Amendment to General Statement of Beneficial Ownership — Schedule 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D/A Schedule 13D Amendment No. 1 12 40K
2: EX-1 Subordinated Note Purchase Agreement 20 55K
3: EX-2 Non-Convertible Subordinated Promissory Note 6 25K
4: EX-3 Convertible Subordinated Promissory Note 8 31K
5: EX-4 Common Stock Purchase Warrant 10 34K
6: EX-5 Common Stock Purchase Agreement 16 47K
7: EX-6 Registration Rights Agreement 12 43K
8: EX-7 Imaging Technologies Corporation Letter 4 16K
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IMAGING TECHNOLOGIES CORPORATION
COMMON STOCK PURCHASE AGREEMENT
SEPTEMBER 17, 1998
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[Download Table]
TABLE OF CONTENTS
Page
Section 1 AUTHORIZATION AND SALE OF COMMON STOCK 1
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1.1 AUTHORIZATION 1
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1.2 SALE OF COMMON STOCK 1
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Section 2 CLOSING DATE; DELIVERY 1
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2.1 CLOSING DATE 1
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2.2 DELIVERY 1
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Section 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY 1
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3.1 ORGANIZATION AND STANDING 2
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3.2 CORPORATE POWER; AUTHORIZATION 2
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3.3 ISSUANCE AND DELIVERY OF THE SHARES 2
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3.4 CONSENTS 2
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3.5 SEC DOCUMENTS; FINANCIAL STATEMENTS 2
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3.6 NO MATERIAL MISSTATEMENT 3
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3.7 NO MATERIAL ADVERSE CHANGE 3
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Section 4 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS 3
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4.1 AUTHORIZATION 4
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4.2 INVESTMENT EXPERIENCE 4
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4.3 INVESTMENT INTENT 4
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4.4 REGISTRATION OR EXEMPTION REQUIREMENTS 4
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4.5 NO LEGAL, TAX OR INVESTMENT ADVICE 4
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4.6 LEGENDS 4
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Section 5 CONDITIONS TO CLOSING OF PURCHASERS 5
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5.1 REPRESENTATIONS AND WARRANTIES 5
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5.2 PERFORMANCE 5
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5.3 QUALIFICATIONS 5
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5.4 COMPLIANCE CERTIFICATE 5
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5.5 OPINION OF COMPANY COUNSEL 5
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5.6 REGISTRATION RIGHTS AGREEMENT 5
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Section 6 CONDITIONS TO CLOSING OF COMPANY 5
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6.1 REPRESENTATIONS AND WARRANTIES 6
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6.2 PERFORMANCE 6
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6.3 QUALIFICATIONS 6
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6.4 REGISTRATION RIGHTS AGREEMENT 6
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Section 7 MISCELLANEOUS 6
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7.1 AMENDMENTS AND WAIVERS 6
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7.2 GOVERNING LAW 6
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7.3 SURVIVAL 6
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7.4 SUCCESSORS AND ASSIGNS 6
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7.5 ENTIRE AGREEMENT 6
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7.6 NOTICES, ETC 6
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7.7 SEVERABILITY OF THIS AGREEMENT 7
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7.8 COUNTERPARTS 7
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7.9 FURTHER ASSURANCES 7
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7.10 EACH PURCHASER ACTING SEVERALLY 7
-------------------------------
7.11 ACKNOWLEDGEMENT 8
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Schedule A -- Schedule of Purchasers
Schedule B -- Schedule of Exceptions
Exhibit A -- Registration Rights Agreement
Exhibit B -- Form of Legal Opinion
IMAGING TECHNOLOGIES CORPORATION
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement (the "Agreement") is made as of
September 17, 1998, by and among Imaging Technologies Corporation, a Delaware
corporation (the "Company"), with its principal office at 11031 Via Frontera,
San Diego, California 92127, and the purchasers listed on SCHEDULE A hereto
(each a "Purchaser" and together the "Purchasers").
Section 1
AUTHORIZATION AND SALE OF COMMON STOCK
--------------------------------------
1.1 AUTHORIZATION. The Company has authorized the sale and issuance of
500,000 shares of its Common Stock pursuant to this Agreement (the "Shares").
1.2 SALE OF COMMON STOCK. Subject to the terms and conditions of this
Agreement, the Company agrees to issue and sell to each Purchaser and each
Purchaser agrees, severally, to purchase from the Company that number of shares
of the Company's Common Stock set forth opposite each such Investor's name on
SCHEDULE A hereto for the purchase price set forth thereon (the "Purchase
Price").
Section 2
CLOSING DATE; DELIVERY
----------------------
2.1 CLOSING DATE. The closing of the purchase and sale of the Shares
hereunder (the "Closing") shall be held at the offices of Brobeck, Phleger &
Harrison LLP, 550 West "C" Street, Suite 1200, San Diego, California 92101 at
11:00 a.m. on September 17, 1998, or at such other time and place upon which the
Company and the Purchasers shall mutually agree. The date of the Closing is
hereinafter referred to as the "Closing Date."
2.2 DELIVERY. At the Closing, the Company will deliver to each Purchaser a
certificate, registered in such Purchaser's name, representing the number of
Shares to be purchased by the Purchaser. Such delivery shall be against payment
of the purchase price therefor by check or wire transfer in the amount of the
Purchase Price.
Section 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
The Company represents and warrants to each Purchaser as of the Closing
Date that, except as set forth on the Schedule of Exceptions attached hereto as
SCHEDULE B (the "Schedule of Exceptions"), which exceptions shall be deemed to
be representations and warranties as if made hereunder:
3.1 ORGANIZATION AND STANDING. The Company is a corporation duly organized
and validly existing under, and by virtue of, the laws of the State of Delaware
and is in good standing as a domestic corporation under the laws of said state.
3.2 CORPORATE POWER; AUTHORIZATION. The Company has all requisite legal and
corporate power and has taken all requisite corporate action to execute and
deliver this Agreement and the Registration Rights Agreement of even date
herewith in the form attached hereto as EXHIBIT A (the "Registration Rights
Agreement"), to sell and issue the Shares and to carry out and perform all of
its obligations under this Agreement and the Registration Rights Agreement. This
Agreement and the Registration Rights Agreement each constitutes the legal,
valid and binding obligation of the Company, enforceable in accordance with its
terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization or similar laws relating to or affecting the enforcement of
creditors' rights generally and (ii) as limited by equitable principles
generally. The execution and delivery of this Agreement and the Registration
Rights Agreement does not, and the performance of this Agreement and the
Registration Rights Agreement, the compliance with the provisions hereof and
thereof and the issuance, sale and delivery of the Shares by the Company will
not, materially conflict with, or result in a material breach or violation of
the terms, conditions or provisions of, or constitute a material default under,
or result in the creation or imposition of any material lien pursuant to the
terms of, the Certificate of Incorporation or Bylaws of the Company or any
statute, law, rule or regulation or any state or federal order, judgment or
decree or any indenture, mortgage, lease or other material agreement or
instrument to which the Company or any of its properties is subject.
3.3 ISSUANCE AND DELIVERY OF THE SHARES. The Shares, when issued in
compliance with the provisions of this Agreement for the consideration expressed
herein, will be validly issued, fully paid and nonassessable. The issuance and
delivery of the Shares is not subject to preemptive or any other similar rights
of the stockholders of the Company or any liens or encumbrances.
3.4 CONSENTS. No consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
federal, state, or local governmental authority on the part of the Company is
required in connection with the consummation of the transactions contemplated by
this Agreement except for (i) the filing of a Notice of Transaction pursuant to
Section 25102(f) of the California Corporate Securities Law of 1968, as amended,
and the rules thereunder (the "Law"), which filing will be effected within the
time prescribed by law; and (ii) such other qualifications or filings under the
Securities Act of 1933, as amended (the "Securities Act"), and the regulations
thereunder and all other applicable securities laws as may be required in
connection with the transactions contemplated by this Agreement, which filings
will be effected within the time prescribed by law. The Company has obtained all
consents, waivers and approvals under any of the Company's agreements,
contracts, licenses or leases required to be obtained in connection with the
consummation of the transactions contemplated by this Agreement.
3.5 SEC DOCUMENTS; FINANCIAL STATEMENTS. As of their respective filing
dates, all documents (the "SEC Documents") filed by the Company with the
Securities and Exchange Commission (the "SEC") complied in all material respects
with the requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") or the Securities Act, as applicable. None of the SEC Documents
as of their respective dates contained any untrue statement of material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances under which they
were made, not misleading.
3.6 NO MATERIAL MISSTATEMENT. None of the representations or warranties of
the Company contained in this Agreement or in the Registration Rights Agreement,
and none of the other information furnished to the Purchasers or their
representatives in connection with this Agreement, when considered as a whole,
contains, or will contain, any misstatement of a material fact or omits to state
any fact necessary in light of the circumstances under which made, to make those
statements which have been made, not misleading.
3.7 NO MATERIAL ADVERSE CHANGE. Except as otherwise disclosed herein, since
March31, 1998, there have not been any changes in the assets, liabilities,
financial condition, business prospects or operations of the Company from that
reflected in the SEC Documents except changes in the ordinary course of business
which have not been, either individually or in the aggregate, materially
adverse.
Section 4
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS
------------------------------------------------------------
Each Purchaser hereby represents and warrants to the Company, separately
and not jointly, of the Closing Date as follows:
4.1 AUTHORIZATION. Purchaser represents and warrants to the Company that:
(i) Purchaser has all requisite legal and corporate or other power and capacity
and has taken all requisite corporate or other action to execute and deliver
this Agreement and the Registration Rights Agreement, to purchase the Shares and
to carry out and perform all of its obligations under this Agreement; and (ii)
this Agreement and the Registration Rights Agreement each constitutes the legal,
valid and binding obligation of the Purchaser, enforceable in accordance with
its terms, except (a) as limited by applicable bankruptcy, insolvency,
reorganization, or similar laws relating to or affecting the enforcement of
creditors' rights generally and (b) as limited by equitable principles
generally.
4.2 INVESTMENT EXPERIENCE. Purchaser is an "accredited investor" as defined
in Rule501(a) under the Securities Act. Purchaser is aware of the Company's
business affairs and financial condition and has had access to and has acquired
sufficient information about the Company to reach an informed and knowledgeable
decision to acquire his or its Shares. Purchaser has such business and financial
experience as is required to give it the capacity to protect his or its own
interests in connection with the purchase of his or its Shares.
4.3 INVESTMENT INTENT. Purchaser is purchasing the Shares for his or its
own account as principal, for investment purposes only, and not with a present
view to, or for, resale, distribution or fractionalization thereof, in whole or
in part, within the meaning of the Securities Act. Purchaser understands that
its acquisition of the Shares has not been registered under the Securities Act
or registered or qualified under any state securities law in reliance on
specific exemptions therefrom, which exemptions may depend upon, among other
things, the bona fide nature of Purchaser's investment intent as expressed
herein. Purchaser will not, directly or indirectly, offer, sell, pledge,
transfer or otherwise dispose of (or solicit any offers to buy, purchase or
otherwise acquire or take a pledge of) any of the Shares except in compliance
with the Securities Act, and the rules and regulations promulgated thereunder.
4.4 REGISTRATION OR EXEMPTION REQUIREMENTS. Purchaser further acknowledges
and understands that the Shares may not be resold or otherwise transferred
except in a transaction registered under the Securities Act or unless an
exemption from such registration is available.
4.5 NO LEGAL, TAX OR INVESTMENT ADVICE. Purchaser understands that nothing
in this Agreement or any other materials presented to Purchaser in connection
with the purchase and sale of the Shares constitutes legal, tax or investment
advice. Purchaser has consulted such legal, tax and investment advisors as he or
it, in his or its sole discretion, has deemed necessary or appropriate in
connection with his or its purchase of the Shares.
4.6 LEGENDS. To the extent applicable, each certificate or other document
evidencing any of the Shares shall be endorsed with the legends set forth below,
and the Purchaser covenants that, except to the extent such restrictions are
waived by the Company, the Purchaser shall not transfer the Shares represented
by any such certificate without complying with the restrictions on transfer
described in the legends endorsed on such certificate:
(a) "THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION
THEREOF UNDER SUCH ACT OR COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT,
OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL, SATISFACTORY TO THE
COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED."
(b) "THE SHARES REPRESENTED HEREBY ARE SUBJECT TO THE TERMS AND CONDITIONS
OF A CERTAIN REGISTRATION RIGHTS AGREEMENT, AS AMENDED FROM TIME TO TIME, WHICH
INCLUDE, WITHOUT LIMITATION, MARKET STAND-OFF RIGHTS IN FAVOR OF THE COMPANY.
THE COMPANY WILL UPON WRITTEN REQUEST FURNISH A COPY OF SUCH AGREEMENT TO THE
HOLDER HEREOF WITHOUT CHARGE."
Section 5
CONDITIONS TO CLOSING OF PURCHASERS
-----------------------------------
Each Purchaser's obligation to purchase his or its Shares at the Closing
is, at the option of the Purchaser, subject to the fulfillment or waiver as of
the Closing Date of the following conditions:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
the Company contained in Section 3 shall be true on and as of the Closing Date
with the same effect as though such representations and warranties had been made
on and as of the date of such Closing Date.
5.2 PERFORMANCE. The Company shall have performed and complied with all
agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
5.3 QUALIFICATIONS. All authorizations, approvals, or permits, if any, of
any governmental authority or regulatory body of the United States or of any
state that are required as of the Closing in connection with the lawful issuance
and sale of the Shares pursuant to this Agreement shall have been duly obtained
and shall be effective as of the Closing.
5.4 COMPLIANCE CERTIFICATE. The President and Chief Executive Officer of
the Company shall have delivered to Purchaser a certificate certifying that the
conditions specified in Sections 5.1, 5.2 and 5.3 have been fulfilled.
5.5 OPINION OF COMPANY COUNSEL. Each Purchaser shall have received from
Brobeck, Phleger & Harrison LLP, counsel for the Company, an opinion dated the
date of the Closing, in substantially the form as EXHIBIT B attached hereto. 5.6
REGISTRATION RIGHTS AGREEMENT. The Company and each Purchaser shall have entered
into the Registration Rights Agreement in the form attached hereto as EXHIBIT A.
Section 6
CONDITIONS TO CLOSING OF COMPANY
--------------------------------
The Company's obligation to sell and issue the Shares at the Closing is, at
the option of the Company, subject to the fulfillment or waiver as of the
Closing Date of the following conditions:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
the Purchasers contained in Section 4 shall be true on and as of the Closing
Date with the same effect as though such representations and warranties had been
made on and as of the date of such Closing Date.
6.2 PERFORMANCE. The Purchasers shall have performed and complied with all
agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by the Purchasers on or before the
Closing.
6.3 QUALIFICATIONS. All authorizations, approvals, or permits, if any, of
any governmental authority or regulatory body of the United States or of any
state that are required as of the Closing in connection with the lawful issuance
and sale of the Shares pursuant to this Agreement shall have been duly obtained
and shall be effective as of the Closing.
6.4 REGISTRATION RIGHTS AGREEMENT. The Company and each Purchaser shall
have entered into the Registration Rights Agreement in the form attached hereto
as EXHIBIT A.
Section 7
MISCELLANEOUS
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7.1 AMENDMENTS AND WAIVERS. 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), only with
the written consent of the Company and the holders of a majority of the Shares
purchased hereunder. Any amendment or waiver effected in accordance with this
Section shall be binding upon each holder of any securities purchased under this
Agreement at the time outstanding, each future holder of all such securities,
and the Company.
7.2 GOVERNING LAW. This Agreement shall be governed in all respects by and
construed in accordance with the laws of the State of California without any
regard to conflicts of laws principles.
7.3 SURVIVAL. The representations, warranties, covenants and agreements
made in this Agreement shall survive any investigation made by the Company or
the Purchasers and the Closing.
7.4 SUCCESSORS AND ASSIGNS. The provisions hereof shall inure to the
benefit of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties to this Agreement. Notwithstanding the foregoing,
no Purchaser shall assign his or its rights or obligations under this Agreement
without the prior written consent of the Company.
7.5 ENTIRE AGREEMENT. This Agreement, together with the Registration Rights
Agreement, constitutes the full and entire understanding and agreement between
the parties with regard to the subjects hereof and thereof.
7.6 NOTICES, ETC. All notices and other communications required or
permitted under this Agreement shall be in writing and may be delivered in
person, by facsimile, overnight delivery service or registered or certified
mail, addressed to the Company at the address set forth at the beginning of this
Agreement, or to the Purchasers at their respective addresses set forth on the
signature pages hereto, or at such other address as the Company or each
Purchaser shall have furnished to the other parties in writing. All notices and
other communications shall be effective upon the earlier of actual receipt
thereof by the person to whom notice is directed or (i) in the case of notices
and communications sent by personal delivery or facsimile, one business day
after such notice or communication arrives at the applicable address or was
successfully sent to the applicable facsimile number, (ii) in the case of
notices and communications sent by overnight delivery service, at noon (local
time) on the second business day following the day such notice or communication
was sent, and (iii) in the case of notices and communications sent by United
States mail, seven days after such notice or communication shall have been
deposited in the United States mail.
7.7 SEVERABILITY OF THIS AGREEMENT. If any provision of this Agreement
shall be judicially determined to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
7.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
7.9 FURTHER ASSURANCES. Each party to this Agreement shall do and perform
or cause to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments and
documents as the other party hereto may reasonably request in order to carry out
the intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
7.10 EACH PURCHASER ACTING SEVERALLY. Each Purchaser undertakes his or its
obligations hereunder and makes the representations, warranties and covenants as
set forth hereunder severally and not jointly.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
7.11 ACKNOWLEDGEMENT. By executing this Agreement, each Purchaser hereby
acknowledges and agrees that Brobeck, Phleger& Harrison LLP represents the
Company solely and that the Purchasers have each had an opportunity to consult
with their own attorney in connection with this Agreement and the Registration
Rights Agreement.
The foregoing agreement is hereby executed as of the date first above
written.
"COMPANY"
IMAGING TECHNOLOGIES CORPORATION,
a Delaware corporation
By: /s/Brian Bonar
-------------------
Brian Bonar, President and
Chief Executive Officer
"PURCHASERS"
AMERICAN INDUSTRIES, INC., An Oregon
corporation
By:/s/Howard Hedinger
-------------------
Its: President
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Address: 1750 NW Front Avenue, Suite 106
Portland, Oregon 97209
/s/ Ellison Morgan
------------------
Ellison Morgan
Address: 11510 SW Summerville Street
Portland, Oregon 97219
[SIGNATURE PAGE TO COMMON STOCK PURCHASE AGREEMENT]
SCHEDULE A
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SCHEDULE OF PURCHASERS
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[Download Table]
Purchase Price Number of Shares
Purchaser Name Paid at Closing to be Issued at Closing
-------------- --------------- -----------------------
American Industries, Inc. $1,000,000 400,000
Ellison Morgan $ 250,000 100,000
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TOTAL $1,250,000 500,000
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SCHEDULE B
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SCHEDULE OF EXCEPTIONS
----------------------
The following are exceptions to the representations and warranties of Imaging
Technologies Corporation (the "Company") set forth in that certain Common Stock
Purchase Agreement dated as of September , 1998 (the "Agreement"), with
reference to the Section designations of the Agreement. The references to
specific Sections are not meant and should not be construed as limiting the
noted exceptions to a particular Section. Although the Company has used its
reasonable best efforts to cross-reference the exceptions to all applicable
representations and warranties, no assurance can be given that all necessary
cross-references have been identified and any exception noted below is therefore
deemed disclosed for purposes of all relevant Sections whether or not
cross-referenced. Capitalized terms not otherwise defined in this Schedule of
Exceptions have the meaning given them in the Agreement. Nothing herein
constitutes an admission of any liability or obligation of the Company nor an
admission against the Company's interest. The inclusion of any agreement or
other matter herein or any exhibit hereto should not be interpreted as
indicating that the Company has determined that such an agreement or other
matter is necessarily material to the Company.
SECTION NUMBER EXCEPTIONS
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Section 3.3 ISSUANCE AND DELIVERY OF THE SHARES.
-----------------------------------
Pursuant to the Agreement, the Company has agreed to
issue and sell to the Purchasers the Shares. Under
the terms of Section 4(g) of that certain Securities
Purchase Agreement dated August 21, 1997, between the
Company and the holders of the outstanding shares of
the Company's Series C Preferred Stock (the "Series C
Holders"), the Company is required to offer any
equity or convertible debt securities it intends to
issue to the Series C Holders prior to offering the
securities to any third party. The Company has not
offered the Shares to the Series C Holders, who will
retain their right of first offer until the closing
of the Company's settlement with the Series C
Holders, which will not occur until after the Company
has issued the Shares to the Purchasers.
Section 3.7 NO MATERIAL ADVERSE CHANGE.
---------------------------
1. On June 19, 1998, the Company delivered notice to
the Series C Holders of its election to redeem for
cash all shares of Series C Preferred Stock tendered
for conversion in lieu of converting such shares.
Certain disputes have arisen between the Company and
the Series C Holders with respect to such notice and
the Company's right to redeem all shares of Series C
Preferred Stock tendered for conversion in lieu of
converting such shares. The Series C Holders have
asserted that the Company is in default of its
obligations to them.
2. The Company has recently been informed by Imperial
Bank, the Company's primary lender, that the Company
is not in compliance with all of the provisions of
its loan agreements with Imperial Bank, including
without limitation, the provisions regarding certain
minimum ratios the Company is required to maintain.
The Company's noncompliance with many of these
provisions results from the expected one-time charge
to earnings that the Company intends to include in
its financial statements as of and for the fiscal
year ended June 30, 1998, which one-time charge the
Company currently anticipates will be as much as
approximately $9,000,000.
3. On September 3, 1998, the Company issued unsecured
promissory notes to certain investors in the
aggregate principal amount of $500,000. Pursuant to
its agreements with Imperial Bank, the Company was
required to obtain Imperial Bank's consent prior to
issuing these notes. The Company did not obtain
Imperial Bank's consent.
4. See the disclosures in Section 3.3 above.
EXHIBIT A
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REGISTRATION RIGHTS AGREEMENT
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EXHIBIT B
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FORM OF LEGAL OPINION
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Dates Referenced Herein and Documents Incorporated by Reference
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