Exhibit 4.3
AMENDMENT TO WARRANT AGREEMENT
AMENDMENT dated as of October 15, 1996 to the Warrant Agreement dated as
of November 30, 1994 ("WARRANT AGREEMENT") by and among PREMIER LASER
SYSTEMS, INC., a California corporation ("COMPANY"), AMERICAN STOCK TRANSFER
& TRUST COMPANY, as Warrant Agent ("WARRANT AGENT"), and X.X. XXXXX
INVESTMENT BANKING CORP., a New York corporation ("XXXXX"). All terms used
in this Amendment, unless otherwise defined herein, shall have such meaning
as ascribed to them in the Warrant Agreement.
WHEREAS, in connection with (i) a public offering ("SECONDARY OFFERING")
of up to 12,650 units ("UNITS"), each unit consisting of 190 shares of Class
A Common Stock and 95 redeemable Class B Warrants ("CLASS B WARRANTS")
pursuant to an underwriting agreement (the "SECONDARY UNDERWRITING
AGREEMENT") dated October 15, 1996 between the Company and Xxxxx and (ii) the
issuance to Xxxxx or its designees of Unit Purchase Options to purchase an
aggregate of 1,000 additional Units, to be dated as of October 18, 1996 (the
"SECONDARY UNIT PURCHASE OPTIONS"), the Company may issue up to an additional
1,306,250 Class B Warrants; and
WHEREAS, in connection with the Secondary Offering, the parties hereto
desire to amend certain provisions of the Warrant Agreement as set forth in this
Agreement in accordance with the provisions of Section 16 of the Warrant
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, the parties intending to be legally bound, hereby agree
as follows:
A. AMENDMENTS TO WARRANT AGREEMENT. Upon the effective date of the
registration statement relating to the Secondary Offering, the Warrant Agreement
shall be amended as follows:
(1) The number of Class B Warrants subject to issuance under the
Warrant Agreement is hereby increased to 9,033,448 Class B Warrants.
(2) Subsection (d) of Section 1 of the Warrant Agreement shall be deleted
in its entirety and replaced with the following new subsection (d):
"(d) "Initial Warrant Exercise Date" shall mean as to each Class
A Warrant and Class B Warrant the date of issuance of such Class A
Warrant or Class B Warrant, as the case may be."
(3) Subsections (e), (f) and (g) of Section 2 of the Warrant Agreement
shall be deleted in their entirety and replaced with the following new
subsections (e), (f) and (g):
"(e) From time to time, up to the Warrant Expiration Date, the
Transfer Agent shall countersign and deliver stock certificates in
required whole number denominations representing up to an aggregate of
13,439,547 shares of Class A Common Stock, subject to adjustment as
described herein, upon the exercise of Warrants in accordance with
this Agreement.
(f) From time to time, up to the Warrant Expiration Date, the
Warrant Agent shall countersign and deliver Warrant Certificates in
required whole number denominations to the persons entitled thereto in
connection with any transfer or exchange permitted under this
Agreement; provided that no Warrant Certificates shall be issued
except: (i) those initially issued hereunder; (ii) those issued on or
after the Initial Warrant Exercise Date, upon the exercise of fewer
than all Warrants represented by any Warrant Certificate, to evidence
any unexercised Warrants held by the exercising Registered Holder;
(iii) those issued upon any transfer or exchange pursuant to Section
6; (iv) those issued in replacement of lost, stolen, destroyed or
mutilated Warrant Certificates pursuant to Section 7; (v) those issued
pursuant to the Unit Purchase Options and the Secondary Unit Purchase
Options; (vi) at the option of the Company, in such form as may be
approved by its Board of Directors, to reflect any adjustment or
change in the Purchase Price, the number of shares of Class A Common
Stock purchasable upon exercise of the Warrants or the Target Price(s)
therefor made pursuant to Section 8 hereof; and (vii) those Class B
Warrants issued upon exercise of Class A Warrants.
(g) Pursuant to the terms of the Unit Purchase Options and the
Secondary Unit Purchase Options, Xxxxx or its designees may purchase
Units, which include up to 240,000 Class A Warrants and 584,500
Class B Warrants. Notwithstanding anything to the contrary contained
herein, the Warrants underlying the Unit Purchase Options and the
Secondary Unit Purchase Options shall not be subject to redemption by
the Company except under the terms and conditions set forth in the
Unit Purchase Options and Secondary Unit Purchase Options, as the case
may be."
(4) Subsection (b) of Section 4 of the Warrant Agreement shall be
deleted in its entirety and replaced with the following new subsection (b):
"(b) If, at the Exercise Date, in respect of the exercise of any
Warrants (i) the market price of the Company's Class A Common Stock is
greater than the then Purchase Price of the Warrant, (ii) the exercise
of the Warrant was solicited by a member of the National Association of
Securities Dealers, Inc. ("NASD") as designated in writing on the
Warrant Certificate Subscription Form, (iii) the Warrant was not held in
a discretionary account, (iv) disclosure of compensation arrangements
was made both at the time of the original offering and at the time of
exercise; and (v) the solicitation of the exercise of the Warrant was
not in violation of Rule 10b-6 (as such rule or any successor rule may
be in effect as of such time of exercise) promulgated under the
Securities Exchange Act of 1934, then the Warrant Agent, simultaneously
with the distribution of the Warrant Proceeds to the Company shall, on
behalf of the Company, pay from the Warrant Proceeds, a fee of 5% (the
"Xxxxx Fee") of the Purchase Price to Xxxxx (of which a portion may be
reallowed by Xxxxx to the dealer who solicited the exercise, which may
also be Xxxxx or X.X. Xxxxx & Co., Inc.); PROVIDED, HOWEVER, in the
event any Warrants are exercised but prior to October 15, 1997, Xxxxx
shall only be entitled to receive the Xxxxx Fee with respect to the
3,845,000 Class A Warrants and 6,605,000 Class B Warrants (which include
the 3,845,000 Class B Warrants that may be issued on exercise of the
Class A Warrants) issued at the time of the Company's initial public
offering in November 1994. For purposes of determining which Warrants
have been exercised, it will be assumed that the first 5,885,000 Class B
Warrants exercised were those issued at the time of the Company's
initial public offering. In the event the Xxxxx Fee is not received
within five days of the date on which the Company receives Warrant
Proceeds, then the Xxxxx Fee shall begin accruing interest at an annual
rate of prime plus four (4)%, payable by the Company to Xxxxx at the
time Xxxxx receives the Xxxxx Fee. Within five days after exercise the
Warrant Agent shall send to Xxxxx a copy of the reverse side of each
Warrant exercised. Xxxxx shall reimburse the Warrant Agent, upon
request, for its reasonable expenses relating to compliance with this
section 4(b). In addition, Xxxxx and the Company may at any time during
business hours, examine the records of the Warrant Agent, including its
ledger of original Warrant Certificates returned to the Warrant Agent
upon exercise of Warrants. The provisions of this paragraph may not be
modified, amended or deleted without the prior written consent of Xxxxx
and the Company."
(5) The first paragraph of subsection (a) of Section 9 of the Warrant
Agreement shall be deleted in its entirety and replaced with the following new
paragraph:
"(a) Subject to the exceptions referred to in Section 9(g) below,
in the event the Company shall, at any time or from time to time after
the date hereof, sell any shares of Common Stock for a consideration
per share less than the Market Price of the Class A Common Stock
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(as defined in Section 8, except that for purposes of Section 9, the
Calculation Date shall mean the date of the sale or other transaction
referred to in this Section 9) on the date of the sale or issue any shares
of Common Stock as a stock dividend to the holders of Common Stock, or
subdivide or combine the outstanding shares of Common Stock into a greater
or lesser number of shares (any such sale, issuance, subdivision or
combination being herein called a "Change of Shares"), then, and thereafter
upon each further Change of Shares, the Purchase Price in effect
immediately prior to such Change of Shares shall be changed to a price
(including any applicable fraction of a cent) determined by multiplying the
Purchase Price in effect immediately prior thereto by a fraction, the
numerator of which shall be the sum of the number of shares of Common Stock
outstanding immediately prior to the issuance of such additional shares and
the number of shares of Class A Common Stock which the aggregate
consideration received (determined as provided in subsection 9(f)(F) below)
for the issuance of such additional shares would purchase at the Market
Price and the denominator of which shall be the sum of the number of shares
of Common Stock outstanding immediately after the issuance of such
additional shares. Such adjustment shall be made successively whenever
such an issuance is made."
(5) The reference in subsection (d) of Section 9 to "Section 2(d)" shall
be replaced with the reference to "Section 2(f)".
(6) Section 20 of the Warrant Agreement shall be deleted in its entirety
and replaced with the following new Section 20:
"SECTION 20. TERMINATION. This Agreement shall terminate at the
close of business on the earlier of the Warrant Expiration Date or the
date upon which all Warrants (including the Warrants issuable upon
exercise of the Unit Purchase Options and the Secondary Unit Purchase
Options) have been exercised, except that the Warrant Agent shall
account to the Company for cash held by it and the provisions of
Section 15 hereof shall survive such termination."
B. FULL FORCE AND EFFECT. Except as provided herein, all other terms and
provisions of the Warrant Agreement shall remain in full force and effect.
C. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, which taken together shall constitute a single document.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
PREMIER LASER SYSTEMS, INC.
By:
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Xxxxxxx Xxxxxx, President
AMERICAN STOCK TRANSFER & TRUST COMPANY
By:
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X.X. XXXXX INVESTMENT BANKING CORP.
By:
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Xxxxxx X. Xxxx, Vice
Chairman and General Counsel
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