EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER, (II) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF THIS WAIVER, AND (III) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS IN
THIS SECTION 7.13.
7.14.
RECAPTURE.
ANYTHING IN THIS AGREEMENT TO THE
CONTRARY NOTWITHSTANDING, IF AN INVESTOR RECEIVES ANY PAYMENT OR PAYMENTS ON
ACCOUNT OF THE OBLIGATIONS, WHICH PAYMENT OR PAYMENTS OR ANY PART THEREOF ARE
SUBSEQUENTLY INVALIDATED, DECLARED TO BE FRAUDULENT OR PREFERENTIAL, SET ASIDE
AND/OR REQUIRED TO BE REPAID TO A TRUSTEE, RECEIVER, OR ANY OTHER PARTY UNDER
THE UNITED STATES BANKRUPTCY CODE, AS AMENDED, OR ANY OTHER FEDERAL OR STATE
BANKRUPTCY, REORGANIZATION, MORATORIUM OR INSOLVENCY LAW RELATING TO OR
AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY, COMMON LAW OR
EQUITABLE DOCTRINE, THEN TO THE EXTENT OF ANY SUM NOT FINALLY RETAINED BY ANY
SUCH INVESTOR, THE COMPANY'S OBLIGATIONS TO SUCH INVESTOR SHALL BE REINSTATED
AND THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT (OR BE REINSTATED)
UNTIL PAYMENT SHALL HAVE BEEN INDEFEASIBLY MADE TO SUCH INVESTOR, WHICH PAYMENT
SHALL BE DUE ON DEMAND.
7.15.
CONSTRUCTION.
THE PARTIES ACKNOWLEDGE THAT EACH
PARTY AND ITS COUNSEL HAVE REVIEWED THIS AGREEMENT AND THAT THE NORMAL RULE OF
CONSTRUCTION TO THE EFFECT THAT ANY AMBIGUITIES ARE TO BE RESOLVED AGAINST THE
DRAFTING PARTY SHALL NOT BE EMPLOYED IN THE INTERPRETATION OF THIS AGREEMENT OR
ANY AMENDMENTS, SCHEDULES OR EXHIBITS HERETO.
FOR THE AVOIDANCE OF DOUBT, ANY
RIGHTS, BENEFITS OR OBLIGATIONS SPECIFIED IN THIS AGREEMENT SHALL BE IN ADDITION
TO AND NOT LIEU OR LIMITATION OF ANY RIGHTS, BENEFITS OR OBLIGATIONS SPECIFIED
IN THE PURCHASE AGREEMENT.
[Signatures on Next Page]
19
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and year
first above written.
COMPANY:
LARK TECHNOLOGIES, INC.
By:
/s/ Ben D. Kaplan
Name:
Ben D. Kaplan
Title:
Secretary
INVESTORS:
XMARK OPPORTUNITY FUND, LTD.
By:
/s/ Mitchell D. Kaye
Name:
Mitchell D. Kaye
Title:
C.I.O.
XMARK OPPORTUNITY FUND, L.P.
By:
/s/ Mitchell D. Kaye
Name:
Mitchell D. Kaye
Title:
C.I.O.
XMARK JV INVESTMENT PARTNERS,
LLC
By:
/s/ Mitchell D. Kaye
Name:
Mitchell D. Kaye
Title:
C.I.O.
20
STATE OF CONNECTICUT)
: ss.: New Haven
COUNTY OF NEW HAVEN)
On the 21st day of April, 2005, before me personally came Ben D. Kaplan to me
known, who, being by me duly sworn did depose and say that s/he is the Secretary
of LARK TECHNOLOGIES, INC., a Delaware corporation, the corporation described in
and which executed the above instrument; and that s/he signed her/his name
thereto by order of the board of directors of said corporation.
/s/ Marcia I. Passavant
Notary Public
My comm. Expires 12/31/06
STATE OF CONNECTICUT)
: ss.:
COUNTY OF FAIRFIELD)
On the 20th day of April, 2005, before me personally came Mitchell D. Kaye to me
known, who, being by me duly sworn did depose and say that