|
Exhibit 10.3
AMENDED AND RESTATED REIMBURSEMENT AND INDEMNITY
AGREEMENT
This Amended and Restated Reimbursement and Indemnity Agreement
(this " Agreement ") is made as of the 17 th day of January, 2007, by
CLARIENT, INC., a Delaware corporation ( "Clarient" ), in
favor of SAFEGUARD DELAWARE, INC., a Delaware corporation (
"SDI" ) and SAFEGUARD SCIENTIFICS (DELAWARE), INC., a
Delaware corporation ( "SSI" ) and together with SDI (
"Safeguard" ).
BACKGROUND
A.
Pursuant to a Loan Agreement dated as of February 13, 2003, by and
between Clarient and Comerica Bank, N.A. (the "Bank" ) (as
amended from time to time, including by a Seventh Amendment thereto
dated as of even date herewith ( "Amendment No.7" ), the
"Loan Agreement" ), the Bank agreed to provide to Clarient a
revolving line of credit in the maximum aggregate principal amount
of $12,000,000 (the "Loan" ).
B.
At the request of Clarient, and as required by the Bank, Safeguard
agreed to guaranty all of the payment obligations of Clarient under
the Loan Agreement pursuant to the terms of that certain
Unconditional Guaranty originally dated as of February 13, 2003 (as
amended and affirmed from time to time (the "Original
Guaranty" )). In connection with Amendment No. 7,
Safeguard is contemporaneously herewith entering into a Third
Amended and Restated Guaranty (the "Guaranty" ).
C.
In connection with the execution of that certain Fifth Amendment to
the Loan Agreement on or about August 1, 2005, Clarient and
Safeguard entered into a Reimbursement and Indemnity Agreement
dated even therewith (the "Prior Reimbursement and Indemnity
Agreement" ).
D.
In consideration of Safeguard’s agreements as set forth
above, Clarient has agreed to pay certain fees to Safeguard, to
reimburse Safeguard for any of the obligations required to be paid
or satisfied by Safeguard pursuant to the Guaranty, and to hold
Safeguard harmless from and against any claims made against
Safeguard on account of the Guaranty, on the terms and subject to
the conditions set forth below.
E.
All capitalized terms used and not otherwise defined herein shall
have the respective meanings ascribed thereto in the Guaranty.
AGREEMENT
NOW, THEREFORE in consideration of the foregoing and of the
covenants and mutual agreements set forth below, and intending to
be legally bound, the parties agree to amend and restate the Prior
Reimbursement and Indemnity Agreement to be as follows:
1. Payments, Performance,
Covenants .
(a) In the event Comerica makes any demand on
Clarient, or Clarient is otherwise required to perform any
obligations under the Loan Agreement (including without limitation,
any payment obligation) or any other Loan Document, Clarient
promptly shall perform its obligations under the Loan Agreement or
applicable Loan Document.
(b) In the event any such amount is not timely paid
or such obligation is not timely performed by Clarient and Comerica
seeks to enforce Safeguard’s Guaranty, Clarient shall
reimburse to Safeguard the aggregate amount of
all funds advanced by Safeguard on account of such obligation,
together with interest on such amount at an annual rate equal to
(i) the prime rate (as defined below) plus 4% for amounts up to
$8,500,000, and (ii) the greater of (x) 12% or (y) the prime rate
(as defined below) plus 8% (the "Expansion Rate" ) for
amounts in excess of $8,500,000, from the date of payment by
Safeguard until all such amounts have been repaid by
Clarient. For the purpose of this Agreement, "prime rate"
shall mean the variable rate of interest, per annum, most recently
announced by Comerica Bank, as its "prime rate," whether or not
such announced rate is the lowest rate available from such
bank.
(c) Clarient will not agree to any amendment,
modification, waiver or supplement to the Comerica Loan Agreement
or any of the documents, instruments or agreements executed in
connection therewith (collectively, the "Loan Documents" )
without the prior written consent of each of SDI and SSI.
(d) For so long as the Loan Documents permit
Clarient to borrow in excess of $8,500,000:
(i)
Clarient will implement working capital and cash flow monitoring
analytics as directed by Safeguard.
(ii)
Clarient will obtain Safeguard’s prior written approval prior
to (i) borrowing any principal amount in excess of $8,500,000 under
the Loan (which approval shall not be unreasonably withheld prior
to the Expansion End Date (as defined below) for borrowings to be
used to fund ordinary course operating expenses) or (ii) incurring
any other indebtedness (other than under Clarient’s current
loan and security agreements with General Electric Capital
Corporation or its affiliates).
(e) Notwithstanding Section 1(d), after Clarient has
reduced its borrowings under the Loan Documents to a principal
amount that is equal to or less than $8,500,000, Clarient shall not
borrow any amount in excess of $8,500,000 without Safeguard’s
prior written approval.
2. Consideration . As
consideration for Safeguard providing the Guaranty, Clarient agrees
to:
(a) concurrently with the execution of the Guaranty,
pay to Safeguard a commitment fee in the form of a four-year
warrant to purchase 100,000 shares of Clarient common stock, par
value $0.01 per share ("Common Stock"), with an exercise price of
$0.01 per share, pursuant to the form of warrant attached hereto as
Exhibit A .
(b) pay Safeguard a usage fee of an amount equal to
the sum of:
(i)
1.125% of the daily weighted average of the principal amounts
outstanding under the line of credit during each calendar quarter
of the term of the line of credit,
(ii)
with respect to the daily weighted average of the principal amounts
(if any) in excess of $8,500,000 outstanding under the line of
credit during each calendar quarter of the term of the line of
credit (the "Expansion Balance"), an additional 0.875% of the
Expansion Balance, and
(iii) with
respect to any Expansion Balance existing after the Expansion End
Date, (A) 25% of the Expansion Rate less (B) 2%;
2
in each case payable within thirty (30) days after the end of
each calendar quarter with respect to amounts outstanding under the
line of credit during the quarter preceding the payment date.
Payments for fractional calendar quarters at the beginning and end
of the term of the line of credit will be prorated based on the
number of days in the fractional quarter included in the term of
the line of credit divided by the total number of days in the
calendar quarter. All payments will be made by wire transfer
in immediately available funds to such account as Safeguard shall
designate from time to time.
(c) concurrently with the execution of the Guaranty,
pay Safeguard a facility maintenance fee in the form of a four-year
warrant to purchase up to 250,000 shares of Common Stock with an
exercise price of $1.64 per share, pursuant to the form of warrant
attached hereto as Exhibit B .
Safeguard may require additional consideration to be agreed by
the parties in the event that both (a) Clarient’s borrowings
under the Loan Agreement exceed $8,500,000 after the date (the
"Expansion End Date") that is the earlier to occur of (i) April 30,
2007 or (ii) the date Clarient consummates an asset sale or debt
and/or equity financing that results in net proceeds to Clarient in
excess of $7,000,000 in a single or series of related transactions
and (b) the Guaranty is reaffirmed, amended (other than an
amendment reducing the maximum amount of the principal guaranteed
thereunder to $8,500,000 or less) or has not expired or been
terminated on or before such date; provided, however, that without
limiting Safeguard’s right to require additional
consideration under the circumstances described above, Safeguard
agrees to (x) reaffirm the Guaranty in a manner and for
consideration consistent with past practice in connection with the
extension of the maturity date of the Loan Agreement, and (y)
cooperate with Clarient to obtain such extension on terms and
conditions consistent with past practice. If, following the
Expansion End Date, Clarient has reduced its borrowings under the
Loan Agreement to $8,500,000 or less, the parties will cooperate
with each other to amend the Guaranty and the Loan Agreement so as
to effect the reduction of the amount of principal guaranteed under
the Guaranty to $8,500,000.
3. Obligations of Clarient
. The obligations of Clarient under this Agreement
shall be absolute, unconditional and irrevocable, shall apply to
the fullest extent authorized or permitted by any applicable law,
under and shall be paid and performed strictly in accordance with
the terms of this Agreement, under all circumstances whatsoever,
including, without limitation, the following circumstances:
(a) Any lack of validity or enforceability of this
Agreement;
(b) The existence of any claim, set-off, defense or
other rights which Clarient may have at any time against Safeguard
or any other person or entity, whether or not in connection with
this Agreement; or
(c) Any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing.
4. Representations and Warranties of
Clarient . Clarient hereby represents and warrants to
Safeguard as follows:
(a) Organization and Standing .
Clarient is a corporation, duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all
requisite power and authority to carry on its business as now being
conducted.
(b) Authority; Enforceability .
Clarient has all requisite power and authority to enter into this
Agreement and to consummate the transactions contemplated
hereby.
3
(c) Execution of Agreement
. This Agreement has been duly executed and delivered by
Clarient. The execution, delivery and performance of this
Agreement will
| 
