EXHIBIT 10(h)
AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into as of April 17,
2000, by and among POWER TECHNOLOGY INC., a corporation duly organized and
existing under the laws of the State of Nevada (the "Company") and Xxxxxx
Private Equity, LLC (hereinafter referred to as "Xxxxxx").
RECITALS:
WHEREAS, pursuant to the Company's offering ("Equity Line") of up to
Thirty Five Million Dollars ($35,000,000), excluding any funds paid upon
exercise of the Warrants, of Common Stock of the Company pursuant to that
certain Investment Agreement (the "Investment Agreement") between the Company
and Xxxxxx dated on or about April 17, 2000, the Company has agreed to sell
and Xxxxxx has agreed to purchase, from time to time as provided in the
Investment Agreement, shares of the Company's Common Stock for a maximum
aggregate offering amount of Thirty Five Million Dollars ($35,000,000); and
WHEREAS, pursuant to the terms of the Investment Agreement, the
Company has agreed, among other things, to issue to the Subscriber Commitment
Warrants, as defined in the Investment Agreement, to purchase a number of
shares of Common Stock, exercisable for five (5) years from their respective
dates of issuance.
TERMS:
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in Agreement
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. ISSUANCE OF COMMITMENT WARRANTS. As compensation for entering into
the Equity Line, Xxxxxx received a warrant convertible into 490,000 shares of
the Company's Common Stock, in the form attached hereto as EXHIBIT A (the
"Commitment Warrants").
2. ISSUANCE OF ADDITIONAL WARRANTS. If the Company shall at any time
effect a recapitalization, reclassification or other similar transaction of
such character that the shares of Common Stock shall be changed into or become
exchangeable for a SMALLER number of shares (a "Reverse Stock Split"), then on
the date of such Reverse Stock Split, and on each one year anniversary (each,
an "Anniversary Date") of the Reverse Stock Split thereafter throughout the
term of the Commitment Warrants, the Company shall issue to Xxxxxx additional
warrants (the "Additional Warrants"), in the form of EXHIBIT A, to purchase a
number of shares of Common Stock, if necessary, such that the sum of the
number of Warrants and the number of Additional Warrants issued to Xxxxxx
shall equal at least 3.0% of the number of shares of Common Stock of the
Company that are outstanding immediately following the Reverse Stock Split or
Anniversary Date, as applicable. The Additional
1
Warrants shall be exerciseable at the same price as the Commitment Warrants,
shall have the same reset provisions as the Commitment Warrants, shall have
piggyback registration rights and shall have a 5 year term.
3. OPINION OF COUNSEL. Concurrently with the issuance and delivery of
the Commitment Opinion (as defined in the Investment Agreement) to the
Investor, or on the date that is six (6) months after the date of this
Agreement, whichever is sooner, the Company shall deliver to the Investor an
Opinion of Counsel (signed by the Company's independent counsel) covering the
issuance of the Commitment Warrants and the Additional Warrants, and the
issuance and resale of the Common Stock issuable upon exercise of the Warrants
and the Additional Warrants.
4. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada applicable to agreements made
in and wholly to be performed in that jurisdiction, except for matters arising
under the Act or the Securities Exchange Act of 1934, which matters shall be
construed and interpreted in accordance with such laws.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of this 17TH day of April, 2000.
--------------------------------------------------------------------------------
POWER TECHNOLOGY INC. SUBSCRIBER:
XXXXXX PRIVATE EQUITY, LLC.
By: s/Xxx Xxxxx By: s/Xxxx X. Xxxxxx
-------------------------------- -----------------------------------
Xxx Xxxxx, President Xxxx X. Xxxxxx, Manager
Power Technology Inc.
0000-0000 Xxxx Xxxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX X0X 0X0 Xxxx. 000, Xxxxx 000
XXXXXX Xxxxxxx, XX 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
--------------------------------------------------------------------------------
2
