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Exhibit 5
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. 33 For the Purchase of 17,668 Shares
LASERTECHNICS, INC.
COMMON STOCK PURCHASE WARRANT
THIS CERTIFIES THAT, for value received, Xxxxxxxxxx Associates
L.P. ("Xxxxxxxxxx") or its successors in interest, assigns or transferees
(collectively, the "Warrant Holder"), is entitled to subscribe for and purchase
from Lasertechnics, Inc., a Delaware corporation (the "Company"), 17,668 shares
of the Company's Common Stock (as defined in paragraph 10 hereof) (the "Warrant
Shares") at the "Exercise Price" (as hereinafter defined) per share, as 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. The Exercise
Price shall be the lesser of (i) $2.83 or (ii) if the Company completes an
equity financing of Five Million Dollars ($5,000,000) or more, on or before
December 31, 1996, the price per share at which shares of Common Stock are
issued in such financing or if such financing involves convertible or
exchangeable securities, the price at which such securities may be converted
into or exchanged for Common Stock.
This Warrant may be exercised at any time and from time to
time on or prior to December 31, 2001.
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
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product of (I) the amount by which the average of the closing prices of the
Company's Common Stock on the thirty trading days preceding the date of
exercise, as reported in The Wall 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. Xxxxxxxxxx shall be entitled to include the Warrant Shares in any
demand or piggyback registration to which Xxxxxxxxxx is entitled in respect of
Common Stock held by it.
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3. Validity of Warrant and Issue of Shares.
The Company represents and warrants that this Warrant has been duly
authorized and validly issued and warrants 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 charges
with respect to the issue thereof. The Company further warrants 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) In case 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) In case 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
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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 or on
before such record date.
(c) In case of any consolidation or merger of the Company with or into
another corporation or the sale of all or substantially all of the assets of the
Company to another corporation, 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 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) If any event shall occur as to which the provisions of this
paragraph 4 shall not be strictly applicable, but with respect to which the
failure to make any adjustment to the Exercise Price and the number of Warrant
Shares issuable upon exercise of this Warrant would not fairly protect the
purchase rights represented by this Warrant in accordance with the intent and
principles of this paragraph 4, upon request of the Warrant Holder, the Company
shall appoint a firm of independent public accountants reasonably acceptable to
the Warrant Holder which shall give its opinion upon the adjustments, if any,
consistent with the intent and principles established in this paragraph 4
necessary to preserve without dilution the purchase rights represented by this
Warrant. Upon receipt of such opinion, the Company will promptly mail a copy
thereof to the Warrant Holder and shall make the adjustments described therein.
(e) 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.
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(f) 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. Notice to Warrant Holder. If at any time,
(a) the Company shall take any action which would require an
adjustment in the Exercise Price or in the number of Warrant Shares
pursuant to paragraph 4; or
(b) the Company shall authorize the granting to the holders of
its Common Stock of any Distributions on Common Stock as set forth in
paragraph 4(b), and notice thereof shall be given to holders of Common
Stock; or
(c) the Company shall issue any additional shares of Common
Stock or declare any dividend (or any other distribution) on its Common
Stock (other than its regular quarterly dividends); or
(d) there shall be any capital reorganization or
reclassification of the Common Stock (other than a change in par value
or from par value to no par value or from no par value to par value of
the Common Stock), or any consolidation or merger to which the Company
is a party, or any sale or transfer of all or substantially all of the
assets of the Company; or
(e) there shall be a voluntary or involuntary dissolution,
liquidation or winding-up of the Company;
then, in any one or more of said cases, the Company shall give written notice to
the Warrant Holder, not less than 20 days before any record date or other date
set for definitive action, or of the date on which such reorganization,
reclassification, sale, consolidation, merger, dissolution, liquidation or
winding up shall take place, as the case may be. Such notice shall also set
forth such facts as shall indicate the effect of such action (to the extent such
effect may be known at the date of such notice) on the current Exercise Price
and the kind and amount of the Warrant Shares and other securities and property
deliverable upon exercise of this Warrant. Such notice shall also specify the
date as of which the holders of the Common Stock of record shall be entitled to
exchange their Common Stock for securities or other property deliverable upon
such reorganization, reclassification, sale, consolidation, merger, dissolution,
liquidation or winding up, as the case may be.
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6. 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 cancelled. 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.
7. 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 tenor and date.
8. 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.
9. 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.
10. 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 (or, at the election of the Warrant Holder, non-voting 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 New York without regard to
principles of conflicts and choice of laws.
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(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.
11. Notices.
Any notice pursuant to this Warrant shall be sufficiently given if sent
by first class mail, postage prepaid, or delivered by facsimile transmission,
addressed as follows:
If to the Company, then to it at:
Lasertechnics, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
Attention: E.A. Xxxx Xxxxxxxxx, Vice President
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);
If to Xxxxxxxxxx, then to it at:
Xxxxxxxxxx Associates L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X.X. Xxxxxx
Facsimile No.: (000) 000-0000
If to any other Warrant Holder, then to it at such address as such
Warrant Holder may have furnished in writing to the Company for this
purpose.
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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 ______ day of __________________,
1996.
LASERTECHNTICS, INC.
By: /s/ E.A. Xxxx Xxxxxxxxx
-------------------------------
Name: E.A. Xxxx Xxxxxxxxx
Title: Vice President and CFO
Attest:
By: /s/ Xxxx-Xxxxxx Xxxxxxx
--------------------------
Name: Xxxx-Xxxxxx Xxxxxxx
Title: Director
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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 [or nonvoting common stock] covered by such
Warrant, and makes payment herewith in full therefor of the Total Exercise Price
of $_____________ in the following form:
[specify cash payment or conversion of debt or surrender of portion of Warrant]
_______________________________________________________________________
The undersigned hereby represents that the undersigned is exercising such
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 the underlying Warrant
Shares in violation of applicable securities laws. [When applicable: 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
_____________________
_____________________
_____________________
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Signature: ________________________
Printed Name: ________________________
Address: ________________________
________________________
________________________
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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 5 of Warrant No. ____ shall be sent to the Assignee(s) at
the above listed address(es), and, if the number of shares being hereby assigned
is less than all of the shares covered by Warrant No. ____, then also to the
undersigned.
The undersigned requests that the Company execute and deliver,
if necessary to comply with the provisions of paragraph 6 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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