THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE SOLD,
ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE
WITH, OR PURSUANT TO AN EXEMPTION FROM, THE REQUIREMENTS OF SUCH ACT OR SUCH
LAWS.
--------------------
ROBOTIC VISION SYSTEMS, INC.
COMMON STOCK WARRANT EXPIRING DECEMBER 4, 2005
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, Xxx X. Xxxxx (the "Purchaser") or
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 equal 150% of the
Conversion Price (the "Exercise Price"), at any time or from time to time on or
after the date hereof and prior to 5:00 P.M., New York City time, on December 4,
2005 (the "Expiration Date"), good and valid title to such number of duly
authorized fully paid and non-assessable shares of the Company's common stock,
par value $0.01 per share (the "Common Stock"), equal to twenty-five percent
(25%) of the total number of shares of Common Stock into which the Convertible
Note may be converted as of the date of exercise of this Warrant pursuant to
Section 2.1 herein (the "Warrant Shares"). The Warrant Shares will (i) be 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 be subject to preemptive rights.
This Warrant has been issued to the Purchaser concurrently with that
certain 9% Convertible Senior Unsecured Note due December 4, 2005, dated as of
the date hereof, by and between the Company and the Purchaser (the "Convertible
Note").
Section 1. DEFINITIONS.
The terms defined in this Section whenever used in this Warrant shall have
the respective meanings hereinafter specified.
"Change of Control" means a change in the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of the Company, whether through the ownership of voting securities, by
agreement or otherwise.
"Closing Date" means December 4, 2002.
"Conversion Price" means 125% of the average of the closing bid prices of
Common Stock on The Nasdaq SmallCap Market (or if different, the principal
trading market for the Company's Common Stock) for the thirty (30) consecutive
trading days ending on the day prior to the Closing Date.
"Person" means an individual, corporation, partnership, limited liability
company, association, trust, joint venture, unincorporated organization or any
government, governmental department or agency or political subdivision thereof.
"Sale of a Division of the Company" means a single transaction or a series
of related transactions pursuant to which a Person or Persons acquire all or
substantially all of the assets of a reporting segment of the Company as
reflected in the Company's audited financial statements filed as part of its
reporting obligations under the Securities Exchange Act of 1934, as amended.
Section 2. EXERCISE OF WARRANT.
2.1. Vesting. Subject to the terms and conditions set forth herein, this
Warrant shall be exercisable by the Holder, in whole or in part, as follows:
TIME PERIOD PERCENTAGE OF WARRANT SHARES EXERCISABLE
----------- ----------------------------------------
Closing Date through December 31, 2003 None
January 1, 2004 through December 31, 2004 50%
January 1, 2005 through the Expiration Date 100%
2.2. Accelerated Vesting. Notwithstanding anything to the contrary herein,
if at any time following the Closing Date until the earlier to occur of the
Expiration Date and the exercise in full of this Warrant, there occurs: (i) a
Change of Control; (ii) exercise of the Mandatory Conversion (as defined in the
Convertible Note) by the Company pursuant to the Convertible Note; (iii) the
closing of an equity or other offering by the Company with net proceeds to the
Company of not less than $20 million; or (iv) the closing of the Sale of a
Division of the Company, then upon any of such events, 100% of the Warrant
Shares shall become immediately vested and exercisable by the Holder.
2.3. Exercise. An exercise hereunder shall be effective upon 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.
2.4. Delivery of Stock Certificates. Promptly upon exercise of this
Warrant in full 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.
2.5. 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 2.3, 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 closing bid price of the Common Stock on The Nasdaq SmallCap Market
(or, if different, the principal trading market for the Company's Common Stock)
as of the date this Warrant is surrendered for exercise as provided in Section
2.1.
Section 3. CERTAIN OBLIGATIONS OF THE COMPANY.
3.1. Reservation of Stock. The Company covenants that it will at all times
reserve and keep available, free from preemptive rights, 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.
3.2. 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.
3.3. Registration Rights. The Company agrees to be bound by the provisions
of Schedule 3.4 hereto, and the Holder agrees to be bound by the restrictions on
transfer, and the procedures for registration of the Warrant Shares and other
agreements applicable to the Holder set forth in Schedule 3.4 hereto. The Holder
further consents that the certificates representing the Warrant Shares may bear
a restrictive legend to such effect.
3.4. 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 4. 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 or 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 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;
(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; or
(f) there shall be an occurrence as described under Section 2.2
hereof,
(each such event, a "Notification Event"), then, in any one or more of such
cases, the Company shall give Holder written notice 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. 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 or such other date if impracticable.
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 principal office.
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 any conflicts or choice
of law provisions that would cause the application of the domestic substantive
laws of any other jurisdiction). With respect to any suit, action or proceeding
relating to this Warrant, the Company irrevocably submits to the non-exclusive
jurisdiction of the Courts of the State of New York sitting in and for New York
County, and the United States District Court in the Southern District of New
York, as well as to the jurisdiction of all courts to which an appeal may be
taken from such courts and hereby waives, to the fullest extent permitted by
applicable law, any and all objections it may have to venue, including, without
limitation, any claim that any such suit, action or proceeding has been brought
in an inconvenient forum.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer on this 4th day of December, 2002.
ROBOTIC VISION SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: CFO
WITH RESPECT TO SECTION 3.3 HEREOF:
PURCHASER
By: /s/ Xxx X. Xxxxx
-------------------------------------
Name: Xxx X. Xxxxx
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
__________________________________________________.
Social Security Number or
Tax Identification Number:
___________________________
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.
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