EXH10-13
THIS INSTRUMENT AND THE SHARES OF STOCK INTO WHICH IT IS EXERCISABLE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION UNDER
SUCH ACT UNLESS TN AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER AN EXEMPTION
FROM REGISTRATION IS THEN AVAILABLE. THIS INSTRUMENT IS FURTHER SUBJECT TO
CERTAIN RESTRICTIONS REGARDING TRANSFERABILITY SET FORTH IN SECTION VII HEREIN.
WARRANT
Warrant to Purchase
66,667 Shares of Common Stock
Warrant to Purchase Common Stock
of Automated Light Technologies, Inc.
This is to certify that, FOR VALUE RECEIVED, CONNECTICUT INNOVATIONS
INCORPORATED, a Connecticut corporation, its successors ("Holder"), is entitled
to purchase, subject to the provisions of this Warrant, from AUTOMATED LIGHT
TECHNOLOGIES, INC., a Delaware corporation (the "Company"), at the price
hereinafter set forth, 66,667 shares of common stock, $,01 par value of the
Company ("Common Stock") in accordance with the schedule and price shown
hereunder, at any time on or after 3:30 p.m. Eastern Standard Time on August 2,
1990 subject to the limitations set forth herein.
Section I. EXERCISE OF WARRANT. Subject to and in accordance with the provisions
of Section VI hereof, this Warrant may be exercised in whole or in part at any
time or from time to time on or after August 2, 1990 but not later than 3:30
p.m. Eastern Standard Time on September 1, 1996 or it September 1, 1996 is a day
on which banking institutions are authorized by law to close, then on the next
succeeding day which shall not be such a day, by presentation and surrender
hereof to the Company with the Purchase Form annexed hereto duly executed and
accompanied by payment of the Exercise Price with all federal and state taxes,
if any, applicable upon such exercise. If this Warrant should be exercised in
part only, the Company shall, upon surrender of this Warrant, execute and
deliver a new Warrant evidencing the right of the Holder to purchase the balance
of the shares purchasable hereunder. Upon receipt by the Company of this Warrant
at the office of the Company, in proper form for exercise, accompanied by
payment of the Exercise Price and requisite taxes, if any, the Company shall
forthwith issue and deliver, or cause to be issued and delivered, to the Holder
as soon as practicable, but in any event within thirty (30) days, a certificate
or certificates for the shares of Common Stock issuable upon such exercise. The
exercise of this Warrant shall be deemed to have been effected immediately prior
to the close of business on the business day on which this warrant is
surrendered to the Company and, at such time, the person in whose name the
certificate for shares of
Common Stock shall be issuable upon such exercise shall be deemed to have become
the holder of record of such Common Stock.
Section II. ADJUSTMENTS.
(a) Adjustment for Stock Splits and Combinations. If the Company shall
at any time, or from time to time, after the date hereof, effect a subdivision
of its outstanding capital stock then, at the option of the Holder, (i) the
Exercise Price (as defined below) then in effect immediately before that
subdivision shall be proportionately decreased or (ii) the number of shares of
Common Stock issuable upon conversion of this Warrant (the "Number of Issuable
Shares") shall be proportionately increased, and conversely, if the Company
shall at any time, or from time to time, after the date hereof, combine its
outstanding shares of Capital Stock, then, at the option of the Holder, (i) the
Exercise Price then in effect immediately before the combination shall be
proportionately increased or (ii) the Number of Issuable Shares" shall be
proportionately decreased. Any adjustment under this Subsection (a) shall become
effective at the close of business on the day any such subdivision or
combination becomes effective. In the event that Xxxxxx fails to make such
election on or before the effective date of such subdivision or combination,
then Holder shall be deemed to have selected option (i).
(b) Adjustment for Certain Dividends and Distributions. If the Company
at any time, or from time to time, after the date hereof, shall make or issue or
fix a record date for the determination of holders of Capital Stock entitled to
receive a dividend or other distribution payable in additional shares of Capital
Stock, then, and in each such event:
(i) the Exercise Price then in effect shall be decreased as of the date of such
issuance or, at the time or upon the event such a record date shall have been
fixed, as of the close of business on such record date (the "Record Date") by
multiplying the Exercise Price then in effect by a fraction, determined as
follows:
(x) the numerator of which shall be the total number of shares of
Capital Stock issued and outstanding immediately prior to the Record Date plus
the number of shares that Holder 1S entitled to upon full exercise of this
Warrant; and
(y) the denominator of which shall be the total number of shares of
Capital Stock issued and outstanding immediately prior to the Record Date plus
the number of shares that Holder is entitled to upon full exercise of this
Warrant plus the number of shares of Capital Stock issuable in payment of such
dividend or distribution and
(ii) the Number of Issuable Shares shall be increased to equal the number
derived by dividing $100,000.00 (or $100,000.00 less
the price paid for any shares purchased in a partial exercise of this Warrant,
if applicable) by the adjusted Exercise Price after application of (i) above.
For purposes of this Subsection (b), if such Record Date shall have been fixed
and such dividend is not fully paid or if such distribution is not fully made on
the date fixed therefor, the Exercise Price or the Number of Issuable Shares, as
the case may be, shall be recomputed accordingly as of the close of business on
such Record Date, and thereafter the Exercise Price and the Number of Issuable
Shares shall be adjusted pursuant to this Subsection (b) as of the day and time
that each actual payment of such dividends or distributions is made.
(c) Adjustment for Reclassification. Exchange and Substitution. If the
Common Stock issuable upon the exercise hereof shall be changed into the same or
a different number of shares of any class or classes of stock, whether by
reclassification, exchange, substitution or other transaction having similar
effect (other than a subdivision or combination of shares or stock dividend
provided for above, or a reorganization, merger, consolidation or sale of assets
provided for elsewhere in this Section II) then and in each such event, upon the
exercise of this Warrant, in lieu of shares of Common Stock, the Holder shall
have the right thereafter to receive the kind and amount of shares of stock and
other securities and property receivable upon such reclassification, exchange,
substitution or other transaction having similar effect, as did or shall the
holders of shares of the Common Stock as of the day immediately prior to the day
that such reclassification, exchange or substitution is or becomes effective all
subject to further adjustment as provided in subparagraphs a, b, d and e herein,
if applicable.
(d) Reorganization. Mergers, Consolidations or Sale of Assets. If at
any time, or from time to time, there shall be (other than a subdivision,
combination, reclassification, exchange, substitution of shares provided for
elsewhere in this Section II) a capital reorganization involving a merger or
consolidation of the Company with or into another corporation or the sale or
transfer (a "Sale") of all or substantially all of the Company's properties and
assets to any other person; then, as a part of such reorganization, merger,
consolidation or Sale adequate provision shall be made so that the Holder shall
thereafter be entitled to receive, upon exercise hereof, the number of shares of
stock or other securities or property of the Company, or of the successor
corporation, resulting from such reorganization, merger, consolidation or Sale
as to which a holder of Common Stock deliverable upon the ultimate exercise
hereof would have been entitled to receive as a result of such capital
reorganization, merger, consolidation or Sale. In the case of a Sale in which
the Company receives cash in payment of the purchase price, then the Holder
shall be deemed to have exercised this Warrant immediately prior to the Sale and
shall receive a cash payment equal to that which a holder of Common
Stock deliverable upon the ultimate exercise hereof would have been entitled to
receive as a result of such Sale less the Exercise Price. In any such case,
appropriate adjustment shall be made in the application of the provisions of
this Section II with respect to the rights of the Holder after the
reorganization, merger, consolidation or Sale to the end that the provisions of
this Section II (including adjustment of the Exercise Price then in effect and
the number of shares issuable upon exercise hereof) shall be applicable after
any such event as nearly equivalent as may be practicable.
(e) Adjustment for Issuance of New Shares. If the Company at any time,
or from time to time, after the date hereof, shall issue additional shares of
Capital Stock not otherwise described elsewhere in this Section at a price less
than the Exercise Price then in effect, then, and in each such event:
(i) the Exercise Price then in effect shall be decreased as of the date of such
issuance (the "Issuance Date") by multiplying the Exercise Price then in effect
by a fraction, determined as follows:
(x) the numerator of which shall be the total number of shares of
Capital Stock issued immediately prior to the Issuance Date plus the number of
shares that Holder is entitled to upon full exercise of this Warrant; and
(y) the denominator of which shall be the total number of shares of
Capital Stock issued immediately prior to the Issuance Date plus the number of
shares that Holder is entitled to upon full exercise of this Warrant plus the
number of new shares issued as of the Issuance Date and
(ii) the Number of Issuable Shares shall be increased to equal the number
derived by dividing $l00,000.00 (or $100,000.00 less the price paid for any
shares purchased in a partial exercise of this Warrant, if applicable) by the
adjusted Exercise Price after application of (i) above.
If the Company at any time, or from time to time, after the date hereof shall
issue additional shares of Capital Stock not otherwise described elsewhere in
this Section at a price equal to or greater than the Exercise Price then in
effect, then, and in each such event the Number of Issuable Shares shall be
increased to equal the number derived by multiplying the number of shares which
Holder is entitled to purchase pursuant to this Warrant by a fraction, the
numerator of which shall be the total number of shares of Capital Stock issued
immediately prior to the Issuance Date plus the number of new shares issued as
of the Issuance Date and the denominator of which shall be the total number of
shares of Capital Stock issued immediately prior to the Issuance Date. If such
shares are issued at a price greater than Three Dollars (S3.00) per share, then
the Exercise Price for the additional shares which Holder is entitled to
purchase as a result of the
adjustment set forth herein shall equal the issuance price of such shares. If
such shares are issued at a price equal to or less than Three Dollars ($3.00)
per share, then the Exercise Price for the additional shares which Holder is
entitled to purchase as a result of the adjustment set forth herein shall equal
the then existing Exercise Price. If, at the time a public offering is made of
the Capital Stock of the Company, the Company demonstrates to Holder that the
provisions of this subsection would have a material, adverse impact on the
Company's ability to make such public offering, then Xxxxxx agrees that it shall
negotiate in good faith with the Company to amend this subsection to provide
Holder with a similar position to that provided by this subsection while
ameliorating the impediment to the public offering.
Section III. RESERVATION OF SHARES. The Company hereby agrees that at
all times during the terms of this Warrant there shall be reserved for issuance
such number of shares of its Common Stock as shall be required to be issued upon
exercise of this Warrant.
Section IV. FRACTIONAL SHARES. This Warrant may be exercised only for a
whole number of shares of Common Stock and no fractional shares of scrip
representing fractional shares shall be issuable upon the exercise of this
Warrant.
Section V. STOCKHOLDERS' RIGHTS. Until the valid exercise of this
Warrant and payment in full as provided herein, the holder hereof shall not be
entitled to any rights of a stockholder.
Section VI. EXERCISE TIME AND PRICE. This Warrant is exercisable on or
before September 1, 1996 with respect to 66,667 shares of Common Stock at $1.50
per share (the "Exercise Price").
Section VII. COMPLIANCE WITH SECURITIES ACT; DISPOSITION OF WARRANT OR
SHARES OF COMMON STOCK; RIGHT OF FIRST REFUSAL; RESTRICTION ON TRANSFER
(a) Compliance with Securities Act. The holder of this Warrant, by
acceptance hereof, agrees that this Warrant and the shares of Common Stock to be
issued upon exercise hereof are being acquired for investment and that such
holder will not offer, sell or otherwise dispose of this Warrant or any shares
of Common Stock to be issued upon exercise hereof except under circumstances
which will not result in a violation of the Securities Act of 1933, as amended
(the "Act"). This Warrant (to the extent applicable) and all shares of Common
Stock issued upon exercise of this Warrant (unless either is registered under
the Act) shall be stamped or imprinted with the restrictive legend as appears
hereon.
(b) Disposition of Warrant and Shares. Subject to subsection d
hereinbelow, with respect to any offer, sale, transfer, assignment or other
disposition of this Warrant or any shares of Common Stock acquired pursuant to
the exercise of this Warrant prior to registration of such shares, the holder
hereof and each subsequent holder of the Warrant agrees to give written notice
to the Company prior thereto, describing briefly the manner thereof, together
with the written opinion of counsel satisfactory to the Company, to the effect
that such offer, sale, transfer, assignment or other disposition may be effected
without registration or qualification (under the Act as then in effect or any
federal or state law then in effect) of this Warrant or such shares of Common
Stock and indicating whether or not under the Act certificates for this Warrant
or such shares of Common Stock to be sold or otherwise disposed of require any
restrictive legend as to applicable restrictions on transferability in order to
ensure compliance with the Act. Each certificate representing this Warrant or
the shares of Common Stock thus transferred (except a transfer pursuant to Rule
144) shall bear a legend as to the applicable restriction on transferability in
order to ensure compliance with the Act, unless in the aforesaid opinion of
counsel satisfactory to the company, such legend is not required in order to
ensure compliance with the Act. The Company may issue stop transfer instructions
to its transfer agent in connection with the foregoing restrictions.
(c) Right of First Refusal. In the event that Xxxxxx receives bona fide
third party offer (the "Offer") to purchase this Warrant or any shares of Common
Stock acquired pursuant to the exercise of the Warrant prior to the registration
of such shares and desires to accept such offer, then Holder shall give notice
of such offer to the Company. The Company shall have the right to purchase this
Warrant or any shares of Common Stock acquired pursuant to the exercise of the
Warrant on the same terms and conditions as are set forth in the Offer. If the
Company elects to exercise its rights to purchase the Warrant or the shares of
Common Stock, it shall give notice of the same to the Holder within thirty (30)
days of the date of Holder's notice to the Company. Failure of the Company to
provide such notice within said thirty (30) days shall terminate the Company's
right of first refusal with respect to the Offer.
(d) Restriction on Transfer. Xxxxxx agrees that, unless the Company is
in default after expiration of applicable cure and grace periods under the loan
made by Holder to the Company as of the date hereof and such loan has been
accelerated by CII, it shall not have the right to sell, transfer or assign this
Warrant to a competitor of the Company. For the purposes hereof, a "competitor
of the Company" shall be any person or entity that develops, manufactures or
markets systems for the monitoring of or the locating of breaks and damages in
fiber optic and/or copper lines or any other system or systems currently or in
the future developed, manufactured or marketed by the Company.
Section VIII. REPLACEMENT OF WARRANTS. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of the Warrant or any subsequent Warrant and receipt of an indemnity
agreement reasonably satisfactory to the Company, the Company, at its expense,
will execute and deliver a new Warrant of like tenor.
Section IX. APPLICABLE LAW. This Warrant shall be governed by and
construed in accordance with the laws of the State of Connecticut.
AUTOMATED LIGHT TECHNOLOGIES, INC.
BY:
-----------------------------
XXXX X. XXXXXX
Its President
Dated as of August 2, 1990
ATTEST:
--------------------------
Secretary
PURCHASE FORM
66,667 shares
AUTOMATED LIGHT TECHNOLOGIES
a Delaware corporation
This is to certify that the bearer is entitled to purchase, on or before
September 1, 1996 at 3:30 p.m., 66,667 shares of common stock, $.01 par value of
the above Company, at $1.50 per share, upon presentation of this purchase for m
and payment of the purchase price at the office of the Company at 000 Xxxxxx
Xxxx, Xxxxxx, Xxxxxxxxxxx subject to the provisions of the Warrant to which this
Purchase Form is attached.
The Warrant is transferable subject to the provisions of Section VII of the
Warrant. Xxxxxx agrees that, unless the Company is in default after expiration
of applicable cure and grace periods under the loan made by Holder to the
Company as of the date hereof and such loan has been accelerated by Xxxxxx, it
shall not have the right to sell, transfer or assign this Warrant to a
competitor of the Company. For the purposes hereof, a "competitor of the
Company" shall be any person or entity that develops, manufactures or markets
systems for the monitoring of or the locating of breaks and damages in fiber
optic and/or copper lines or any other system or systems currently or in the
future developed, manufactured or marketed by the Company. By accepting the
Warrant, the Holder agrees that the Company may treat any bearer of this
Purchase Form as absolute owner of the Warrant for all purposes, notwithstanding
any notice to the contrary.
The Warrant shall be void unless the subscription right therein granted is
exercised on or before 3:30 p.m. of September 1, 1996.
Corporate Seal
Attest AUTOMATED LIGHT TECHNOLOGIES, INC.
BY:
-------------------------- ---------------------------------
Secretary XXXX X. XXXXXX
Its President
Duly Authorized
