SECURITIES EXCHANGE AGREEMENT
EXHIBIT
10.6
This
Securities Exchange Agreement (“Agreement”) is made and entered into as of
August 8, 2007 between JMAR Technologies, Inc., a Delaware corporation (the
“Company”), and Laurus Master Fund, Ltd., a Cayman Islands company
(“Laurus”).
RECITALS
A. Whereas,
Laurus currently owns 120,000.4 shares of the Company’s Series G Cumulative
Convertible Preferred Stock (with a stated value of $1,200,004) and 602,744.6
shares of Series I Cumulative Convertible Preferred Stock (with a stated value
of $6,027,446) (“the Preferred Stock”); and
B. Whereas,
the Company desires to issue 2,100,000 shares of its Common Stock (the “Shares”)
in exchange for a portion of the shares of Series G and Series I Preferred
Stock, on the terms and conditions set forth in this Agreement;
Now,
therefore, the parties agree as follows:
AGREEMENT
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1.
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EXCHANGE
OF
COMMON STOCK FOR PREFERRED
STOCK.
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1.1 Agreement
to Exchange Shares. At the Closing, the
Company agrees to issue to Laurus 2,100,000 shares of Common Stock (the
“Shares”) in exchange for and in cancellation of i) 2,220.4 shares of Series G
Preferred Stock, with a stated value of $22,204, and ii) 22,979.6 shares of
Series I Preferred Stock, with a stated value of $229,796. Following
this exchange, Laurus shall retain a total of 117,780 shares of Series G
Preferred Stock, with a stated value of $1,177800, and 579,765 shares of Series
I Preferred Stock, with a stated value of $5,797,650.
1.2 Payment
of Redemption Payments. As a result of
the payment of the Shares, a total of $252,000 shall be applied to pay the
monthly redemption payments owing under the Preferred Stock in chronological
order as follows: (i) the remaining redemption amount owed for the month of
November, 2007 under the Series G Preferred Stock ($22,204), (ii) the monthly
redemption amount ($122,178) owing under the Series I Preferred Stock for the
months of November, 2007, and (iii) the remaining $107,618 to be applied to
the
monthly redemption amount ($122,178) owing under the Series G Preferred Stock
for the month of December, 2007.
CLOSING.
Subject
to the terms and conditions herein, the closing of the transactions contemplated
hereby (the "Closing") shall take place on the date hereof or
at such other time or place as the Company and Laurus may mutually agree (such
date is hereinafter referred to as the "Closing
Date").
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2.
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REPRESENTATIONS
AND WARRANTIES OF THE
COMPANY.
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The
Company hereby represents and warrants to Laurus as follows:
2.1 Organization,
Good Standing and Qualification. The
Company has been duly incorporated and organized, and is validly existing in
good standing, under the laws of the State of Delaware. The Company
has the corporate power and authority to enter into and perform this Agreement,
to own and operate its properties and assets, and to carry on its business
as
currently conducted and as presently proposed to be conducted.
2.2 Due
Authorization. All corporate action on
the part of the Company necessary for the authorization, execution, delivery
of,
and the performance of all obligations of the Company under this Agreement,
including the authorization, issuance and delivery of all of the Shares has
been
taken, and this Agreement constitutes, valid and legally binding obligations
of
the Company, enforceable in accordance with their respective terms, except
as
may be limited by (i) applicable bankruptcy, insolvency, reorganization or
others laws of general application relating to or affecting the enforcement
of
creditors’ rights generally and (ii) the effect of rules of law governing the
availability of equitable remedies.
2.3 Valid
Issuance of Stock. Upon delivery of the Shares at the Closing, the
Shares will be duly authorized and validly issued, fully paid and
nonassessable.
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3.
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REPRESENTATIONS,
WARRANTIES AND CERTAIN AGREEMENTS OF
LAURUS.
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Laurus
hereby represents and warrants to, and agrees with, the Company as
follows:
3.1 Authorization. This
Agreement constitutes Laurus’ valid and legally binding obligation, enforceable
in accordance with its terms except as may be limited by (i) applicable
bankruptcy, insolvency, reorganization or other laws of general application
relating to or affecting the enforcement of creditors’ rights generally and (ii)
the effect of rules of law governing the availability of equitable
remedies. Laurus represents that it has full power and authority to
enter into this Agreement.
3.2 Purchase
for Own Account. The Shares to be
issued to Laurus hereunder will be acquired for investment for Laurus’ own
account, not as a nominee or agent, and not with a view to the public resale
or
distribution thereof within the meaning of the 1933 Act (other sales pursuant
to
Rule 144(k)).
3.3 Disclosure
of Information. Laurus has received or
has had full access to all the information it considers necessary or appropriate
to make an informed investment decision with respect to the Shares to be
received by Laurus under this Agreement. Laurus further has had an
opportunity to ask questions and receive answers from the Company regarding
the
terms and conditions of the issuance of the Shares and to obtain additional
information (to the extent the Company possessed such information or could
acquire it without unreasonable effort or expense) necessary to verify any
information furnished to Laurus or to which Laurus had access.
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3.4 Accredited
Investor Status. Laurus is an
“accredited investor” within the meaning of Regulation D promulgated
under the
1933 Act.
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4.
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CONDITIONS
TO
LAURUS’ OBLIGATIONS AT
CLOSING.
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The
obligations of Laurus under this Agreement are subject to the fulfillment or
waiver, on or before the Closing, of each of the following
conditions:
4.1 Representations
and Warranties True. The
representations and warranties of the Company contained in Section 3 shall
be
true and correct on the Closing with the same effect as though such
representations and warranties had been made on and as of the date of the
Closing.
4.2 Performance. The
Company shall have performed and complied with all agreements, obligations
and
conditions contained in this Agreement that are required to be performed or
complied with by it on or before the Closing and shall have obtained all
approvals, consents and qualifications necessary to complete the purchase and
sale described herein.
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5.
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CONDITIONS
TO THE
COMPANY’S OBLIGATIONS AT
CLOSING.
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The
obligations of the Company under this Agreement are subject to the fulfillment
or waiver, on or before the Closing, of each of the following
conditions:
5.1 Representations
and Warranties. The representations and
warranties of Laurus contained in Section 4 shall be true and correct on the
date of the Closing with the same effect as though such representations and
warranties had been made on and as of the Closing.
5.2 Performance. Laurus
shall have performed and complied with all agreements, obligations and
conditions contained in this Agreement that are required to be performed or
complied with by it on or before the Closing and shall have obtained all
approvals, consents and qualifications necessary to complete the purchase and
sale described herein
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6.
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GENERAL
PROVISIONS.
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6.1 Survival
of Warranties. The representations,
warranties and covenants of the Company and Laurus contained in or made pursuant
to this Agreement shall survive the execution and delivery of this Agreement
and
the Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of Laurus or the Company, as the case may
be.
6.2 Successors
and Assigns. The terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties.
6.3 Governing
Law. This Agreement shall be governed
by and construed under the internal laws of the State of New York as applied
to
agreements among New York residents entered into and to be performed entirely
within New York, without reference to principles of conflict of laws or choice
of laws.
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6.4 Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument. Delivery of an executed copy of a signature page to this Agreement
by facsimile transmission shall be effective as delivery of a manually executed
copy of this Agreement and shall be effective and enforceable as the
original.
6.5 Notices. All
notices required or permitted hereunder shall be in writing and shall be deemed
effectively given: (a) upon personal delivery to the party to be notified,
(b) when sent by confirmed telex or facsimile if sent during normal
business hours of the recipient, if not, then on the next business day,
(c) five days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (d) one day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. All communications shall be
sent to the Company at the address as set forth on the signature page hereof
and
to Laurus at the address set forth on the signature page hereto for, with a
copy
in the case of Laurus to Xxxx X. Xxxxxx Esq. 000 Xxxxx Xxxxxx, Xxx Xxxx, XX
00000, facsimile number (000) 000-0000, or at such other address as the Company
or Laurus may designate by ten days advance written notice to the other parties
hereto.
6.6 Entire
Agreement. This Agreement constitutes
the entire agreement and understanding of the parties with respect to the
subject matter hereof and supersedes any and all prior negotiations,
correspondence, agreements, understandings duties or obligations between the
parties with respect to the subject matter hereof.
IN
WITNESS WHEREOF, the parties hereto have executed this Securities
Exchange Agreement as of the date set forth in the first paragraph
hereof.
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JMAR
Technologies, Inc.
By: /s/
C. NEIL BEER
Name: C.
Neil Beer
Title: Chief
Executive Officer
Address: 00000
Xxxxxxxxxx Xxxxx
Xxx
Xxxxx, Xxxxxxxxxx 00000
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Laurus
Master Fund, Ltd.
By: /s/
XXXXXX GRIN
Name: Xxxxxx
Grin, Director
Address: LAURUS
MASTER FUND, LTD.
c/o
Ironshore Corporate Services Ltd.
X.X.
Xxx 0000 G.T., Queensgate House, South Church Street
Grand
Cayman, Cayman Islands
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