1
EXHIBIT 10.02
SECURED LOAN NOTE
between
(1) HYCOR BIOMEDICAL INC., a Corporation organised under the Laws of the State
of Delaware, U.S., and having its principal place of business at 18800 Von
Karmen Avenue, California 92612-1517, U.S. ("THE COMPANY");
and
(2) [ ] ("THE NOTEHOLDER")
WHEREAS:
The Company and the Noteholder are parties to the Share Purchase Agreement (as
defined herein) pursuant to which the Company has undertaken to issue Secured
Loan Notes as herein set forth.
NOW THEREFORE IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 In this Loan Note, the following expressions shall, unless otherwise
specified or the context otherwise requires, having the meanings set
opposite them respectively:
"business day" a day, other than a Saturday or Sunday, on
which clearing banks are open for business
in both Edinburgh and London;
"Principal Sum" the sum of [ ] due by the Company to the
Noteholder and any balance or part(s)
thereof from time to time outstanding;
"Share Purchase Agreement" the Share Purchase Agreements entered into
between the Company, the Noteholder and
other shareholders of Cogent Diagnostics
Limited (Company No: SC122739) pursuant to
which the Company purchased and the
Noteholder and other shareholders sold
shares in the capital of Cogent
Diagnostics Limited;
"Shares Pledge" the Share Pledge to be executed of even
date herewith and be granted by the
Company in favour of the Noteholder in
security of the Company's obligation
under this Loan Note.
Page 1 of 6
2
1.2 In this Loan Note, unless otherwise specified, or the context otherwise
requires:
(a) where as importing any gender shall include the other genders;
words importing natural persons shall include corporations and vice
versa; and words importing the singular only shall include the plural
and vice versa;
(b) reference to any statute, regulation, directive, treaty or part
thereof shall be construed as reference thereto as amended or
re-enacted or as the application thereof is modified by other
provisions from time to time (whether before or after the date of this
Loan Note), shall be construed as including references to any provision
of which they are re-enactments (whether with or without modification)
and shall be construed as including references to any order,
instrument, regulation or other subordinated legislation made pursuant
thereto.
2. AMOUNT OF THE LOAN NOTE
The nominal aggregate amount of this Loan Note is limited to [ ] which
the Company undertakes to repay to the Noteholder on the terms and
conditions herein set forth.
3. INTEREST
Interest at [ ]% per annum shall be due on the nominal amount of the
balance of the Principal Sum from time to time outstanding, shall
accrue from day-to-day and be computed on the basis of a 365 day year.
Accrued interest shall be payable quarterly in arrears on 21 October,
21 January, 21 April and 21 July of each year until repayment of the
Principal Sum in full.
4. REPAYMENT OF THE PRINCIPAL SUM
4.1 The Principal Sum shall be repaid by the Company to the Noteholder,
without any requirement of notice or demand by the Noteholder as
follows:
REPAYMENT DATE: REPAYMENT AMOUNT:
21 July 1998 [ ]
21 July 1999 [ ]
21 July 2000 [ ]
4.2 Accrued interest shall also be paid by the Company to the Noteholder on
each of the Repayments Dates specified in Clause 4.1.
Page 2 of 6
3
5. ACCELERATED PAYMENT
The Company shall be entitled to repay the Principal Sum at any time
after 21 January, 1998, in whole or in part, together with interest
accrued thereon to the date of repayment, without penalty.
6. SET-OFF
If, at any time, any sums become due by the Noteholder to the Company
and/or Cogent Diagnostics Limited under the Share Purchase Agreement
(including, without limitation, any sums due in respect of a claim
under the Warranties (as defined in the Share Purchase Agreement) or a
claim under the Taxation Undertaking (as defined in the Share Purchase
Agreement)) then such sums may, whether or not the said [ ] is the then
Noteholder, be set-off and deducted from any amount, principal or
interest due by the Company to the Noteholder under this Loan Note and
to the extent that the Principal Sum is thereby reduced, it shall be
deemed to have been repaid and redeemed by the Company.
7. REGISTER OF LOAN NOTES
7.1 The Company shall keep a register showing the nominal amount of the
Loan Note held by the Noteholder, together with the Noteholder's name
and address and all subsequent transfers and changes of ownership to
which the Noteholder shall be entitled to have access upon giving
reasonable notice thereof to the Company.
7.2 Save in the case of fraud or manifest error the register shall be the
definitive record of this Loan Note in the event of any dispute between
the Company and the Noteholder.
8. EVENTS OF DEFAULT
The Principal Sum, and accrued interest, shall, provided that the
Noteholder has served notice of default on the Company specifying the
breach referred to and such breach if remediable, has not been remedied
within a period of 30 days of receipt of the notice (or such longer
period as may be stated in the notice), become payable on the
occurrence of any of the following events of default:
(a) if the Company shall fail to make payment, within 30
business days of the due date, of any principal or interest on
this Loan Note; or
(b) if, pursuant to or within the meaning of the United
States Bankruptcy Code or any other federal or state law
relating to insolvency or relief of debtors (a "Bankruptcy
Law"), the Company shall (i) commence a voluntary case or
proceedings; (ii) consent to the entry of an order for relief
against it in an involuntary case; (iii) consent to the
appointment of a trustee, receiver, assignee, liquidator or
similar official; (iv) make an assignment for the benefit of
its creditors; or (v) admit in writing its inability to pay
its debts as they become due; or
Page 3 of 6
4
(c) if a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that (i) is for relief
against the Company in an involuntary case; (ii) appoints a
trustee, receiver, assignee, liquidator or similar official
for the Company or substantially all of the Company's assets;
or (iii) orders the liquidation of the Company, and in each
case the order or decree is not dismissed within 120 days; or
(d) if the Company shall commit a material breach of its
obligations under the Shares Pledge.
9. TRANSFERS
9.1 The Noteholder may transfer the whole (but not part thereof) of this
Loan Note.
9.2 Any transfer shall be made in writing or in the usual common form and
shall be signed by the transferor and transferee. The transferor shall
be deemed to remain the owner of this Loan Note until the name of the
transferee is entered in the Register in respect thereof.
9.3 Every instrument of transfer must be delivered to the Chief Financial
Officer or Secretary of the Company, accompanied by this Loan Note and
such other evidence (if any) as the Company may require to provide the
title of the transferor or his right to transfer the Loan Note and upon
receipt of such instrument of transfer and evidence of title as
aforesaid the transfer shall be registered..
10. REGISTRATION OF SUCCESSORS IN TITLE
Any person becoming entitled to this Loan Note in consequence of the
death or bankruptcy of any Noteholder or, in the case of a company, in
consequence of a winding-up of any Noteholder, may upon producing such
evidence of his title as the Company shall acting reasonably think
sufficient, he registered himself as the holder of such of the Loan
Note or, subject to Clause 9 may transfer the Loan Note.
11. GOVERNING LAW
11.1 This Loan Note shall be governed by in accordance with the law of
Scotland.
11.2 The parties hereto submit to the non-exclusive jurisdiction of the
Court of Session as regards any claim, dispute or matter arising out of
or in relation to this Loan Note and its implementation or effect.
Page 4 of 6
5
12. NOTICES
12.1 Any notice or other communication to be given by one party to the other
under, or in connection with this Loan Note, shall be communicated as
follows:-
(a) If to the Company, to:-
Hycor Biomedical Inc
18800 Von Karman Avenue
Irvine
California 92612-1517
U.S.
Facsimile Number: 001-714-440-2220
Attention: Mr R Jones
(b) If to the Noteholder, to:-
[ ]; or
(c) in either case, to such other address and/or facsimile number
and/or marked for such other attention as may from time to
time be specified by the relevant party.
12.2 Any notice or other communication to be given by one party to the other
under, or in connection, with this Loan Note shall be in writing and
shall be given by letter delivered by hand or sent by first class
pre-paid recorded delivery or registered post or by facsimile, and
shall be deemed to have been received:-
(a) in the case of delivery by hand prior to 5.00pm on a business
day, when delivered and on any other case on the business day
following the day of delivery; or
(b) in the case of first class pre-paid recorded delivery or
registered post, on the second business day following the day of
posting; or
(c) in the case of facsimile when the transmission occurs prior to
5.00pm on a business day, on acknowledgement on the addressee's
facsimile receiving equipment and on any other case on the
business day following the day of acknowledgement by the
addressee's facsimile receiving equipment.
Page 5 of 6
6
IN WITNESS WHEREOF, these present consisting of this and the five preceding
pages are executed in duplicate as follows:-
SUBSCRIBED for an on behalf of HYCOR
BIOMEDICAL INC
at
on the day of July 1997
by , Director ...............................
in the presence of Director
Witness .....................................
Full Name ...................................
Address .....................................
.............................................
SUBSCRIBED by [ ] ................................
at
on the day of July 1997
in the presence of:
Witness .....................................
Full Name ...................................
Address .....................................
.............................................
Page 6 of 6