EXHIBIT 10.15
LASERTECHNICS, INC.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
June 25, 1997
Xxxxxxxxxx Partners L.P. ("WPLP")
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Investment Corporation ("JPMIC")
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Note Purchase Agreement
-----------------------
Dear Sirs:
This letter sets forth the terms and conditions on which
Lasertechnics, Inc., a Delaware corporation (the "Company"), is issuing and
selling to each of WPLP and JPMIC (each, a "Purchaser") on the date hereof: (a)
a Senior Promissory Note of the Company in substantially the form attached
hereto as Exhibit A (each, a "Note"); (b) the number of shares (the "Restricted
Shares") of Common Stock, $.01 par value (the "Common Stock"), of the Company
determined as set forth in paragraph 2, below; and (c) a warrant in
substantially the form attached hereto as Exhibit B (each, a "Warrant") to
purchase the number of shares (the "Warrant Shares") of Common Stock determined
as set forth in paragraph 3, below.
1. Senior Promissory Notes.
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(a) General. The Senior Promissory Notes shall represent and evidence
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the indebtedness of the Company to the Purchasers for advances made by the
Purchasers to the Company from time to time thereunder ("Advances"), including
without limitation the unpaid principal amount of, and accrued interest on, all
Advances, and any additional amounts that may be owed by the Company to the
Purchasers in respect thereof. Advances shall be made from time to time in cash,
or by the cancellation and exchange of other existing indebtedness, as the
Company may request; provided, however, that (i) the Purchasers shall not be
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obligated to make any Advances in excess of the initial Advances made by each
Purchaser on the date hereof, (ii) the Purchasers shall not be entitled to make
any Advances, or to purchase any Notes or Warrants hereunder, unless requested
by the Company, and (iii) except as provided in paragraph 1(c), below, any
Advances made by the Purchasers hereunder shall be made 60% by WPLP and 40% by
JPMIC, unless both WPLP and JPMIC agree to a different ratio. The rights and
obligations of WPLP and JPMIC hereunder are several and independent,
Lasertechnics, Inc.
Note Purchase Agreement, dated June 25, 1997
Page 2 of 10
and nothing herein shall be construed to constitute either WPLP or JPMIC as the
agent, representative, partner, joint venturer or fiduciary of the other.
(b) Interest Rate. The Base Interest Rate for all Advances by WPLP
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under its Note shall be 10.00% per annum. The Base Interest Rate for all
Advances by JPMIC under its Note shall be 6.64% per annum.
(c) Prior Advance by WPLP. Concurrently with the purchase and sale of
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the Notes hereunder (the "Initial Closing"), the Company and WPLP have agreed to
convert certain prior advances by WPLP to the Company in the aggregate principal
amount of $1,000,000 (the "Prior Advances") into Advances under the Notes.
Accordingly, at the Initial Closing: (i) the Prior Advances shall be recorded
with appropriate notations on the Notes; (ii) all promissory notes representing
the Prior Advances, and all common stock warrants issued by the Company to WPLP
in respect of the Prior Advances, shall be canceled and surrendered to the
Company against receipt of the securities issued to WPLP hereunder; and (iii)
the indebtedness of the Company to WPLP represented by the Prior Advances shall
constitute an Advance by WPLP to the Company under the Notes in the aggregate
principal amount of the Prior Advances, for all purposes hereof.
2. Restricted Shares. Upon the making of each Advance under the
-----------------
Notes, the Company shall issue to each Purchaser 45.714 Restricted Shares for
each $1,000 principal amount of such Advance.
3. Common Stock Warrants. Upon the making of each Advance under the
---------------------
Notes, the Company shall issue to each Purchaser a Warrant representing the
right to purchase 200 Warrant Shares for each $1,000 principal amount of such
Advance, at an exercise price of $.70 per share. Each Warrant shall be
exercisable for a period of three years from the date of issuance.
4. Allocation of Purchase Price. The amount of each Advance
----------------------------
hereunder shall be allocated as purchase price among the Notes (or, in the case
of any Advance following the Initial Closing, the increase in the principal
amount of the Notes), the Restricted Shares and the Warrants being purchased by
each Purchaser hereunder in such manner as such Purchaser shall reasonably
determine with the Company's consent, which consent shall not unreasonably be
withheld or delayed; provided, however, that the portion of such purchase price
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allocated to such Restricted Shares shall not in any event be less than the par
value per share of the Common Stock at the time of such Advance multiplied by
the number of such shares.
Lasertechnics, Inc.
Note Purchase Agreement, dated June 25, 1997
Page 3 of 10
5. Loan Fee. In consideration for work performed in connection with
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structuring, arranging for and providing the financings contemplated hereby,
upon the making of each Advance under the Notes, the Company shall pay to each
Purchaser a loan fee (the "Loan Fee") in the amount of 4% of the principal
amount of such Advance, payable in shares of Common Stock, valued at $.70 per
share (the "Loan Fee Shares").
6. Pledge of Subsidiary Stock.
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(a) The obligations of the Company under the Notes, including
without limitation the principal amount of, and accrued interest on,
all Advances, shall be ratably secured by the pledge and collateral
assignment of, and the grant of a security interest in, all the issued
and outstanding shares (the "Pledged Shares") of capital stock of
Lasertechnics Marking Corporation, a wholly-owned subsidiary of the
Company (the "Stock Pledge"). The Stock Pledge shall be on such terms
as are reasonable and customary for transactions such as the
transactions contemplated hereby. Prior to the occurrence of an event
of default under the Notes, the Purchasers shall not have any rights
with respect to the voting or disposition of any shares of such
subsidiary capital stock so pledged.
(b) Concurrently, with the execution and delivery of this
Agreement, the Company is delivering to JPMIC, as collateral agent
for the benefit of the holders of the Notes, ratably in proportion to
the respective aggregate unpaid principal amounts thereof (the
"Collateral Agent"), certificates representing the Pledged Shares,
together with stock powers in customary form. The Company hereby
pledges the Pledged Shares to the Collateral Agent, and grants to the
Collateral Agent a security interest therein, to secure the full and
timely payment and performance of all obligations of the Company under
the Notes, in accordance with paragraph 6(a), above, effective at the
Initial Closing. The parties shall use their respective best
commercially reasonable efforts to negotiate, execute and deliver a
definitive pledge agreement, in customary and reasonable form, to
further document the Stock Pledge on terms and conditions consistent
with the terms and conditions set forth herein (the "Pledge
Agreement"), and upon the effectiveness of the Pledge Agreement, the
terms of the Pledge Agreement shall amend and supersede any contrary
provisions of this paragraph 6(b).
7. Late Payment. In the event the Company fails to repay the entire
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principal amount of, and accrued interest on, all Advances by 3:00 p.m., New
York City time, on the Final Maturity Date, the Company shall issue to each
Purchaser the following additional consideration as a late payment fee:
Lasertechnics, Inc.
Note Purchase Agreement, dated June 25, 1997
Page 4 of 10
(a) that number of shares of Common Stock equal to (i) the
aggregate unpaid principal amount of all Advances outstanding on the
Final Maturity Date, times (ii) 1%, divided by (iii) the average
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closing price per share of the Common Stock for the 10 trading days
immediately preceding the Final Maturity Date, as reported in the Wall
Street Journal (or, if not so reported, as determined in good faith by
a majority of the disinterested members of the Board of Directors of
the Company) (such average, the "Current Market Price"); and
(b) a Warrant to purchase that number of shares of Common Stock
equal to (i) the aggregate unpaid principal amount of all Advances
outstanding on the Final Maturity Date, times (ii) 5%, divided by
----- ------- --
(iii) the Current Market Price on the Final Maturity Date; such
warrant to be exercisable for a period of three years commencing on
the Final Maturity Date, at an exercise price per share equal to the
Current Market Price on the Final Maturity Date.
The provision of this paragraph 7 will be subject to appropriate
adjustments in the event of any stock split, reverse stock split, or similar
transaction affecting the Common Stock between the date hereof and the Final
Maturity Date.
8. Securities Act Legend. The securities issued pursuant to this
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Agreement, including the Notes, the Restricted Shares, the Warrants, the Loan
Fee Shares, and any additional shares of Common Stock and Warrants issued
pursuant to paragraph 7 hereof, will not be registered under the Securities Act
of 1933, as amended (the "Securities Act"). Certificates representing the
Restricted Shares, shares of Common Stock issued upon exercise of Warrants, and
shares of Common Stock issued in payment of the Loan Fee or pursuant to
paragraph 7(a) shall bear a restrictive legend substantially to the effect of
the following:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, OR APPLICABLE STATE SECURITIES LAWS, NOR THE
SECURITIES LAWS OF ANY OTHER JURISDICTION. THEY MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER
THOSE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION THEREFROM."
9. Right to Exchange Notes. Each Purchaser shall have the non-
-----------------------
assignable right, exercisable upon 30 days' prior written notice to the Company
given at any time after September 1, 1997, to exchange the unpaid principal
amount of the Advances of such Purchaser, in whole or in part, for an equal
principal amount of convertible debentures of the Company
Lasertechnics, Inc.
Note Purchase Agreement, dated June 25, 1997
Page 5 of 10
having substantially the same economic terms and conditions as the Company's
existing 10% convertible debentures due March 1, 1999 (or any other convertible
debt security issued to refinance, or in substitution or exchange for, such
convertible debentures), as such terms and conditions shall be in effect at the
time of any exchange pursuant to this paragraph 9.
10. Representations and Warranties by the Company. The Company
---------------------------------------------
hereby represents and warrants to each Purchaser as follows:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, and has the
corporate power and authority to execute, deliver and perform its
obligations under this Agreement, the Notes, the Warrants and the Pledge
Agreement.
(b) The execution and delivery by the Company of this Agreement, the
Notes, the Warrants and the Pledge Agreement, and the performance by the
Company of its obligations hereunder and thereunder, have been duly
authorized by all requisite corporate action on the part of the Company and
will not (i) violate any provision of law, statute, rule or regulation or
any order of any court or other agency of government, (ii) conflict with or
violate the Certificate of Incorporation or By-Laws of the Company, in each
case as amended to the date hereof, or (iii) violate, conflict with or
constitute (with due notice or lapse of time or both) a default under any
indenture, mortgage, lease, license, agreement or other contract or
instrument or result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon the properties or assets of the
Company or any of its subsidiaries (other than the lien of the Stock Pledge
granted hereunder and under the Pledge Agreement), in each case if such
violation, conflict, default, lien, charge or encumbrance would have a
material adverse effect on the Company.
(c) This Agreement, the Notes and the Warrants have been duly executed
and delivered by the Company and constitute, and the Pledge Agreement when
duly executed and delivered will constitute, the valid and legally binding
obligations of the Company, enforceable in accordance with their respective
terms, except to the extent the enforceability thereof may be limited by
applicable bankruptcy, moratorium or similar laws affecting the rights of
creditors generally.
(d) Based in part upon the representations and warranties of each
Purchaser contained in this Agreement, no registration or filing with, or
consent or approval of, or other action by, any federal, state or other
governmental department, commission, board, bureau, agency or
instrumentality or any third party is or will be necessary for (a) the
Lasertechnics, Inc.
Note Purchase Agreement, dated June 25, 1997
Page 6 of 10
Company's execution and delivery of this Agreement, the Notes and the
Warrants, and the Company's performance of its obligations hereunder and
thereunder.
(e) Attached hereto as Schedule 10(e) are (i) a memorandum dated June
19, 1997, from the Company's subsidiary Sandia Imaging Systems Corporation,
stating that division's outstanding accounts receivable, firm orders and
verbal orders as of June 18, 1997, and (ii) a letter dated June 20, 1997,
from the Company's subsidiary Lasertechnics Marking Corporation, stating
that division's outstanding accounts receivable and firm orders as of June
18, 1997. Such memorandum and letter, and the attachments thereto, were
prepared by the Company in good faith and are believed by the Company to be
accurate. The accounts receivable reflected therein represent valid
accounts for goods sold and/or services performed in the conduct of the
Company's business.
(f) The Restricted Shares and the Loan Fee Shares issued to such
Purchaser hereunder are, and the Warrant Shares, when issued upon the
exercise of such Purchaser's Warrant in accordance with the terms hereof
will be, duly authorized, validly issued, fully paid and non-assessable,
and are not subject to any pre-emptive rights.
(g) The Company is the record holder and beneficial owner of the
Pledged Shares and owns the Pledged Shares free and clear of all liens
and encumbrances, other than the lien of the Stock Pledge created hereunder
and under the Pledge Agreement.
11. Representations and Warranties of Each Purchaser. Each Purchaser
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hereby severally represents and warrants to the Company as follows:
(a) Such Purchaser is acquiring the Note, the Warrant and the
Restricted Shares to be purchased by it hereunder, and the Loan Fee Shares
issued to it pursuant to paragraph 5 hereof (collectively, the "Acquired
Securities"), and, if such Purchaser acquires Warrant Shares upon the
exercise of such Warrant, such Purchaser will be acquiring such Warrant
Shares, for its own account, for investment and not with a view to the
distribution thereof within the meaning of the Securities Act.
(b) Such Purchaser understands that the Acquired Securities have not
been, and the Warrant Shares will not be, registered under the Act, by
reason of their issuance by the Company in transactions exempt from the
registration requirements of the Act, and that such Acquired Securities and
Warrant Shares must be held by such Purchaser indefinitely unless a
subsequent disposition thereof is registered under the Act or is exempt
from such registration.
Lasertechnics, Inc.
Note Purchase Agreement, dated June 25, 1997
Page 7 of 10
(c) Such Purchaser further understands that the exemption from
registration afforded by Rule 144 (the provisions of which are known to it)
promulgated under the Act depends on the satisfaction of various
conditions, and that, if applicable, Rule 144 may afford the basis for
sales only in limited amounts.
(d) Such Purchaser understands that its investments hereunder involve
substantial risks and represents and warrants that it has made such
independent examination and investigation of the Company as it has deemed
necessary in making its investment decision.
(e) Such Purchaser is able to bear the economic risk of the
investments contemplated by this Agreement and has such knowledge and
experience in financial and business matters that it is capable of
evaluating the merits and risks of the investment contemplated by this
Agreement.
12. Miscellaneous. (a) This Agreement, the Notes and the Warrants
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constitute our entire agreement with respect to the subject matter hereof, and
this Agreement may not be modified or amended or any provision hereof waived
except by an instrument in writing signed by the Company and each Purchaser.
(b) This Agreement, the Notes and the Warrants shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns. The rights of each Purchaser hereunder shall be
assignable to any holder of the Notes, provided that the right of each Purchaser
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under paragraph 9 above to exchange Notes for Convertible Debentures shall not
be assignable to any person without the prior written consent of the Company.
Except as provided in the immediately preceding sentence, this Agreement and the
rights of the Purchasers hereunder shall not be assignable and any purported
assignment thereof shall be void.
(c) This Agreement may be executed in any number of counterparts and
on separate counterparts, each of which shall be an original instrument, but all
of which together shall constitute a single agreement. One or more signature
pages from any counterpart of this Agreement may be attached to any other
counterpart of this Agreement without in any way changing the effect thereof.
This Agreement shall be effective as to each Purchaser, severally, when executed
and delivered by the Company and such Purchaser.
(d) All notices, requests, demands, consents, waivers, or other
communications made hereunder or under the Notes or the Warrants to any party or
holder thereof shall be in writing and shall be deemed to have been duly given
if delivered personally or
Lasertechnics, Inc.
Note Purchase Agreement, dated June 25, 1997
Page 8 of 10
sent by nationally-recognized overnight courier or first class registered or
certified mail, return receipt requested, postage prepaid, addressed to such
party at the address set forth below:
if to the Company, to:
Lasertechnics, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Chief Financial Officer
with a copy to:
Xxxxx & Xxxxx, L.L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Leaf, Esq.
if to a Purchaser, to such Purchaser at its address first set
forth above,
or to such other address as the party to whom such communication is to be given
may have furnished to the other party in writing in accordance herewith. All
such notices, requests, demands, consents, waivers or other communications shall
be deemed to have been delivered (i) in the case of personal delivery, on the
date of delivery, (ii) if sent by overnight courier, on the next business day
following the date when send and (iii) in the case of mailing, on the third
business day following such mailing.
(e) All representations, warranties and agreements contained herein
and in the Notes and the Warrants shall survive the execution and delivery of
this Agreement and the sale of the Notes and the Warrants hereunder.
(f) Nothing contained herein shall be construed to prohibit either
Purchaser from selling or otherwise disposing of any Acquired Securities
acquired by such Purchaser hereunder; provided that such sale or disposition,
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and any and all related offers, are made in compliance with the Securities Act,
any other applicable securities and blue sky laws, and all applicable rules and
regulations thereunder.
Lasertechnics, Inc.
Note Purchase Agreement, dated June 25, 1997
Page 9 of 10
(g) THIS AGREEMENT AND ALL RIGHTS, OBLIGATIONS AND LIABILITIES
HEREUNDER SHALL BE CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN. Any judicial
proceeding brought against the Company to enforce, or otherwise in connection
with, this Agreement may be brought in any court of competent jurisdiction in
the City of New York, and, by execution and delivery of this Agreement, the
Company (i) accepts, generally and unconditionally, the nonexclusive
jurisdiction of such courts and any related appellate court and irrevocably
agrees to be bound by any final judgment rendered thereby in connection with
this Agreement and (ii) irrevocably waives any objection it may now or hereafter
have as to the venue of any such proceeding brought in such a court or that such
a court is an inconvenient forum.
If the foregoing correctly sets forth your understanding of our
agreement, please so indicate by signing and returning to the Company the
enclosed counterpart of this Agreement.
Very truly yours,
LASERTECHNICS, INC.
/s/ E.A. XXXX XXXXXXXXX
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Name: E.A. Xxxx Xxxxxxxxx
Title: Vice President & CFO
Each of the undersigned agrees with and
accepts the foregoing terms and provisions
as of the date first above written.
XXXXXXXXXX PARTNERS L.P.
/s/ XXXXXXX X.X. XXXXXX
--------------------------------
Name: Xxxxxxx X.X. Xxxxxx
Title: Partner
X.X. XXXXXX INVESTMENT CORPORATION
/s/ XXXXXX X. KISS
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Name: Xxxxxx X. Kiss
Title: Vice President
EXHIBIT A
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"TO NOTE PURCHASE AGREEMENT"
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, OR APPLICABLE STATE SECURITIES LAWS, NOR THE SECURITIES LAWS OF ANY
OTHER JURISDICTION. THEY MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THOSE SECURITIES LAWS OR PURSUANT TO AN
EXEMPTION THEREFROM.
LASERTECHNICS, INC.
SENIOR PROMISSORY NOTE
----------------------
Master Note June 25, 1997
LASERTECHNICS, INC., a Delaware corporation having its principal place of
business in Carrollton, Texas (the "Company"), for value received, hereby
promises to pay to the order of Xxxxxxxxxx Partners L.P., a Delaware limited
partnership, or its transferees or assigns (the "Holder"), on December 31, 1997
(the "Final Maturity Date"), the unpaid principal amount of all advances made by
the Holder to the Company hereunder ("Advances"), as recorded on the grid below,
including any additional pages (the "Grid"), together with interest thereon from
the date of such Advance recorded on the Grid, at the rate of ten percent (10%)
per annum*, calculated on the basis of the actual number of days elapsed over
a 364- (or 365-) day year (the "Base Interest Rate"). Each payment received by
the Holder hereunder shall be applied to Advances in reverse of the order in
which such Advances were made, and each such payment shall be applied first to
the interest accrued on and then to the unpaid principal amount of the
applicable Advance. This Note is one of the Senior Promissory Notes ("Notes")
issued and sold by the Company under the Note Purchase Agreement dated as of
June 25, 1997 (the "Note Purchase Agreement"), among the Company, the initial
Holder and the other purchaser named therein, and the Holder shall be entitled
to the benefits of any collateral security provided for therein for the benefit
of Holders of Senior Notes.
Payment of principal and interest shall be made in such coin or currency of
the United States of America as at the time of payment shall be legal tender for
the payment of public and private debts. All such payments shall be paid by wire
transfer of Federal funds in accordance with the written instructions of the
Holder or, in the absence of such instructions, by check mailed to the Holder at
the address last given to the Company by the Holder in writing for such purpose.
This Note may be prepaid in whole or in part at any time at the option of
the Company, without premium or penalty, upon not less than 20 days' prior
written notice to the Holder.
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*6.64% for JPMIC
Page 1 of 3
If any time after the date hereof the Company or any subsidiary completes
(i) an equity or long-term debt financing, (ii) a sale of assets outside the
ordinary course of business, (iii) a sale-leaseback or similar financing, or
(iv) a joint venture or other strategic partnership (any such transaction, an
"Extraordinary Transaction"), and such Extraordinary Transaction results in cash
proceeds to the Company (together with the cash proceeds of any other
Extraordinary Transaction after the date hereof, to the extent not previously
applied) in excess of $1,000,000 (such excess, the "Available Cash Proceeds"),
then the full amount of Available Cash Proceeds shall be applied to prepay this
Note as provided herein; provided, however, that if the Available Cash Proceeds
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are not sufficient to pay in full the principal of, and accrued interest on,
this Note and all other Notes issued under the Note Purchase Agreement, then the
Available Cash Proceeds shall be applied to prepay this Note and all other Notes
issued under the Note Purchase Agreement on a pro rata basis, in proportion to
--- ----
the respective aggregate unpaid principal amounts thereof.
The Company hereby waives presentment for payment, demand for payment,
notice of nonpayment, protest and notice of protest.
This Note may be prepaid in whole or in part (in amounts not less than
$50,000) at any time at the option of the Company, upon not less than 20 days'
prior written notice to the Holder, without premium or penalty; provided,
--------
however, that any amounts prepaid hereunder or under any of the other Notes
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shall be applied to prepay this Note and all other Notes issued under the Note
Purchase Agreement on a pro rata basis, in proportion to the respective
--- ----
aggregate unpaid principal amounts thereof.
This Note shall be binding upon the Company and its successors and assigns
and shall inure to the benefit of the Holder and its successors, assigns and
transferees.
If the Company fails to pay any amount of principal or interest when due,
the entire unpaid principal of and accrued interest on all Advances shall
forthwith become absolutely due and payable without any notice, demand, protest
or presentment whatsoever, all of which are hereby expressly waived. Interest
on any past due principal amount, whether at the Final Maturity Date or by
acceleration, shall accrue at a rate equal to the Base Interest Rate plus five
percent (5%) per annum, but in no event higher than the maximum legal rate of
interest permitted under applicable law. In addition, if any amount payable
hereunder shall remain unpaid after 3:00 p.m., New York City time, on the Final
Maturity Date, the Company shall pay to the record Holder of this Note at such
time the Additional Consideration provided for in the Note Purchase Agreement
(as such term is defined therein). The Company shall pay to the Holder all
costs and expenses of collection and enforcement relating to this Note,
including without limitation reasonable attorneys' fees and expenses.
This Note shall be governed by and construed in accordance with the laws of
the State of New York, without reference to its rules as to conflicts of law.
Any judicial proceeding brought against the Company to enforce, or otherwise in
connection with, this Note may be brought in any court of competent jurisdiction
in the City of New York, and, by execution and delivery of this Note, the
Company (i) accepts, generally and unconditionally, the nonexclusive
jurisdiction of such courts and any related appellate court and irrevocably
agrees to be bound by any final judgment rendered thereby in connection with
this Note and (ii) irrevocably waives any objection it may now or hereafter have
Page 2 of 3
as to the venue of any such proceeding brought in such a court or that such a
court is an inconvenient forum.
THE COMPANY HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES TRIAL BY JURY IN
ANY ACTION, SUIT, COUNTERCLAIM OR CROSS CLAIM ARISING OUT OF OR IN CONNECTION
WITH THIS NOTE.
IN WITNESS WHEREOF, the Company has caused this Note to be signed by its
Vice President and has caused its corporate seal to be affixed and attested by
its Secretary.
[Corporate Seal] Attested: LASERTECHNICS, INC.
By:
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X. X. Xxxx Xxxxxxxxx X. X. Xxxx Xxxxxxxxx
Secretary Vice President and Chief Financial Officer
GRID
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ADVANCES PAYMENTS
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Balance Due
Date Made Amount Date Made Principal Interest on principal Recorded By
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Page 3 of 3
EXHIBIT B
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"TO NOTE PURCHASE AGREEMENT"
NEITHER THIS WARRANT NOR ANY SHARES ACQUIRED UPON EXERCISE OF THIS WARRANT HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR UNDER ANY STATE
SECURITIES LAWS. NEITHER THIS WARRANT NOR ANY SUCH SHARES MAY BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND STATE SECURITIES LAWS OR THE AVAILABILITY OF AN
EXEMPTION FROM SUCH REGISTRATION.
WARRANT NO. ______ FOR THE PURCHASE OF _______________ SHARES
LASERTECHNICS, INC.
COMMON STOCK PURCHASE WARRANT
-----------------------------
THIS CERTIFIES THAT, for value received, _______________________
("__________") or its successors in interest, assigns or transferees
(collectively, the "Warrant Holder"), is entitled to purchase from
Lasertechnics, Inc., a Delaware corporation (the "Company"), ______________
shares of the Company's Common Stock (as defined in paragraph 9(a) hereof) (the
"Warrant Shares") at the exercise price of SEVENTY CENTS ($.70) per share
("Exercise Price"). The number of Warrant Shares and the Exercise Price shall
be adjusted and readjusted or changed from time to time in accordance with
paragraph 4 hereof.
This Warrant may be exercised at any time and from time to time on or prior
to the third anniversary of the date of issuance set forth on the signature page
of this Warrant.
1. Exercise of Warrant.
-------------------
The rights represented by this Warrant may be exercised by the Warrant
Holder, in whole or in part, by (a) delivering to the Company a duly executed
notice of exercise in the form of Annex A hereto and (b) at the Warrant Holder's
option, either (i) delivering a check payable to (or wire transfer to the
account of) the Company in an amount equal to the product of (x) the Exercise
Price times (y) the number of Warrant Shares as to which this Warrant is being
exercised (such product, the "Total Exercise Price") or (ii) delivering to the
company a letter (the "Conversion Letter") requesting conversion or exchange of
a portion of any indebtedness owed by the Company to the Warrant Holder in an
amount equal to the Total Exercise Price or (iii) surrendering to the Company a
portion of this Warrant with a "Value" (as defined below) equal to the Total
Exercise Price. For the purpose of clause (b)(iii) above, "Value" shall mean the
product of (I) the amount by which the average closing price per share of the
Company's Common Stock over the ten trading days preceding the date of exercise,
as reported in the Wall
Page 1 of 9
Street Journal, exceeds the Exercise Price and (II) the number of Warrant Shares
as to which this Warrant is surrendered for the purpose of effecting payment for
Warrant Shares. This Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of delivery of a duly executed notice
of exercise, together with the amount (in cash or by delivering the Conversion
Letter or by surrender of a portion of this Warrant) payable upon exercise of
this Warrant and, as of such moment, (i) the rights of the Warrant Holder, as
such, with respect to the number of Warrant Shares as to which this Warrant is
being exercised (and, if applicable, surrendered as payment of the Total
Exercise Price) shall cease, and (ii) such Warrant Holder shall be deemed to be
the record holder of the shares of Common Stock issuable upon such exercise. As
soon as practicable after the exercise, in whole or in part, of this Warrant,
and in any event within 5 business days thereafter, the Company at its expense
(including the payment by it of any applicable issuance or stamp taxes) will
cause to be issued in the name of and delivered to the Warrant Holder, or as the
Warrant Holder (upon payment by the Warrant Holder of any applicable transfer
taxes) may direct, a certificate or certificates for the number of fully paid
and nonassessable shares of Common Stock to which the Warrant Holder shall be
entitled upon such exercise. In the event of partial exercise of this Warrant
and, if applicable, partial surrender of this Warrant pursuant to clause
(b)(iii) of this paragraph, the Warrant need not be delivered to the Company
provided that the Warrant Holder agrees to make a notation of such partial
exercise and, if applicable, surrender on the Warrant. If this Warrant is
delivered to the Company, the Company shall issue and deliver to the Warrant
Holder a new Warrant evidencing the rights to purchase the remaining Warrant
Shares, which new Warrant shall in all other respects be identical to this
Warrant.
2. Investment Representation.
-------------------------
The Warrant Holder by accepting this Warrant represents that the Warrant
Holder is acquiring this Warrant for its own account or the account of an
affiliate for investment purposes and not with the view to any offering or
distribution and that the Warrant Holder will not sell or otherwise dispose of
this Warrant or the underlying Warrant Shares in violation of applicable
securities laws. The Warrant Holder acknowledges that the certificates
representing any Warrant Shares will bear a legend indicating that they have not
been registered under the Act, and may not be sold by the Warrant Holder except
pursuant to an effective registration or pursuant to an exemption from
registration. The Warrant Holder shall be entitled to include the Warrant Shares
in any demand or piggyback registration to which Warrant Holder is otherwise
entitled in respect of Common Stock held by it, in accordance with (and subject
to) the terms and conditions of any agreement between the Company and the
Warrant Holder with respect to such registration rights.
3. Validity of Warrant and Issue of Shares.
---------------------------------------
The Company represents and warrants that this Warrant has been duly
authorized and validly issued and covenants and agrees that all shares of Common
Stock that may be issued upon the exercise of the rights represented by this
Warrant will, when issued upon such exercise, be duly authorized, validly
issued, fully paid and nonassessable and free from all taxes, liens and
Page 2 of 9
charges with respect to the issue thereof. The Company further covenants and
agrees that during the period within which the rights represented by this
Warrant may be exercised, the Company will at all times have authorized and
reserved a sufficient number of shares of Common Stock to provide for the
exercise of the rights represented by this Warrant.
4. Antidilution Provisions.
-----------------------
The terms of this Warrant shall be subject to adjustment as follows:
(a) If the Company shall (i) pay a stock dividend or make a distribution to
holders of Common Stock in shares of its Common Stock, (ii) subdivide its
outstanding shares of Common Stock, (iii) combine its outstanding shares of
Common Stock into a smaller number of shares, or (iv) issue by reclassification
of its shares of Common Stock any shares of capital stock of the Company, (A)
the Exercise Price shall be increased or decreased, as the case may be, to an
amount which shall bear the same relation to the Exercise Price in effect
immediately prior to such action as the total number of shares outstanding
immediately prior to such action shall bear to the total number of shares
outstanding immediately after such action and (B) this Warrant automatically
shall be adjusted so that it shall thereafter evidence the right to purchase the
kind and number of Warrant Shares or other securities which the Warrant Holder
would have owned and would have been entitled to receive after such action if
this Warrant had been exercised immediately prior to such action or any record
date with respect thereto. An adjustment made pursuant to this subparagraph (a)
shall become effective retroactively immediately after the record date in the
case of a dividend or distribution of Common Stock and shall become effective
immediately after the effective date in the case of a subdivision, combination
or reclassification.
(b) If the Company shall fix a record date for the making of a distribution
to all holders of Common Stock (including any such distribution made in
connection with a consolidation or merger in which the Company is the continuing
corporation) of (i) assets (other than cash dividends or cash distributions
payable out of consolidated net income or retained earnings or dividends payable
in Common Stock), (ii) evidences of indebtedness or other debt or equity
securities of the Company, or of any corporation other than the Company (except
for the Common Stock of the Company) or (iii) subscription rights, options or
warrants to purchase any of the foregoing assets or securities, whether or not
such rights, options or warrants are immediately exercisable (hereinafter
collectively called "Distributions on Common Stock"), the Company shall make
provisions for the Warrant Holder to receive upon exercise of this Warrant, a
proportional amount (depending upon the extent to which this Warrant is
exercised) of such assets, evidences of indebtedness, securities or such other
rights, as if such Warrant Holder had exercised this Warrant on or before such
record date.
(c) In the case of any consolidation or merger of the Company with or into
another corporation or the sale of all or substantially all the assets of the
Company to another person or entity, this Warrant thereafter shall be
exercisable for the kind and amount of shares of stock or other securities or
property to which a holder of the number of shares of Common Stock of the
Page 3 of 9
Company deliverable upon exercise of this Warrant would have been entitled upon
such consolidation, merger or sale; and, in such case, appropriate adjustment
shall be made in the application of the provisions in this paragraph 4, to the
end that the provisions set forth in this paragraph 4 (including provisions with
respect to changes in and adjustments of the exercise price) shall thereafter be
applicable, as nearly as reasonably may be, in relation to any shares of stock
or other securities or property thereafter deliverable upon the exercise of this
Warrant.
(d) Upon the occurrence of each adjustment or readjustment of the exercise
price or any change in the number of Warrant Shares or in the shares of stock or
other securities or property deliverable upon exercise of this Warrant pursuant
to this paragraph 4, the Company at its expense shall promptly compute such
adjustment or readjustment and change in accordance with the terms hereof and
furnish to each holder hereof a certificate signed by the chief financial
officer of the Company, setting forth such adjustment or readjustment and change
and showing in detail the facts upon which such adjustment or readjustment and
change is based. The Company shall, upon the written request at any time of the
Warrant Holder, furnish or cause to be furnished to such Holder, a similar
certificate setting forth (i) such adjustment or readjustment and change, (ii)
the Exercise Price then in effect, and (iii) the number of Warrant Shares and
the amount. if any, of other shares of stock and other securities and property
which would be received upon the exercise of the Warrant.
(e) The Company shall not be required upon the exercise of this Warrant to
issue any fraction of shares, but shall make any adjustment therefor by rounding
the number of shares obtainable upon exercise to the next highest whole number
of shares.
5. Transfer of Rights.
------------------
This Warrant is transferable in whole or in part, at the option of the
Warrant Holder upon delivery of the Warrant Assignment Form annexed as Annex B
hereto, duly executed. The Company shall execute and deliver a new Warrant or
Warrants in the form of this Warrant with appropriate changes to reflect the
issuance of subsequent Warrants, in the name of the assignee or assignees named
in such instrument of assignment and, if the Warrant Holder's entire interest is
not being transferred or assigned, in the name of the Warrant Holder, and this
Warrant shall promptly be canceled. Any transfer or exchange of this Warrant
shall be without charge to the Warrant Holder and any new Warrant or Warrants
issued shall be dated the date hereof. The term "Warrant" as used herein
includes any Warrants into which this Warrant may be divided or for which it may
be exchanged. The Warrant Holder (and not the Company) will be responsible for
any stamp, transfer or other taxes payable on any such transfer.
Page 4 of 9
6. Lost, Mutilated or Missing Warrant.
----------------------------------
Upon receipt by the Company of evidence satisfactory to it of the loss,
theft, destruction or mutilation of this Warrant, and upon surrender and
cancellation of this Warrant, if mutilated, the Company shall execute and
deliver a new Warrant of like denomination and date.
7. Rights of Warrant Holder.
------------------------
The Warrant Holder shall not, by virtue hereof, be entitled to any voting
or other rights of a shareholder of the Company, either at law or equity, and
the rights of the Warrant Holder are limited to those expressed in this Warrant.
8. Successors.
----------
All the provisions of this Warrant by or for the benefit of the Company or
the Warrant Holder shall bind and inure to the benefit of their respective
successors and assigns.
9. Miscellaneous.
-------------
(a) As used herein, the term "Common Stock" shall mean and include the
Company's currently authorized common stock, $.01 par value per share, and stock
of any other class or other consideration into which such currently authorized
Common Stock may hereafter have been changed.
(b) This Warrant shall be construed in accordance with and governed by the
laws of the State of Delaware.
(c) The caption headings used in this Warrant are for convenience of
reference only and shall not be construed in any way to affect the
interpretation of any provisions of this Warrant.
10. Notices.
-------
Any notice pursuant to this Warrant shall be effective if sent by first
class mail, postage prepaid, or delivered by facsimile transmission, addressed
as follows:
Page 5 of 9
If to the Company, then to it at:
Lasertechnics, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Facsimile No.: (000) 000-0000
(or to such other address as the Company may have furnished in writing to
the Warrant Holder for this purpose); and
If to the Warrant Holder, then to it at such address as such Warrant Holder
may have furnished in writing to the Company for this purpose.
Page 6 of 9
IN WITNESS WHEREOF, the Company, intending to be legally bound hereby, has
caused this Warrant to be signed by its Vice President, and attested by its
Secretary or Assistant Secretary as of the date set forth below.
LASERTECHNICS, INC.
By:
----------------------------
Name:
Title:
Attest:
---------------------
Name:
Title:
ISSUANCE DATE:
-------------------
Page 7 of 9
ANNEX A
-------
COMMON STOCK PURCHASE WARRANT
-----------------------------
NOTICE OF EXERCISE
____________ 19__
To: LASERTECHNICS, INC.
The undersigned, pursuant to the provisions set forth in Warrant No. ________,
hereby irrevocably elects and agrees to purchase ________ shares of the
Company's Common Stock covered by such Warrant, and makes payment herewith in
full therefor of the Total Exercise Price of $__________.
The undersigned hereby represents that the undersigned is exercising such
Warrant for its own account or the account of an affiliate and will not sell or
otherwise dispose of the underlying Warrant Shares in violation of applicable
securities laws. If said number of shares is less than all of the shares
purchasable hereunder the undersigned requests that a new Warrant evidencing the
rights to purchase the remaining Warrant Shares (which new Warrant shall in all
other respects be identical to the Warrant exercised hereby) be registered in
the name of ____________________________________ whose address is:
-----------------------------
-----------------------------
-----------------------------
Signature:
------------------------------------
Printed Name:
------------------------------------
Address:
------------------------------------
------------------------------------
------------------------------------
Page 8 of 9
ANNEX B
-------
ASSIGNMENT
FOR VALUE RECEIVED ______________________ hereby sells, assigns and
transfers all of its rights as set forth in Warrant No. ________ with respect to
the shares of the Company's Common Stock covered thereby as set forth below
unto:
NAME OF ASSIGNEE(S) ADDRESS(ES) NO. OF SHARES
------------------- ----------- -------------
------------------- ----------------------- -------------
------------------- ----------------------- -------------
All notices to be given by the Company to the Warrant Holder pursuant to
paragraph 10 of Warrant No. ________ shall be sent to the Assignee(s) at the
above stated address(es), and, if the number of shares being hereby assigned is
less than all of the shares covered by Warrant No. ________, than also to the
undersigned.
The undersigned requests that the Company execute and deliver, if necessary
to comply with the provisions of paragraph 5 of Warrant No. ________, a new
Warrant or, if the number of shares being hereby assigned is less than all of
the shares covered by Warrant No. ________, new Warrants in the name of the
undersigned, the assignee and/or the assignees, as is appropriate.
Dated:______________, 19__
Signature:
-------------------------------
Printed Name:
-------------------------------
Address:
-------------------------------
-------------------------------
-------------------------------
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