EXHIBIT 10.4
BRIDGE LOAN AGREEMENT
NO. ____
THIS BRIDGE LOAN AGREEMENT (this "Agreement") is dated as of July 15, 1996,
by and between Fieldworks, Incorporated, a Minnesota corporation (the
"Company"), and _____________________ (the "Investor").
RECITALS:
(a) Whereas, the Company needs cash to fund its operations until such
time as it can complete a debt or equity financing; and
(b) Whereas, the Investor desires to lend funds to the Company on the
terms and conditions set forth in this Agreement; and
(c) Whereas, other investors ("Other Investors") may lend funds to
the Company on terms and conditions equivalent to those set forth in this
Agreement.
Accordingly, in consideration of the foregoing, the mutual promises set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Loan/Promissory Note. The Investor agrees to lend to the Company
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$__________ and the Company agrees to deliver to the Investor a promissory note,
in the form attached hereto as Exhibit A (the "Note"), in a like amount. The
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delivery of the Note shall be made concurrently with delivery of funds to the
Company in the amount set forth above.
2. Warrants. In consideration of the loan, the Company shall issue to
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the Investor, concurrently with delivery of the Note, a warrant, in the form
attached hereto as Exhibit B (the "Warrant"), to purchase that number of shares
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of Common Stock of the Company as provided in the Warrant. The shares of Common
Stock issuable upon exercise of the Warrants are referred to hereinafter as the
"Warrant Stock."
3. Repayment. All outstanding principal and accrued interest on the Note
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shall be due and payable on December 31, 1996, provided, however, that
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notwithstanding the foregoing, the Note shall be payable in full within thirty
(30) days after the effective date (the "Effective Date") of any Registration
Statement. Except in the event a Registration Statement is filed and declared
effective, the Note may not be prepaid.
4. Restrictions on Transfer. The Note, Warrant and Warrant Stock shall
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be subject to certain restrictions on transfer identified in the Note and
Warrant.
5. Representations and Warranties of the Company. The Company represents
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and warrants to the Investor that this Agreement has been duly authorized by all
necessary corporate action on behalf of the Company, has been duly executed and
delivered by an authorized officer of the Company, and is a valid and binding
agreement on the part of the Company. All corporate action necessary to the
authorization, issuance, and delivery of the Note, the Warrant, and the Warrant
Stock (collectively, a "Unit") has been taken on or prior to the date hereof.
6. Representations and Warranties of the Investor. The Investor
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represents and warrants to the Company as follows:
(a) That the Investor is in a financial position to hold the Units
for an indefinite period of time and is able to bear the economic risk and
withstand a complete loss of the Investor's investment in the Units;
(b) That the Investor believes the Investor, either alone or with the
assistance of the Investor's own professional advisor, has such knowledge
and experience in financial and business matters that the Investor is
capable of reading and interpreting financial statements and evaluating the
merits and risks of the prospective investment in the Units and has the net
worth to undertake such risks;
(c) That the Investor has obtained, to the extent the Investor deems
necessary, the Investor's own personal professional advice with respect to
the risks inherent in the investment in the Units and the suitability of an
investment in the Units in light of the Investor's financial condition and
investment needs;
(d) That the Investor believes that the investment in the Units is
suitable for the Investor based upon the Investor's investment objectives
and financial needs, and the Investor has adequate means for providing for
the Investor's current financial needs and personal contingencies and has
no need for liquidity of investment with respect to the Units;
(e) That the Investor has been given access to full and complete
information regarding the Company and has utilized such access to the
Investor's satisfaction for the purpose of obtaining information and,
particularly, the Investor has either attended or been given reasonable
opportunity to attend a meeting with representatives of the Company for the
purpose of asking questions of, and receiving answers from, such
representatives concerning the Company and to obtain any additional
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information, to the extent reasonably available, necessary to verify the
accuracy of information provided to the Investor;
(f) That the Investor recognizes that an investment in the Units
involves a high degree of risk, including, but not limited to, the risk of
economic losses from operations of the Company;
(g) That the Investor recognizes that in addition to the proceeds
from the sale of Units, the Company will require additional financing to
fund current and proposed operations, and there can be no assurances that
additional financing can be obtained;
(h) That the Investor realizes that (i) the purchase of the Units is
a long-term investment; (ii) the purchaser of the Units must bear the
economic risk of investment for an indefinite period of time because the
Notes, Warrants and Warrant Stock have not been registered under the
Securities Act or under the securities laws of any state and, therefore,
none of such securities can be sold unless they are subsequently registered
under said laws or exemptions from such registrations are available; (iii)
the Investor may not be able to liquidate the Investor's investment in the
event of an emergency or pledge any of such securities as collateral for
loans; and (iv) the transferability of such securities is restricted and
(A) requires the written consent of the Company, and (B) legends will be
placed on the Notes and Warrants referring to the applicable restrictions
on transferability.
(i) That the Investor certifies, under penalties of perjury, that the
Investor is NOT subject to the backup withholding provisions of Section
3406(a)(i)(C) of the Internal Revenue Code of 1986, as amended (Note: You
are subject to backup withholding if (i) you fail to furnish your Social
Security number or taxpayer identification number herein; (ii) the Internal
Revenue Service notifies the Company that you furnished an incorrect Social
Security number or taxpayer identification number; (iii) you are notified
that you are subject to backup withholding; or (iv) you fail to certify
that you are not subject to backup withholding or you fail to certify your
Social Security number or taxpayer identification number);
(j) That the Investor is a bona fide resident of, is domiciled in,
and received the offer and made the decision to invest in the Units in, the
state set forth on the signature page below under "Addresses" and that the
Units are being purchased by the Investor in the Investor's name solely for
the Investor's own beneficial interest and not as nominee for, or on behalf
of, or for the beneficial interest of, or with the intention to transfer
to, any other person, trust or organization.
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7. Accredited Investor. The Investor represents and warrants that the
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Investor is an "accredited investor" as defined in Rule 501(a) of Regulation D
of the Securities Act, because the Investor meets at least one of the following
criteria (please check one or more, as applicable):
[_] (a) The Investor is a natural person whose individual net worth, or joint
net worth with his or her spouse, exceeds $1,000,000 at the time of
the Investor's purchase; or
[_] (b) The Investor is a natural person who had an individual income in
excess of $200,000 in each of the two most recent years (1994 and
1995) or joint income with the Investor's spouse in excess of $300,000
in each of those years and who reasonably expects to reach the same
income level in the current year (1996); or
[_] (c) The Investor is a corporation, Massachusetts or similar business
trust, partnership or an organization described in Section 501(c)(3)
of the Internal Revenue Code, not formed for the specified purpose of
acquiring the Units, with total assets in excess of $5,000,000; or
[_] (d) The Investor is (i) a bank as defined in Section 3(a)(2) of the
Securities Act, or any savings and loan association or other
institution as defined in Section 3(a)(5)(A) of the Securities Act
whether acting in its individual or fiduciary capacity, (ii) a broker
or dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934, (iii) an insurance company as defined in Section 2(13) of
the Securities Act, (iv) an investment company registered under the
Investment Company Act of 1940 or a business development company as
defined in Section 2(a)(48) of such Act, (v) 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, (vi) a plan established or 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, if such plan
has total assets in excess of $5,000,000, or (vii) an employee benefit
plan within the meaning of the Employee Retirement Income Security Act
of 1974, if the investment decision is made by a plan fiduciary, as
defined in Section 3(21) of such Act, which plan fiduciary is either a
bank, savings and loan association, insurance company or registered
investment advisor, or if the employee benefit plan has total assets
in excess of $5,000,000 or, if a self directed plan, with investment
decisions made solely by persons who are accredited investors; or
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[_] (e) The Investor is a private business development company as defined in
Section 202(a)(22) of the Investment Advisors Act of 1940; or
[_] (f) The Investor is a director, executive officer or general partner of
the Company, or a director, executive officer or general partner of a
general partner of the Company; or
[_] (g) The Investor is a trust, with total assets in excess of $5,000,000,
not formed for the specific purpose of acquiring the Units, whose
purchase is directed by a sophisticated person as described in Rule
506(b)(2)(ii) of Regulation D of the Securities Act (IF ONLY THIS
RESPONSE IS CHECKED, please contact the Company to receive and
complete an information statement before this subscription can be
considered by the Company); or
[_] (h) The Investor is any entity in which all of the equity owners are
accredited investors. (NOTE: Not available with respect to an
irrevocable trust.)
If this purchase is made on behalf of any entity other than a natural person,
Investor certifies that (i) the entity was not formed for the purpose of making
this investment, (ii) the undersigned is empowered and duly authorized by the
entity to execute and carry out the terms of this Agreement and to purchase and
hold the Units, and (iii) this Agreement has been duly and validly executed on
behalf of the entity and constitutes a legal and binding obligation of the
entity.
8. Other.
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(a) This Agreement and the rights and obligations of the parties
hereunder shall not be assignable, in whole or in part, by any party
without the prior written consent of the other party, and neither this
Agreement nor any provision hereof may be amended, modified, waived or
discharged without the written consent of the party against whom
enforcement of such amendment, modification, waiver, or discharge is
sought.
(b) This Agreement, including the exhibits attached hereto,
constitutes the entire agreement of the parties relative to the subject
matter hereof and supersedes any and all other agreements and
understandings, whether written or oral, relative to the matters discussed
herein.
(c) This Agreement shall be construed and enforced in accordance with
the laws of the State of Minnesota, except for its rules relating to
conflicts of law.
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(d) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(e) This Agreement shall be binding on the Company, and the Company
shall be deemed to have accepted the subscription for the Units hereunder,
only upon execution of this Agreement by the Company.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the date set forth above.
INVESTOR: FIELDWORKS, INCORPORATED
___________________________________ By______________________________________
Its__________________________________________________________________________
___________________________________
(If more than one Investor)
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INVESTOR INFORMATION
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Name (Typed or Printed)
_____________________________________________________________________
__________________________________________________________________________
(If more than one Investor) (Please indicate JTWROS or TIC)
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Addresses
(i) Address of Investor's Domicile and Bona Fide Residence:
_____________________________________________________________________
Street
_____________________________________________________________________
City, State and Zip Code
(ii) Address to Which Correspondence Should be Directed (if different
from above):
_____________________________________________________________________
Street
_____________________________________________________________________
City, State and Zip Code
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Social Security or Tax ID Number (Both if grantor trust or partnership):________
___________________________________________________________________________
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Telephone Number: ____________________
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