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Exhibit 4
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. 32 For the Purchase of 29,499 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"), 29,499 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) $ 3.39 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
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(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 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 of 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
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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.
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
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(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 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 on or 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
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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
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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.
(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
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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.
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.
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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.
(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 Xxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxx, 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
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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.
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 19th day of June, 1996.
LASERTECHNICS, INC.
By: /s/ X.X. Xxxx Mottorano
----------------------------------
Name: X.X. Xxxx Mottorano
Title: Vice President and C.F.O.
Attest:
/s/ Xxxx-Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxx-Xxxxxx Xxxxxxx
Title: Secretary
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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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