Exhibit 10.5
EQUITY INVESTMENT
LINE AGREEMENT
PART ONE
EUROFUND DERIVATIVES LIMITED
24-26 CALTON ROAD EDINBURGH EH8 9DP U.K
INTL TEL: 0044 131 622 7415 INTL FAX: 0044 131 662 0210
EMAIL: [email protected] WEBSITE: www.eurofund.8m.com
Equity Investment Line Agreement
Dated as of the 12th day of April 2000.
This Equity Investment Line Agreement relates to the purchase and sale from time
to time by Eurofund Derivatives Limited (the "Selling Investor") of an
indeterminate number of Shares of Common Stock, $0.001 par value per share (the
"Common Stock"), of Phoenix Resources Technologies, Inc., a Nevada corporation
(the "Company") issuable upon exercise of a Class A Warrant.
The actual number of Shares of Common Stock into which the Class A Warrant is
exercisable will depend upon whether the Company requires the holder of the
Class A Warrant to exercise all or part of such Class A Warrant and will also
depend upon future market conditions. If the Company were to require the holder
of the Class A Warrant to fully exercise such warrant, based upon current market
conditions, as of March 3, 2000, the Class A Warrant being registered hereunder
would be exercisable into approximately 569,152 Shares of Common Stock. In
accordance with Rule 415 under the Securities Act of 1933, Common Stock offered
hereby shall also be deemed to cover an indeterminate number of securities to be
offered or issued to reflect adjustments resulting from stock splits, stock
dividends or similar transactions, as well as an indeterminate number of Shares
of Common Stock issuable upon exercise of the Class A Warrant, and is deemed to
include any additional Shares of Common Stock that may be issuable upon such
exercise as a result of any adjustment to the exercise price.
It is anticipated that the Shares will be offered from time to time in brokerage
transactions (which may include block transactions), in the over-the-counter
market or negotiated transactions at prices and terms prevailing at the time of
such sales, at prices related to such market prices or at negotiated prices.
The Selling Investor has not held any position, office or other material
relationship with the Company, or had any such position, office or material
relationship within the past three (3) years. Because the number of Shares into
which the Class A Warrant is exercisable depends upon whether the Company
requires the Selling Investor to exercise all or part of the Class A Warrant
issued to it, and will also depend upon the market price of the Company's Common
Stock from time to time, it is not possible to calculate the number of Shares of
Common Stock which will be ultimately issued upon exercise of the Class A
Warrant. Therefore the aggregate exercise price of the Class A Warrant
subscribed for by the Selling Investor is listed below in place of the number of
Shares beneficially owned by such Selling Investor prior to this offering and in
place of the number of Shares offered by such Selling Investor. Because of this
it is not possible to calculate the percentage of the Company's outstanding
Common Stock beneficially owned by the Selling Investor. Under the terms of the
Class A Warrant, the total number of Shares of Common Stock of the Company
deemed beneficially owned by the Selling Investor, together with all Shares of
the Common Stock of the Company deemed beneficially owned by the Selling
Investor's affiliates as defined in Rule 144 of the Securities Act of 1933, as
amended, may never exceed 9.9% of the total issued and outstanding Shares of the
Common Stock of the Company.
<PAGE>
SECURITIES OFFERED ON A DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER
THE SECURITIES ACT OF 1933.
Beneficial Owner: Eurofund Derivatives Limited
Aggregate Warrant Exercise Price: (Class A Warrant) $10,000,000
Title of each class of securities to be offered: CLASS A WARRANT
Title of each class of securities to be registered: COMMON STOCK
Proposed Amount to be registered: $10,000,000
Maximum Amount per Put Notice/Notice of Exercise: $1,000,000
Proposed Maximum Aggregate Value of Common Stock to be issued: $10,000,000
II
The Company will only receive the aggregate Exercise Price if the Selling
Investor exercises the Warrant. Such exercise may depend upon whether the
Company requires the Selling Investor to exercise all or part of the Class A
Warrant issued to it, and will also depend upon future market conditions. The
Company has agreed to bear all of the expenses in connection with the
registration of the Shares. The Company expects that any net proceeds from the
exercise of the Warrants will be used for research and development, working
capital, acquisitions, and for general corporate purposes, in such amounts, as
the Company, in its discretion, deems appropriate. Pending utilisation, the
Company may invest such funds in money market funds and other interest-bearing
obligations.
Authorisation of Additional Securities. The Company is authorised to issue
100,000,000 Shares of Common Stock. As of the date of this Equity Investment
Line Agreement, there were 9,458,900 Shares of Common Stock issued and
outstanding. The Company's Board of Directors has the power to issue any and all
unissued Shares and, to the extent that additional Shares of Common Stock are
issued, dilution to the interests of the Company's stockholders will occur.
The Company's Common Stock trades on the National Association of Securities
Dealers Bulletin Board under the symbol, "PRTI". On March 3, 2000 as reported by
NASD the last sale price of a share of Common Stock was $19.25
Description of Securities Offered Pursuant to Equity Investment Line Agreement
Between Eurofund Derivatives Limited and Phoenix Resources Technologies, Inc.
The Company is authorised to issue 100,000,000 Shares of Common Stock, $0.001
par value per share, of which 9,458,900 Shares were outstanding as of the date
of this Equity Line Agreement.
The Company is obligated to file a registration statement, at the latest within
ten business days after the end of the one-month period stipulated in any Put
Notice (the Exercise Period), for all Shares of Common Stock issued upon
exercise of the Warrant during such Exercise Period. Under the terms of their
agreement with the Company, at no time will the Selling Investor and their
affiliates own in excess of 9.9% of the total issued and outstanding Shares of
the Common Stock.
The Class A Warrant, which expires on April 12, 2002, entitles the Selling
Investor to purchase from the Company at the Exercise Price a certain number of
Shares based upon an amount set by the Company from time to time over the life
of the Class A Warrant. 30 days before the beginning of each Exercise Period
specified by the Company, the Company will determine the maximum dollar amount
of Common Stock that the Company wishes to issue to the Selling Investor during
such Exercise Period. The actual dollar amount that may be issued will be based
upon the trading volume of the stock during the 20 trading days prior to the
first day of the Exercise Period in question according to the following table of
values:
---------------------------------------------------------------- ---------------
20-Day Average Daily Trading Volume (1) Maximum Amount to be Issued
--------------------------------------------------------------------------------
$25000 - $50,000 $100,000
--------------------------------------------------------------------------------
$50,000 - $100,000 $200,000
$100,000 - $200,000 $350,000
$200,000 - $300,000 $500,000
$300,000 - $400,000 $750,000
$400,000 - $500,000 $1,000,000
--------------------------------------------------------------------------------
(1) The 20-Day Average Daily Trading Volume shall be equal to: the sum of
(the daily closing price on each of the 20 trading days immediately
preceding the first day of the Exercise Period multiplied by the volume
on each of those same 20 trading days) divided by 20.
<PAGE>
III
30 days before the beginning of each Exercise Period specified by the Company,
the Company will issue a Put Notice, requiring the Selling Investor to exercise
a portion of the Class A Warrant during such Exercise Period, to purchase a
sufficient number of Shares to realise the maximum amount to be issued as
stipulated in the Put Notice, to be adjusted later, if required, to reflect the
calculation set out in the above table. In the Put Notice, the Company will also
set, in agreement with the Selling Investor, the minimum price or "Floor Price"
per share at which such Common Stock is to be issued.
Therefore, before the beginning of each Exercise Period, the Company stipulates,
in agreement with the Selling Investor, the maximum aggregate amount of Common
Stock to be issued pursuant to exercise of the Class A Warrant (which can range
from $0 USD to $1,000,000 USD during such Exercise Period), and the minimum
price per share for such issuance. The Company may also choose not to require
the Selling Investor to purchase any Shares of Common Stock pursuant to the
Class A Warrant. If the Company decides to require the Selling Investor to
purchase the amount specified by the Company, in accordance with the
aforementioned table of values, the Selling Investor must then exercise the
Class A Warrant during such Exercise Period into the number of Shares that
equals the amount specified by the Company divided by the applicable Exercise
Price. On a date or dates during such Exercise Period in which the Selling
Investor is obligated to exercise all or part of the Class A Warrant, the
Selling Investor is required to send a Notice of Exercise to the Company. The
"Exercise Price" per share shall mean:
The greater of:
(i)The Floor Price to be set by the Company, in agreement with the Selling
Investor upon issuance of the Put Notice.
(ii) 90% of the average 5-day closing price of the Company's stock on the
Nasdaq National Market, Nasdaq Small Cap Market, OTCBB or other exchange or
market if the Shares are traded thereon, for the five trading days preceding
the date that a Notice of Exercise is given.
The Exercise Price in effect during any Exercise Period, specified by the
Company may never be lower than the Floor Price (to be negotiated by the Company
and Selling Investor) specified by the Company in the Put Notice, and the
Selling Investor's obligation to exercise the Class A Warrant during such
Exercise Period shall be waived whenever the Exercise Price is lower than the
Floor Price. Likewise, the Company's obligation to issue Common Stock against a
Notice of Exercise from the Selling Investor shall be waived if, at any time
during the Exercise Period, or during the 30-day notice period immediately
preceding such Exercise Period, the Company's stock trades below the Floor
Price. Unless otherwise agreed to by the Company and the Selling Investor, no
more than $10 million USD may be raised by the Company pursuant to the exercise
of the Class A Warrant. Because the number of Shares into which the Class A
Warrant is exercisable depends upon whether the Company requires the Selling
Investor to exercise all or part of the Class A Warrant issued to it, and will
also depend upon the market price of the Company's Common Stock from time to
time, it is not possible to calculate the number of Shares of Common Stock which
will be ultimately issued upon exercise of the Class A Warrant.
<PAGE>
Holders of Common Stock are entitled (i) to receive rateable dividends from
funds legally available for distribution when and if declared by the board of
directors; (ii) to share rateably in all of the Company's assets available for
distribution upon liquidation, dissolution or winding up of the Company; and
(iii) to one vote for each share held of record on each matter submitted to a
vote of stockholders. All outstanding Shares of Common Stock are fully paid for
and non-assessable. The Selling Investor is entitled to distribute from time to
time the Common Stock issuable upon exercise of the Warrant. Based upon current
market conditions, as of the 3rd. March, 2000, the outstanding Warrant would
have been exercisable for an aggregate exercise price of $10,000,000 into
approximately 569,152 Shares of Common Stock, representing approximately 5.7% of
the issued and outstanding Common Stock of the Company after taking into account
the issuance of such Common
IV
Stock upon exercise of the Warrants. The Company will not receive any proceeds
from the sale of Common Stock by the Selling Investor. The Company will only
receive the aggregate Exercise Price of the Warrants if the Selling Investor
exercises such Warrants. Such exercise may depend upon whether the Company
requires the Selling Investor to exercise all of part of the Class A Warrant
issued to it, and will also depend upon future market conditions.
To comply with certain states' securities laws, if applicable, the Common Stock
will not be offered or sold in a particular state unless the Common Stock has
been registered or qualified for sale in such state or an exemption from
registration or qualification is available and complied with.
This Agreement supersedes all previous agreements between the parties, whether
verbal or written.
The provisions hereof are severable, and if any one or more provisions shall be
determined to be unenforceable, the remaining provisions shall remain as binding
between the parties.
This Equity Investment Line Agreement Part Two and Exhibit 1, both attached,
form part of this Agreement and are subject to all terms and conditions
contained herein.
Read and Agreed to this 12th. Day of April 2000:
Eurofund Derivatives Limited, (the "Investor")
Signed By: /s/ Roger Green
-----------------------------------
Name & Title: Roger Green, Managing Director
Phoenix Resources Technologies, Inc. (the "Company")
Signed By: /s/ Ben Traub
-----------------------------------
Name & Title: Ben Traub, President
V
<PAGE>
EQUITY INVESTMENT
LINE AGREEMENT
PART TWO
EUROFUND DERIVATIVES LIMITED
24-26 CALTON ROAD EDINBURGH EH8 9DP U.K
INTL TEL: 0044 131 622 7415 INTL FAX: 0044 131 662 0210
EMAIL: [email protected] WEBSITE: www.eurofund.8m.com
EQUITY INVESTMENT LINE AGREEMENT
PART TWO
CONTENTS
Equity Investment Class A Warrant Page III
Form of Notice of Exercise Page VII
II
CLASS A WARRANT
THIS CERTIFIES that, for value received, EUROFUND DERIVATIVES LIMITED
hereinafter called "Warrant holder"), is entitled and required to purchase at
the Exercise Price from Phoenix Resources Technologies, Inc., a Nevada
corporation (hereinafter called the "Company"), the number of Shares of Common
Stock, par value $0.001 per share (hereinafter called the "Shares") of the
Company calculated in accordance with Section 1.1 below, at any time on or
before 4:30 p.m. Eastern Standard Time on April 12, 2002 (the "Expiration
Date"), all in accordance with the terms hereof.
1. Exercise of Warrants.
1.1 During any one-month period, specified by the Company in a Put
Notice (The Exercise Period), delivered to the Warrant holder, and
prior to 4:30 p.m. Eastern Standard Time on the Expiration Date, the
Warrant holder shall, during such Exercise Period exercise the
Outstanding Amount of this Warrant by delivering to the Company a
Notice of Exercise duly executed and completed by Warrant holder, at
the office of the Company, attention: Ms. Judee Fayle,
Secretary/Treasurer, together with payment in full in lawful money of
the United States, of the portion of the Outstanding Amount of the
Warrant being exercised by such Notice of Exercise. Such payment shall
be made by wire transfer of immediately available funds to the account
of Phoenix Resources Technologies, Inc. at Whatcom State Bank, Point
Roberts Branch, 480 Tyee Drive, Point Roberts, WA 98281 Account No.:
3903006518 ABA Wire Code No: 125107765.
<PAGE>
Upon exercise, the Warrant holder shall receive the number of Shares
equal to the Outstanding Amount being exercised divided by the
applicable Exercise Price. Upon receipt of the aforesaid payment, the
Company shall issue instructions to its transfer agent to issue such
Shares to the Warrant holder within five (5) business days of the
Company's receipt of such payment. Provided that the entire Outstanding
Amount during any Exercise Period is exercised, and subject to the
other restrictions contained in this Warrant or in the Equity Line
Agreement dated April 12, 2000 between the Company and the Warrant
holder, the timing and number of Notices of Exercise delivered by the
Warrant holder to the Company shall be at the discretion of the Warrant
holder. The Company may treat any Notice of Exercise received by it by
facsimile after 4:30 p.m. Eastern Standard Time to be received on the
next business day. Any Outstanding Amount that is not exercised during
the relevant Exercise Period shall not be carried forward and may not
be exercised at a later date without the prior written approval of the
Company.
2. The following definitions shall apply:
2.1 The "Exercise Price" shall mean the greater of (i) The Floor Price
specified by the Company, in agreement with the Warrant holder, in a
Put Notice or (ii) 90% of the average 5 day bid price on the Nasdaq
National Market or other exchange or market if the Shares are traded
thereon for each of the five trading days preceding the date that a
Notice of Exercise is given. The Exercise Price in effect during a
Exercise Period specified in a Put Notice may never be lower than the
Floor Price specified by the Company, In agreement with the Warrant
holder, in such Put Notice, and the Warrant holder's obligation to
exercise this Warrant shall be waived whenever the Exercise Price is
lower than the Floor Price. Likewise, the Company's obligation to issue
Common Stock against a Notice of Exercise from the Warrant holder shall
be waived if, at any time during any Exercise Period, or during the 30
day notice period immediately preceding such Exercise Period, the
Company's stock trades below the Floor Price set by the Company, in
agreement with the Warrant holder, for that Exercise Period. Nothing
contained in the preceding sentences shall prevent the Warrant holder
from voluntarily electing to exercise this
III
Warrant at a price per Share equal to or greater than the Exercise
Price, provided that such price is at least as high as the Floor Price.
2.2 "Notice of Exercise" shall mean a notice or notices delivered by
the Warrant holder to the Company indicating (A) the portion of the
Outstanding Amount of this Warrant being exercised, (B) the Warrant
holder's Deposit/Withdrawal At Custodian (DWAC) instructions for
delivery of the Shares, and (C) specifying the Warrant holder's
calculation of (1) the number of Shares to be issued to such Warrant
holder, (2) the Exercise Price in effect for such Notice of Exercise,
and (3) the remaining balance of the Outstanding Amount.
Notwithstanding anything to the contrary contained herein, unless
otherwise agreed to by the Company in writing, each Notice of Exercise
shall be deemed to contain a representation by the Warrant holder that,
after giving effect to the Shares to be issued pursuant to such Notice
of Exercise, the total number of Shares of Common Stock of the Company
deemed beneficially owned by the Warrant holder, together with all
Shares of the Common Stock of the Company deemed beneficially owned by
the Warrant holder's affiliates as defined in Rule 144 of the Act, will
not exceed 9.9% of the total issued and outstanding Shares of the
Common Stock of the Company.
<PAGE>
2.3. The "Outstanding Amount" of this Warrant shall be the dollar
amount specified in any Put Notice given by the Company from time to
time, reduced by the amount of this Warrant exercised by the Warrant
holder during the Exercise Period specified in such Put Notice to which
the Put Notice relates. Should the company's share price be subject to
the SEC penny stock rules and unless waived by the Company and the
Warrant holder, the Outstanding Amount in any Exercise Period shall
automatically be reduced to equal the lesser of: an amount equal to (A)
7% of the average daily dollar trading volume in the Company's Common
Stock for the one month period ending on the day prior to the beginning
of the Exercise Period specified in the Put Notice multiplied by (B)
the number of trading days in the Exercise Period specified in the Put
Notice. Unless waived by the Company in writing, on the last day of the
Exercise Period specified in any Put Notice and on the Expiration Date,
the Warrant holder shall be deemed to have given a Notice of Exercise
for any Outstanding Amount remaining on such date.
2.4. "Put Notice" shall mean the notice given to the Warrant holder or
its specified agent by the Company and signed by an executive officer
of the Company setting forth: (A) the maximum amount chosen by the
Company (which may be any amount from $0.00 to $1,000,000) to be the
Outstanding Amount of this Warrant to be exercised by the Warrant
holder during the Exercise Period and to be determined at the beginning
of the Exercise Period in question by reference to the Table of Values
set out in the Equity Investment Line Agreement Part One on Page III,
and according to the formula set out in the Equity Line Investment
Agreement Part One on Page III (B) the exact dates of the Exercise
Period which shall be specified by the Company, (C) the Floor Price
specified by the Company, in agreement with the Warrant holder. The
Company shall give the Warrant holder a Put Notice at least 30 days
prior to the beginning of any Exercise Period specified in such Put
Notice. The Company may amend any terms specified in such Put Notice,
(except that the Floor Price may not be increased by the Company
without the Warrant holder's consent), by delivery of an amendment to
such Put Notice to the Warrant holder at any time prior to the
beginning of such Exercise Period. Unless mutually agreed to in
writing, the Company may not specify a total Outstanding Amount which,
when exercised in full, would result in the Warrant holder having
exercised more than $10 million USD. As of the date of this Warrant,
the maximum sum of all Outstanding Amounts specified in each of the Put
Notices during the term of this Agreement shall be $10 million.
2.5 "Exercise Period" shall mean any Exercise Period specified in a Put
Notice.
2.6 Certificates representing Shares issued hereunder shall be stamped
or otherwise imprinted with a legend substantially in the following
form (in addition to any legend required under any applicable state
securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED PURSUANT TO THE SECURITIES
IV
ACT HAVE 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS THERE IS A
REGISTRATION STATEMENT THEN IN EFFECT COVERING SUCH SHARES OR
AN EFFECTIVE EXEMPTION FROM SUCH REGISTRATION OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT UNDER THE
CIRCUMSTANCES REGISTRATION IS NOT NECESSARY.
<PAGE>
Provided, however, that if the issuance of the Shares pursuant to the
exercise of this Warrant are subject to an effective registration
statement pursuant to Section 5 of the Securities Act of 1933, as
amended, certificates representing the Shares shall not bear any
restrictive legend. The Floor Price specified in any Put Notice, and
the daily trading price of the Common Stock of the Company for any
trading day used to calculate the Exercise Price, shall be adjusted
proportionally to reflect any stock splits, stock dividends,
reclassifications, combinations and similar transactions involving the
Common Stock. No fractional Shares of Common Stock shall be issued upon
the exercise of any Warrants evidenced hereby, but in lieu thereof the
number of Shares of Common Stock that are assumable upon any exercise
shall be rounded up or down to the nearest whole share.
2.7 Either party may terminate this Warrant prior to the Expiration
Date if there has been a change in management of the other party by
providing such party with written notice of such election to terminate.
2.8 Prior Notice as to Certain Events.
The Company shall mail to Warrant holder not less than ten (10) days
prior to the date on which (a) a record will be taken for the purpose
of determining the holders of Capital Stock entitled to subscription
rights, or (b) a record will be taken (or in lieu thereof, the transfer
books will be closed) for the purpose of determining the holders of
Capital Stock entitled to notice of and to vote at the meeting of
stockholders at which any consolidation, merger, dissolution,
liquidation, winding up or sale of the Company shall be considered and
acted upon.
3. Reservation and Issuance of Shares.
3.1 The Company covenants and agrees that all Shares which may be
issued upon the exercise of the rights represented by this Warrant will
be duly authorised, legally issued and when paid for in accordance with
the terms hereof, fully paid and non-assessable, and free from all
liens and charges with respect to the issue thereof to the Warrant
holder.
3.2 The Company will reserve at all times such number of Shares as may
be issuable pursuant to the exercise of Warrants evidenced by this
Warrant Certificate.
4. Investment Representation. By accepting delivery of this Warrant
Certificate and by exercising any Warrants evidenced hereby, the
Warrant holder represents that the Warrant holder is acquiring the
Warrants and the Shares issuable upon the exercise of the Warrants for
investment.
5. Miscellaneous.
5.1 The Warrant holder shall not be entitled to any rights whatsoever
as a stockholder of the Company by virtue of its ownership of this
Warrant.
5.2 This Warrant is being executed and delivered in the State of
Nevada. This Warrant Certificate shall be interpreted under the laws
and jurisdiction of the state and federal courts in the State of
Nevada, United States of America. The parties hereby consent to such
jurisdiction.
<PAGE>
V
5.3 Subject to the provisions hereof, this Warrant may be exercised at
any time after the date hereof and prior to its expiration as of 4:30
p.m. Eastern Standard Time on the Expiration Date, and shall be void
and of no effect after 4:30 p.m. Eastern Standard Time on the
Expiration Date.
5.4 By accepting delivery of this Warrant, the Warrant holder
acknowledges that the Warrant granted hereunder shall be in full
satisfaction of all obligations to issue Class A Warrants to the
Warrant holder pursuant to the Agreement dated April 12, 2000
between the Company and the Warrant holder
IN WITNESS WHEREOF,
The Company and the Warrant holder have executed this Warrant on This Twelfth
day of April 2000 by each of their duly authorised officers.
PHOENIX RESOURCES TECHNOLOGIES, INC
Signed By: /s/ Ben Traub
--------------------------
Name & Title: Ben Traub, President
EUROFUND DERIVATIVES LIMITED
Signed By: /s/ Roger Green
--------------------------
Name & Title: Roger Green, Managing Director
VI
Form of Notice of Exercise
The undersigned hereby irrevocably elects to exercise the warrants we
currently hold to purchase ____________ Shares of Common Stock, $0.001 par value
per share, of Phoenix Resources Technologies, Inc. (the "Company") at an
exercise price of $__________per share. Attached to this notice is the original
Warrant certificate evidencing the aforementioned warrants. We have delivered to
the Company US$_______________ representing the aggregate exercise price for the
warrants exercised hereunder. A certificate representing the Shares issuable
upon exercise should be issued in the undersigned's name.
The undersigned hereby represents and warrants to the Company that the
representations and warranties and acknowledgements made by the undersigned in
the Equity Line Agreement dated April 12, 2000 between the undersigned and the
Company are still true and correct as if made on the date of this Notice of
Exercise, and that the undersigned has carefully read any reports or statements
filed with the Securities and Exchange Commission regarding the Company after
April 12, 2000, and that the Company has also made available to the undersigned
all other documents and information that the undersigned has requested relating
to an investment in the Company.
Dated: ________, ___ EUROFUND DERIVATIVES LIMITED.
Signed By: __________________________
Name: _______________________________
Title: ______________________________
VII
