AGREEMENT
EXHIBIT
10.5
AGREEMENT
This
AGREEMENT (“Agreement”) is made and entered into as of July 20,
2007 between JMAR Technologies, Inc., a Delaware corporation (the “Company”),
and Laurus Master Fund, Ltd., a Cayman Islands company (“Laurus”).
R
E C I T A L S
WHEREAS,
Laurus
currently owns shares of the Company’s Series G, I and J Cumulative Convertible
Preferred Stock (as each may be amended, modified or supplemented from time
to
time, collectively, the “Preferred Stock”);
WHEREAS,
the Company
and Laurus have agreed that the Company will sell and Laurus will purchase
an
aggregate of 3,500 shares of its Series J Cumulative Convertible Preferred
Stock
for an aggregate purchase price of up to $3,500,000 to be funded in increments
upon each respective purchase of Series J Preferred Stock; and
WHEREAS,
based on
current trading prices for the Company’s Common Stock, the Company does not have
sufficient authorized shares of Common Stock to allow for issuance of the full
amount of Series J Preferred Stock which is convertible at such prices;
and
WHEREAS,
the
Company
proposes to call a Special Meeting of its Stockholders to approve an amendment
to the Company’s Certificate of Incorporation to increase the authorized number
of shares of Common Stock from 80,000,000 to 400,000,000 and will prepare and
file a Proxy Statement with the SEC in connection therewith;
WHEREAS,
the Company
has requested that Laurus agree to amend certain of the Company securities
its
holds to provide that such securities are only exercisable or convertible
following the approval by the Company’s stockholders of such
amendment;
NOW,
THEREFORE, in consideration of the representations and warranties
contained herein, the sufficiency of which is hereby acknowledged, the parties
hereby agree as follows:
A
G R E E M E N T
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1.
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AMENDMENT
OF
OUTSTANDING
SECURITIES.
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1.1 Amendment
of Outstanding Securities: Laurus hereby agrees to amend the outstanding
securities set forth in this Section 1.1 (“Outstanding Securities”) to provide
that such securities may not be exercised or converted, as the case may be,
into
shares of Common Stock unless and until the Company’s stockholders have approved
the amendment of the Company’s Certificate of Incorporation to increase the
number of the Company’s authorized shares of Common Stock from 80,000,000 to
400,000,000. The Outstanding Securities consist of 1) those shares of
Series G and Series I Preferred Stock with a stated value of $817,600 that
were
amended on July 5, 2007 to reduce their conversion price to $0.1022; and 2)
the
shares of Series J Preferred Stock with a stated value of $408,800 with a
conversion price of $0.1022 that were issued on July 5, 2007.
1.2 Amendment
as to Future Issued Securities: Laurus agrees that up to another
$817,600 of Series J Preferred Stock to be issued and up to another $1,635,200
of Series G and Series I Preferred Stock as to which the respective conversion
prices will be reduced (together, the “Proposed Securities”) may not be
converted into shares of Common Stock unless and until the Company’s
stockholders have approved the amendment of the Company’s Certificate of
Incorporation to increase the number of the Company’s authorized shares of
Common Stock from 80,000,000 to 400,000,000.
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2.
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COVENANTS
BY THE
COMPANY.
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2.1 The
Company agrees that by no later than August 10, 2007 it will file a Preliminary
Proxy Statement with the SEC which includes a proposal for shareholder approval
of the above-described amendment to the Company’s Certificate of Incorporation
(the “Proposal”). If no comments are received from the SEC within the
ten day comment period, the Company will file its Definitive Proxy Statement
promptly thereafter. If the Company receives comments on the Proxy
Statement from the SEC, the Company will use its best efforts to address and
resolve any such comments and file a Definitive Proxy Statement with the SEC
by
no later than September 15, 2007.
2.2 The
Company will schedule a Special Meeting of the Stockholders to approve the
Proposal for a date that is 45 days after filing of the Definitive Proxy
Statement. The Company agrees to use its best efforts to obtain the
approval by its stockholders of the Proposal. Within two business
days following receipt of shareholder approval of the Proposal, the Company
shall file a Certificate of Amendment with the Delaware Secretary of
State.
2.3 Immediately
following the filing of the Certificate of Amendment with the Delaware Secretary
of State, the Outstanding Securities and the Proposed Securities will be amended
to eliminate the restriction on conversion or exercise imposed by Section 1.1
and 1.2 above.
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3.
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GENERAL
PROVISIONS.
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3.1 Governing
Law. This Agreement shall be governed
by and construed under the internal laws of the State of Delaware without
reference to principles of conflict of laws or choice of laws.
3.2 Counterparts. 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.
3.3 Amendments
and Waivers. Any term of this Agreement
may be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and
Laurus.
3.4 Severability. If
one or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision(s) shall be excluded from this Agreement and
the
balance of the Agreement shall be interpreted as if such provision(s) were
so
excluded and shall be enforceable in accordance with its terms.
3.5 Entire
Agreement. This Agreement constitutes
the entire agreement and understanding of the parties with respect to the
subject matter hereof and supersedes any and all prior negotiations,
correspondence, agreements, understandings duties or obligations between the
parties with respect to the subject matter hereof.
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3.6 Further
Assurances. From and after the date of
this Agreement, upon the request of Laurus or the Company, the Company and
Laurus shall execute and deliver such instruments, documents or other writings
as may be reasonably necessary or desirable to confirm and carry out and to
effectuate fully the intent and purposes of this Agreement.
IN
WITNESS WHEREOF, the parties hereto have executed this Securities
Purchase Agreement as of the date set forth in the first paragraph
hereof.
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JMAR
Technologies, Inc.
By: /s/
C. NEIL BEER
Name: Xx.
X. Xxxx Beer
Title: Chief
Executive Officer
Address: 00000
Xxxxxxxxxx Xxxxx
Xxx
Xxxxx, Xxxxxxxxxx 00000
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Laurus
Master Fund, Ltd.
By: /s/
XXXXXX GRIN
Name: Xxxxxx
Grin, Director
Address:
LAURUS MASTER
FUND, LTD.
c/o
Ironshore Corporate Services Ltd.
X.X.
Xxx 0000 G.T., Queensgate House, South Church Street
Grand
Cayman, Cayman Islands
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