time), whether created directly or
acquired by assignment or otherwise, and interest and premiums, if any,
thereon and all other amounts payable in respect thereof or in
connection therewith.
"REPRESENTATIVE" means, with respect to any Senior Debt, the trustee,
agent, or other representative for one or more of the Senior Lenders,
if any, designated in the indenture, agreement or document creating,
evidencing or governing such Senior Debt or pursuant to which it was
issued, or otherwise designated by the holders of such Senior Debt.
"SENIOR DEBT" means the principal of and premium, if any, and interest
on indebtedness incurred by the Maker at any time and from time to time
for money borrowed from banks, trust companies, savings and loan
associations and other similar financial institutions evidenced by
notes, bonds, debentures, financing agreements, letters of credit, or
similar obligations, or issued under the provisions of an indenture or
similar instrument between the Maker and a bank or trust company or
substantially similar financial institution; excluding, however, all
indebtedness (principal and interest) owed by the Maker to the Holder.
"SENIOR LENDER" or "SENIOR LENDERS" means one or more of the holders of
Senior Debt.
6. Conversion.
(a) The Holder may, at the Holder's option, at any time after the
Anniversary Date, and from time to time thereafter, prior to payment in
full of this Note, convert the outstanding unpaid balance of this Note
and any interest accrued pursuant to paragraph 2 above but unpaid (the
"CONVERSION AMOUNT"), in whole or in part (but only into full shares),
into fully paid and non-assessable shares of the common stock, without
par value of the Maker (the "COMMON SHARES"), at a rate equal to the
amount of $16.00 per Common Share (the "CONVERSION RATE"). In order to
exercise this conversion right, the Holder must send written notice of
the conversion to the Maker at least 10 days prior to the specified
conversion date (a "CONVERSION NOTICE"). On the conversion date (or as
soon thereafter as is reasonably practicable), the Maker shall issue to
the Holder a share certificate for the Common Shares acquired upon
conversion. The Holder's right to elect to convert the Conversion
Amount of this Note into Common Shares shall not be affected by any
Prepayment Notice given by the Maker pursuant to Section 3 above, so
long as the Maker has received the Holder's Conversion Notice at least
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five (5) days prior to the date specified in the Maker's
Prepayment Notice for the Maker's prepayment of this Note.
(b) The Conversion Rate shall not be subject to adjustment for
issuance of Common Shares or of rights, options, warrants, or
other securities convertible into Common Shares, whether at a
price per share that is more or less than or equal to the
Conversion Rate or for any other event, except as specified in
this Subsection 6U. The Conversion Rate shall be subject to
adjustment if the Maker at any time subdivides (by any stock
split, stock dividend, recapitalization or otherwise) one or
more classes of its outstanding Common Shares into a greater
number of shares, in which case the Conversion Rate in effect
immediately prior to the subdivision will be proportionately
reduced, and if the Maker at any time combines (by reverse
stock split or otherwise) one or more classes of its
outstanding Common Shares into a smaller number of shares, in
which case the Conversion Rate in effect immediately prior to
that combination will be proportionately increased.
(c) Notwithstanding any other provisions of this Section 6 to the
contrary, the conversion rights of the Holder shall be subject
to compliance with all applicable federal and state securities
laws, and the Holder agrees to execute all required agreements
and documents required by the Maker to establish compliance
with such laws.
(d) The Maker shall at all times reserve and keep available and
free of preemptive rights out of its authorized but unissued
Common Shares, solely for the purpose of issuance upon
conversion of the Note, that number of Common Shares as shall
from time to time be sufficient to effect the conversion of
the Note, and if at any time the number of authorized but
unissued Common Shares shall not be sufficient to effect the
conversion of the Note, the Maker shall take the corporate
action necessary to increase the number of its authorized
Common Shares to a number sufficient for this purpose.
7. Notice of Certain Events. The Maker agrees to execute and deliver to
the Holder a certificate signed by the chief executive officer or chief
financial officer of the Maker, specifying the occurrence of any of the
following events and including a description thereof, promptly, but in any event
not later than four (4) days, after any executive officer of the Maker becomes
aware of the occurrence of any of the following events:
(a) Events of Default. Any condition or event which constitutes or
which, with notice or lapse of time, would constitute an Event
of Default has occurred, or any holder of any of the Notes (as
defined in the Merger Agreement) has given any notice or taken
any other action with respect to a claimed default or Event of
Default hereunder; or
(b) Other Defaults. The Maker or any subsidiary of the Maker has
received notice of any default or failure to perform any
covenant or provision under any agreement relating to any
Senior Debt; provided, however, that nothing in this paragraph
7
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shall require the Maker to notify the Holder of any event or
occurrence if, by the giving notice to the Holder, the Maker
would also be required to make any public filing or public
announcement that it would not otherwise be required to make.
8. Notices. All notices, requests, demands, or other communications
that are required or may be given pursuant to the terms of this Note shall be in
writing and delivery shall be deemed sufficient and to have been duly given on
the date of service if delivered personally or by facsimile transmission if
receipt is confirmed to the party to whom notice is to be given or on the third
day after mailing if mailed by registered or certified mail, and properly
addressed as follows:
If to the Maker, to: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Ph.D.
President and Chief Executive
Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Copies to: Ice ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Holder, to:
Attention:
Fax:
Copies to:
Attention:
Fax:
or to such other address as may be specified in writing by any of the above.
9. Remedies. The remedies provided by this Note shall be cumulative,
and shall be in addition to and not exclusive of other remedies available at
law, or in equity. The exercise or waiver by the Holder of any right or remedy
available under this Note shall not be deemed to be a waiver of any other right
or remedy available under this Note, at law, or in equity.
10. Miscellaneous.
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(a) Whenever used herein, the singular includes the plural and the
plural includes the singular. The term "MAKER" means the
corporation named in the opening paragraph hereof and its
successors and assigns.
(b) All disputes, claims or controversies arising out of or
relating to this Agreement or the negotiation, validity or
performance of this Agreement or the Transactions shall be
governed by and construed in accordance with the laws of the
State of Indiana without regard to its rules of conflict of
laws. Each of the parties hereby irrevocably and
unconditionally consents to submit to the non-exclusive
jurisdiction of the courts of the State of Indiana and of the
United States located in the State of Indiana (the "AGREED
COURTS") for any litigation arising out of or relating to this
Agreement, or the negotiation, validity or performance of this
Agreement, or the Transactions (and agrees not to commence any
litigation relating thereto except in such courts), waives any
objection to the laying of venue of any such litigation in the
Agreed Courts and agrees not to plead or claim in any Agreed
Court that such litigation brought therein has been brought in
any inconvenient forum. Each of the parties hereto agrees,
that service of process may be made on such party by prepaid
certified mail with a proof of mailing receipt validated by
the United States Postal Service constituting evidence of
valid service. Service made pursuant to the preceding sentence
shall have the same legal force and effect as if served upon
such party personally within the State of Indiana.
(c) The Holder, by acceptance of this Note, hereby represents and
warrants that this Note has been acquired by the Holder for
investment only and not for resale or distribution hereof.
The Holder, by acceptance of this Note, further understands,
covenants and agrees that the Maker is under no obligation and
has made no commitment to provide for registration of this
Note under the Securities Act of 1933, as amended, or state
securities laws, or to take such steps as are necessary to
permit the sale of this Note without registration under those
laws, except as provided in the Registration Rights Agreement
by and between Maker, Holder and the other parties thereto
dated as of the date hereof.
(d) The captions of the sections of this Note are solely for
convenient reference and shall not be deemed to affect the
meaning or interpretation of any provision of this Note.
(e) The provisions of Section 5 of this Note may not be amended or
modified without the written consent of the Senior Lenders.
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IN WITNESS WHEREOF, the Maker has executed, acknowledged, and delivered
this Note as of the day and year first above written.
BIOANALYTICAL SYSTEMS, INC.
By:
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Printed:
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Title:
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Accepted and agreed to this ________ day of ______ ,2002:
By:
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[NAME]
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