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
EX-4 — Common Stock Purchase Warrant
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THE TRANSFER OF THIS WARRANT IS SUBJECT TO RESTRICTIONS CONTAINED HEREIN.
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES
HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL, IN GENERALLY ACCEPTABLE FORM,
THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES
LAWS OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT.
IMAGING TECHNOLOGIES CORPORATION
Common Stock Purchase Warrant
To Purchase 190,000 Shares of September 17, 1998
the Common Stock of
Imaging Technologies Corporation
THIS CERTIFIES that, for value received, American Industries, Inc. or its
registered assigns (the "Holder"), is entitled to purchase from Imaging
Technologies Corporation, a Delaware corporation (hereinafter called the
"Corporation"), up to 190,000 shares (subject to adjustment as provided in
Section 4) (the "Warrant Shares") of fully paid and non-assessable Common Stock
of the Corporation (the "Common Stock"), subject to the provisions and upon the
terms and conditions set forth herein.
1. TERM OF WARRANT. Subject to the terms and conditions set forth herein,
this Warrant shall be exercisable, in whole or in part, during the term
commencing on the date hereof (the "Exercise Date") and ending at 5:00 p.m.
Pacific Daylight Time on the date three (3) years after the Exercise Date (the
"Exercise Period").
2. EXERCISE PRICE. The exercise price at which this Warrant may be
exercised shall be $2.025 per share of Common Stock (the "Exercise Price), as
adjusted from time to time pursuant to Section 4 hereof. The parties hereto
acknowledge that this in no way is an attempt to identify the fair market value
of shares of Common Stock, but is rather an arbitrary assignment of value for
the purposes of this Warrant only.
3. EXERCISE OF WARRANT. (a) Subject to the terms and conditions hereof,
this Warrant may be exercised by the Holder, in whole or in part, at any time
during the Exercise Period by (i) delivery of the completed purchase form
annexed hereto, which purchase form shall specify the number of Warrant Shares
to be purchased, (ii) payment to the Corporation of an amount equal to the
Exercise Price multiplied by the number of Warrant Shares as to which the
Warrant is being exercised (plus any applicable issue or transfer taxes) (the
"Aggregate Exercise Price") in cash or by check or wire transfer, and (iii) the
surrender of this Warrant, at the principal office of the Corporation; provided,
that if such Warrant Shares are to be issued in any name other than that of the
Holder, such issuance shall be deemed a transfer and the provisions of Section
13 shall be applicable. In the event of any exercise of the rights represented
by this Warrant in compliance with this Section 3(a), a certificate or
certificates for the Warrant Shares so purchased, in such denominations as may
be requested by the Holder and registered in the name of, or as directed by, the
Holder, shall be delivered at the Corporation's expense to, or as directed by,
the Holder as soon as practicable after such rights shall have been so
exercised, and in any event no later than three business days after such
exercise.
(b) Unless the rights represented by this Warrant shall have expired or
shall have been fully exercised, the Corporation shall, as soon as practicable
and in no event later than ten business days after any exercise and at its own
expense, issue a new Warrant identical in all respects to the Warrant exercised
except (i) it shall represent rights to purchase the number of Warrant Shares
purchasable immediately prior to such exercise under the Warrant exercised, less
the number of Warrant Shares with respect to which such Warrant is exercised,
and (ii) the Holder thereof shall be deemed for all corporate purposes to have
become the Holder of record of such Warrant Shares immediately prior to the
close of business on the date on which the Warrant is surrendered and payment of
the amount due in respect of such exercise and any applicable taxes is made,
irrespective of the date of delivery of certificates evidencing such Warrant
Shares, except that, if the date of such surrender and payment is a date when
the stock transfer books of the Corporation are properly closed, such person
shall be deemed to have become the holder of such Warrant Shares at the opening
of business on the next succeeding date on which the stock transfer books are
open.
(c) No fractional shares of Common Stock are to be issued upon the exercise
of this Warrant, but rather the number of shares of Common Stock issued upon
exercise of this Warrant shall be rounded up or down to the nearest whole
number.
4. STOCK SPLITS, CONSOLIDATION, MERGER AND SALE. In the event that before
the issuance of the shares of Common Stock into which this Warrant may be
exercised the outstanding shares of Common Stock shall be split, combined or
consolidated, by dividend, reclassification or otherwise, into a greater or
lesser number of shares of Common Stock, the Exercise Price in effect
immediately prior to such combination or consolidation and the number of shares
purchasable under this Warrant shall, concurrently with the effectiveness of
such combination or consolidation, be proportionately adjusted. If there shall
be effected any consolidation or merger of the Corporation with another
corporation, or a sale of all or substantially all of the Corporation's assets
to another corporation, and if the holders of Common Stock shall be entitled
pursuant to the terms of any such transaction to receive stock, securities or
assets with respect to or in exchange for Common Stock, then, as a condition of
such consolidation, merger or sale, lawful and adequate provisions shall be made
whereby the Holder of this Warrant shall thereafter have the right to receive,
upon the basis and upon the terms and conditions specified herein and in lieu of
the shares of Common Stock immediately theretofore receivable upon the exercise
of such Warrant, such shares of stock, securities or assets as may be issuable
or payable with respect to or in exchange for a number of outstanding shares of
such Common Stock equal to the number of shares of such Common Stock immediately
theretofore so receivable had such consolidation, merger or sale not taken
place, and in any such case appropriate provisions shall be made with respect to
the rights and interests of the Holder to the end that the provisions hereof
shall thereafter be applicable, as nearly as may be, in relation to any shares
of stock, securities or assets thereafter deliverable upon the exercise of this
Warrant. In the event the Corporation shall declare a distribution payable in
securities of other persons, evidences of indebtedness issued by the Corporation
or other persons, assets (excluding cash dividends) or options or rights not
otherwise referred to in this Section 4, then, in each such case, upon exercise
of this Warrant the Holder shall be entitled to a proportionate share of any
such distribution as though the Holder was the holder of the number of shares of
Common Stock of the Corporation issuable upon exercise of this Warrant as of the
record date fixed for the determination of the holders of Common Stock of the
Corporation entitled to receive such distribution.
5. STOCK TO BE RESERVED. The Corporation will at all times reserve and keep
available out of its authorized Common Stock, solely for the purpose of issue
upon the exercise of this Warrant as herein provided, such number of shares of
Common Stock as shall then be issuable upon the exercise of this Warrant. The
Corporation shall from time to time in accordance with applicable law increase
the authorized amount of its Common Stock if at any time the number of shares of
Common Stock remaining unissued and available for issuance shall not be
sufficient to permit exercise of this Warrant. The Corporation covenants that
all shares of Common Stock which shall be so issued shall be duly and validly
issued and fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issue thereof, and, without limiting the generality
of the foregoing, the Corporation will take all such action as may be necessary
to assure that all such shares of Common Stock may be so issued without
violation of any applicable law or regulation, or of any requirements of any
national securities exchange upon which shares of capital stock of the
Corporation may be listed.
6. ISSUE TAX. The issuance of certificates for shares of Common Stock upon
exercise of this Warrant shall be made without charge to the Holder for any
issuance tax in respect thereof provided that the Corporation shall not be
required to pay any tax which may be payable in respect of any transfer involved
in the issuance and delivery of any certificate in a name other than that of the
Holder of this Warrant.
7. CLOSING OF BOOKS. The Corporation will at no time close its transfer
books against the transfer of the shares of Common Stock issued or issuable upon
the exercise of this Warrant in any manner which interferes with the timely
exercise of this Warrant.
8. NOTICES OF RECORD DATES. In the event of:
(a) any taking by the Corporation of a record of the holders of any class
of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution (other than cash
dividends out of earned surplus), or any right to subscribe for, purchase or
otherwise acquire any shares of stock of any class or any other securities or
property, or to receive any other right, or
(b) any capital reorganization of the Corporation, any reclassification or
recapitalization of the capital stock of the Corporation or any transfer of all
or substantially all the assets of the Corporation to or consolidation or merger
of the Corporation with or into any other corporation, or
(c) any voluntary or involuntary dissolution, liquidation or winding-up of
the Corporation, then and in each such event the Corporation will give notice to
the Holder of this Warrant specifying (i) the date on which any such record is
to be taken for the purpose of such dividend, distribution or right and stating
the amount and character of such dividend, distribution or right, and (ii) the
date on which any such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation or winding-up is to
take place, and the time, if any is to be fixed, as of which the holders of
record of Common Stock will be entitled to exchange their shares of Common Stock
for securities or other property deliverable upon such reorganization,
reclassification, recapitalization, transfer, consolidation, merger,
dissolution, liquidation or winding-up. Such notice shall be given at least ten
(10) days and not more than ninety (90) days prior to the date therein
specified, and such notice shall state that the action in question or the record
date is subject to the effectiveness of a registration statement under the
Securities Act of 1933, as amended (the "Securities Act") or to a favorable vote
of stockholders, if either is required.
9. NO STOCKHOLDER RIGHTS OR LIABILITIES. Subject to Sections 4 and 8 of
this Warrant, this Warrant shall not entitle the Holder hereof to any voting
rights or other rights as a stockholder of the Corporation. No provision hereof,
in the absence of affirmative action by the Holder hereof to purchase shares of
Common Stock, and no mere enumeration hereon of the rights or privileges of the
Holder hereof, shall give rise to any liability of such Holder for the Exercise
Price or as a stockholder of the Corporation, whether such liability is asserted
by the Corporation or by creditors of the Corporation.
10. LISTING. The Corporation shall use its best efforts to cause all of the
shares of Common Stock issuable upon exercise of this Warrant to be approved for
listing on the Nasdaq SmallCap Market. The Corporation shall maintain the Common
Stock's authorization for quotation on the Nasdaq National Market, the Nasdaq
SmallCap Market, the New York Stock Exchange, Inc. ("NYSE") or the American
Stock Exchange, Inc. ("AMEX"). Neither the Corporation nor any of its
subsidiaries shall take any action which may result in the delisting or
suspension of the Common Stock on the Nasdaq SmallCap Market, the Nasdaq
National Market, NYSE or AMEX. The Corporation shall promptly provide Holder
copies of any notices it receives from the Nasdaq SmallCap Market, the Nasdaq
National Market, NYSE or AMEX regarding the continued eligibility of the Common
Stock for listing on such automated quotation system or securities exchange. The
Corporation shall pay all fees and expenses in connection with satisfying its
obligation under this Section 10.
11. TRANSFER AGENT INSTRUCTIONS. The Corporation shall issue irrevocable
instructions to its transfer agent, and any subsequent transfer agent, to issue
certificates, registered in the name of the Holder or its respective nominee(s),
for the Warrant Shares in such amounts as specified from time to time by the
Holder to the Corporation upon exercise of this Warrant (the "Irrevocable
Transfer Agent Instructions"). All such certificates shall bear the restrictive
legend specified in Section 12 of this Warrant. The Corporation warrants that no
instruction other than the Irrevocable Transfer Agent Instructions referred to
in this Section 11 and the stop transfer instructions to give effect to Section
12 hereof will be given by the Corporation to its transfer agent and that the
Warrant Shares shall otherwise be freely transferable on the books and records
of the Corporation as and to the extent provided in this Warrant and that
certain Subordinated Note Purchase Agreement dated as of the date hereof, among
the Corporation and the entities listed on the signature pages thereto. If
Holder provides the Corporation with an opinion of counsel, reasonably
satisfactory in form, and substance to the Corporation, that registration of a
resale by such Holder of any of such Warrant Shares is not required under the
Securities Act, the Corporation shall permit the transfer, and promptly instruct
its transfer agent to issue one or more certificates in such name and in such
denominations as specified by such Holder and without any restrictive legends.
The Corporation acknowledges that a breach by it of its obligations hereunder
will cause irreparable harm to the Holder hereof by vitiating the intent and
purpose of the transaction contemplated hereby. Accordingly, the Corporation
acknowledges that the remedy at law for a breach of its obligations under this
Section 11 will be inadequate and agrees, in the event of a breach or threatened
breach by the Corporation of the provisions of this Section 11, that the Holder
shall be entitled, in addition to all other available remedies, to an injunction
restraining any breach and requiring immediate issuance and transfer, without
the necessity of showing economic loss and without any bond or other security
being required.
12. COMPLIANCE WITH SECURITIES LAWS.
(a) The Holder of this Warrant, by acceptance hereof, acknowledges that
this Warrant and the shares of Common Stock to be issued upon exercise hereof
(collectively, the "Securities") are being acquired solely for the Holder's own
account for investment only and not with a view towards, or for resale in
connection with, the public sale or distribution thereof, except pursuant to
sales registered or exempted under the Securities Act; provided, however, that
by making the representations herein, the Holder does not agree to hold any of
the Securities for any minimum or other specific term.
(b) This Warrant and the stock certificates representing the Warrant
Shares, except as set forth below, shall bear a restrictive legend in
substantially the following form (and a stop-transfer order may be placed
against transfer of such stock certificates):
THE SECURITIES REPRESENTED HEREBY HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS. THE SECURITIES HAVE
BEEN ACQUIRED FOR INVESTMENT AND MAY
NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES
UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES
LAWS, OR AN OPINION OF COUNSEL, IN
GENERALLY ACCEPTABLE FORM, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID
ACT OR APPLICABLE STATE SECURITIES LAWS OR
UNLESS SOLD PURSUANT TO RULE 144 UNDER
SAID ACT.
The legend set forth above shall be removed and the Corporation shall issue
a certificate without such legend to the Holder of the Warrant Shares upon which
it is stamped, if, unless otherwise required by state securities laws, (i) such
Warrant Shares are registered for sale under the Securities Act, (ii) in
connection with a sale transaction, such Holder provides the Corporation with an
opinion of counsel, in a generally acceptable form, to the effect that a public
sale, assignment or transfer of such Warrant Shares may be made without
registration under the Securities Act, or (iii) such Holder provides the
Corporation with reasonable assurances that such Warrant Shares can be sold
pursuant to Rule 144 without any restriction as to the number of securities
acquired as of a particular date that can then be immediately sold. The Holder
acknowledges, covenants and agrees to sell the Warrant Shares represented by a
certificate(s) from which the legend has been removed, only pursuant to (i) a
registration statement effective under the Securities Act, or (ii) advice of
counsel that such sale is exempt from registration required by Section 5 of the
Securities Act.
13. TRANSFER. Subject to the terms and conditions contained in Section 12
hereof, this Warrant and all rights hereunder are transferable in whole or in
part by the Holder and any successor transferee; provided, however, in no event
shall the aggregate number of transfers of the rights and interests in all of
the Warrants exceed three (3) transfers. The transfer shall be recorded on the
books of the Corporation upon receipt by the Corporation of an assignment form
in the form attached hereto ("Assignment Form"), at its principal office and the
payment to the Corporation of all transfer taxes and other governmental charges,
if any, imposed on such transfer.
14. PRESENTMENT. Prior to due presentment of this Warrant together with a
completed Assignment Form for registration of transfer, the Corporation may deem
and treat the Holder as the absolute owner of the Warrant, notwithstanding any
notation of ownership or other writing thereon, for the purpose of any exercise
thereof and for all other purposes, and the Corporation shall not be affected by
any notice to the contrary.
15. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is lost,
stolen, mutilated or destroyed, the Corporation may, on such terms as to
indemnity or otherwise as it may in its discretion reasonably impose (which
shall, in the case of a mutilated Warrant, include the surrender thereof), issue
a new Warrant of like denomination and tenor as the Warrant so lost, stolen,
mutilated or destroyed.
16. GOVERNING LAW. This Warrant shall be governed in all respects by and
construed in accordance with the laws of the State of Oregon without any regard
to conflicts of laws principles. Each party hereby irrevocably submits to the
non-exclusive jurisdiction of the state and federal courts sitting in Portland,
Multnomah County, Oregon, for the adjudication of any dispute hereunder or in
connection herewith, and hereby waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby waives personal service of process and consents to
process being served in any such suit, action or proceeding by mailing a copy
thereof to such party at the address for such notices to it under this Warrant
and agrees that such service shall constitute good and sufficient service of
process and notice thereof.
17. SUCCESSORS, ASSIGNS. All the terms and provisions of the Warrant shall
be binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto.
18. AMENDMENT. This Warrant may only be modified, amended or terminated by
a writing signed by the Corporation and the Holder.
19. SEVERABILITY. If any provision of this Warrant shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Warrant in that
jurisdiction or the validity or enforceability of any provision of this Warrant
in any other jurisdiction.
IN WITNESS WHEREOF, the Corporation has caused this Warrant to be duly
executed and delivered on and as of the day and year first above written by one
of its officers thereunto duly authorized.
IMAGING TECHNOLOGIES CORPORATION
Dated: September , 1998 By: /s/Brian Bonar
--- -----------------------------
Brian Bonar, President and Chief
Executive Officer
The undersigned Holder agrees and accepts this Warrant and acknowledges
that it has read and confirms each of the representations contained in Section
12.
AMERICAN INDUSTRIES, INC.
By: /s/ Howard Hedinger
--------------------
Howard Hedinger
Its: President
-------------------
Address: 1750 NW Front Avenue, Suite 106
Portland, Oregon 97209
[SIGNATURE PAGE TO COMMON STOCK PURCHASE WARRANT]
PURCHASE FORM
(To be executed by the Warrant Holder if desires to exercise the Warrant in
whole or in part)
To: Imaging Technologies Corporation
The undersigned, whose Social Security or other identifying number is
, hereby irrevocably elects the right of purchase represented by
--------------
the within Warrant for, and to purchase thereunder,
---------------------------
shares of Common Stock provided for therein and tenders payment herewith to the
order of
Imaging Technologies Corporation
in the amount of
$
--------------------
The undersigned requests that certificates for such shares be issued as follows:
Name:
---------------------------------------------------------------------------
Address:
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Deliver to:
---------------------------------------------------------------------
Address:
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and, if said number of shares shall not be all the shares purchasable hereunder,
that a new Warrant for the balance remaining of the shares purchasable under the
within Warrant be registered in the name of, and delivered to, the undersigned
at the address stated below
Address:
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Dated: , 19
--------------- ---
Signature
(Signature must conform in all respects to
the name of the Warrant Holder as specified
on the face of the Warrant, without
alteration, enlargement or any change
whatsoever)
ASSIGNMENT
(To be executed by the Warrant Holder if he desires to effect a transfer of the
Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
whose Social Security or
-------------------------------------------------------
other identification number is [residing/located] at
---------------------------
the attached Warrant, and appoints
------------------------------
residing at
--------------------------- ------------------------------------
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the undersigned's attorney-in-fact to transfer said Warrant on the books of the
Corporation, with full power of substitution in the premises.
Dated: , 19 .
--------------- ---
In the presence of:
--------------------------
(Signature must conform in all respects
to the name of the Warrant Holder as
specified on the face of the Warrant,
without alteration, enlargement or any
change whatsoever).
Dates Referenced Herein
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| This ‘SC 13D/A’ Filing | | Date | | First | | Last | | | Other Filings |
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| Filed on: | | 10/7/98 | | | | | | | None on these Dates |
| | 9/17/98 | | 1 |
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