5
EXHIBIT 10.48.2
WARRANT EXERCISE AGREEMENT
This Warrant Exercise Agreement ("Agreement") is entered into effective as
of August 16, 2000 ("Effective Date") by and between National Manufacturing
Technologies, Inc. ("NMT") (formerly Photomatrix, Inc., a California
corporation), a California corporation and ▇▇▇▇▇▇ International West, Inc., a
Delaware corporation ("GIW"), who agree as follows.
1. Recitals.
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This Agreement is made and entered into with reference to the following
facts and circumstances:
A. NMT, IPAC, and GIW entered into a purchase agreement dated December
1, 1998 (the "Purchase Agreement").
B. On Effective Date, NMT, GIW, and other interested parties entered
into an Amendment to the Purchase Agreement (the "Amendment"); GIW also
exercised Warrant No. 2 for the purchase of 400,000 shares of NMT common stock
(the "Shares"); and NMT and GIW entered into a Memorandum of Understanding
("MOU").
C. As of Effective Date and prior to the adjustment set forth in
Paragraph 2 of this Agreement, the outstanding balance of principal and accrued
interest of the Amended Secured Promissory Note, a copy of which is attached
hereto as Exhibit "A", is Three Hundred Eighty Six Thousand Six Hundred Sixty
Eight Dollars and Seventy Five Cents ($386,668.75).
D. As of Effective Date and prior to the adjustment set forth in
Paragraph 2 of this Agreement, the outstanding balance of principal and accrued
interest of the Equipment Lease Note, a copy of which is attached hereto as
Exhibit "B" is Three Hundred Twenty Three Thousand Eight Hundred Eight Dollars
and Thirty Three Cents ($323,808.33).
E. NMT and GIW intend that this Warrant Exercise Agreement shall set
forth more fully the terms and conditions described in the MOU with respect to
the exercise of Warrant No. 2 by GIW.
2. Exercise of Warrant No. 2.
------------------------------
A. Pursuant to the Amendment, on the Effective Date, GIW elects to
exercise Warrant No. 2 for the Shares at an exercise price of One Dollar and
Thirty Seven Cents ($1.37) per share, the closing price on August 16, 2000, for
a total purchase price of Five Hundred Forty Eight Thousand Dollars ($548,000)
[the "Purchase Price"].
B. GIW shall pay the Purchase Price as follows:
(1) Cancellation of One Hundred Eighty Nine Thousand Four Hundred Two
Dollars and Seventy Two Cents ($189,402.72) of the amount owed under the Amended
Secured Promissory Note leaving a current balance of One Hundred Ninety Seven
Thousand Two Hundred Sixty Dollars and Three Cents ($197,260.03) as of Effective
Date.
(2) Cancellation of One Hundred Fifty Eight Thousand Five Hundred Ninety One
Dollars and Twenty Eight Cents ($158,591.28) of the amount owed under the
Equipment Lease Note leaving a current balance of One Hundred Sixty Five
Thousand Two Hundred Seventeen Dollars and Five Cents ($165,217.05) as of
Effective Date.
(3) Revised payment schedules for the Amended Secured Promissory Note and the
Equipment Lease Note are attached hereto as Exhibit "C" and shall be substituted
for the existing payment schedules of the Notes.
(4) GIW shall execute a recourse promissory note in the form attached as
Exhibit "D" payable to NMT in the principal amount of Two Hundred Thousand
Dollars ($200,000), all due and payable on March 31, 2001, and bearing simple
annual interest equal to eight per cent (8%) on the unpaid principal balance
(the "Recourse Note").
3. Registered Shares
------------------
NMT represents and warrants that the Shares will be included in the NMT SB1
registration statement that will be filed prior to October 15, 2000, causing
those shares to be registered with the affectivity of that registration
statement.
4. Other Agreements.
----- ----------
Except as specifically amended in this Warrant Exercise Agreement, the
terms and conditions of the Purchase Agreement as amended, the Amendment and all
Exhibits attached thereto shall remain in full force and effect. In the event
of a conflict between the Agreement and MOU, the terms and conditions of this
Agreement shall prevail.
5. Notices
-------
Any notice or other communication to be given under this Agreement by
either party to the other will be in writing and delivered personally or mailed
by certified mail, postage prepaid and return receipt requested, or delivered by
an express overnight delivery service, charges prepaid, or transmitted by
facsimile, as follows:
If to NMT: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
If to GIW: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇-▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No. ▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
Any address or name specified above may be changed by a notice given by the
addressee to the other party in accordance with this numbered paragraph. Any
notice will be deemed given and effective (i) if given by personal delivery, as
of the date of delivery in person; or (ii) if given by mail, upon receipt as set
forth on the return receipt; or (iii) if given by overnight courier, one (1)
business day after timely deposit with the courier; or (iv) if given by
facsimile, upon receipt of the appropriate confirmation of transmission by
facsimile. The inability to deliver because of a changed address of which no
notice was given or the rejection or other refusal to accept any notice will be
deemed to be the receipt of the notice as of the date of such inability to
deliver or the rejection or refusal to accept.
6. Miscellaneous.
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The parties acknowledge that the law firm of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, A.P.L.C. has
represented only GIW in this transaction, regardless of whether NMT has
reimbursed GIW for its legal fees incurred in connection with transaction, and
NMT has been advised to seek its own independent legal counsel.
This Warrant Exercise Agreement shall be construed in accordance with the
laws of the State of California.
Paragraph titles or captions contained herein are inserted as a matter of
convenience and for reference and in no way define, limit, extend or describe
the scope of this Warrant Exercise Agreement or any provision hereof.
This Warrant Exercise Agreement shall be binding upon and shall inure to
the benefit of the parties hereto, their beneficiaries, representatives, assigns
and all other successors-in-interest, subject to the provisions of this Warrant
Exercise Agreement.
All exhibits referred to herein are deemed incorporated in this Warrant
Exercise Agreement by reference.
This Warrant Exercise Agreement and exhibits hereto contain all of the
Warrant Exercise Agreements and understandings of the parties hereto with
respect to the matters referred to herein, and no prior agreement or
understanding pertaining to any such matters shall be effective for any
purposes.
The singular number and the masculine and neuter gender as used in this
Amendment shall also include the plural number and the feminine gender.
The parties hereto shall sign or cause to be signed all documents and shall
perform or caused to be performed all acts necessary to consummate the
transactions contemplated hereunder.
Each of the parties hereto has agreed to the use of the particular language
of the provisions of this Warrant Exercise Agreement, and any question of
doubtful interpretation shall not be resolved by any rule of interpretation
providing for interpretation against the party who causes the uncertainty to
exist or against the draftsman.
In any action, arbitration, or other proceeding brought for the
interpretation or enforcement of any of the terms of this Warrant Exercise
Agreement, or because of any alleged dispute, breach, default or
misrepresentation in connection with the provisions of this Warrant Exercise
Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees and other costs incurred in that action, arbitration, or
proceeding, in addition to any damages or other relief to which said party may
be entitled, and whether or not such action, arbitration, or other proceeding
proceeds to judgment or award.
This Warrant Exercise Agreement may not be superseded, amended or added to
except by an agreement in writing, signed by the parties hereto, or their
respective successors-in-interest.
Any waiver of any provision of this Warrant Exercise Agreement shall not be
deemed a waiver of such provision as to any prior or subsequent breach of the
same provision or any other breach of any other provision of this Warrant
Exercise Agreement.
If any provision of this Warrant Exercise Agreement is held by a court of
competent jurisdiction to be illegal or invalid, said provision shall be deemed
to be severed and deleted; and neither such provision, its severance, or
deletion shall affect the validity of the remaining provisions of this Warrant
Exercise Agreement.
The parties may execute this Warrant Exercise Agreement in two or more
counterparts, which shall, in the aggregate, be deemed an original instrument as
against any party who has signed it.
Time is of the essence in the performance of this Warrant Exercise
Agreement.
In Witness Whereof, the parties have executed this Warrant Exercise Agreement as
of the date and year above written.
GIW: NMT:
--- ---
▇▇▇▇▇▇ INTERNATIONAL WEST, INC., NATIONAL MANUFACTURING
a Delaware corporation TECHNOLOGIES, INC.,
a California corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------- -----------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Chairman ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chairman,
of the Board President & CEO
SCHEDULE OF EXHIBITS
EXHIBIT NO. DESCRIPTION
------------ -----------------------------
A Amended Secured Promissory Note
B Equipment Lease Promissory Note
C Debt Forgiveness Schedule
D Recourse Note
EXHIBIT A
AMENDED SECURED PROMISSORY NOTE
----------------------------------
$350,000.00 August 16, ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
In installments as herein stated, for value received, the undersigned
promises to pay ▇▇▇▇▇▇ International West, Inc., a Delaware corporation, or
order, at San Diego, California, or at such other places as the holder may from
time to time designate, the sum of Three Hundred Fifty Thousand Dollars
($350,000.00), with interest from December 1, 1998 until paid at the rate of
eight percent (8%) per annum, principal payable in sixteen (16) consecutive
quarterly installments of or equal to Twenty One Thousand Eight Hundred Seventy
Five Dollars ($21,875.00), plus accrued interest, as set forth below, on the
first day of the second month following the end of each quarter, beginning on
April 1, 2000. Such quarterly installments shall continue until the entire
indebtedness evidenced by this note is fully paid. However, notwithstanding any
other provisions of this paragraph, the following exceptions shall be made to
the quarterly installment payments described herein:
The regularly scheduled installment payments due on October 1, 2000, shall be
paid to the holder of this Note within ten (10) business days of the execution
of this Amendment. The regularly scheduled installment payments due on January
1, 2001; April 1, 2001 and July 1, 2001 shall be paid on April 1, 2004; July 1,
2004 and October 1, 2004 respectively.
The quarterly principal payments as set forth herein shall be made as
follows:
A. $9,375.00 shall be paid in lawful money of the United States or in
common stock of Photomatrix, Inc. ("Stock"), as determined by the holder of this
note, in its sole discretion; and
B. $12,500.00 shall be paid in lawful money of the United States or in
Stock, as determined by the undersigned, in its sole discretion.
Interest shall be payable only in lawful money of the United States.
Notwithstanding anything to the contrary contained in this note, in the
event the Stock is no longer listed on NASDAQ, all principal payments due
hereunder shall be paid in lawful money of the United States.
Notice of the determination of whether the quarterly payment shall be in
lawful money of the United States or in Stock shall be given in writing to the
other party at least ten (10) days before each respective payment is due. The
party making the determination may designate that the entire portion to which
its determination rights extend shall be in lawful money of the United States or
Stock, or that a designated percentage shall be in lawful money of the United
States and a designated percentage shall be in Stock. Failure of a party to
give notice of its determination by the date such determination is to be made
shall be deemed to be a determination that the payment shall be in lawful money
of the United States.
In the event any payment or portion thereof is to be made in Stock, the
number of shares of Stock to be issued shall be based on the market rate of the
Stock. For purposes of this note, the market rate of the Stock shall be the
average of all trading day closing prices for Photomatrix, Inc. common stock
during the calendar month immediately preceding a payment date.
Should interest not be paid when due, it shall thereafter bear like
interest as the principal, but such unpaid interest so compounded shall not
exceed an amount equal to simple interest on the unpaid principal at the maximum
rate permitted by law.
Should a default occur under this note, the whole sum of principal and
accrued interest shall, without notice, become immediately due and payable, in
lawful money of the United States.
The failure of the holder hereof to exercise any of the options herein, or
to promptly enforce any of the provisions of this note shall not constitute a
waiver of the right to exercise or enforce any option or provision.
Time is of the essence in performance hereof.
In the event an action is instituted under this note by one party against
the other, the party prevailing in such action shall be entitled to recover
reasonable attorneys' fees and costs from the other party whether or not such
action proceeds to judgment.
Presentment, notice of dishonor, and protest are hereby waived by all
makers, sureties, and endorsers hereof.
This note shall be the joint and several obligation of all makers,
sureties, and endorsers, and shall be binding upon them and their successors and
assigns.
This note is secured by a Security Agreement of even date herewith entered
into by and between the undersigned and ▇▇▇▇▇▇ International West, Inc.
If substantially all of the assets subject to said Security Agreement are
sold or transferred by the undersigned, or if Photomatrix, Inc. sells
substantially all of its assets or its subsidiary (the undersigned), or if there
is a fifty percent (50%) change in ownership of Photomatrix, Inc. or the
undersigned in a single transaction or a series of related transactions, ▇▇▇▇▇▇
International West, Inc. may, at its option exercisable within thirty (30) days
of receiving notice from Photomatrix, Inc. or the undersigned of such change in
ownership, declare all sums due hereunder to be immediately due and payable in
lawful money of the United States or in Stock.
The undersigned and ▇▇▇▇▇▇ International West, Inc. have entered into a Lease
Agreement for the premises located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
with a commencement date of February 1, 1999. A default under the Lease
Agreement shall be deemed a default under this note and a default under this
note shall be deemed a default under the Lease Agreement.
The undersigned and ▇▇▇▇▇▇ International West, Inc. have entered into an
Equipment Lease of even date herewith. A default under the Equipment Lease
shall be deemed a default under this note and a default under this note shall be
deemed a default under the Equipment Lease.
In the event the undersigned executes a promissory note in connection with
an option to purchase the equipment under the Equipment Lease the ("Equipment
Note"), a default under the Equipment Note shall be deemed a default under this
note and a default under this note shall be deemed a default under the Equipment
Note.
No portion of this note shall be or be deemed to be offset or compensated
by all or any part of any claim, cause of action, counterclaim, or cross-claim,
whether liquidated or unliquidated, which the undersigned may have or claim to
have against the holder of this note.
National Metal Technologies, Inc.,
a California corporation
By:
-------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, CEO
Exhibit C
Debt Forgiveness Schedule
GIW
$490,000 PROMISSORY NOTE
ANNUAL INTEREST RATE 8%
PMT DATE BEG PRINCIPAL DAYS DAILY RATE INT PAYMENT PRINCIPAL PMT TOTAL PMT
--------- -------------- ----------- ----------- ------------ -------------- ----------
8/16/00 . $ 197,260.03
10/1/01 . $ 167,518.37 411 0.000222 $ 2,716.41 $ 29,741.66 $32,458.07
1/1/02. . $ 137,776.71 503 0.000222 $ 3,324.46 $ 29,741.66 $33,066.12
4/1/02. . $ 108,035.04 593 0.000222 $ 3,919.29 $ 29,741.66 $33,660.95
7/1/02. . $ 78,293.38 684 0.000222 $ 4,520.73 $ 29,741.66 $34,262.39
10/1/02 . $ 48,551.72 776 0.000222 $ 5,128.78 $ 29,741.66 $34,870.45
1/1/03. . $ 18,810.06 868 0.000222 $ 5,736.84 $ 29,741.66 $35,478.50
4/1/03. . $ 0.00 958 0.000222 $ 4,004.45 $ 18,810.05 $22,814.51
------------- ------------ -----------
TOTAL $ 29,350.96 $197,260.03 $226,610.98
============== =========== ===========
GIW
$350,000 PROMISSORY NOTE
ANNUAL INTEREST RATE 8%
PMT DATE BEG PRINCIPAL DAYS DAILY RATE INT PAYMENT PRINCIPAL PMT TOTAL PMT
--------- --------------- ----------- ----------- ------------ -------------- ----------
8/16/00 . $ 165,217.05
10/1/01 . $ 140,306.63 411 0.000222 $ 2,275.15 $ 24,910.42 $27,185.57
1/1/02. . $ 115,396.21 503 0.000222 $ 2,784.43 $ 24,910.42 $27,694.85
4/1/02. . $ 90,485.80 593 0.000222 $ 3,282.64 $ 24,910.42 $28,193.06
7/1/02. . $ 65,575.38 684 0.000222 $ 3,786.38 $ 24,910.42 $28,696.80
10/1/02 . $ 40,664.96 776 0.000222 $ 4,295.66 $ 24,910.42 $29,206.08
1/1/03. . $ 15,754.54 868 0.000222 $ 4,804.94 $ 24,910.42 $29,715.36
4/1/03. . $ (0.00) 958 0.000222 $ 3,353.97 $ 15,754.55 $19,108.51
------------- ------------ -----------
TOTAL $ 24,583.18 $165,217.05 $189,800.23
=============== =========== ===========
COMBINED
PMT DATE BEG PRINCIPAL DAYS DAILY RATE INT PAYMENT PRINCIPAL PMT TOTAL PMT
--------- -------------- ----------- ----------- ------------ -------------- ----------
8/16/00 . $ 362,477.08
10/1/01 . $ 307,825.00 411 0.00022 $ 4,991.56 $ 54,652.08 $59,643.64
1/1/02. . $ 253,172.92 503 0.00022 $ 6,108.89 $ 54,652.08 $60,760.97
4/1/02. . $ 198,520.84 593 0.00022 $ 7,201.93 $ 54,652.08 $61,854.01
7/1/02. . $ 143,868.76 684 0.00022 $ 8,307.12 $ 54,652.08 $62,959.20
10/1/02 . $ 89,216.68 776 0.00022 $ 9,424.45 $ 54,652.08 $64,076.53
1/1/03. . $ 34,564.60 868 0.00022 $ 10,541.78 $ 54,652.08 $65,193.86
4/1/03. . $ 0.00 958 0.00022 $ 7,358.42 $ 34,564.60 $41,923.02
------------- ------------ -----------
TOTAL $ 53,934.14 $362,477.08 $416,411.22
=============== =========== ===========
EXHIBIT D
RECOURSE PROMISSORY NOTE
--------------------------
$200,000.00 August 16, ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
For value received, the undersigned promises to pay National Manufacturing
Technologies, Inc., a California corporation, or order, at San Diego,
California, or at such other places as the holder may from time to time
designate, the sum of Two Hundred Thousand Dollars ($200,000.00), with interest
until paid at the rate of eight percent (8%) per annum, principal all due and
payable, plus accrued interest, on March 31, 2001.
Interest shall be payable only in lawful money of the United States.
Should interest not be paid when due, it shall thereafter bear like interest as
the principal, but such unpaid interest so compounded shall not exceed an amount
equal to simple interest on the unpaid principal at the maximum rate permitted
by law.
Should a default occur under this note, the whole sum of principal and
accrued interest shall, without notice, become immediately due and payable, in
lawful money of the United States.
The failure of the holder hereof to exercise any of the options herein, or
to promptly enforce any of the provisions of this note shall not constitute a
waiver of the right to exercise or enforce any option or provision.
Time is of the essence in performance hereof.
In the event an action is instituted under this note by one party against
the other, the party prevailing in such action shall be entitled to recover
reasonable attorneys' fees and costs from the other party whether or not such
action proceeds to judgment.
Presentment, notice of dishonor, and protest are hereby waived by all
makers, sureties, and endorsers hereof.
This note shall be the joint and several obligation of all makers,
sureties, and endorsers, and shall be binding upon them and their successors and
assigns.
▇▇▇▇▇▇ INTERNATIONAL WEST, INC.,
a Delaware corporation
By:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Chairman of the Board