Exhibit 10.2
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
AGREES FOR THE BENEFIT OF ROBOTIC VISION SYSTEMS, INC. (THE "COMPANY") THAT THIS
SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR EXEMPTION
THEREFROM, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES.
ROBOTIC VISION SYSTEMS, INC.
Common Stock Warrant Expiring August 19, 2004
Robotic Vision Systems, Inc., a Delaware corporation (the "COMPANY"),
hereby certifies that, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, SF CAPITAL PARTNERS LTD. (the
"PURCHASER") or its permitted assigns under the terms of this warrant (the
Purchaser or such permitted assigns at the time being the registered holder or
holders hereof being hereinafter referred to as "HOLDER") is entitled, subject
to the terms set forth below, to acquire from the Company, at an exercise price
of $3.10 per share (the "EXERCISE PRICE"), at any time or from time to time
beginning six months after the date hereof and prior to 5:00 P.M., New York City
time, on August 19, 2004 (the "EXPIRATION DATE"), good and valid title to Six
Hundred Forty-five Thousand One Hundred Sixty-One (645,161) duly authorized
fully paid and non-assessable shares of the Company's common stock, par value
$0.01 per share (the "COMMON STOCK," such shares of Common Stock, in each case
as the number of such shares may be adjusted from time to time pursuant to
Section 2.4 and the provisions of the Company's Certificate of Incorporation,
are herein referred to as the "WARRANT SHARES"), which are (i) free and clear of
any pledge, lien, security interest, charge, claim, equity or encumbrance of any
kind (each a "LIEN") created by or in respect of the Company and (ii) not
subject to preemptive rights.
This Warrant has been issued pursuant to, and in accordance with the terms
of, that certain Subscription Agreement, dated as of February 20, 2004, by and
between the Company and the Purchaser (the "SUBSCRIPTION AGREEMENT").
Certain capitalized terms not otherwise defined herein shall have the
meanings set forth in Section 4 hereof.
Section 1. EXERCISE OF WARRANT.
1.1. EXERCISE. Subject to Section 10, this Warrant may be converted or
exercised by Holder, in whole or in part (provided, however, that any partial
exercise shall be for not less than 100,000 shares), at any time and from time
to time the date hereof and prior to 5:00 p.m. New York City time on the
Expiration Date by surrender of this Warrant, together with the form of notice
of exercise (in the form attached hereto as EXHIBIT A) duly completed and
executed by Holder, to the Company at its principal office and accompanied by
payment in full, in cash or by check payable to the order of the Company, in the
amount of the aggregate Exercise Price for the Warrant Shares covered by such
exercise. In the event this Warrant is not exercised in full, the Warrant Shares
shall be reduced by the number of Warrant Shares subject to such partial
exercise, and the Company, at its expense, shall forthwith issue and deliver to
Holder a new Warrant of like tenor in the name of Holder, reflecting the number
of Warrant Shares remaining after such exercise.
1.2. DELIVERY OF STOCK CERTIFICATES. Promptly upon exercise of this Warrant
in whole or in part, the Company will issue and deliver to Holder a certificate
or certificates, in such name or names as such Holder may designate, for the
number of fully paid and non-assessable shares of Common Stock to which Holder
shall be entitled on such exercise. The Warrant Shares issuable upon exercise of
this Warrant shall be affixed with the legend specified in Section 1.5 of the
Subscription Agreement. Such legend shall also be subject to removal in
accordance with Section 3.2 of the Subscription Agreement.
1.3. FRACTIONAL SHARES. This Warrant may not be exercised as to fractional
shares of Common Stock. If any fraction of a share of Common Stock would be
issuable, except for the provisions of this Section 1.3, on the exercise of the
Warrant in full or in part, the Company shall pay a cash adjustment in respect
of such fractional interest equal to the product of (x) such fractional interest
and (y) the then fair market value of a share of Common Stock as determined by
the Board of Directors of the Company.
Section 2. CERTAIN OBLIGATIONS OF THE COMPANY.
2.1. RESERVATION OF STOCK. The Company covenants that it will at all times
reserve and keep available, free from preemptive rights and antidilution
adjustments upon issuance, solely for the purpose of effecting the exercise of
this Warrant, a number of shares of Common Stock equal to the total number of
Warrant Shares then issuable upon the exercise of this Warrant. The Company will
from time to time, in accordance with the laws of its state of incorporation,
take action to increase the authorized amount of its Common Stock if at any time
the number of shares of Common Stock authorized but remaining unissued and
unreserved for other purposes shall be insufficient to permit the exercise of
this Warrant.
2.2. CORPORATE ACTIONS. The Company covenants that all Warrant Shares will,
upon issuance in accordance with the terms of this Warrant Agreement and the
Company's Certificate of Incorporation, be fully paid and nonassessable, free
from all taxes with respect to the issuance thereof (other than income taxes, if
any, related to ordinary income attributable to Holder) and from all Liens. The
Company will not, by amendment of its Certificate of Incorporation or through
any consolidation, merger, reorganization, transfer of assets, dissolution,
issue or sale of securities or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms of this Warrant. Without
limiting the generality of the foregoing, the Company (a) will not permit the
par value or the determined or stated value of any shares of Common Stock
receivable upon the exercise of the Warrants to exceed the amount payable
therefor upon such exercise, (b) will take all such action as may be necessary
or appropriate in order that the Company may validly and legally issue fully
paid and nonassessable shares of Common Stock upon the exercise of the Warrants
from time to time outstanding, including, without limitation, amending its
Certificate of Incorporation, and (c) will not take any action that results in
an adjustment in the number of Warrant Shares obtainable upon the exercise of
this Warrant if the total number of shares of Common Stock (or other securities)
issuable after such action upon the exercise of this Warrant would exceed the
total number of shares of Common Stock (or other securities) then authorized by
the Company's Certificate of Incorporation and available for purpose of issuance
upon such exercise.
2.3. MAINTENANCE OF OFFICE. The Company will maintain an office, initially
at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxxxxx 00000, where presentations and
demands to or upon the Company in respect of this Warrant may be made. The
Company will give notice in writing to Holder, at the address of Holder
appearing on the books of the Company, of each change in the location of such
office.
2.4. ADJUSTMENT OF WARRANT SHARES PURCHASABLE.
(a) The number of Warrant Shares that may be acquired upon the
exercise or conversion of this Warrant and the Exercise Price of such
shares are subject to adjustment from time to time upon the occurrence of
any of the events enumerated in this Section 2.4 at any time or from time
to time after the date hereof and prior to the Expiration Date.
(b) If the Company shall, after the original date of issuance of this
Warrant, (i) declare or pay a dividend or make a distribution on its
capital stock in shares of Common Stock, (ii) subdivide (by any share
split, share dividend, recapitalization or otherwise) its outstanding
shares of Common Stock into a greater number of shares, (iii) combine (by
reverse stock split or otherwise) its outstanding shares of Common Stock
into a smaller number of shares, or (iv) issue any shares of capital stock
by reclassification of its shares of Common Stock, the Exercise Price in
effect immediately prior to the record date fixed for determination of
stockholders entitled to receive such dividend or distribution or the day
on which such subdivision, combination or reclassification becomes
effective, as the case may be, shall be adjusted so that Holder shall be
entitled to receive the number of shares of Common Stock that such Holder
would have owned or have been entitled to receive after the happening of
any of the events described above as if this Warrant had been exercised
immediately prior to the record date in the case of a dividend or
distribution or the effective date in the case of a subdivision,
combination or reclassification. An adjustment made pursuant to this
paragraph (b) shall become effective immediately after the opening of
business on the business day next following the record date in the case of
a dividend or distribution and shall become effective immediately after the
opening of business on the business day next following the effective date
in the case of a subdivision, combination or reclassification.
(c) If the Company shall, after the original date of issuance of this
Warrant, distribute to all holders of shares of Common Stock evidences of
its indebtedness or assets or rights or warrants to subscribe for or
purchase any security (excluding those referred to in Sections 2.4(b)
hereof), then in each such case the Exercise Price in effect immediately
prior to the record date fixed for determination of stockholders entitled
to receive such distribution shall be adjusted by subtracting from such
Exercise Price the then fair market value at such record date of the
portion of such evidence of indebtedness, assets or securities so
distributed (net of any consideration paid or payable in the case of rights
or warrants) applicable to one outstanding share of Common Stock as
determined by a nationally recognized or major regional investment banking
firm or firm of independent certified public accountants of recognized
standing (which may be the firm that regularly examines the financial
statements of the Company) (an "APPRAISER") mutually selected in good faith
by the holders of a majority in interest of the Warrants then outstanding
and the Company. Any determination made by the Appraiser shall be final and
binding upon the Company and Holder. Notwithstanding the foregoing, no
adjustment pursuant to this Section 2.4(c) shall reduce the Exercise Price
to below $.01.
(d) In the event that the provisions of this Section 2.4 fail as a
result of an unintentional oversight to provide expressly for the
adjustment of the Exercise Price or the number of Warrant Shares
purchasable upon exercise of this Warrant under circumstances that, based
upon the purposes and intentions expressed herein, would otherwise have
been addressed, the Board of Directors of the Company shall, in good faith,
cause an equitable adjustment to be made to the Exercise Price or the
number of Warrant Shares purchasable upon exercise of the Warrant to
correct such an oversight.
(e) If the Company shall be a party to any transaction (including
without limitation a merger, consolidation, statutory share exchange, self
tender offer for all or substantially all of its Common Stock, sale of all
or substantially all of the Company's assets or recapitalization of the
shares of Common Stock and excluding any transaction as to which Section
2.4(b) applies) (each of the foregoing being referred to herein as a
"TRANSACTION"), in each case as a result of which all or substantially all
of the shares of Common Stock are converted into the right to receive
shares, securities or other property (including cash or any combination
thereof), this Warrant shall thereafter be exercisable into the kind and
amount of shares, securities and other property (including cash or any
combination thereof) receivable upon the consummation of such Transaction
by a holder of that number of shares of Common Stock into which this
Warrant was exercisable immediately prior to such Transaction, assuming
such holder of Common Stock (i) is not a Person with which the Company
consolidated or into which the Company merged or which merged into the
Company or to which such sale or transfer was made, as the case may be
("CONSTITUENT PERSON"), or an affiliate of a Constituent Person and (ii)
failed to exercise his rights of election, if any, as
to the kind or amount of shares, securities and other property (including
cash) receivable upon such Transaction (provided that if the kind or amount
of shares, securities and other property (including cash) receivable upon
such Transaction is not the same for each share of Common Stock held
immediately prior to such Transaction by other than a Constituent Person or
an affiliate thereof and in respect of which such rights of election shall
not have been exercised ("NON-ELECTING SHARE"), then for the purpose of
this paragraph (e) the kind and amount of shares, securities and other
property (including cash) receivable upon such Transaction by each
Non-Electing Share shall be deemed to be the kind and amount so receivable
per share by a plurality of the Non-Electing Shares). The Company shall not
be a party to any Transaction unless the terms of such Transaction are
consistent with the provisions of this paragraph (e), and it shall not
consent or agree to the occurrence of any Transaction until the Company has
entered into an agreement with the successor or purchasing entity, as the
case may be, for the benefit of Holder that will contain provisions
enabling Holder to exercise into the consideration received by holders of
shares of Common Stock at the Exercise Price in effect immediately prior to
such Transaction. The provisions of this paragraph (e) shall similarly
apply to successive Transactions.
(f) Notwithstanding any other provisions of this Section 2.4, the
Company shall not be required to make any adjustment of the Exercise Price:
(i) for the issuance of any shares of Common Stock pursuant to any plan
providing for the reinvestment of dividends or interest payable on
securities of the Company and the investment of additional optional amounts
of cash in shares of Common Stock under such plan; or (ii) the issuance of
options and the shares of Common Stock issued upon exercise of such options
pursuant to an employee, consultant or director stock option program
approved by the Board of Directors of the Company. All calculations under
this Section 2.4 shall be made to the nearest cent (with $.005 being
rounded upward) or to the nearest one-tenth of a share (with .05 of a share
being rounded upward), as the case may be. Anything in this Section 2.4 to
the contrary notwithstanding, the Company shall be entitled, to the extent
permitted by law, to make such reductions in the Exercise Price, in
addition to those required by this Section 2.4, as it in its discretion
shall determine to be advisable in order that any share dividends,
subdivision of shares, reclassification or combination of shares,
distribution of rights or warrants to purchase shares or securities, or
distribution of other assets (other than cash dividends) hereafter made by
the Company to its stockholders shall not be taxable.
(g) Whenever the Exercise Price is adjusted, as herein provided,
Holder shall thereafter prior to the Expiration Date be entitled to
purchase the number of Warrant Shares obtained by multiplying such Exercise
Price by the number of Warrant Shares purchasable upon the exercise of this
Warrant immediately prior to such adjustment, and by dividing the product
by the Exercise Price resulting from such adjustment.
(h) Whenever the number of Warrant Shares purchasable upon the
exercise of this Warrant or the Exercise Price of such Warrant Shares is
adjusted, as herein provided, the Company shall promptly cause to be
prepared a certificate signed by its President or a Vice President and by
its Treasurer or Assistant Treasurer or its Secretary or Assistant
Secretary, setting forth in reasonable detail the event requiring the
adjustment, the amount of the adjustment, the method by which such
adjustment was calculated (including a description of the basis on which
the Board of Directors of the Company made any determination hereunder),
the number of Warrant Shares purchasable upon the exercise of the Warrant
and the Exercise Price of such Warrant Shares after such adjustment, and
shall promptly cause copies of such certificate to be mailed (by first
class and postage prepaid) to the Warrant Holder in accordance with Section
7.
2.5. PAYMENT OF TAXES. The Company will pay all documentary stamp taxes
attributable to the issuance of Warrant Shares upon the exercise of this
Warrant; PROVIDED, HOWEVER, that the Company shall not be required to pay any
tax that may be payable in respect of any transfer involved in the registration
of this Warrant or any certificates for Warrant Shares issuable upon the
exercise of this Warrant in a name other than that of Holder. Holder shall be
responsible for all other tax liability that
may arise as a result of holding or transferring this Warrant or receiving
Warrant Shares upon exercise hereof.
Section 3. NOTICE OF CERTAIN EVENTS.
If at any time:
(a) the Company shall declare any dividend or distribution payable to
the holders of its Common Stock or any other class of its capital stock;
(b) the Company shall offer for subscription pro rata to the holders
of its Common Stock any additional shares of stock of any rights to
subscribe thereto;
(c) there shall be any recapitalization of the Company, or
consolidation or merger of the Company with, or sale of all or
substantially all of its assets or of any material asset to, another
corporation or business organization or any other extraordinary event or
any Transaction;
(d) there shall be a voluntary or involuntary dissolution, liquidation
or winding up of the Company in a single transaction or a series of related
transactions; or
(e) the Company shall declare any share split, share dividend,
subdivision, combination or similar distribution with respect to the shares
of Common Stock, regardless of the effect of any such event on the
outstanding number of shares of Common Stock;
(each such event, a "NOTIFICATION EVENT"), then, in any one or more of such
cases, the Company shall give Holder written notice, by certified mail (or
nationally recognized overnight courier), of the date on which a record shall be
taken for such Notification Event or for determining stockholders entitled to
vote upon such Notification Event or winding up and of the date, if determined,
when any such transaction shall take place, as the case may be. Such notice
shall also specify the date as of which the holders of Common Stock of record
shall participate in such dividend, distribution or subscription rights or shall
be entitled to exchange their Common Stock for securities or other property
deliverable upon such Notification Event, as the case may be. Such notice shall
describe the proposed transaction in reasonable detail and specify the
consideration to be received by Holder in respect thereto and/or any adjustment
that would be made to the number of Warrant Shares obtainable upon the exercise
of this Warrant as a result of such transaction. The Company shall also furnish
to Holder all notices and materials furnished to its stockholders in connection
with such transaction as and when such notices and materials are furnished to
its stockholders. Such written notice shall be given not less than 10 days prior
to the record date with respect thereto.
Section 4. DEFINITIONS.
As used herein, the following terms, unless the context otherwise requires,
have the following respective meanings:
4.1. The term "Common Stock" includes the Company's Common Stock and any
other securities or rights into which or for which the Common Stock is converted
or exchanged, whether pursuant to a plan of reclassification, reorganization,
consolidation, merger, sale of assets, dissolution, liquidation, or otherwise.
4.2. The term "Person" shall mean an individual, corporation, partnership,
limited liability company, association, trust, joint venture, unincorporated
organization or any government, governmental department or agency or political
subdivision thereof.
Section 5. REPLACEMENT OF WARRANTS.
Upon receipt of evidence satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and, in the case of any such loss,
theft or destruction, upon receipt of indemnity or
security reasonably satisfactory to the Company, or, in the case of any such
mutilation, upon surrender and cancellation of this Warrant, the Company, at its
expense, shall execute and deliver, in lieu of and in replacement of this
Warrant, a Warrant identical in form to this Warrant.
Section 6. REMEDIES.
The Company stipulates that the remedies at law of Holder in the event of
any breach or threatened breach by the Company of the terms of this Warrant are
not and will not be adequate, and that such terms may be specifically enforced
by a decree for the specific performance of any agreement contained herein or by
an injunction against a breach of any of the terms hereof or otherwise. The
Company hereby irrevocably waives, to the extent that it may do so under
applicable law, any defense based on the adequacy of a remedy at law that may be
asserted as a bar to the remedy of specific performance in any action brought
against the Company for specific performance of this Warrant by Holder. Such
remedies and all other remedies provided for in this Warrant shall, however, be
cumulative and not exclusive and shall be in addition to any other remedies that
may be available under this Warrant.
Section 7. NOTICES.
Where this Warrant provides for notice of any event, such notice shall be
given (unless otherwise herein expressly provided) in writing and either (i)
delivered personally, (ii) sent by certified, registered or express mail,
postage prepaid (iii) telexed or sent by facsimile transmission, and shall be
deemed given when so delivered personally, telexed, sent by facsimile
transmission (confirmed in writing) or mailed. Notices shall be addressed, if to
Holder, to the address of Holder appearing in the registration books referred to
in Section 8 or, if to the Company, to its office maintained pursuant to Section
2.3.
Section 8. SALE OF WARRANT OR SHARES.
This Warrant shall be registered on the books of the Company, which shall
be kept by it at its principal office for that purpose and shall be transferable
only on said books by the registered Holder's duly authorized attorney upon
surrender of this Warrant properly endorsed.
Section 9. NO DIVIDENDS OR VOTING RIGHTS.
Unless and until exercised, no provision of this Warrant shall be construed
as conferring upon Holder the right to receive dividends or to vote as a
stockholder of the Company.
Section 10. SURVIVAL.
The provisions of Section 6 shall survive the termination or expiration of
this Warrant and shall continue to be effective with respect to Warrant Shares.
Section 11. MISCELLANEOUS.
This Warrant shall be binding upon the Company and Holder and their legal
representatives, successors and assigns. In case any provision of this Warrant
shall be invalid, illegal or unenforceable, or partially invalid, illegal or
unenforceable, the provision shall be enforced to the extent, if any, that it
may legally be enforced and the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby. This
Warrant and any term hereof may be changed, waived, discharged or terminated
only by a statement in writing signed by the party against which enforcement of
such change, waiver, discharge or termination is sought. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. This Warrant shall take effect as an instrument
under seal.
Section 12. GOVERNING LAW.
This Warrant shall be governed by and construed in accordance with the laws
of the State of Delaware, without giving effect to conflict of laws provisions
thereof.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed as
an instrument under seal by a duly authorized officer and attested by its
Secretary or Assistant Secretary.
Dated as of February 20, 2004
Robotic Vision Systems, Inc.
By: /s/ Xxx X. Xxxxx
-----------------------------
Name: Xxx X. Xxxxx
Title: President and CEO
EXHIBIT A
FORM OF NOTICE OF EXERCISE
(To be signed only on exercise of Warrant)
TO:
--------------------------
--------------------------
--------------------------
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant for, and to receive thereunder *
----------
shares of Common Stock of Robotic Vision Systems, Inc., and requests that the
certificates for such shares be issued in the name of , and
--------------------
delivered to whose address is
--------------------------------------------
.
--------------------------------------------------
Dated:
-------------------------
(Signature must conform in all respects
to name of Holder as specified on the
face of the Warrant)
------------------------------------------
(Address)
------------------------------------------
*Insert here the number of shares of Common Stock as to which the
Warrant is being exercised.
A-1
