WARRANT PURCHASE AGREEMENT by and between CAPRIUS, INC. and VINTAGE CAPITAL GROUP, LLC Dated as of January 22, 2010
Exhibit
4.1
by
and between
CAPRIUS,
INC.
and
VINTAGE
CAPITAL GROUP, LLC
Dated
as of January 22, 2010
TABLE
OF CONTENTS
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1.
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Terms
of Warrant
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1
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1.1
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Warrant
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1
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1.2
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Closing
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1
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2.
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Representations
and Warranties of the Company
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2
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2.1
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Organization,
Good Standing, and Qualification
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2
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2.2
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Authorization
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2
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2.3
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Valid
Issuance of Capital Stock
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2
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2.4
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Subsidiaries
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3
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2.5
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No
Conflicts
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3
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2.6
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Warrant
Coverage
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3
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3.
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Representations
and Warranties of the Purchaser
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3
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3.1
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Authorization
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3
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3.2
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Purchase
Entirely for Own Account
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3
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3.3
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Disclosure
of Information
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4
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3.4
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Investment
Experience
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4
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3.5
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Accredited
Investor
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4
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3.6
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Restricted
Securities
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4
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3.7
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Further
Limitations on Disposition
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4
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3.8
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Legends
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4
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4.
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Original
Issue Discount Calculation
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5
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5.
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California
Corporate Securities Law
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5
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6.
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Miscellaneous
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5
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6.1
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Successors
and Assigns; Assignments
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5
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6.2
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Governing
Law
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6
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6.3
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Consent
to Forum
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6
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6.4
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Waiver
of Trial by Jury
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6
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|
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6.5
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Counterparts
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7
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6.6
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Titles
and Subtitles
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7
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6.7
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Notices
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7
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6.8
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Finder’s
Fee
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8
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6.9
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Expenses
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8
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6.10
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Entire
Agreement; Amendments and Waivers
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8
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6.11
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Severability
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9
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i
EXHIBITS
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Exhibit A
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—
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Warrant
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Exhibit B
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—
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Registration
Rights Agreement
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Exhibit C
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—
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Equity
Rights Agreement
|
ii
THIS
WARRANT PURCHASE AGREEMENT (“Agreement”) is made
as of January 22, 2010, by and between Caprius, Inc., a Delaware
corporation (the “Company”), and
Vintage Capital Group, LLC, a Delaware limited liability company (the “Purchaser”).
WHEREAS,
to induce the Purchaser to enter into that certain Securities Purchase and Sale
Agreement, dated as of September 16, 2009 (the “Securities Purchase
Agreement”), the Company agreed to issue and sell to the Purchaser a
warrant to purchase a number of shares of the Common Stock (as such term is
defined herein) of the Company, which shares will represent 40% of the Company’s
Common Stock on a Fully Diluted Basis (as defined in the Warrant);
and
WHEREAS,
all capitalized terms used but not otherwise defined herein shall have the
meanings set forth in the Securities Purchase Agreement.
NOW,
THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Terms of
Warrant.
1.1 Warrant. In
return for the consideration provided by the Purchaser, the Company shall sell
and issue to the Purchaser a warrant to purchase shares of Common Stock (the
“Common Stock”)
in the form attached hereto as Exhibit A (the
“Warrant”). The
Warrant shall be exercisable for that number of shares of Common Stock of the
Company equal to 40% of the Common Stock of the Company on a Fully Diluted Basis
(as defined in the Warrant) (the “Warrant
Shares”).
1.2 Closing.
(a) The
closing (the “Closing”) of the
purchase of the Warrant by the Purchaser in return for the payment to the
Company by the Purchaser of $0.01 (the “Purchase Price”)
shall take place at the offices of Klee, Tuchin, Xxxxxxxxx & Xxxxx LLP, 1999
Avenue of the Stars, Xxx Xxxxxxx, Xxxxxxxxxx 00000, at 10:00
a.m. Los Angeles time, January 22, 2010 or at such other time and place as
the Company and the Purchaser mutually agree.
(b) At
the Closing:
(i) the
Purchaser shall deliver the Purchase Price to the Company and the Company shall
deliver to the Purchaser the executed Warrant in return for the consideration
provided to the Company;
(ii) the
Company shall deliver an executed copy of the Registration Rights Agreement in
the form attached hereto as Exhibit B;
(iii) the
Company shall deliver an executed copy of the Equity Rights Agreement in the
form attached hereto as Exhibit C;
(iv) the
Company shall deliver an opinion of counsel to the Company, in form and
substance satisfactory to the Purchaser in its sole and absolute discretion,
which shall include, without limitation, opinions as to the authorization of the
Warrant and the Warrant Shares and the entry into, and enforceability of, this
Agreement, the Equity Rights Agreement and the Registration Rights
Agreement;
(v) the
Company shall deliver a certificate signed by the Chief Executive Officer of the
Company, certifying on behalf of the Company (1) that the representations
and warranties set forth in Section 2 are
true and correct, (2) that all conditions to Closing have been satisfied
and (3) as to the capitalization of the Company as of the
Closing;
(vi) the
Company shall deliver a certified copy of its Certificate of Incorporation as in
effect as of the Closing;
(vii) the
Company shall deliver a good standing certificate, issued by the State of
Delaware, dated as of the most recent practicable date prior to the Closing;
and
(viii) the
Company shall deliver resolutions or consents of (1) its Board of Directors
approving and authorizing the execution, delivery and performance of this
Agreement, the Warrant, the Equity Rights Agreement and the Registration Rights
Agreement and the amendments to the Company’s Certificate of Incorporation
necessary or desirable to comply with the terms and conditions of this Agreement
and the Warrant and (2) its stockholders approving and authorizing the
amendments to the Company’s Certificate of Incorporation necessary or desirable
to comply with the terms and conditions of this Agreement and the
Warrant.
2. Representations and
Warranties of the Company. In connection with the transactions
provided for herein, the Company hereby represents and warrants to the Purchaser
that:
2.1 Organization, Good Standing,
and Qualification. The Company is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to carry on its
business as now conducted and as proposed to be conducted. The
Company is duly qualified to transact business and is in good standing in each
jurisdiction in which the failure so to qualify would have a material adverse
effect on its business or properties.
2.2 Authorization. All
corporate action on the part of the Company, its officers, directors, and
stockholders necessary for the authorization, execution, and delivery of this
Agreement, the performance of all obligations of the Company hereunder, and the
authorization, issuance and delivery of the Warrant has been
taken. All corporate action on the part of the Company, its officers,
directors and stockholders necessary for the authorization, issuance (or
reservation for issuance) and delivery of the Warrant Shares to be issued upon
exercise of the Warrant has been taken.
2.3 Valid Issuance of Capital
Stock. The Warrant Shares, when issued, sold, and delivered in
accordance with the terms of the Warrant for the consideration expressed
therein, will be duly and validly issued, fully paid, and nonassessable and,
based in part upon the representations of the Purchaser in this Agreement, will
be issued in compliance with all applicable federal and state securities
laws.
2
2.4 Subsidiaries. The
Company does not own or hold, directly or indirectly, any stock, partnership
interest, membership interest, joint venture interest, ownership interest or
other security, investment or interest in any corporation, partnership, limited
liability company, joint venture, organization or other entity, other than
M.C.M. Environmental Technologies, Inc., M.C.M. Environmental Technologies Ltd.,
and M.C.M. Environmental Technologies (U.K.) Ltd. (collectively, the “Subsidiaries”).
2.5 No
Conflicts. Neither the execution and delivery of this
Agreement or the Warrant, or any other agreement related thereto to which the
Company or any Subsidiary is a party, nor the consummation of the transaction
contemplated hereby or thereby, will (a) violate any provision of the
charter, bylaws or similar organizational documents of the Company or any
Subsidiary, (b) violate, breach, conflict with or constitute a default (or
constitute an event which, with the giving of notice or lapse of time or both,
would constitute a default) under, or give rise to any right of termination,
cancellation or acceleration under any material agreement, contract, lease,
license or document to which the Company or any Subsidiary is a party,
(c) violate any order, writ, injunction, decree, law, statute, rule or
regulation of any governmental authority applicable to the Company or any
Subsidiary or pertaining or relating to the business or any property of the
Company, or (d) give rise to a declaration or imposition of any lien upon
any share of Common Stock or any property of the Company.
2.6 Warrant
Coverage. The Warrant, as of the date hereof, represents 40%
of the Common Stock of the Company on a Fully Diluted Basis (as defined in the
Warrant) and there are no equity securities of the Company or any Subsidiary
outstanding that are not convertible into Common Stock.
3. Representations and
Warranties of the Purchaser. In connection with the
transactions provided for herein, the Purchaser hereby represents and warrants
to the Company that:
3.1 Authorization. This
Agreement constitutes the Purchaser’s valid and legally binding obligation,
enforceable in accordance with its terms.
3.2 Purchase Entirely for Own
Account. The Purchaser acknowledges that this Agreement is
made with the Purchaser in reliance upon the Purchaser’s representation to the
Company that the Warrant and the Warrant Shares (collectively, the “Securities”) will be
acquired for investment for the Purchaser’s own account, not as a nominee or
agent, and not with a view to the resale or distribution of any part thereof,
and that the Purchaser has no present intention of selling, granting any
participation in, or otherwise distributing the same. By executing
this Agreement, the Purchaser further represents that the Purchaser does not
have any contract, undertaking, agreement, or arrangement with any person to
sell, transfer, or grant participations to such person or to any third person,
with respect to the Securities. The Purchaser represents that it has
full power and authority to enter into this Agreement.
3
3.3 Disclosure of
Information. The Purchaser acknowledges that it has received
all the information it considers necessary or appropriate for deciding whether
to acquire the Securities. The Purchaser further represents that it
has had an opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the offering of the
Securities.
3.4 Investment
Experience. The Purchaser is an investor in securities of
companies in the development stage and acknowledges that it is able to fend for
itself, can bear the economic risk of its investment, and has such knowledge and
experience in financial or business matters that it is capable of evaluating the
merits and risks of the investment in the Securities. The Purchaser
also represents it has not been organized solely for the purpose of acquiring
the Securities.
3.5 Accredited
Investor. The Purchaser is an “accredited investor” within the
meaning of Rule 501 of Regulation D of the Securities and Exchange Commission
(the “SEC”), as
presently in effect.
3.6 Restricted
Securities. The Purchaser understands that the Securities are
characterized as “restricted securities” under the federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such laws and applicable regulations
such securities may be resold without registration under the Securities Act of
1933, as amended (the “Act”), only in
certain limited circumstances. In this connection, the Purchaser
represents that it is familiar with SEC Rule 144, as presently in effect, and
understands the resale limitations imposed thereby and by the Act.
3.7 Further Limitations on
Disposition. Without in any way limiting the representations
set forth above, the Purchaser further agrees not to make any disposition of all
or any portion of the Securities unless and until:
(a) There
is then in effect a registration statement under the Act covering such proposed
disposition and such disposition is made in accordance with such registration
statement; or
(b) (i) The
Purchaser shall have notified the Company of the proposed disposition and shall
have furnished the Company with a detailed statement of the circumstances
surrounding the proposed disposition, and (ii) if reasonably requested by
the Company, the Purchaser shall have furnished the Company with an opinion of
counsel, reasonably satisfactory to the Company, that such disposition will not
require registration of such shares under the Act. It is agreed that
the Company will not require opinions of counsel for transactions made pursuant
to Rule 144 except in extraordinary circumstances.
3.8 Legends. It
is understood that the Securities shall bear the following legend:
“These
securities have not been registered under the Securities Act of
1933. They may not be sold, offered for sale, pledged, hypothecated,
or otherwise transferred except pursuant to an effective registration statement
under the Securities Act of 1933 or an opinion of counsel satisfactory to the
Company that registration is not required under such Act or unless sold pursuant
to Rule 144 under such Act.”
4
4. Original Issue Discount
Calculation. To the extent that it is applicable, the
Purchaser and the Company shall use reasonable efforts to determine a mutually
acceptable original issue discount calculation for the Warrant promptly after
Closing. If they are not able to agree, then within ninety (90)
days following the Closing Date the Company shall prepare a calculation of the
original issue discount attributable to the issuance of the Warrant to the
Purchaser, and deliver it to the Purchaser together with supporting
statements. The Purchaser shall have thirty (30) days to review
the Company’s calculation and if the Purchaser disagrees with the calculation,
the Purchaser shall submit its own calculation, together with supporting
statements, to the Company. If the parties cannot agree within one
hundred and fifty (150) days of the Closing Date on the original issue
discount calculation, then the parties agree that the original issue discount
shall be determined as set forth in this paragraph by an independent accounting
firm mutually acceptable to both the Purchaser and the Company. The
independent accounting firm shall select either the Company’ original
calculation or the Purchaser’s calculation, and not make a new calculation of
original issue discount. Each party agrees to sign any reasonable
engagement letter requested by the independent accounting firm related to its
determination. The determination of original issue discount in
accordance with this Section 4 shall
be used by each party hereto in all income tax filings. All fees and
expenses of third parties related to the determination of original issue
discount shall be paid by the Company.
5. California Corporate
Securities Law. THE SALE OF THE SECURITIES WHICH ARE THE
SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF
CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES OR
THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH SECURITIES
PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT
FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA
CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE
EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS
SO EXEMPT.
6. Miscellaneous.
6.1 Successors and Assigns;
Assignments. This Agreement shall inure to the benefit of, and
be binding upon, the parties and their respective successors and permitted
assigns. The Company shall not assign any of its rights and
obligations hereunder or any interest herein or therein without the prior
written consent of the Purchaser. The Purchaser may, at any time and
from time to time without the consent of the Company, assign, transfer or
delegate to one or more persons (each an “Assignee”) all or any
part of its right, title and interest in and to this Agreement and the Warrant,
subject to compliance with applicable federal and state securities laws; provided, however, that, in any
privately negotiated transaction involving a sale or assignment of any such
right, title or interest, the transferor shall obtain from the Assignee in
writing investment intent representations which would be customarily obtained in
transactions of such nature; and provided further, that the
Company shall continue to deal solely and directly with the transferor in
connection with any right, title or interest so assigned until written notice of
such assignment, together with payment instructions, addresses and related
information with respect to the Assignee, shall have been given to the
Company.
5
6.2 Governing
Law. IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF DELAWARE
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE (WITHOUT REGARD TO THE
CHOICE OF LAW OR CONFLICTS OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF
THE UNITED STATES OF AMERICA.
6.3 Consent to
Forum. AS PART OF THE CONSIDERATION FOR NEW VALUE RECEIVED,
AND REGARDLESS OF ANY PRESENT OR FUTURE DOMICILE OR PRINCIPAL PLACE OF BUSINESS
OF THE COMPANY OR THE PURCHASER, THE COMPANY HEREBY CONSENTS AND AGREES THAT THE
SUPERIOR COURT OF LOS ANGELES COUNTY, CALIFORNIA, OR, AT THE PURCHASER’S OPTION,
THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SHALL
HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN
THE COMPANY ON THE ONE HAND AND THE PURCHASER ON THE OTHER HAND PERTAINING TO
THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATED TO THIS
AGREEMENT. THE COMPANY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO
SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND THE
COMPANY HEREBY WAIVES ANY OBJECTION WHICH THE COMPANY MAY HAVE BASED UPON LACK
OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY
CONSENT TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. THE COMPANY HEREBY WAIVES PERSONAL SERVICE
OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT
AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE
BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO THE COMPANY AT THE ADDRESS SET
FORTH IN THIS AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON
THE EARLIER OF THE COMPANY’S ACTUAL RECEIPT THEREOF OR FIVE (5) DAYS AFTER
DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID. NOTHING IN THIS
AGREEMENT SHALL BE DEEMED OR OPERATE TO AFFECT THE RIGHT OF THE PURCHASER TO
SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW, OR TO PRECLUDE THE
ENFORCEMENT BY THE PURCHASER OF ANY JUDGMENT OR ORDER OBTAINED IN SUCH FORUM OR
THE TAKING OF ANY ACTION UNDER THIS AGREEMENT TO ENFORCE SAME IN ANY OTHER
APPROPRIATE FORUM OR JURISDICTION.
6.4 Waiver of Trial by
Jury. THE COMPANY AND THE PURCHASER HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT,
COUNTERCLAIM OR OTHER PROCEEDING (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF, CONNECTED WITH OR RELATING TO THIS AGREEMENT, THE NOTE, THE
WARRANT OR ANY OTHER DOCUMENT RELATED THERETO, THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, OR THE ACTIONS OF THE PURCHASER IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF, REGARDLESS OF WHICH PARTY
INITIATES SUCH ACTION OR ACTIONS.
6
6.5 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. Facsimile or PDF signatures delivered hereunder shall be
deemed, and effective as, originals.
6.6 Titles and
Subtitles. The titles and subtitles used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement.
6.7 Notices. All
notices, requests, demands and other communications which are required or may be
given under this Agreement shall be in writing and shall be deemed to have been
duly given (i) if transmitted by telecopier with receipt acknowledged, or
(ii) upon delivery, if delivered personally or by recognized commercial
courier with receipt acknowledged, or (iii) the next Business Day, if sent
by a nationally recognized overnight courier for next Business Day delivery,
addressed as follows:
If to the
Purchaser:
Vintage
Capital Group, LLC
00000 Xxx
Xxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxx Xxxxxxx,
XX 00000
|
Attention:
|
Xxxxxx
Xxxxxxx
|
|
Telephone:
|
(000)
000-0000
|
|
Facsimile:
|
(000)
000-0000
|
|
E-Mail:
|
xxxxxxxx@xxxxxxx-xxx.xxx
|
With a
copy to:
Klee,
Tuchin, Xxxxxxxxx & Xxxxx LLP
1999
Avenue of the Stars, 00xx Xxxxx
Xxx
Xxxxxxx, XX 00000
|
Attention:
|
Xxxx
X. Xxxxxx
|
|
Telephone:
|
(000)
000-0000
|
|
Facsimile:
|
(000)
000-0000
|
|
E-Mail:
|
XXxxxxx@xxxxxxx.xxx
|
7
If to the
Company, to:
Caprius,
Inc.
00 Xxxxxx
Xxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
|
Attention:
|
Xxxxxx
Xxxxxx
|
|
Telephone:
|
(000)
000-0000
|
|
Facsimile:
|
(000)
000-0000
|
|
E-Mail:
|
xxxxxxx@xxxxxxxx.xxx
|
With a
copy to:
Xxxxxx
Xxxxxxx & Xxxxxxx LLP
0 Xxxx
Xxxxxx
Xxx Xxxx,
XX 00000
|
Attention:
|
Xxxxx
X. Xxxx
|
|
Telephone:
|
(000)
000-0000
|
|
Facsimile:
|
(000)
000-0000
|
|
E-Mail:
|
xxxx@xxx.xxx
|
or at
such other address or addresses as the Purchaser or the Company, as the case may
be, may specify by written notice given in accordance with this Section 6.6.
6.8 Finder’s
Fee. Each party represents that it neither is nor will be
obligated for any finder’s fee or commission in connection with this
transaction. The Purchaser agrees to indemnify and to hold harmless
the Company from any liability for any commission or compensation in the nature
of a finder’s fee (and the costs and expenses of defending against such
liability or asserted liability) for which the Purchaser or any of its officers,
partners, employees, or representatives is responsible. The Company
agrees to indemnify and hold harmless Purchaser from any liability for any
commission or compensation in the nature of a finder’s fee (and the costs and
expenses of defending against such liability or asserted liability) for which
the Company or any of its officers, employees, or representatives is
responsible.
6.9 Expenses. If
any action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the prevailing party shall be entitled to reasonable attorneys’
fees, costs, expenses and necessary disbursements in addition to any other
relief to which such party may be entitled. The Company shall bear
all costs, expenses and legal fees incurred by it and by the Purchaser with
respect to this Agreement, the Warrant and the transactions contemplated
hereby.
6.10 Entire Agreement; Amendments
and Waivers. This Agreement, the Warrant, the Securities
Purchase Agreement, the Investment Documents and the other documents delivered
pursuant hereto and thereto constitute the full and entire understanding and
agreement between the parties with regard to the subject matter hereof and
thereof. Any term of this Agreement may be amended and the observance
of any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), with the written consent of
the Company and the Purchaser.
8
6.11 Severability. If
one or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision shall be excluded from this Agreement and the
balance of the Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
9
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
|
CAPRIUS,
INC.,
a
Delaware corporation
|
||||
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By:
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/s/Xxxxxx Xxxxxx
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||
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Name:
Title:
|
Xxxxxx Xxxxxx
Chief Executive
Officer
|
|||
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VINTAGE
CAPITAL GROUP, LLC,
a
Delaware limited liability company
|
||||
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By:
|
/s/Xxxx X.
Xxxxx
|
||
|
Name:
Title:
|
Xxxx X. Xxxxx
Chairman
|
|||
[SIGNATURE
PAGE TO WARRANT PURCHASE AGREEMENT]
PAGE
2
