SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 28, 1997
<TABLE>
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PLASTIGONE TECHNOLOGIES, INC.
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(Exact Name of Registrant as Specified in Charter)
Florida 0-18193 59-2712878
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File No.) Identification No.)
2814 South Street, Fort Myers, Florida 33916
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (813) 334-2699
---------------
Not Applicable
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(Former Name or Former Address, if Changed Since Last Report)
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Item 9. Sales of Equity Securities Pursuant to Regulation S.
On February 28, 1997, Plastigone Technologies, Inc., a Florida corporation
(the "Company"), consummated the sale of 72.5 units of the Company ("Units") at
a purchase price of $10,000 per Unit to twelve foreign investors (the
"Offering"). Each Unit consists of (i) a $12,500 principal amount Convertible
Secured Loan Note Due 1999 of the Company (the "Note"), and (ii) warrants (the
"Warrants") to purchase 50,000 shares of common stock, $0.01 par value per
share. Such sale of Units was effected pursuant to an exemption from the
registration requirements of the Securities Act of 1933, as amended, pursuant to
Regulation S promulgated thereunder.
The Notes issued in the Offering are convertible into shares of common
stock of the Company, $0.01 per share (the "Common Stock"), commencing on August
21, 1997 until January 31, 1999. The holders of the Notes may convert all or a
portion of the then outstanding principal amount of the Notes into shares of
Common Stock of the Company at a conversion price of $0.125 per share; provided,
however, that unless the Company otherwise consents, no holder of Notes may
convert the outstanding principal amount of the Notes in portions of less than
25% of the original face value thereof.
As security for the full and timely payment, observance and performance
when due of the Company's obligations under the Notes issued in the Offering,
the Company granted to Oakes, Fitzwilliams & Co. Limited (the "Placement
Agent"), the duly appointed representative of the investors in the Offering, a
continuing security interest in all of the Company's machinery, equipment,
furniture and fixtures as more particularly set forth in the Security Agreement
dated February 21, 1997 by and between the Company and the Placement Agent. Such
security interest in the collateral created under the Notes shall remain in full
force and effect and continue to secure the indebtedness outstanding under the
Notes issued in the Offering until payment in full of the Company's obligations
thereunder or termination of such obligations upon conversion of the Notes.
Each Warrant issued in the Offering entitles the registered holder thereof
to purchase 50,000 shares of Common Stock. The Warrants are exercisable
commencing on August 21, 1997 and continuing until 5:00 p.m., Miami Time, on
February 21, 2002. The exercise price of each Warrant shall be equal to (i) the
average of the Daily Price (as defined therein) of the Company's Common Stock
for the five trading days immediately preceding the date of exercise; (ii) less
40% of such average; provided, however, that in no event shall such exercise
price be less than $0.10 per share. The Warrants do not confer upon the holder
any voting or other rights of the stockholder of the Company.
The Company offered and sold the Units, through the Placement Agent, in an
offshore transaction only to non-U.S. persons as required by Regulation S. In
addition, the Placement Agent, through its U.S. subsidiary, Oakes, Fitzwilliams
& Co., L.P., has agreed to place 27.5 Units of the Company in the U.S. with U.S.
investors who are "accredited investors" as defined in Regulation D of the
Securities Act of 1933, as amended. The U.S. private placement is expected to be
completed on or about March 15, 1997. For its services as placement agent, and
pursuant to a Placement
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Agency Agreement dated January 17, 1997 between the Company and the Placement
Agent, the Company agreed to (i) pay to the Placement Agent a fee in an amount
equal to 10% of the gross proceeds of the sale of the Units, and (ii) issue to
the Placement Agent, under Regulation S, warrants to purchase a number of Units
equal to 10% of the aggregate number of Units sold in the Offering. Such
warrants shall be exercisable for three years from the date of the closing at an
initial exercise price per warrant of 120% of the purchase price per Unit issued
in the Offering and shall contain the same anti-dilution provisions as are
contained in the Warrants issued in the Offering. The Placement Agent will
receive Units at the per Unit price in lieu of being paid its fee under clause
(i) above. The Placement Agent will also be entitled to receive a fee equal to
3% of the exercise price of each Warrant as the same from time to time is
exercised.
The Company received all of the $725,000 proceeds of the Offering. The
Company's expenses in this offering are estimated at approximately $25,000.
Item 7. Financial Statements, Pro forma Financial Information and Exhibits.
(c) Exhibits:
Exhibit Number Description
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*4.1 Form of Convertible Secured Loan Note Due 1999.
*4.2 Form of Warrant.
*99.1 Placement Agency Agreement dated January 17, 1997 by and
between the Company and Oakes, Fitzwilliams & Co. Limited.
*99.2 Form of Offshore Securities Purchase Agreement.
*99.3 Form of Security Agreement dated
February 21, 1997 by and between the
Company and Oakes, Fitzwilliams & Co.
Limited, as representative of the
investors in the Offering.
_________________________
* Filed herewith
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SIGNATURES
Pursuant to the requirement of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: March 14, 1997 PLASTIGONE TECHNOLOGIES, INC.
By: /s/ William E. Clegg III
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Name: William E. Clegg III
Title: Vice President, Treasurer and
Chief Financial Officer
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Commission File No. 0-18193
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
to
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
PLASTIGONE TECHNOLOGIES, INC.
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Exhibit
Number Document Page Number
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4.1 Form of Convertible Secured Loan Note Due 1999.
4.2 Form of Warrant.
99.1 Placement Agency Agreement dated January 17,
1997 by and between the Company and Oakes,
Fitzwilliams & Co. Limited.
99.2 Form of Offshore Securities Purchase Agreement.
99.3 Form of Security Agreement dated February 21,
1997 by and between the Company and Oakes,
Fitzwilliams & Co. Limited, as representative of
the investors in the Offering.
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Exhibit 4.1 Form of Convertible Secured Loan Note.
Exhibit A
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PLASTIGONE TECHNOLOGIES INC.
CONVERTIBLE SECURED PROMISSORY NOTE DUE 1999
THE SECURITIES REPRESENTED HEREBY AND ANY INTERESTS THEREIN HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT")
OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE
RE-OFFERED, RE-SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR
DELIVERED, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT IN CERTAIN TRANSACTIONS EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH STATE OR OTHER
SECURITIES LAWS OR DELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED. TERMS USED IN THE PRECEDING
SENTENCE HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT.
Date of Issuance: February ____, 1997.
Number of Units Purchased:_____ Units at $10,000 per Unit for a total purchase
price of $_________________.
Principal Amount of Note: $________________.
FOR VALUE RECEIVED, Plastigone Technologies Inc., a United States
corporation organized under the laws of the State of Florida (together with its
successors and assigns, the "Company") hereby promises to pay to the order of
___________________________________(together with its successors and assigns,
the "Payee") on January 31, 1999 (the Maturity Date"), or such earlier time as
set forth below, the principal sum of $_______________.
1. Series of Notes. This Note is one of a series of Notes (collectively,
the "Notes") issued by the Company pursuant to certain Purchase Agreements by
and between the Company and certain purchasers (including the Payee) relating to
the purchase by such purchasers of an aggregate of 100 Units of the Company (the
"Offering").
2. Interest. This Note shall bear no interest.
3. Method of Payment. The Company will pay the principal on the Notes to
the Payee at the close of business, Miami time, on the Maturity Date in money of
the United States that at the time of payment is legal tender for payment of
public and private debts. The Company shall make such payment by its check
payable in such money mailed to Payee's registered address listed below or to
such other address as to which the Company is notified in writing by the Payee.
If a payment date is a legal holiday in the State of Florida, the Company may
make such payment on the next succeeding day that is a business day and shall
include interest accrued for such additional period in the payment.
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4. Conversion. During the period commencing on August _____, 1997 and
continuing until the Maturity Date, Payee may convert all or a portion of the
then outstanding principal amount of this Note into shares of Common Stock of
the Company (the "Common Stock") at a conversion price of $0.125 per Share (the
"Conversion Price"); provided, however, that unless the Company otherwise
consents, the Payee may not convert the outstanding principal amount of this
Note in portions of less than 25% of the original face value of this Note. The
number of Shares issuable upon conversion of this Note shall be equal to the
total of the principal due hereunder divided by the Conversion Price; provided,
however, that the Company shall not be required to issue fractional shares or
scrip representing fractional shares, but shall pay to the Payee an amount in
cash equal to the value of such fraction multiplied by the current market value
of such fractional share, determined as follows (the "Market Price"):
(a) If the Common Stock is listed on a national securities exchange or
admitted to unlisted trading privileges on such exchange, the current
market value shall be the last reported sale price of the Common Stock on
such exchange on the last business day prior to the date of conversion of
this Note, or, if no such sale is made on such day, the average of the
closing bid and asked prices for that day on such exchange; or
(b) If the Common Stock is not listed or admitted to unlisted trading
privileges on a national securities exchange, the current market value
shall be the average of the last reported high bid and low asked prices
reported by the National Association of Securities Dealers Automated
Quotation System ("NASDAQ") (or, if not so quoted on NASDAQ, by the
National Quotation Bureau, Inc. or a similar organization then furnishing
such information) on the last business day prior to the date of the
conversion of this Note; or
(c) If the Common Stock is not so listed or admitted to unlisted
trading privileges and bid and asked prices are not so reported, the
current market value shall be an amount, not less than both the book value
and the fair value of a share of Common Stock, determined in such
reasonable manner as may be prescribed by the Board of Directors of the
Company, such determination to be final and binding on the Payee.
5. Procedure for Conversion. To convert this Note, Payee must (i) complete
and sign the conversion notice included in this Note; (ii) surrender the Note to
the Company; (iii) furnish appropriate endorsements and transfer documents if
required by the Company; and (iv) pay any transfer or similar tax if required.
No adjustment is to be made on conversion for dividends on shares of Common
Stock issued on conversion.
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6. Anti-Dilution Provisions.
(a) Computation of Adjusted Conversion Price. Subject to the
exceptions referred to in Section 6(f) below, in the event that the Company
shall at any time after the date hereof issue or sell any shares of Common
Stock (other than the issuance or sale of Common Stock referred to in
Section 6(f) below), including shares of Common Stock held in the Company's
treasury, for a consideration per share less than the Conversion Price in
effect immediately prior to the issuance or sale of such shares or less
than the Market Price, or without consideration, then forthwith upon such
issuance or sale, the Conversion Price shall (until another such issuance
or sale) be reduced to a price (calculated to the nearest full cent) equal
to the quotient derived by dividing (i) an amount equal to the sum of (A)
the product of (x) the total number of shares of Common Stock outstanding
immediately prior to such issuance or sale, multiplied by (y) the lower of
(1) the Conversion Price in effect immediately prior to the issuance or
sale or (2) the Market Price per share of Common Stock on the date
immediately prior to the issuance or sale of such shares, plus, (B) the
aggregate of the amount of all consideration, if any, received by the
Company upon such issuance or sale, by (ii) the total number of shares of
Common Stock outstanding immediately after such issuance or sale; provided,
however, that in no event shall the Conversion Price be adjusted pursuant
to this computation in an amount in excess of the Conversion Price in
effect immediately prior to such computation, except in the case of
readjustments provided for in Section 6(b) below or a combination of
outstanding shares of Common Stock provided in Section 6(c) below.
For the purposes of any computation to be made in accordance with this
Section 6(a), the following provisions shall be applicable.
(i) In case of the issuance or sale of shares of Common Stock for
a consideration part or all of which shall be cash, the amount of the
cash consideration therefor shall be deemed to be the amount of cash
received by the Company for such shares (or, if shares of Common Stock
are offered by the Company for subscription, the subscription price
or, if such shares of Common Stock shall be sold to underwriters or
dealers for public offering without a subscription offering, the
initial public offering price) before deducting therefrom any
compensation paid or discount allowed in the sale, underwriting or
purchase thereof by underwriters or dealers or others performing
similar services, or any expenses incurred in connection therewith.
(ii) In case of the issuance or sale (otherwise than as a
dividend or other distribution on any stock of the Company, or on the
exercise of options, rights or warrants or on the conversion or
exchange of convertible or exchangeable securities) of shares of
Common Stock for a consideration part or all of which shall be other
than cash, the amount of the consideration therefor other than cash
shall be deemed to be the value of such consideration as determined in
good faith by the Board of Directors of the Company.
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(iii) Shares of Common Stock issuable by way of dividend or other
distribution on any stock of the Company shall be deemed to have been
issued immediately after the opening of business (Miami time) on the
day following the record date for the determination of stockholders
entitled to receive such dividend or other distribution and shall be
deemed to have been issued without consideration.
(iv) The reclassification of securities of the Company (other
than shares of Common Stock into securities including shares of Common
Stock) shall be deemed to involve the issuance of such shares of
Common Stock for a consideration other than cash immediately prior to
the close of business (Miami time) on the date fixed for the
determination of security holders entitled to receive such shares, and
the value of the consideration allocable to such shares of Common
Stock shall be determined as provided in subsection (ii) above.
(v) The number of shares of Common Stock at any one time
outstanding shall include the aggregate number of shares issued or
issuable (subject to readjustment upon the actual issuance thereof)
upon the exercise of options, rights or warrants, and upon the
conversion or exchange of convertible or exchangeable securities.
(b) Options, Rights, Warrants and Convertible and Exchangeable
Securities. Except in the case of the Company issuing rights to subscribe
for shares of Common Stock distributed to all the stockholders of the
Company and Payees of Notes pursuant to Section 6(h), in the event that the
Company shall at any time after the date hereof and prior to the Maturity
Date or conversion hereof, issue any options, rights or warrants to
subscribe for shares of Common Stock (other than the issuance or exercise
of options, rights or warrants referred to in Section 6(f) below), (i) for
a consideration per share less than (A) the Conversion Price in effect
immediately prior to the issuance of such options, rights or warrants, or
such convertible or exchangeable securities, or (B) the Market Price, or
(ii) without consideration, the Conversion Price in effect immediately
prior to the issuance of such options, rights or warrants or such
convertible or exchangeable securities, as the case may be, shall be
reduced to a price determined by making a computation in accordance with
the provisions of Section 6(a) above; provided, however, that:
(i) The aggregate maximum number of shares of Common Stock
issuable under such options, rights or warrants shall be deemed to be
issued and outstanding at the time such options, rights or warrants
are issued, and for a consideration equal to the minimum purchase
price per share of Common Stock provided for in such options, rights
or warrants at the time or issuance, plus consideration (determined in
the same manner as consideration received on the issue or sale of
shares of Common Stock), if any, received by the Company for such
options, rights or warrants, and if no minimum price is provided in
such options, rights or warrants, then the consideration shall be
equal to zero; provided, however, that upon the expiration or
termination of such options, rights or warrants, if any thereof shall
not have been exercised, the number of shares of Common Stock deemed
to be issued and outstanding
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pursuant to this subsection (i) (and for the purposes of Section
6(a)(v) above) shall be reduced by such number of shares of Common
Stock as to which options, warrants and/or rights shall have expired
or terminated unexercised, and such number of shares of Common Stock
shall no longer be deemed to be issued and outstanding, and the
Conversion Price then in effect shall forthwith be readjusted and
thereafter be the price which it would have been had adjustment been
made on the basis of the issuance only of shares of Common Stock
actually issued or issuable upon the exercise of those options, rights
or warrants as to which the exercise rights shall not have expired or
terminated unexercised.
(ii) The aggregate maximum number of shares of Common Stock
issuable upon conversion or exchange of any convertible or
exchangeable securities shall be deemed to be issued and outstanding
at the time of issuance of such securities, and for a consideration
equal to the consideration (determined in the same manner as
consideration received on the issue or sale of shares of Common Stock)
received by the Company for such securities, plus the minimum
consideration, if any, receivable by the Company upon the conversion
or exchange thereof; provided, however, that upon the termination of
the right to convert or exchange such convertible or exchangeable
securities (whether by reason of redemption or otherwise), the number
of shares of Common Stock deemed to be issued and outstanding pursuant
to this subsection (ii) (and for the purpose of Section 6(a)(v) above)
shall be reduced by such number of shares of Common Stock as to which
the conversion or exchange rights shall have expired or terminated
unexercised, and such number of shares shall no longer be deemed to be
issued and outstanding and the Conversion Price then in effect shall
forthwith be readjusted and thereafter be the price which it would
have been had adjustment been made on the basis of the issuance only
of the shares of Common Stock actually issued or issuable upon the
conversion or exchange of those convertible or exchangeable securities
as to which the conversion or exchange rights shall not have expired
or terminated unexercised.
(iii) If any change shall occur in the price per share provided
for in any of the options, rights or warrants referred to in
subsection 6(b)(i) above, or in the price per share at which the
securities referred to in subsection 6(b)(ii) above are convertible or
exchangeable, such options, rights or warrants or conversion or
exchange rights, as the case may be, shall be deemed to have expired
or terminated on the date when such price change became effective in
respect of shares not theretofore issued pursuant to the exercise or
conversion or exchange thereof, and the Company shall be deemed to
have issued upon such date new options, rights or warrants or
convertible or exchangeable securities at the new price in respect of
the number of shares issuable upon the exercise of such options,
rights or warrants or the conversion or exchange of such convertible
or exchangeable securities.
(iv) When an adjustment has been made in the Conversion Price
pursuant to this Section 6(b) in respect of the issuance of any
options, rights or warrants to subscribe for shares of Common Stock or
the issuance of any securities convertible into or exchangeable for
shares of Common Stock, no additional adjustment in the Conversion
Price shall be made pursuant to Section 6(a) above upon the issuance
of shares of Common Stock upon the
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exercise of such options, rights or warrants or upon the conversion or
exchange of such securities.
(c) Subdivision and Combination. In the event that the Company shall
at any time prior to the Maturity Date or conversion hereof subdivide or
combine the outstanding shares of Common Stock, the Conversion Price shall
forthwith be proportionately decreased in the case of subdivision or
increased in the case of combination.
(d) Adjustment in Number of Shares. Upon each adjustment of the
Conversion Price pursuant to the provisions of this Section 6, the number
of shares of Common Stock issuable upon the conversion of this Note shall
be adjusted to the nearest full share by multiplying a number equal to the
Conversion Price in effect immediately prior to such adjustment by the
number of shares issuable upon conversion of this Note immediately prior to
such adjustment and dividing the product so obtained by the adjusted
Conversion Price.
(e) Reclassification, Consolidation, Merger, Etc. In the event of any
reclassification or change of the outstanding shares of Common Stock (other
than a change in par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination), or in the event of
any consolidation of the Company with, or merger of the Company into,
another corporation (other than a consolidation or merger in which the
Company is the surviving corporation and which does not result in any
reclassification or change of the outstanding shares of Common Stock,
except a change as a result of a subdivision or combination of such shares
or a change in par value, as aforesaid), or in the case of a sale or
conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety, the Payee shall thereafter have
the right to convert into and to purchase the kind and respective number of
shares of stock and other securities and property receivable upon such
reclassification, change, consolidation, merger, sale or conveyance as if
the Payee were the owner of the shares of Common Stock underlying this Note
immediately prior to any such events at a price equal to the product of (x)
the number of shares issuable upon conversion of this Note and (y) the
Conversion Price in effect immediately prior to the record date for such
reclassification, change, consolidation, merger, sale or conveyance as if
the Payee had converted this Note.
(f) No Adjustment of Conversion Price in Certain Cases. No adjustment
of the Conversion Price shall be made:
(i) upon the issuance or sale of shares of Common Stock upon the
conversion of this Note and the exercise of Warrants issued
concurrently herewith; or
(ii) upon the issuance or sale of shares of Common Stock issuable
upon the conversion of the other Notes and exercise of Warrants to be
issued concurrently therewith;
(iii) upon (A) the issuance of options pursuant to any employee,
executive or director benefit, incentive, stock option or profit
sharing plans of the Company which plans
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are in effect on the initial issuance date of this Note or, (B) the
sale by the Company of any shares of Common Stock pursuant to the
exercise of any such options; or
(iv) upon the issuance or sale by the Company of any shares of
Common Stock pursuant to the exercise of any options or warrants
previously issued and outstanding on the initial issuance date of this
Note; or
(v) if the amount of said adjustment shall be less than 1/2 of
one cent ($0.005) per share of Common Stock; provided, however, that
in such case any adjustment that would otherwise be required then to
be made shall be carried forward and shall be made at the time of and
together with the next subsequent adjustment which, together with any
adjustment so carried forward, shall amount to at least 1/2 of one
cent ($0.005) per share.
(g) Dividends and Other Distributions with Respect to Outstanding
Securities. In the event that the Company shall at any time prior to the
Maturity Date or earlier conversion of this Note declare a dividend (other
than a dividend consisting solely of shares of Common Stock or a cash
dividend or distribution payable out of current or retained earnings) or
otherwise distribute to its stockholders any monies, assets, property,
rights, evidences of indebtedness, securities (other than shares of Common
Stock), whether issued by the Company or by another person or entity, or
any other thing of value, the Payee shall thereafter be entitled, in
addition to the shares of Common Stock or other securities receivable upon
the conversion thereof, to receive, upon the conversion of such Note, the
same monies, property, assets, rights, evidences or indebtedness,
securities or any other thing of value that it would have been entitled to
receive at the time of such dividend or distribution. At the time of any
such dividend or distribution, the Company shall make appropriate reserves
to ensure the timely performance of the provisions of this Section 6(g).
(h) Subscription Rights for Shares of Common Stock or Other
Securities. In the case the Company or any affiliate of the Company shall
at any time after the date hereof and prior to the Maturity Date or earlier
conversion of this Note issue any rights to subscribe for shares of Common
Stock or any other securities of the Company or of such affiliate to all
the stockholders of the Company, the Payee shall be entitled, in addition
to the shares of Common Stock or other securities receivable upon the
conversion of this Note, to receive such rights on a pro rata basis at the
time such rights are distributed to the other stockholders of the Company.
(i) Statement on Notes. Irrespective of any adjustments in the
Conversion Price or the number or kind of shares issuable upon the
conversion of this Note, this Note may continue to express the same price
and number and kind of shares as are stated herein.
(j) Number of Shares Adjusted. Upon any adjustment of the Conversion
Price, the Payee shall thereafter (until another such adjustment) be
entitled to purchase, at the new Conversion Price, the number of shares,
calculated to the nearest full share, obtained by multiplying the number of
shares of Common Stock issuable upon conversion of this Note immediately
prior to such adjustment
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by the Conversion Price in effect on the date hereof and dividing the
product so obtained by the new Conversion Price.
(k) Common Stock Defined. Whenever reference is made in this Section 6
to the issue or sale of shares of Common Stock, the term "Common Stock"
shall mean the Common Stock of the Company of the class authorized as of
the date hereof and any other class of stock ranking on a parity with such
Common Stock. However, shares issuable upon conversion hereof shall include
only shares of the class designated as Common Stock of the Company as of
the date hereof.
7. Officer's Certificate. Whenever the Conversion Price shall be adjusted
as required by the provisions of Section 6 hereof, the Company shall forthwith
file with its Secretary or Assistant Secretary at its principal office, and with
its stock transfer agent, if any, an officer's certificate showing the adjusted
Conversion Price determined as herein provided and setting forth in reasonable
detail the facts requiring such adjustment. Each such officer's certificate
shall be made available at all reasonable times for inspection by the Payee, and
the Company shall, forthwith after each such adjustment, deliver a copy of such
certificate to the Payee. Such certificate shall be conclusive as to the
correctness of such adjustment.
8. Compulsory Conversion. Commencing on September 1, 1997, the Company may,
at its option and upon 10-days' written notice to the Payee, cause the
outstanding principal due on this Note to be converted into Shares (determined
as provided in Section 4 hereof) in the event that the fair market value of the
Company's Common Stock, computed in accordance with the provisions of Section 4
hereof, is at any time hereafter at least $0.25 for a period of 90 trading days
in any 100 consecutive trading day period.
9. Security. As security for the full and timely payment, observance and
performance when due of the Company's obligations under this Note and under all
the other Notes issued pursuant to the offering of Units under the Memorandum,
the Company hereby grants to Oakes, Fitzwilliams & Co. Limited (the
"Representative"), the duly appointed representative of the Payee and of all
other purchasers (and their respective successors and assigns) of Notes issued
pursuant to the Memorandum, a continuing security interest in all of the
Company's machinery, equipment, furniture and fixtures as set forth in the
Company's 1996 appraisal, a copy which is annexed hereto (the "Collateral"). The
security interest in the Collateral created under this Note and all the other
Notes issued pursuant to the Memorandum shall be binding upon the Company and
its successors and assigns and shall remain in full force and effect and
continue to secure the indebtedness outstanding under this Note and all the
other Notes until payment in full of the Company's obligations thereunder or
termination of such obligations upon conversion of the Notes as provided in
Sections 4 and 6 hereof. When the security interest provided above terminates,
the Representative shall release its security interest in the Collateral and
shall execute all such documents as may be reasonably requested by the Company
to evidence or effect such release.
10. Restriction on Transfer of Note. This Note may not be sold,
transferred, assigned or hypothecated, other than by will or pursuant to the
laws of descent and distribution, without the prior
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written consent of the Company, which consent shall not be unreasonably
withheld. The Payee hereby covenants and agrees that this Note and the shares of
Common Stock issued upon conversion hereof are being acquired or will be
acquired as an investment and not with a view to the distribution thereof, and
that this Note and such shares of Common Stock may not be converted, sold,
transferred, assigned, hypothecated or otherwise transferred or delivered,
directly or indirectly, in the United States or to, or for the account or
benefit of, U.S. Persons except in certain transactions exempt from the
registration requirements of the Securities Act and such State or other
securities laws or delivery to the Company of an opinion of counsel satisfactory
to the Company that registration is not required. Terms used in the preceding
sentence have the meanings given to them by Regulation S under the Securities
Act.
11. Covenants of Company. The Company hereby covenants and agrees that, so
long as this Note remains outstanding and unpaid, in whole or in part, it:
(a) shall not incur any indebtedness during the term of this Note
other than (i) the other Notes issued pursuant to the Offering; (ii) any
renewals or refinancings of the Company's currently outstanding
indebtedness incurred pursuant to a Note dated April 14, 1992 from the
Company to Edward G. Kelly, Mary E. Kelly, Thomas B. Kelly and Betty L.
Kelly and any deferrals or extensions thereof; (iii) all future
indebtedness of the Company incurred for working capital purposes whether
secured or unsecured but which, if secured, is secured solely by the
Company's accounts receivable and/or inventory; (iv) all future
indebtedness of the Company incurred through purchase money acquisition of
equipment or machinery; and (v) any deferrals, extensions, renewals or
refinancings of any indebtedness permitted under clauses (iii) and (iv)
hereof.
(b) shall use its best efforts to obtain stockholder approval of an
amendment to the Company's Certificate of Incorporation to increase its
authorized shares of Common Stock to 50,000,000 Shares; and
(c) shall use its best efforts to prepare and file, as promptly as
practicable after the date hereof, all outstanding reports required to be
filed with the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended.
12. Representations of the Company. The Company hereby represents and
warrants that, as of the date hereof, it does not have any liabilities or
obligations (whether fixed, accrued, absolute, contingent, secured, unsecured or
otherwise and whether due or to become due) in excess of $25,000 individually or
$100,000 in the aggregate other than those set forth in the estimated Balance
Sheet of the Company as of September 30, 1996 previously provided to the Payee
or incurred since such date in the ordinary course of business.
13. Default. Upon the occurrence of an Event of Default, as defined below,
then, during the continuance of such Event of Default the Representative, after
receiving the concurrence of the holders of at least two-thirds of the
outstanding principal amount of the Notes, may declare the outstanding principal
of and interest on this Note to be due and payable and upon such declaration,
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the principal shall be due and payable immediately together with any interest
thereon. Each of the following shall constitute an "Event of Default" hereunder:
(a) The court ordered appointment of a receiver, liquidator or trustee
of the Company or of any of its property; or the court ordered
sequestration of any property of Payor; or the filing of a petition against
the Company under any bankruptcy, reorganization or insolvency law, which
petition is not dismissed or otherwise terminated within 60 days of filing;
or the Company's consent to the appointment of a receiver, trustee or
liquidator for all or any part of its property.
(b) The filing by the Company of a petition in bankruptcy or its
request for reorganization under any provision of any bankruptcy,
reorganization or insolvency law or the Company's consent to the filing of
any petition against it under any such law.
(c) The Company's failure to make any principal payment within 10
business days of the due date thereof.
(d) The liquidation or dissolution of the Company, the adoption of a
plan of liquidation by the Company or the cessation of the Company's
business.
(e) The assignment by the Company of all or a substantial portion of
its property for the benefit of its creditors, or the Company's admission,
in writing, of its inability to pay its debts generally when they become
due.
(f) The levy, seizure, garnishment or attachment of any material
property of the Company for the benefit of any of its creditors or the
foreclosure of any such property by any party having a security interest
therein.
(g) The Company's default in the due observance or performance of any
material covenant, condition or agreement required to be observed or
performed by the Company pursuant to the terms of (i) this Note and the
other Notes issued pursuant to the Offering; or (ii) any loan agreement or
other document evidencing indebtedness of the Company to a bank or other
financial institution, and the continuance of any such default beyond any
grace period provided for in any such Note, agreement or other document and
after the receipt by the Company of any notice provided for in any such
Note, agreement or other document.
(h) The termination without cause by the Company of the employment of
Ron Davis as President and Chief Executive Officer of the Company or the
voluntary termination of such employment by Ron Davis.
(i) The failure by the Company to obtain stockholder approval of an
amendment to the Company's Certificate of Incorporation to increase its
authorized shares of Common Stock to 50,000,000 Shares by September 1,
1997.
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14. Waiver; Amendment. No change, amendment, modification, termination,
waiver or discharge, in whole or in part, of this Note (collectively, an
"Amendment") shall be effective unless in writing and signed by the party
against whom such Amendment is sought; provided, however, that in the case of an
Amendment sought against the holder hereof and the other holders of the Notes,
such Amendment shall be effective if in writing and signed by the Representative
upon due approval and authorization of such Amendment by the holders of at least
two-thirds of the outstanding principal amount of the Notes.
15. Notice to Payees. Nothing contained in this Note shall be construed as
conferring upon the Payee the right to vote or to consent or to receive notice
as a stockholder in respect of any meetings of stockholders for the election of
directors or any other matter, or as having any rights whatsoever as a
stockholder of the Company. If, however, at any time prior to the Maturity Date
or earlier conversion of this Note, any of the following events shall occur:
(a) the Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained earnings, as
indicated by the accounting treatment of such dividend or distribution on
the books of the Company; or
(b) the Company shall offer to all the holders of its Common Stock any
additional shares of capital stock of the Company or securities convertible
into or exchangeable for shares of capital stock of the Company, or any
option, right or warrant to subscribe therefor; or
(c) dissolution, liquidation or winding-up of the Company (other than
in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety shall
be proposed; or
(d) there shall be any capital reorganization or reclassification of
the capital stock of the Company, or consolidation or merger of the Company
with another entity;
then, in any one or more of said events, the Company shall give written notice
of such event at least twenty (20) days prior to the date fixed as a record date
or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, additional shares of
capital stock, convertible or exchangeable securities or subscription rights,
options or warrants, or entitled to vote on such proposed dissolution,
liquidation, winding up or for the purpose of such capital reorganization or
reclassification.
All communications provided for or permitted hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered, sent by
recognized international courier or mailed by registered mail, postage prepaid
and return receipt requested, or transmitted by telefax, telex or telegraph and
confirmed by a similar mailed writing, if to it at its address listed below or
to such other address as the Payee may designate in writing to the Company, and,
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if to the Company, addressed to the Company at Plastigone Technologies, Inc.,
2814 South Street, Forth Meyers, Florida 33916, Attention: Chief Financial
Officer or to such other address as the Company may designate in writing to the
Payee.
16. Purchase for Investment.
(a) Upon the conversion of this Note at a time when there is not in
effect under the Securities Act of 1933 (the "Securities Act") a
registration statement relating to the securities issuable upon exercise
hereof and available for delivery a prospectus meeting the requirements of
Section 10(a)(3) of said Act, the Payee shall represent and warrant in
writing to the Company that the Shares to be issued upon conversion are
being acquired for investment and not with a view to the distribution
thereof and make such other representations and acknowledgments as may be
necessary, in the Company's sole discretion, to assure compliance with
applicable law. The Company shall not be required to issue any shares of
Common Stock unless and until any then applicable requirements of the
Securities and Exchange Commission and other regulatory agencies having
jurisdiction, and of any exchange and association upon which Common Stock
of the Company may be listed, shall have been fully complied with.
(b) The Company may cause the legend set forth on the face of this
Note to be set forth on any share certificate issued or issuable upon
conversion of this Note unless counsel for the Company is of the opinion as
to any such certificate that such legend is unnecessary.
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17. Governing Law. The internal laws of the State of Florida shall govern
this Note without regard to the conflicts of laws provisions thereof.
IN WITNESS WHEREOF, this Note has been duly executed on the day and year
first above written.
Plastigone Technologies Inc.
By:__________________________________
Name:
Title:
Payee
By:__________________________________
Name:
Title:
Address:_____________________________
_____________________________________
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CONVERSION NOTICE
Dated:__________________________
To: Plastigone Technologies Inc.
2814 South Street
Fort Myers, Florida 33916
Attention: Chief Financial Officer
The undersigned does hereby give notice that it wishes to convert the
entire amount of principal and interest outstanding as of the date hereof on the
annexed Convertible Secured Promissory Note Due 1999 held by it into shares of
Common Stock of Plastigone Technologies Inc. The undersigned represents and
warrants that (i) it has complied with all of the requirements of Regulation S
promulgated under the Securities Act of 1933, as amended (the "Securities Act")
to the extent such requirements are applicable to the undersigned; and (ii) it
has not engaged in any transaction or series of transactions that, although in
technical compliance with all of the requirements of Regulation S, is part of a
plan or scheme to evade the registration requirements of the Securities Act. In
addition to the foregoing, the undersigned has delivered to the Company,
simultaneously with the delivery hereof, a duly executed Purchaser's
Certificate.
By: ___________________________________
Name:
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<PAGE>
PURCHASER'S CERTIFICATE
The undersigned (the "Purchaser") hereby certifies to Plastigone
Technologies Inc. (the "Company") and to its counsel, that:
1. The Purchaser acquired _______ Units (the "Units"), each Unit consisting
of(i) a $12,500 principal amount Convertible Secured Loan Note Due 1999 of the
Company (the "Note"); and (ii) warrants (the "Warrants") to purchase 50,000
shares of common stock, $0.01 par value per share, of the Company (the "Common
Stock") pursuant to the Unit Purchase Agreement dated as of
______________between the Purchaser and the Company (the "Purchase Agreement").
2. From the date of the acquisition of the Units through the date which is
one year from the date thereof (the "Period"), the Purchaser has been the sole
beneficial and record owner of the Units and did not take any short position in
the Company's Common Stock.
3. Each of the representations and warranties of the Purchaser in the
Purchase Agreement were true and accurate when made and continue to be true and
accurate as of the date hereof.
4. The Purchaser has held the Units for more one year and has paid the full
purchase price with respect to the Units to the Company and it was not at the
time of the purchase of the Units, during the Period nor is it currently a "U.S.
Person" as such term is defined in Regulation S promulgated under the Securities
Act of 1933, as amended (the "Securities Act").
5. The Purchaser is not an "underwriter" or a "dealer" (as those terms are
defined in sections 2(11) and 2(12) of the Act) and is not receiving or will not
receive a selling commission, fee or other remuneration in respect of the Notes
being converted or in respect of the sale or potential sale of the Common Stock
issuable upon conversion of Notes.
6. The Purchaser is not the issuer or distributor of the shares of Common
Stock issuable upon conversion of Notes, or an affiliate of the Company, and is
not acting on behalf of any of the foregoing.
The Purchaser understands that this certificate is being delivered to
provide the Company and its counsel with certain information necessary to make a
determination of the applicability of the registration requirements of the
Securities Act The Purchaser agrees that the Company and its counsel may rely
upon the statements contained herein with regard to issuing an opinion of
counsel with regard to such requirements.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this ___
day of ____________, 19__.
By:___________________________
Name:
Title:
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<PAGE>
Exhibit 4.2 Form of Warrant.
Exhibit B
---------
THE SECURITIES REPRESENTED BY THIS WARRANT AND THE SHARES ISSUABLE UPON EXERCISE
THEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933
(THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
AND MAY NOT BE RE-OFFERED, RE-SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED OR DELIVERED, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT IN CERTAIN TRANSACTIONS
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH STATE
OR OTHER SECURITIES LAWS OR DELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED. TERMS USED IN THE
PRECEDING SENTENCE HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
Date of Issuance: February ____, 1997.
Void after 5:00 p.m., Miami Time, on February ______, 2002.
Warrant to Purchase ________________ Shares of Common Stock.
WARRANT TO PURCHASE COMMON STOCK OF
PLASTIGONE TECHNOLOGIES, INC.
This is to Certify That, FOR VALUE RECEIVED or registered assigns
("Holder") is entitled to purchase, subject to the provisions of this Warrant,
from Plastigone Technologies, Inc., a Florida corporation (the "Company"),
during the period commencing on July 17, 1997 and continuing until the
Termination Date (as hereinafter defined) (the "Exercise Period"), an aggregate
of _______________ shares of common stock, $.01 par value, of the Company (the
"Common Stock") at the Exercise Price (as hereinafter defined). The number of
shares of Common Stock issuable and the purchase price thereof upon the exercise
of this Warrant shall be adjusted from time to time as hereinafter set forth.
The shares of Common Stock to be issued upon such exercise are hereinafter
sometimes referred to as "Warrant Shares" and the purchase price of a share of
Common Stock as adjusted from time to time is hereinafter sometimes referred to
as the "Exercise Price".
1. Series of Warrants. This Warrant is one of a series of Warrants
(collectively, the "Warrants") issued by the Company pursuant to certain
Purchase Agreements by and between the Company and certain purchasers (including
the Holder) relating to the purchase by such purchasers of an aggregate of 100
Units of the Company.
2. Exercise; Exercise Price.
a. Exercise. This Warrant may be exercised in whole or in part at any
time and from time to time during the Exercise Period until 5:00 p.m.,
Miami Time, on February ____, 2002 (the "Termination Date"), but if the
Termination Date is a day on which banking
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institutions in Miami, Florida are authorized by law to close, then on the
next succeeding day which shall not be such a day. Exercise shall be
accomplished by presentation and surrender hereof to the Company or at the
office of its stock transfer agent, if any, with the Election to Purchase
Form annexed hereto duly executed and accompanied by payment of the
Exercise Price for the number of shares specified in such form, together
with all federal and state taxes applicable upon such exercise. If this
Warrant should be exercised in part only, the Company shall, upon surrender
of this Warrant for cancellation, execute and deliver a new Warrant
evidencing the right of the Holder to purchase the balance of the shares
purchasable hereunder. Upon receipt by the Company of this Warrant at the
office or agency of the Company, in proper form for exercise, upon exercise
the Holder shall be deemed to be the holder of record of the Warrant Shares
issuable upon such exercise, notwithstanding that the stock transfer books
of the Company shall then be closed or that certificates representing such
Warrant Shares shall not then be actually delivered to the Holder.
b. Exercise Price. This Warrant may be exercised during the Exercise
Period at an exercise price per share equal to (i) the average of the Daily
Price (as hereinafter defined) of the Company's Common Stock for the five
trading days immediately preceding the date of exercise; (ii) less 40% of
such average; provided, however, that in no event shall such Exercise Price
be less than $0.10 per share.
For purposes of this Agreement, the Daily Price of the Common Stock shall
be: (i) the closing price of the Company's Common Stock listed on a U.S.
national securities exchange or admitted to unlisted trading privileges on
such exchange; or (ii) if the Common Stock is not listed or admitted to
unlisted trading privileges on a national securities exchange, the Daily
Price shall be the average of the daily reported high bid and low asked
prices reported by the National Association of Securities Dealers Automated
Quotation System ("NASDAQ") (or, if not so quoted on NASDAQ, by the
National Quotation Bureau, Inc. or a similar organization then furnishing
such information); or (iii) if the Common Stock is not so listed or
admitted to unlisted trading privileges and bid and asked prices are not so
reported, the Daily Price shall be an amount, not less than both the book
value and the par value of a share of Common Stock, determined in such
reasonable manner as may be prescribed by the Board of Directors of the
Company, such determination to be final and binding on the Holder.
3. Reservation of Shares. The Company hereby agrees that at all times
during the Exercise Period there shall be reserved for issuance and delivery
upon exercise of this Warrant that number of shares of its Common Stock issuable
upon exercise of this Warrant.
4. Fractional Shares. No fractional shares or scrip representing fractional
shares shall be issued upon the exercise of this Warrant. With respect to any
fraction of a share called for upon any exercise hereof, the Company shall pay
to the Holder an amount in cash equal to such fraction multiplied by the current
market value of such fractional share, determined as follows (the "Market
Price"):
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a. If the Common Stock is listed on a national securities exchange or
admitted to unlisted trading privileges on such exchange, the current
market value shall be the last reported sale price of the Common Stock on
such exchange on the last business day prior to the date of exercise of
this Warrant or, if no such sale is made on such day, the average of the
closing bid and asked prices for that day on such exchange; or
b. If the Common Stock is not listed or admitted to unlisted trading
privileges on a national securities exchange, the current market value
shall be the average of the last reported high bid and low asked prices
reported by NASDAQ (or, if not so quoted on NASDAQ, by the National
Quotation Bureau, Inc. or a similar organization then furnishing such
information) on the last business day prior to the date of the exercise of
this Warrant; or
c. If the Common Stock is not so listed or admitted to unlisted
trading privileges and bid and asked prices are not so reported, the
current market value shall be an amount, not less than both the book value
and the par value of a share of Common Stock, determined in such reasonable
manner as may be prescribed by the Board of Directors of the Company, such
determination to be final and binding on the Holder.
5. Exchange, Assignment or Loss of Warrant. This Warrant may not be sold,
transferred, assigned or hypothecated, other than by will or pursuant to the
laws of descent and distribution, without the prior written consent of the
Company, which consent shall not be unreasonably withheld. The term "Warrant",
as used herein, includes any Warrants issued in substitution for or replacement
of this Warrant. Upon receipt by the Company of evidence satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant, and (in the case of
loss, theft or destruction) of reasonably satisfactory indemnification, or (if
mutilated) upon surrender and cancellation of this Warrant, the Company will
execute and deliver a new Warrant, of like tenor and date. Any such new Warrant
executed and delivered shall constitute an additional contractual obligation on
the part of the Company, whether or not this Warrant so lost, stolen, destroyed
or mutilated shall be any time enforceable by anyone.
6. Rights of the Holder. The Holder shall not, by virtue hereof, be
entitled to any rights as a shareholder in the Company, either at law or equity,
and the rights of the Holder are limited to those expressed in this Warrant and
are not enforceable against the Company except to the extent set forth herein.
7. Anti-Dilution Provisions.
a. Computation of Adjusted Price. Subject to the exceptions referred
to in Section 7(f) below, in the event that the Company shall at any time
after the date hereof issue or sell any shares of Common Stock (other than
the issuance or sale of Common Stock referred to in Section 7(f) below),
including shares of Common Stock held in the Company's treasury, for a
consideration per share less than the Exercise Price in effect immediately
prior
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<PAGE>
to the issuance or sale of such shares or less than the Market Price, or
without consideration, then forthwith upon such issuance or sale, the
Exercise Price shall (until another such issuance or sale) be reduced to a
price (calculated to the nearest full cent) equal to the quotient derived
by dividing (i) an amount equal to the sum of (A) the product of (x) the
total number of shares of Common Stock outstanding immediately prior to
such issuance or sale, multiplied by (y) the lower of (1) the Exercise
Price in effect immediately prior to the issuance or sale or (2) the Market
Price per share of Common Stock on the date immediately prior to the
issuance or sale of such shares, plus, (B) the aggregate of the amount of
all consideration, if any, received by the Company upon such issuance or
sale, by (ii) the total number of shares of Common Stock outstanding
immediately after such issuance or sale; provided, however, that in no
event shall the Exercise Price be adjusted pursuant to this computation in
an amount excess of the Exercise Price in effect immediately prior to such
computation, except in the case of readjustments provided for in Section
7(b) below or a combination of outstanding shares of Common Stock provided
in Section 7(c) below.
For the purposes of any computation to be made in accordance with this
Section 7(a), the following provisions shall be applicable.
i. In case of the issuance or sale of shares of Common Stock for
a consideration part or all of which shall be cash, the amount of the
cash consideration therefor shall be deemed to be the amount of cash
received by the Company for such shares (or, if shares of Common Stock
are offered by the Company for subscription, the subscription price
or, if such shares of Common Stock shall be sold to underwriters or
dealers for public offering without a subscription offering, the
initial public offering price) before deducting therefrom any
compensation paid or discount allowed in the sale, underwriting or
purchase thereof by underwriters or dealers or others performing
similar services, or any expenses incurred in connection therewith.
ii. In case of the issuance or sale (otherwise than as a dividend
or other distribution on any stock of the Company, or on the exercise
of options, rights or warrants or on the conversion or exchange of
convertible or exchangeable securities) of shares of Common Stock for
a consideration part or all of which shall be other than cash, the
amount of the consideration therefor other than cash shall be deemed
to be the value of such consideration as determined in good faith by
the Board of Directors of the Company.
iii. Shares of Common Stock issuable by way of dividend or other
distribution on any stock of the Company shall be deemed to have been
issued immediately after the opening of business (Miami time) on the
day following the record date for the determination of stockholders
entitled to receive such dividend or other distribution and shall be
deemed to have been issued without consideration.
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iv. The reclassification of securities of the Company (other than
shares of Common Stock into securities including shares of Common
Stock) shall be deemed to involve the issuance of such shares of
Common Stock for a consideration other than cash immediately prior to
the close of business (Miami time) on the date fixed for the
determination of security holders entitled to receive such shares, and
the value of the consideration allocable to such shares of Common
Stock shall be determined as provided in subsection (ii) above.
v. The number of shares of Common Stock at any one time
outstanding shall include the aggregate number of shares issued or
issuable (subject to readjustment upon the actual issuance thereof)
upon the exercise of options, rights or warrants, and upon the
conversion or exchange of convertible or exchangeable securities.
b. Options, Rights, Warrants and Convertible and Exchangeable
Securities. Except in the case of the Company issuing rights to subscribe
for shares of Common Stock distributed to all the stockholders of the
Company and Holders of Warrants pursuant to Section 7(h), in the event that
the Company shall at any time after the date hereof and prior to the
exercise or expiration hereof, issue any options, rights or warrants to
subscribe for shares of Common Stock (other than the issuance or exercise
of options, rights or warrants referred to in Section 7(f) below), (i) for
a consideration per share less than (A) the Exercise Price in effect
immediately prior to the issuance of such options, rights or warrants, or
such convertible or exchangeable securities, or (B) the Market Price, or
(ii) without consideration, the Exercise Price in effect immediately prior
to the issuance of such options, rights or warrants or such convertible or
exchangeable securities, as the case may be, shall be reduced to a price
determined by making a computation in accordance with the provisions of
Section 7(a) above; provided, however, that:
i. The aggregate maximum number of shares of Common Stock
issuable under such options, rights or warrants shall be deemed to be
issued and outstanding at the time such options, rights or warrants
are issued, and for a consideration equal to the minimum purchase
price per share of Common Stock provided for in such options, rights
or warrants at the time or issuance, plus consideration (determined in
the same manner as consideration received on the issue or sale of
shares of Common Stock), if any, received by the Company for such
options, rights or warrants, and if no minimum price is provided in
such options, rights or warrants, then the consideration shall be
equal to zero; provided, however, that upon the expiration or
termination of such options, rights or warrants, if any thereof shall
not have been exercised, the number of shares of Common Stock deemed
to be issued and outstanding pursuant to this subsection (i) (and for
the purposes of Section 7(a)(v) above) shall be reduced by such number
of shares of Common Stock as to which options, warrants and/or rights
shall have expired or terminated unexercised, and such number of
shares of Common Stock shall no longer be deemed to be issued and
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outstanding, and the Exercise Price then in effect shall forthwith be
readjusted and thereafter be the price which it would have been had
adjustment been made on the basis of the issuance only of shares of
Common Stock actually issued or issuable upon the exercise of those
options, rights or warrants as to which the exercise rights shall not
have expired or terminated unexercised.
ii. The aggregate maximum number of shares of Common Stock
issuable upon conversion or exchange of any convertible or
exchangeable securities shall be deemed to be issued and outstanding
at the time of issuance of such securities, and for a consideration
equal to the consideration (determined in the same manner as
consideration received on the issue or sale of shares of Common Stock)
received by the Company for such securities, plus the minimum
consideration, if any, receivable by the Company upon the conversion
or exchange thereof; provided, however, that upon the termination of
the right to convert or exchange such convertible or exchangeable
securities (whether by reason of redemption or otherwise), the number
of shares of Common Stock deemed to be issued and outstanding pursuant
to this subsection (ii) (and for the purpose of Section 7(a)(v) above)
shall be reduced by such number of shares of Common Stock as to which
the conversion or exchange rights shall have expired or terminated
unexercised, and such number of shares shall no longer be deemed to be
issued and outstanding and the Exercise Price then in effect shall
forthwith be readjusted and thereafter be the price which it would
have been had adjustment been made on the basis of the issuance only
of the shares of Common Stock actually issued or issuable upon the
conversion or exchange of those convertible or exchangeable securities
as to which the conversion or exchange rights shall not have expired
or terminated unexercised.
iii. If any change shall occur in the price per share provided
for in any of the options, rights or warrants referred to in
subsection 7(b)(i) above, or in the price per share at which the
securities referred to in subsection 7(b)(ii) above are convertible or
exchangeable, such options, rights or warrants or conversion or
exchange rights, as the case may be, shall be deemed to have expired
or terminated on the date when such price change became effective in
respect of shares not theretofore issued pursuant to the exercise or
conversion or exchange thereof, and the Company shall be deemed to
have issued upon such date new options, rights or warrants or
convertible or exchangeable securities at the new price in respect of
the number of shares issuable upon the exercise of such options,
rights or warrants or the conversion or exchange of such convertible
or exchangeable securities.
iv. When an adjustment has been made in the Exercise Price
pursuant to this Section 7(b) in respect of the issuance of any
options, rights or warrants to subscribe for shares of Common Stock or
the issuance of any securities convertible into or exchangeable for
shares of Common Stock, no additional adjustment in the Exercise Price
shall be made pursuant to Section 7(a) above upon the issuance of
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shares of Common Stock upon the exercise of such options, rights or
warrants or upon the conversion or exchange of such securities.
c. Subdivision and Combination. In the event that the Company shall at
any time subdivide or combine the outstanding shares of Common Stock, the
Exercise Price shall forthwith be proportionately decreased in the case of
subdivision or increased in the case of combination.
d. Adjustment in Number of Shares. Upon each adjustment of the
Exercise Price pursuant to the provisions of this Section 7, the number of
shares of Common Stock issuable upon the exercise of this Warrant shall be
adjusted to the nearest full share by multiplying a number equal to the
Exercise Price in effect immediately prior to such adjustment by the number
of shares issuable upon exercise of this Warrant immediately prior to such
adjustment and dividing the product so obtained by the adjusted Exercise
Price.
e. Reclassification, Consolidation, Merger, Etc. In the event of any
reclassification or change of the outstanding shares of Common Stock (other
than a change in par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination), or in the event of
any consolidation of the Company with, or merger of the Company into,
another corporation (other than a consolidation or merger in which the
Company is the surviving corporation and which does not result in any
reclassification or change of the outstanding shares of Common Stock,
except a change as a result of a subdivision or combination of such shares
or a change in par value, as aforesaid), or in the case of a sale or
conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety, the Holder shall thereafter have
the right to convert into and to purchase the kind and respective number of
shares of stock and other securities and property receivable upon such
reclassification, change, consolidation, merger, sale or conveyance as if
the Holder were the owner of the shares of Common Stock underlying this
Warrant immediately prior to any such events at a price equal to the
product of (x) the number of shares issuable upon exercise of this Warrant
and (y) the Exercise Price in effect immediately prior to the record date
for such reclassification, change, consolidation, merger, sale or
conveyance as if the Holder had exercised this Warrant.
f. No Adjustment of Exercise Price in Certain Cases. No adjustment of
the Exercise Price shall be made:
i. upon the issuance or sale of shares of Common Stock upon the
exercise of this Warrant and the conversion of a Note issued
concurrently herewith; or
ii. upon the issuance or sale of shares of Common Stock issuable
upon the exercise of the Warrants and the conversion of Notes to be
issued concurrently therewith;
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iii. upon (A) the issuance of options pursuant to any employee,
executive or director benefit, incentive, stock option or profit
sharing plans of the Company which plans are in effect on the initial
issuance date of this Warrant or, (B) the sale by the Company of any
shares of Common Stock pursuant to the exercise of any such options;
or
iv. upon the issuance or sale by the Company of any shares of
Common Stock pursuant to the exercise of any options or warrants
previously issued and outstanding on the initial issuance date of this
Warrant; or
v. if the amount of said adjustment shall be less than 1/2 of one
cent ($0.005) per share of Common Stock; provided, however, that in
such case any adjustment that would otherwise be required then to be
made shall be carried forward and shall be made at the time of and
together with the next subsequent adjustment which, together with any
adjustment so carried forward, shall amount to at least 1/2 of one
cent ($0.005) per Share.
g. Dividends and Other Distributions with Respect to Outstanding
Securities. In the event that the Company shall at any time prior to the
expiration or earlier exercise of this Warrant declare a dividend (other
than a dividend consisting solely of shares of Common Stock or a cash
dividend or distribution payable out of current or retained earnings) or
otherwise distribute to its stockholders any monies, assets, property,
rights, evidences of indebtedness, securities (other than shares of Common
Stock), whether issued by the Company or by another person or entity, or
any other thing of value, the Holder of such unexercised Warrant shall
thereafter be entitled, in addition to the shares of Common Stock or other
securities receivable upon the exercise thereof, to receive, upon the
exercise of such Warrant, the same monies, property, assets, rights,
evidences or indebtedness, securities or any other thing of value that it
would have been entitled to receive at the time of such dividend or
distribution. At the time of any such dividend or distribution, the Company
shall make appropriate reserves to ensure the timely performance of the
provisions of this Section 7(g).
h. Subscription Rights for Shares of Common Stock or Other Securities.
In the case the Company or any affiliate of the Company shall at any time
after the date hereof and prior to the expiration or earlier exercise of
this Warrant issue any rights to subscribe for shares of Common Stock or
any other securities of the Company or of such affiliate to all the
stockholders of the Company, the Holder of the unexercised Warrants shall
be entitled, in addition to the shares of Common Stock or other securities
receivable upon the exercise of the Warrants, to receive such rights on a
pro rata basis at the time such rights are distributed to the other
stockholders of the Company.
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<PAGE>
i. Statement on Warrant. Irrespective of any adjustments in the
Exercise Price or the number or kind of shares purchasable upon the
exercise of this Warrant, the certificates representing this Warrant
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated herein.
j. Number of Shares Adjusted. Upon any adjustment of the Exercise
Price, the Holder of this Warrant shall thereafter (until another such
adjustment) be entitled to purchase, at the new Exercise Price, the number
of shares, calculated to the nearest full share, obtained by multiplying
the number of shares of Common Stock issuable upon exercise of this Warrant
immediately prior to such adjustment by the Exercise Price in effect on the
date hereof and dividing the product so obtained by the new Exercise Price.
k. Common Stock Defined. Whenever reference is made in this Section 7
to the issue or sale of shares of Common Stock, the term "Common Stock"
shall mean the Common Stock of the Company of the class authorized as of
the date hereof and any other class of stock ranking on a parity with such
Common Stock. However, shares issuable upon exercise hereof shall include
only shares of the class designated as Common Stock of the Company as of
the date hereof.
8. Officer's Certificate. Whenever the Exercise Price shall be adjusted as
required by the provisions of Section 7 hereof, the Company shall forthwith file
with its Secretary or Assistant Secretary at its principal office, and with its
stock transfer agent, if any, an officer's certificate showing the adjusted
Exercise Price determined as herein provided and setting forth in reasonable
detail the facts requiring such adjustment. Each such officer's certificate
shall be made available at all reasonable times for inspection by the Holder,
and the Company shall, forthwith after each such adjustment, deliver a copy of
such certificate to the Holder. Such certificate shall be conclusive as to the
correctness of such adjustment.
9. "Call" Option.. In the event that the fair market value of the Company's
Common Stock, computed in accordance with the provisions of Section 4 hereof, is
at least $0.50 for a period of 60 trading days in any 65 consecutive trading day
period, then the Company may, at its option and upon 10-days' written notice to
the Payee, redeem any unexercised Warrants hereunder at a price of $0.01 per
warrant.
10. Notice to Warrant Holders. So long as this Warrant shall be outstanding
and unexercised, if any of the following events shall occur:
a. the Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained earnings, as
indicated by the accounting treatment of such dividend or distribution on
the books of the Company; or
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b. the Company shall offer to all the holders of its Common Stock any
additional shares of capital stock of the Company or securities convertible
into or exchangeable for shares of capital stock of the Company, or any
option, right or warrant to subscribe therefor; or
c. a dissolution, liquidation or winding-up of the Company (other than
in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety shall
be proposed; or
d. there shall be any capital reorganization or reclassification of
the capital stock of the Company, or consolidation or merger of the Company
with another entity;
then, in any one or more of said events, the Company shall give written notice
of such event at least twenty (20) days prior to the date fixed as a record date
or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, additional shares of
capital stock, convertible or exchangeable securities or subscription rights,
options or warrants, or entitled to vote on such proposed dissolution,
liquidation, winding-up, or for the purposes of such capital reorganization or
reclassification.
11. Purchase for Investment.
a. Upon the exercise of this Warrant at a time when there is not in
effect under the Securities Act of 1933 (the "Securities Act") a
registration statement relating to the securities issuable upon exercise
hereof and available for delivery a prospectus meeting the requirements of
Section 10(a)(3) of said Act, the Holder shall represent and warrant in
writing to the Company that the Warrant Shares to be purchased are being
acquired for investment and not with a view to the distribution thereof and
make such other representations and acknowledgments as may be necessary, in
the Company's sole discretion, to assure compliance with applicable law. No
shares shall be deemed purchased upon the exercise of this Warrant nor
shall the Company be required to issue any shares unless and until any then
applicable requirements of the Securities and Exchange Commission and other
regulatory agencies having jurisdiction, and of any exchange and
association upon which Common Stock of the Company may be listed, shall
have been fully complied with. The Holder, by its acceptance hereof,
covenants and agrees that this Warrant and the Shares issued upon exercise
hereof are being acquired or will be acquired as an investment and not with
a view to the distribution thereof, and that this Warrant and such Warrant
Shares may not be sold, assigned, hypothecated or otherwise transferred or
delivered, directly or indirectly, in the United States or to, or for the
account or benefit of, U.S. Persons except in certain transactions exempt
from the registration requirements of the Securities Act and such State or
other securities laws or delivery to the Company of an opinion of counsel
satisfactory to the Company that registration is not required. Terms used
in the preceding sentence have the meanings given to them by Regulation S
under the Securities Act.
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<PAGE>
b. The Company may cause the legend set forth on the face of this
Warrant to be set forth on any certificate issued or issuable upon exercise
of this Warrant unless counsel for the Company is of the opinion as to any
such certificate that such legend is unnecessary.
12. Applicable Law. This Warrant shall be governed by, and construed in
accordance with, the local laws of the State of Florida.
Plastigone Technologies, Inc.
By:_________________________
Date:_________________________
{SEAL}
Attest:
______________________________
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ELECTION TO PURCHASE FORM
-------------------------
Dated:__________________________, 19__
The undersigned hereby irrevocably elects to exercise the within Warrant to
the extent of purchasing __________ shares of Common Stock and hereby makes
payment of $___________ in payment of the actual exercise price thereof. In
addition, simultaneously with the delivery of this Election to Purchase Form to
the Company, the undersigned has delivered to the Company a duly executed
Purchaser's Certificate.
_______________________________________
INSTRUCTIONS FOR REGISTRATION OF STOCK
--------------------------------------
Name___________________________________________
(Print typewrite or print in block letters)
Signature______________________________________
Social Security or Employer Identification No._____________
ASSIGNMENT FORM
---------------
FOR VALUE RECEIVED,________________________________________________
hereby sells, assigns and transfers unto
Name___________________________________________
(Print typewrite or print in block letters)
Address________________________________________
Social Security or Employer Identification No._____________
the right to purchase Common Stock represented by this Warrant to the extent of
________ shares as to which such right is exercisable and does hereby
irrevocably constitute and appoint______________________________________________
attorney to transfer the same on the books of the Company with full power of
substitution.
Dated:_____________________________ , 19__
Signature______________________________________
Signature Guarantee:
_______________________________________________
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<PAGE>
PURCHASER'S CERTIFICATE
-----------------------
The undersigned (the "Purchaser") hereby certifies to Plastigone
Technologies Inc. (the "Company") and to its counsel, that:
1. The Purchaser acquired _______ Units (the "Units"), each Unit consisting
of(i) a $12,500 principal amount Convertible Secured Loan Note Due 1999 of the
Company (the "Note"); and (ii) warrants (the "Warrants") to purchase 50,000
shares of common stock, $0.01 par value per share, of the Company (the "Common
Stock") pursuant to the Unit Purchase Agreement dated as of_____________________
between the Purchaser and the Company (the "Purchase Agreement").
2. From the date of the acquisition of the Units through the date which is
one year from the date thereof (the "Period"), the Purchaser has been the sole
beneficial and record owner of the Units and did not take any short position in
the Company's Common Stock.
3. Each of the representations and warranties of the Purchaser in the
Purchase Agreement were true and accurate when made and continue to be true and
accurate as of the date hereof.
4. The Purchaser has held the Units for more one year and has paid the full
purchase price with respect to the Units to the Company and it was not at the
time of the purchase of the Units, during the Period nor is it currently a "U.S.
Person" as such term is defined in Regulation S promulgated under the Securities
Act of 1933, as amended (the "Securities Act").
5. The Purchaser is not an "underwriter" or a "dealer" (as those terms are
defined in Sections 2(11) and 2(12) of the Securities Act) and is not receiving
or will not receive a selling commission, fee or other remuneration in respect
of the Warrants being exercised or in respect of the sale or potential sale of
the Common Stock issuable upon exercise of the Warrants.
6. The Purchaser is not the issuer or distributor of the shares of Common
Stock issuable upon exercise of the Warrant, or an affiliate of the Company, and
is not acting on behalf of any of the foregoing.
The Purchaser understands that this certificate is being delivered to
provide the Company and its counsel with certain information necessary to make a
determination of the applicability of the registration requirements of the
Securities Act The Purchaser agrees that the Company and its counsel may rely
upon the statements contained herein with regard to issuing an opinion of
counsel with regard to such requirements.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this ___
day of ____________, 19__.
By:___________________________
Name:
Title:
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<PAGE>
ACCEPTANCE OF WARRANT
The undersigned hereby accepts this Warrant and agrees to abide by all the
terms and conditions hereof. The undersigned further represents and agrees that
he or she is accepting this Warrant for his or her own account for investment
purposes and not with a view to or for sale in connection with a distribution of
the Warrant.
WARRANT HOLDER:
_________________________________
Signature
_________________________________
Print Name
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Exhibit 99.1 Placement Agent Agreement.
PLACEMENT AGENT AGREEMENT
Placement of Units
January 17, 1997
Oakes, Fitzwilliams & Co. Limited
Byron House
7-9 St. James's Street
London SW1A 1EE
Dear Sirs:
1. Introduction
Plastigone Technologies Inc., a corporation organized under the laws of the
State of Florida (the "Company"), proposes to offer for sale up to 100 units
(the "Units"), each Unit consisting of (i) a Convertible Secured Loan Note of
the Company in the principal amount of $12,500 (the "Notes") and (ii) warrants
(the "Warrants") to purchase 50,000 shares of common stock of the Company, par
value $.01 per share (the "Shares") (the Notes, the Warrants and the Shares
being collectively referred to as the "Securities")
The Company will prepare an offering memorandum (the "Offering
Memorandum"), describing, among other things, the Securities, and providing
material information about the Company and the terms of the offering (including
the restrictions on the resale of the Units and the Securities otherwise than in
compliance with Regulation S (as hereinafter defined)). The Offering Memorandum
will also include: the Company's annual report on Form 10K for the fiscal year
ended December 31, 1995 (the "Form 10-K") and all other documents filed by the
Company with the Securities and Exchange Commission since the filing of the
Company's most recent Form 10K. Copies of the Offering Memorandum and all
amendments thereof and supplements thereto will be delivered to you.
The Company intends to offer and sell the Units to investors who are not
"U.S. persons" as defined in Regulation S ("Regulation S") under the United
States Securities Act of 1933, as amended (the "Securities Act"), pursuant to
purchase agreements (the "Purchase Agreements") to be entered into by the
Company and each such investor (a "Purchaser"), in reliance upon and in
conformity with an exemption from the registration requirements of the
Securities Act pursuant to Regulation S.
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<PAGE>
The Company has requested that Oakes Fitzwilliams and Co. Limited ("OFCO")
assist the Company as placement agent in the placement of the Units, and you
have indicated your willingness to do so, subject to the satisfactory completion
of such investigation and inquiry into the Company's business as you deem
appropriate under the circumstances and subject to the conditions set forth
below.
2. Appointment of Placement Agent; Placement of Shares
(a) The Company hereby appoints OFCO (the "Placement Agent") as exclusive
Placement Agent in connection with the placement of all of the Units for the
period (the "Offering Period") commencing upon delivery to the Placement Agent
of copies of the Offering Memorandum and terminating on the Offering Termination
Date hereinafter referred to. Subject to the performance in all material
respects by the Company of its obligations to be performed hereunder, and to the
completeness and accuracy in all material respects of all of the representations
and warranties of the Company contained herein, you hereby accept such agency
and agree on the terms and conditions herein set forth to use your best efforts
during the Offering Period to find qualified subscribers for all of the Units.
Your agency hereunder, which is coupled with an interest and, therefore, is not
terminable by the Company without your permission, shall continue until the
close of business (London time) on January 31, 1997, unless the Company elects
to extend the Offering Period for an additional period of ninety (90) days or
unless you and the Company agree that the Offering Period shall be further
extended for such a further additional period as may be agreed by you and the
Company, except that, in any event, your agency shall terminate on the date of
the initial issuance of the Units to a purchaser other than OFCO or any of its
affiliates (the "Closing Date"). The date on which such agency is terminated is
hereinafter referred to as the "Offering Termination Date".
(b) In the event the offering is commenced and no Units shall have been
subscribed for prior to the Offering Termination Date, your agency and this
Agreement shall terminate without any further obligation on your part or on the
part of the Company except as provided in Section 6 hereof and except that the
indemnification and contribution provided for in Section 9 hereof shall continue
after such termination of this Agreement.
(c) The Placement Agent shall not, in fulfilling its obligations hereunder,
act as underwriter for the Units, and is in no way obligated, directly or
indirectly, to advance its own funds to purchase any Units; provided, however,
that the Placement Agent or its affiliates will purchase 30 Units for its or
their own account for $300,000 on or about January 17, 1997 and an additional 5
Units for its or their own account for $50,000 no later than January 24, 1997,
in each case prior to the completion of the Offering Memorandum.
(d) Notwithstanding anything herein to the contrary, the Company shall, not
be required to sell Units to any prospective investor if the Company, upon
advice of counsel, believes that the prospective investor does not meet the
investor suitability requirements set forth in Schedule A annexed hereto or who
has not delivered clear funds for the full purchase price of all Units
subscribed for.
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<PAGE>
3. Representations and Warranties of the Company
The Company represents and warrants to, and agrees with, the Placement
Agent that:
(a) The Offering Memorandum, as of its date and at the Closing Date, and
any amendment thereof and supplement thereto, as of their respective dates and
at the Closing Date, will not as of such dates, contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
relating to matters of' non-U.S. law or made in reliance upon, and in conformity
with, information furnished in writing to the Company by the Placement Agent
expressly for use therein.
(b) Neither the Company nor any affiliate of the Company nor anyone acting
on the behalf of the Company or any such affiliate, other that the Placement
Agent, has, directly or indirectly, offered or sold, or attempted to offer, sell
or dispose of, any of the Units, or solicited any offer to buy Units from, or
otherwise approached or negotiated with respect thereto with, any person.
(c) The execution, delivery and performance of this Agreement by the
Company (including the issuance and sale of the Units) has been duly authorized
by all requisite corporate action of the Company, and (ii) will not violate (A)
the Certificate of Incorporation or By-laws of the Company or (B) any law
applicable to the Company or any of its subsidiaries or any rule, regulation or
order of any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or (C) any provision of any indenture,
mortgage, agreement, contract, or other instrument to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the properties or assets of the Company
or any of its subsidiaries are subject, or be in conflict with, or result in a
breach of or constitute (upon notice of lapse of time or both) a default under
any such indenture, mortgage, agreement, contract or other instrument or result
in the creation or imposition of an claim, lien, security interest, mortgage,
pledge, charge or other encumbrance of any nature whatsoever, upon any of the
properties or assets of the Company or any of its subsidiaries (except for such
violation or conflict described in (ii) (C) above which would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole).
Upon execution and delivery by the Company, this Agreement will constitute the
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as the enforceability thereof may
be limited by applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or affecting the enforcement of creditors' rights generally and
by general equitable principles, regardless of whether such enforceability is
considered in a proceeding in equity or at law and except as rights to indemnity
or contribution may be limited under applicable law. The Placement Agent
acknowledges that the Company must obtain the approval of its stockholders to an
amendment to its Certificate of Incorporation increasing the number of shares of
Common Stock authorized for issuance in order for the Company to have available
adequate shares of Common Stock if all of the Notes are converted and all of the
Warrants are exercised.
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<PAGE>
4. Certain Agreements of the Company
The Company hereby agrees with the Placement Agent that:
(a) During the Offering Period, neither the Company or any affiliate of the
Company nor anyone acting on behalf of the Company of any such affiliate, other
than the Placement Agent, shall directly or indirectly, offer or sell, or
attempt to offer, sell or dispose of, any of the Units, or solicit any offer to
buy, or otherwise approach or negotiate in respect of, any of the Units.
(b) As soon as practicable after the date hereof, but not later that three
(3) business days prior to the Closing Date, the Company shall furnish to the
Placement Agent as many copies of the Offering Memorandum (and of each revision
or amendment thereof or supplement thereto (including all exhibits included
therewith) as the Placement Agent may reasonably request.
(c) If any event shall occur as a result of which it is necessary, in the
opinion of the Placement Agent, to amend or supplement the Offering Memorandum
in order to correct any untrue statement of a material fact or to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, the Company shall forthwith prepare and furnish to the Placement
Agent a reasonable number of copies of an amendment of or supplement to the
Offering Memorandum (in form and substance satisfactory to the Placement Agent),
so that, as so amended or supplemented, the Offering Memorandum will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading. The Company
will not at any time amend or supplement the Offering Memorandum (i) prior to
having furnished the Placement Agent with a copy of the proposed form of the
amendment or supplement and giving the Placement Agent a reasonable opportunity
to review the same or (ii) in a manner to which the Placement Agent or its
counsel shall reasonably object.
(d) The Company shall furnish such information, execute such instruments
and take such action, if any, as may be required to effect the placement of the
Units under the securities laws of each jurisdiction in which the Units are
offered for sale or sold; provided, however, that the Company shall not be
required to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to general or unlimited
service of process in any jurisdiction where it is not now so subject.
(e) The Company shall furnish or make available to the Placement Agent or
its counsel such additional documents and information regarding the Company and
its affairs as the Placement Agent may from time to time reasonably request,
including any and all documentation reasonably requested in connection with its
due diligence efforts regarding information in the Offering Memorandum and in
order to evidence the accuracy or completeness of any of the conditions
contained in this Agreement; and all actions taken by the Company to authorize
the issuance and sale of the Units shall be reasonably satisfactory in form and
substance to the Placement Agent.
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<PAGE>
(f) The Company shall, at all times upon reasonable request from the date
hereof through the Closing Date, (i) make available to each subscriber or its
advisers, or both, prior to acceptance of its subscription, such information (in
addition to that contained in the Final Offering Memorandum) concerning the
offering, the Company and any other relevant matters as it possesses or can
acquire without unreasonable effort or expense, and (ii) provide each subscriber
or its advisers, or both, prior to acceptance of its subscription, the
opportunity to ask questions of, and receive answers from, the Company with
respect to such matters.
(g) The Company will not at any time issue a press release to announce the
offering or placement of the Units (i) without the prior consent of the
Placement Agent, (ii) prior to having furnished the Placement Agent with a copy
of the proposed form of the press release and giving the Placement Agent a
reasonable opportunity to review and comment upon the same or (iii) in a manner
to which the Placement Agent or its counsel shall reasonably object.
(h) The Company shall file with the United States Securities and Exchange
Commission (the "SEC") all necessary filings in respect of the issuance and sale
of the Units and shall provide to the Placement Agent three (3) copies of all
such definitive filings (and any amendments thereof or supplements thereto
including in each case exhibits thereto).
(i) The Company shall use its best efforts to obtain stockholder approval
of an amendment to the Company's Certificate of Incorporation to increase its
authorized shares of Common Stock to 50,000,000 Shares.
(j) The Company shall not issue any shares of Common Stock or any
securities convertible or exercisable into Common Stock for a period of 180 days
following the Closing Date without the prior written consent of the Placement
Agent, which consent shall not be unreasonably withheld.
5. Certain Acknowledgments and Representations of the Placement Agent
(a) The Placement Agent acknowledges that neither the Units nor the
underlying Shares have been, nor will they be, registered with the SEC under the
Securities Act and that the Units are being offered and sold in reliance upon an
exemption from registration and a "safe harbor" provided by Regulation S.
(b) The Placement Agent represents and warrants to the Company that the
Placement Agent is duly registered under the applicable securities laws of each
jurisdiction in which the Placement Agent is required to be so registered for
the offer and sale of the Units.
6. Compensation; Payment of Expenses
(a) In consideration of the Placement Agent's services in acting as
exclusive placement agent for the placement of the Units, the Company hereby
agrees to (i) pay to the Placement Agent a fee in an amount equal to 10% of the
gross proceeds of the sale of the Units, and (ii) issue to the
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Placement Agent under Regulation S warrants to purchase a number of Units equal
to 10% of the aggregate number of Units sold under the Purchase Agreements
exercisable for three years from the date of the Closing at an initial exercise
price per warrant of 120% of the purchase price per Unit under the Purchase
Agreements. The warrants will contain the same anti-dilution provisions as are
contained in the Warrants. The Placement Agent will receive Units at the per
Unit price in lieu of being paid its fee under clause (i) above. The Placement
Agent will also be entitled to receive a fee equal to 3% of the exercise price
of each Warrant as the same from time to time is exercised.
(b) Whether or not the transactions contemplated hereby and by the Purchase
Agreements shall be consummated, the Company shall pay all costs and expenses in
connection with (i) the preparation and reproduction of the Offering Memorandum
and the certificates representing the Warrants, and any amendment of or
supplements to such documents, (ii) the reproduction of the Purchase Agreements,
(iii) the Company's performance of and compliance with all agreements and
conditions contained herein and in the Purchase Agreements, and the certificates
representing the Warrants, on its part to be performed or complied with, (iv)
all expenses incident to the issuance and delivery of the Units and (v) the
fees, disbursements and expenses of the Company's legal counsel and accountants.
(c) On the Closing Date or within a reasonable time thereafter, the Company
shall reimburse the Placement Agent for all of the reasonable out-of-pocket
expenses incurred by the Placement Agent not in the normal course of business in
connection with the offering, including reasonable fees, disbursements and
expenses of the Placement Agent's legal counsel, including in-house legal
counsel, up to an aggregate amount, absent further prior approval, of $10,000.
If the transactions contemplated by this Agreement are not consummated for any
reason, the Company will reimburse the Placement Agent for all of the reasonable
out-of-pocket expenses incurred by the Placement Agent not in the normal course
of business in connection with the offering, including the reasonable fees,
disbursements and expenses of the Placement Agent's legal counsel, including
in-house legal counsel, up to an aggregate amount, absent further prior
approval, of $5,000. Reimbursement of the expenses of the Placement Agent shall
be made by the Company on production of suitable documentation thereof by the
Placement Agent.
7. Conditions of the Placement Agent's Obligation
The obligation of the Placement Agent hereunder to place the Units is
subject to the accuracy of the representation and warranties of the Company
herein and in the Purchase Agreements, to the performance by the Company of its
obligations hereunder, and to the following further condition:
(a) All documents incident hereto and to the Purchase Agreements shall be
reasonably satisfactory in form and substance to the Placement Agent and its
counsel shall have received such information, certificates and documents as they
may reasonably request.
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<PAGE>
8. Manner of Offers and Sales of the Units
(a) The offers and sales of the Units are to be effected pursuant to the
exemption from the registration requirements of the Securities Act pursuant to
Regulation S thereunder. The Company and the Placement Agent have established
the following procedures in connection with the offer, sale and resale of the
Units:
(i) Each offer and sale of the Units shall be made only in an
"offshore transaction" (as defined in Regulation S) and to investors who
are not "U.S. persons" (as defined in Regulation S);
(ii) no offer or sale of any of the Units or any interest therein
shall be made in the United States or to, or for the account or benefit of,
any "U.S. person" (as defined in Regulation S);
(iii) no "directed selling efforts" (as defined in Regulation S) in
respect of the Units or the Securities shall be made in or directed toward
the United States;
(iv) "offering restrictions" (as defined in Regulation S) in respect
of the Units and the Securities shall be implemented;
(v) Each Note and Warrant and each Share issuable upon conversion or
exercise thereof shall bear the following legend:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED OR
QUALIFIED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE RE-OFFERED, RE-SOLD, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED OR DELIVERED, DIRECTLY OR
INDIRECTLY, IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT IN CERTAIN TRANSACTIONS EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH STATE OR
OTHER SECURITIES LAWS. TERMS USED IN THE PRECEDING SENTENCE HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT."
(vi) each Purchaser of the Units shall be furnished with the Offering
Memorandum;
(vii) no Offering Memorandum (or any revision or amendment thereof or
supplement thereto) shall be delivered to any "U.S. person" (as defined in
Regulation S);
(viii) the Company agrees to furnish the Placement Agent with such
number of copies of the Offering Memorandum and any revision or amendment
thereof or supplement thereto as the Placement Agent may require in
connection with the offer and sale of the Units; and
(ix) each Purchaser of the Units shall be required to execute and
deliver a Purchase Agreement which shall contain, among other things
restrictions on resale and transfer of the Units and
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any interest therein otherwise than in compliance with the Securities Act
and the rules and regulations of the SEC.
(b) The Placement Agent hereby represents, warrants and covenants with the
Company that the Placement Agent, its affiliates, and any person acting on
behalf of, or as agent of, any of the foregoing, shall, whether as principal or
agent, (i) comply with the procedures set forth in Section 8(a) hereof, (ii)
offer and sell the Units to the Purchasers only in an "offshore transaction" (as
defined in Regulation S), (iii) not engage with respect to the Units in any
"directed selling efforts" (as defined in Regulation S) in or directed toward
the United States, (iv) comply with all "offering restrictions" (as defined in
Regulation S) in respect of the Units, (v) not deliver the Offering Memorandum
or any revision or amendment thereof or supplement thereto to any "U.S. person"
(as defined in Regulation S), (vi) not make any offers or sales of any of the
Units or any interest therein in the United Sates or to, or for the account or
benefit of, any "U.S. person" (as defined in Regulation S), (vii) comply with
all laws and regulations of those jurisdictions in which the Units are offered
or sold which are applicable to the offer and sale of the Units, (viii) on or
prior to the Closing Date, send to each person who is acting on behalf of the
Placement Agent a written confirmation or other notice to the effect that such
person is subject to the same restrictions on offers and sales that apply to the
Placement Agent and (ix) have not and will not offer, sell or solicit offers to
sell the Units in the United States by means of any form of general solicitation
or general advertising (as such terms are defined in Regulation D under the
Securities Act) or in any manner involving a private or public offering within
the meaning of Section 4(2) of the Securities Act or which would otherwise cause
the safe harbor afforded by Regulation S to be unavailable for offers and sales
of the Units pursuant to this Placement Agent Agreement..
(c) The Company hereby represents, warrants and covenants with the
Placement Agent that the Company, its affiliates, and any person acting on
behalf of, or as agent of, any of the foregoing, shall, whether as principal or
agent, (i) comply with the procedures set forth in Section 8(a) hereof, (ii)
offer and sell the Units to the Purchasers only in an "offshore transaction" (as
defined in Regulation S), (iii) not engage with respect to the Units in any
"directed selling efforts" (as defined in Regulation S) in or directed toward
the United States, (iv) comply with all "offering restrictions" (as defined in
Regulation S) in respect of the Units, (v) not deliver the Offering Memorandum
or any revision or amendment thereof or supplement thereto to any "U.S. person"
(as defined in Regulation S), (vi) not make any offers or sales of any of the
Units or any interest therein in the United States or to, or for the account or
benefit of, any "U.S. person" (as defined in Regulation S) and (vii) not make
any sales of any of the Units or any interest therein to any person other than
the Purchasers; provided, however, that this representation and warranty does
not apply to the Placement Agent or to any broker-dealer participating in the
offering, any affiliate of such broker-dealer or any officer, director, employee
or agent of such broker-dealer, to the extent such broker-dealer is acting as
placement agent for the offering of the Units.
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<PAGE>
9. Indemnification and Contribution
(a) The Company agrees to indemnify and hold harmless the Placement Agent
(and each person, if any, who controls the Placement Agent within the meaning of
section 15 of the Securities Act and each director of the Placement Agent) from
and against any and all losses, claims, damages or liabilities to which the
Placement Agent (or such controlling person or director) may become subject
(under the Securities Act or otherwise) insofar as such losses, claims, damages
or liabilities or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Offering Memorandum or in any revision or amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading, or
arise out of or are based upon, any breach by the Company (or any person who
controls the Company within the meaning of section 15 of the Act, any director
of the Company or any agent of the Company, other than the Placement Agent) of
any covenants of the Company contained in Section 8 hereof, which breach has
caused the exemption from registration provided by Regulation S to become
unavailable with respect to the Units, and the Company agrees to reimburse such
indemnified party for any legal or other out-of-pocket expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that (i) the Company will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by the Placement Agent specifically for use
in the Offering Memorandum or any revision or amendment thereof or supplement
thereto and (ii) such indemnity with respect to the Offering Memorandum shall
not inure to the benefit of the Placement Agent (or such controlling person or
director of the Placement Agent) if the person asserting such loss, claim,
damage or liability purchased the Units that are the subject thereof and did not
receive a copy of the Final Offering Memorandum at or prior to the confirmation
of the sale of such Units to such person.
(b) The Placement Agent agrees to indemnify and hold harmless the Company
(and each person, if any, who controls the Company within the meaning of section
15 of the Securities Act and each director of the Company) from and against any
and all losses, claims, damages or liabilities to which the Company (or such
controlling person or director) may become subject (under the Securities Act or
otherwise) insofar as such losses, claims, damages or liabilities (or action in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in, the Offering Memorandum or
in any revision or amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by the Placement Agent specifically
for use in the Offering Memorandum or any revision or amendment thereof or
supplement thereto or arise out of or are based upon any breach by the Placement
Agent (or any person who controls the
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<PAGE>
Placement Agent within the meaning of section 15 of the Securities Act, any
director of the Placement Agent, or any agent of the Placement Agent) of any
covenant of the Placement Agent contained in Section 8 hereof, which breach has
caused the exemption from registration provided by Regulation S to become
unavailable with respect to the Units, and the Placement Agent agrees to
reimburse such indemnified party for any legal or other out-of-pocket expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage or liability or action as such expenses are incurred.
This indemnity agreement will be in addition to any liability that the Placement
Agent may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 9 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve that
indemnifying party from any liability that it may have to any indemnified party
otherwise than under this Section 9. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party (not to be unreasonably withheld or delayed), be counsel, to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section 9 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. If the indemnifying party does not elect to assume the
defense of any such claim, action or proceeding, the indemnifying party shall
not be liable for any settlement thereof which is effected without its prior
written consent. No indemnifying party shall, without the prior written consent
of the indemnified party, agree to the settlement of any such claim, action or
proceeding if the effect thereof would be to find the indemnified party has
violated the Securities Act, the United States Securities Exchange Act of 1934,
as amended, or any state securities or blue sky laws.
(d) If recovery is not available under the foregoing indemnification
provisions of this Section 9 for any reason other than as specified therein, the
parties entitled to indemnification by the terms thereof shall be entitled to
contribution toward the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in subsection
(a) or (b) above, except that no person guilty of fraudulent misrepresentation
(within the meaning of section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not also guilty of such fraudulent
misrepresentation. In determining the amount of contribution to which the
respective parties are entitled, there shall be considered the relative benefits
received by each party from the offering of the Units, the parties' relative
knowledge and access to information concerning the matter with respect to which
the claim was asserted, the opportunity to correct and prevent any untrue
statement or omission, and any other equitable considerations appropriate under
the circumstances. The amount paid by an indemnified party as a result of
losses, claims, damages or liabilities referred
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<PAGE>
to in the first sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim that is the
subject of this subsection (d).
The obligations of the Company and the Placement Agent under this Section 9
shall survive any termination of this Agreement, in whole or in part.
10. Termination of this Agreement
(a) In the event the Company does not perform any material obligation under
this Agreement on its part to be performed or any representation and warranty of
the Company hereunder is incomplete or inaccurate, in any material respect, this
Agreement and all of the Placement Agent's obligations hereunder may be
immediately canceled by the Placement Agent by notice thereof to the Company.
Any such cancellation shall be without liability of any party to any other party
except that the provisions of Sections 6 and 9 hereof shall survive any such
cancellation.
(b) In the event that the Placement Agent does not perform any material
obligation under this Agreement on its part to be performed or any
representation or warranty of the Placement Agent hereunder is incomplete or
inaccurate in any material respect, this Agreement and all of the Company's
obligations hereunder may be immediately canceled by the Company by notice
thereof to the Placement Agent. Any such cancellation shall be without liability
of any party to any other party except that the provisions of Section 6 and 9
hereof shall survive any such cancellation.
11. Representations, Warranties and Agreements to Survive Delivery
All representations, warranties and agreements contained in this Agreement,
or contained in certificates of officers of the Company or the Placement Agent
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Placement Agent or
any controlling person, director or officer of the Placement Agent or by or on
behalf of the Company or any controlling person, director or officer of the
Company, and shall survive delivery of the Units to the Purchasers.
12. Notices
All communications provided for or permitted hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered, sent by
recognized international courier or mailed by registered mail, postage prepaid
and return receipt requested, or transmitted by telefax, telex or telegraph and
confirmed by a similar mailed writing, if to the Placement Agent, addressed to
the Placement Agent, C/O Oakes, Fitzwilliams & Co, Limited, at Byron House, 7-9
St. James's Street, London SW1A 1EE, England, or to such other address as the
Placement Agent may designate in writing to the Company, and, if to the Company,
addressed to the Company at Plastigone Technologies, Inc., 2814 South Street,
Forth Meyers, Florida 33916, Attention: Chief Financial Officer or to such other
address as the Company may designate in writing to the Placement Agent.
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13. Parties
This Agreement shall inure to the benefit of and be binding upon the
Placement Agent, the Company and their respective successors. Nothing expressed
herein is intended or shall be construed to give any person other than the
persons referred to in the-preceding sentence any legal or equitable right,
remedy or claim under or in respect of this Agreement. This Agreement and all
conditions and provisions hereof are intended to be for the sole and exclusive
benefit of the parties hereto and their respective successors and for the
benefit of no other person. No Purchaser of Units from the Company shall be
deemed to be a successor by reason merely of such purchase.
14. Miscellaneous
This Agreement constitutes the entire agreement and understanding of the
parties hereto with respect to the matters and transactions contemplated hereby
and supersedes all prior agreements and understandings whatsoever relating to
such matters and transactions. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. The headings in this Agreement are for the
purposes of reference only and shall not limit or otherwise affect the meaning
hereof. This Agreement may be executed in counterparts, each of which shall
constitute an original, but all of which shall together constitute one
instrument.
15. Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the State of Florida without regard to the conflict of laws provisions
thereof.
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<PAGE>
If the foregoing is in accordance with your understanding, kindly sign and
return to us the enclosed duplicate hereof, whereupon it will become a binding
agreement between the undersigned in accordance with its terms.
Very truly yours,
PLASTIGONE TECHNOLOGIES, INC.
By:____________________________
Name:__________________________
Title:_________________________
The foregoing Placement Agent
Agreement is hereby confirmed
and accepted as of the date
first above written:
OAKES, FITZWILLIAMS & CO. LIMITED
By:______________________________
Name:____________________________
Title:___________________________
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<PAGE>
Exhibit 99.2 Form of Offshore Securities Purchase Agreement.
UNIT PURCHASE AGREEMENT
PLASTIGONE TECHNOLOGIES, INC.
NEITHER THE UNITS PURCHASED HEREBY NOR ANY INTERESTS THEREIN HAVE BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT")
OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE
RE-OFFERED, RE-SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR
DELIVERED, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT IN CERTAIN TRANSACTIONS EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH STATE OR OTHER
SECURITIES LAWS OR DELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED. TERMS USED IN THE PRECEDING
SENTENCE HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT.
Dated: February ____, 1997
Units Purchased: _______ Units
Purchase Price: $_________________.
Plastigone Technologies Inc. Oakes, Fitzwilliams & Co. Limited
2914 South Street Byron House
Fort Myers, Florida 33916 7-9 St. James' Street
London
England SW1A 1EE
Ladies and Gentlemen:
This letter relates to the private placement in the United Kingdom of units
(the "Units") of Plastigone Technologies Inc., a United States corporation
organized under the laws of the State of Florida (the "Company").
The undersigned hereby subscribes for ________ Units at a purchase price of
$10,000 per Unit, each of which consists of (i) a $12,500 principal amount
Convertible Secured Loan Note Due 1999 of the Company (the "Note"), the form of
which is attached hereto as Exhibit A, and (ii) warrants (the "Warrants") to
purchase 50,000 shares of common stock, $0.01 par value per share, of the
Company, the form of which is attached hereto as Exhibit B. The term "Shares" as
used in this Purchase Agreement refers to the shares of Common Stock of the
Company issuable upon conversion of the Note and exercise of the Warrants
contained in the Units.
In connection therewith, the undersigned subscriber hereby confirms as
follows:
1. Investor Qualification. The undersigned (i) is not a "U.S. Person"
as such term is defined in Regulation S under the Securities Act, a copy of
which definition is annexed hereto as Exhibit C; (ii) it is purchasing the
Units for its own
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account and (iii) is not acquiring the Units, the Note, the Warrants or the
underlying Shares with a view to any public resale or distribution thereof
in the United States or in any other jurisdiction in which such public
resale or distribution is prohibited by applicable laws or regulations.
2. No Registration under U.S. Securities Act. The undersigned
understands and acknowledges that neither the Units, the Note, the Warrants
nor the underlying Shares have been registered under the Securities Act,
the securities laws of any State or other political subdivision of the
United States and are being offered and sold pursuant to Regulation S based
in part upon the representations of the undersigned contained herein.
3. Acceptance by the Company. The undersigned understands that the
Company reserves the right to reject this subscription, in whole or in
part, and that no subscription will be binding unless and until accepted by
the Company and, when accepted by the Company, this subscription shall be
irrevocable and the undersigned will become obligated to purchase, all of
the Units subscribed for as indicated on the signature page attached
hereto, subject to the terms hereof.
4. Payment of Purchase Price. Simultaneously with the execution and
delivery of this Purchase Agreement by the undersigned, the undersigned has
wired the total purchase price for the Units purchased hereunder to the
Company's account at Barnett Bank, N.A., Fort Myers, Florida, ABA Number
067 007 130 for the account of Plastigone Technologies, Inc., Account
Number 66 10 23 75 16.
5. Taxes. The undersigned understands that the Company does not assume
any responsibility for the tax consequences of the undersigned's investment
in the Company.
Further, the undersigned subscriber represents, warrants, acknowledges
and agrees that:
6. Authorization. If a natural person, such undersigned is 21 years of
age or over; if a corporation, trust, limited liability company,
partnership, unincorporated association or other entity, it is authorized,
empowered and qualified to execute and deliver this Purchase Agreement and
to perform the obligations of the undersigned hereunder and to purchase and
hold the Units; this Purchase Agreement is a legally binding obligation of
the undersigned enforceable in accordance with its terms. The execution and
delivery of this Purchase Agreement by the undersigned do not, and the
performance of its obligations hereunder will not, violate or conflict with
any provision of its documents of formation and management. All corporate
action on the part of the undersigned required for the authorization,
execution and delivery of this
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<PAGE>
Purchase Agreement and the performance of its obligations hereunder have
been taken.
7. Offshore Transaction. This Purchase Agreement has been executed by
the undersigned outside the "United States" (as defined in Rule 902(p) of
Regulation S). The undersigned is acquiring the Units in an "offshore
transaction" (as defined in Rule 902(i) of Regulation S). The Units were
not offered to the undersigned in the United States and at the time of
execution of this Purchase Agreement and the time of any offer to the
undersigned to purchase the Units hereunder, the undersigned was physically
outside of the United States.
8. Economic Risk. The undersigned has carefully reviewed and
understands the risks of, and other considerations relating to, a purchase
of the Units and an investment in the Company. The undersigned has such
experience in business and financial matters that it is capable of
evaluating the risks of its investment and determining the suitability of
its investment. The undersigned has received and has carefully read this
Purchase Agreement and has consulted its own financial, legal and tax
advisors with respect to the economic, legal and tax consequences of an
investment in the Units and has not relied on the Company or its officers,
directors, affiliates or professional advisors for advice as to such
consequences.
9. Independent Investigation; Advertisements. The undersigned, in
offering to purchase the Units hereunder, has relied solely upon an
independent investigation made by it and its representatives, if any, and
has, prior to the date hereof, been given access to and the opportunity to
examine all books and records of the Company and all material contracts and
documents of the Company. In making its investment decision to purchase the
Units, the undersigned is not relying on any oral or written
representations or assurances from the Company or any other person or any
representation of the Company or any other person other than as set forth
in this Purchase Agreement, or on any information other than contained in
the Company's public filings required under the U.S. securities laws. The
undersigned is not subscribing for the Units as a result of or subsequent
to any advertisement, article, notice or other communication published in
any newspaper, magazine or similar media or broadcast over television or
radio or presented at any seminar.
10. Investment for Own Account. Except as otherwise indicated herein,
the undersigned is the sole party in interest as to its investment in the
Company, and it is acquiring the Units as principal solely for investment
for its own account and has no present agreement, understanding or
arrangement to subdivide, sell, assign, transfer or otherwise dispose of
all or any part of the Units subscribed for to any other person.
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<PAGE>
11. Holding Period. The undersigned covenants that it will not
re-offer, resell, pledge, hypothecate or otherwise transfer or deliver,
directly or indirectly, in the United States or to, or for the account or
benefit of, a U.S. Person, any of the Units or any interest therein for a
period of one year from the date hereof (the "Holding Period"). The
undersigned acknowledges and understands that the aforementioned covenant
is a material inducement for the Company to accept the undersigned's
subscription hereunder.
12. No Government Recommendation or Approval. The undersigned
understands that no United States federal or state agency or similar agency
of any other country, has reviewed, approved, passed upon or made any
recommendation or endorsement of the Company, this transaction or the
purchase of the Units.
13. No Sale in Violation of the Securities Laws. The undersigned
covenants that it will not knowingly make any sale, transfer or other
disposition of the Units or any interest therein in violation of the
Securities Act (including Regulation S), the U.S. Securities Exchange Act
of 1934, or the rules and regulations of the Securities and Exchange
Commission promulgated under either of the foregoing.
14. Legends. The undersigned understands and agrees that the Note and
the Warrants and any underlying Shares issued prior to the expiration of
the Holding Period will bear a legend substantially in the following form,
and that such legend shall not be removed until expiration of the Holding
Period:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES AND PRIOR TO JANUARY 17, 1998, MAY
NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR
DELIVERED, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT IN CERTAIN TRANSACTIONS EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH STATE OR
OTHER SECURITIES LAWS OR DELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED. TERMS USED
IN THE PRECEDING SENTENCE HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT."
Upon the expiration of the Holding Period, the Company will, at the
request of the undersigned, reissue the Note and Warrants (if outstanding)
without the above legend and will advise its transfer agent to remove such
legend from share certificates issued or issuable upon conversion of the
Note and exercise of the Warrants.
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<PAGE>
15. Further Restrictions on Transfer. The undersigned understands that
the Company shall not register any transfer of the Units (or Shares issued
upon the conversion of the Note or exercise of the Warrants) not made in
accordance with the provisions of Regulation S or other applicable
registration or exemption under the Securities Act and shall not treat as
the owner of such securities, or otherwise accord voting, dividend or
interest rights to, any transferee to whom such securities have been
transferred in contravention of this Purchase Agreement. The undersigned
further understands that stop transfer instructions have been or will be
provided to the Company's transfer agent to be placed on such transfer
agent's books, records or other documents evidencing the Shares so as to
restrict the resale, pledge, hypothecation or other transfer thereof in
accordance with the provisions hereof and the provisions of Regulation S
promulgated under the Securities Act.
16. Confidentiality. The undersigned agrees to hold this Purchase
Agreement in confidence, it being understood that such documents are
strictly for its use and may not be redistributed or duplicated.
17. Survival of Representations and Warranties. The undersigned
understands that the sale of the Units will be based upon its
representations and warranties set forth in this Purchase Agreement and it
agrees to indemnify and hold harmless the Company, and each officer,
director, stockholder, control person or employee thereof, and their
respective successors and assigns, from and against any and all loss,
damage, liability or expense, including costs and attorneys' fees, which
they may sustain or incur by reason of, or in connection with, any actual
or alleged misrepresentation or misstatement of facts or omission to state
facts made or alleged to have been made by the undersigned to the Company,
or omitted or alleged to have been omitted by the undersigned in connection
with the offering or sale of the Units, including, without limitation, any
such misrepresentation, misstatement or omission contained in this Purchase
Agreement or in any other document submitted by the undersigned, and any
breach by the undersigned of any representations, warranties, covenants or
agreements set forth in this Purchase Agreement. All representations,
warranties, agreements and covenants and the indemnification contained in
this Purchase Agreement shall survive the acceptance of this subscription
and the issuance of the Units purchased hereunder.
18. Assignment. The undersigned understands that neither this Purchase
Agreement nor any of the rights of the undersigned hereunder may be
transferred or assigned without the consent of the Company which consent
may be withheld or delayed for any reason within the sole discretion of the
Company.
19. Governing Law. The undersigned understands that this Purchase
Agreement shall be governed by, and interpreted and enforced in accordance
with, the
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<PAGE>
laws of the State of Florida without regard to principles of choice of law
or conflict of laws.
The undersigned, by executing this signature page, hereby swears to, adopts
and agrees to all terms, conditions, representations, warranties and covenants
contained in the Purchase Agreement of which this signature page is a part.
Number of Units subscribed for:________________. Subscription Amount
$________________.
EXECUTED by the undersigned on this ______ day of _________, 1997.
Signature of Subscriber:__________________________________________
If an entity: By:______________________ Title:______________________
Address:_______________________________________________________________________
Mailing Address, if different:________________________________________________
________________________________________________
____________________________________________
Tax Identification or Social Security Number
SUBSCRIPTION ACCEPTED:
Plastigone Technologies Inc.
____________________________________________
Name:
Title:___________________________________
Date:_________________________, 1997
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Exhibit C
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The definition of "U.S. person" includes:
(i) any natural person resident in the United States;
(ii) any partnernship or corporation organized or incorporated under
the laws of the United States;
(iii) any estate of which any executor or administator is a U.S.
person;
(iv) any trust of which any trustee is a U.S. person;
(v) any agency or branch of a foreign entity located in the United
States;
(vi) any non-discretionary account or similar account (other than an
estate or trust) held by a dealer or other fiduciary for the
benefit or account of a U.S. person;
(vii) any discretionary account or similar account(other than an
estate or trust) held by a dealer or other fiduciary
organized, incorporated or (if an individual) resident in the
United States; and
(viii) any partnership or corporation if:
(A) organized or incorporated under the laws of any foreign
jurisdiction; and
(B) formed by a U.S. person principally for the purpose of investing
in securities not registered under the 1933 Act, unless it is
organized or incorporated, and owned, by accredited investors
(as defined in Rules 501(a) under the 1933 Act) who are not
natural persons, estates or trusts.
Additionally,
(1) Any discretionary account or similar account (other than an
estate or trust) held for the benefit or account of a non-U.S. person
by a dealer or other professional fiduciary organized, incorporated or
(if an individual) resident in the United States shall not be deemed a
"U.S. person."
(2) Any estate of which any professional fiduciary acting as
executor or administrator is a U.S. person shall not be deemed a U.S.
person if:
(i) an executor or administrator of the estate who is not a
U.S. person has sole or shared investment discretion with respect
to the assets of the estate; and (ii) the estate is governed by
foreign law.
(3) Any trust of which any professional fiduciary acting as
trustee is a U.S. person shall not be deemed a U.S. person if a
trustee who is not a U.S. person has sole or shared investment
discretion with respect to the trust assets, and no beneficiary of the
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trust (and no settlor if the trust is revocable) is a U.S. person.
(4) An employee benefit plan established and administered in
accordance with the law of a country other than the United States and
customary practices and documentation of such country shall not be
deemed a U.S. person.
(5) Any agency or branch of a U.S. person located outside the
United States shall not be deemed a "U.S. person" if:
(i) the agency or branch operates for valid business
reasons; and
(ii) the agency or branch is engaged in the business of
insurance or banking and is subject to substantive
insurance or banking regulation, respectively, in
the jurisdiction where located.
(6) The International Monetary Fund, the International Bank for
Reconstruction and Development, the Inter-American Development Bank,
the Asian Development Bank, the African Development Bank, the United
Nations, and their agencies, affiliates and pension plans, and any
other similar international organizations, their agencies, affiliates
and pension plans shall not be deemed "U.S. persons."
("United States" means the United States of America, its
territories and possessions, any State of the United States, and the
District of Columbia.)
<PAGE>
Exhibit 99.3 Form of Security Agreement.
SECURITY AGREEMENT
Debtor (name and address): Plastigone Technologies, Inc.
2814 South Street
Fort Myers, Florida 33916
Secured Party: Oakes, Fitzwilliams & Co. Limited, as Representative
Byron House
7-9 St. James's Street
London SW1A 1EE
England
Collateral: The machinery, equipment, furniture and fixtures set
forth the 1996 appraisal of Plastigone Technologies,
Inc. annexed hereto as Schedule 1.
Whereas, pursuant to the terms and conditions of certain Convertible
Secured Promissory Notes (collectively, the "Notes") executed by Plastigone
Technologies, Inc., a United States corporation organized under the laws of the
State of Florida (the "Company"), in favor of the payees listed on Schedule 2
hereto (as the same may be hereafter amended from time to time) (the "Payees"),
the Company, as security for the full and timely payment, observance and
performance when due of its obligations under the Notes promised to grant to
Oakes, Fitzwilliams & Co. Limited (the "Representative"), the duly appointed
representative of the Payees, a continuing security interest in all of the
Company's machinery, equipment, furniture and fixtures as set forth in the
Company's 1996 appraisal, a copy which is annexed hereto as Schedule 1 (the
"Collateral"),
Now, therefore, in consideration of the execution and delivery of the Notes
by the Payees and for other valuable consideration, the existence, receipt and
sufficiency of which hereby are acknowledged by the Company, the Company hereby
agrees that the Representative shall have the rights, remedies and benefits as
follows:
1. Grant of Security Interest. As collateral security for the full and
timely payment, observance and performance when due of all of the Company's
obligations under the Notes (the "Obligations"), the Company hereby grants to
the Representative a security interest in the Collateral.
2. Warranties and Representations. The Company hereby warrants and
represents to the Representative as follows:
(a) Except as otherwise provided in Schedule 3 hereto, the Company has
title to the Collateral free and clear of all liens, security interests,
restrictions, setoffs,
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adverse claims, assessments, defaults, prepayments, defenses and conditions
precedent;
(b) Except as provided in Schedule 3 hereto, no financing statement
covering any of the Collateral is on file in any public office other than
those: (i) which reflect the security interest created by this Agreement,
or (ii) to which the Representative has specifically consented in writing;
(c) neither the Company's Certificate of Incorporation nor its By-laws
prohibit any term or condition of this Agreement; and
(d) the execution and delivery of this Agreement will not violate any
law or agreement governing the Company or to which the Company is a party.
3. Covenants of the Company. Unless and until the Represent ative consents
in writing to another course of action, the Company covenants and agrees as
follows:
(a) the Representative will also have a security interest in all other
property, rights or interests of any description at any time acquired,
issued or issuable with respect to, in addition to or substitution or
change for the Collateral;
(b) the Company will from time to time execute financing statements
and other documents in form satisfactory to the Representative (and pay the
cost of filing or recording them in whatever public offices the
Representative reasonably deems necessary) and perform such other acts as
the Representative may request to perfect and maintain a valid security
interest in the Collateral;
(c) the Company will not sell or assign any of the Collateral and will
keep it free of liens, security interests and adverse claims other than the
security interests contemplated hereby and will promptly notify the
Representative of any Event of Default, as defined below;
(d) the Company will defend the Collateral against the claims and
demands of all persons, and will pay promptly all taxes and assessments
with respect to the Collateral; and
(e) the Company shall use its best efforts to satisfy and release, by
March 15, 1997, all existing liens against the Collateral listed on
Schedule 3 hereto.
4. Events of Default. The occurrence of any of the following events shall
constitute an Event of Default under this Agreement:
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(a) The court ordered appointment of a receiver, liquidator or trustee
of the Company or of any of its property; or the court ordered
sequestration of any property of Payor; or the filing of a petition against
the Company under any bankruptcy, reorganization or insolvency law, which
petition is not dismissed or otherwise terminated within 60 days of filing;
or the Company's consent to the appointment of a receiver, trustee or
liquidator for all or any part of its property.
(b) The filing by the Company of a petition in bankruptcy or its
request for reorganization under any provision of any bankruptcy,
reorganization or insolvency law or the Company's consent to the filing of
any petition against it under any such law.
(c) The Company's failure to make any principal payment within 10
business days of the due date thereof.
(d) The liquidation or dissolution of the Company, the adoption of a
plan of liquidation by the Company or the cessation of the Company's
business.
(e) The assignment by the Company of all or a substantial portion of
its property for the benefit of its creditors, or the Company's admission,
in writing, of its inability to pay its debts generally when they become
due.
(f) The levy, seizure, garnishment or attachment of any material
property of the Company for the benefit of any of its creditors or the
foreclosure of any such property by any party having a security interest
therein.
(g) The Company's default in the due observance or performance of any
material covenant, condition or agreement required to be observed or
performed by the Company pursuant to the terms of (i) the Notes; or (ii)
any loan agreement or other document evidencing indebtedness of the Company
to a bank or other financial institution, and the continuance of any such
default beyond any grace period provided for in any such Note, agreement or
other document and after the receipt by the Company of any notice provided
for in any such Note, agreement or other document.
(h) The termination without cause by the Company of the employment of
Ron Davis as President and Chief Executive Officer of the Company or the
voluntary termination of such employment by Ron Davis.
(i) The failure by the Company to obtain stockholder approval of an
amendment to the Company's Certificate of Incorporation to increase its
authorized shares of Common Stock to 50,000,000 Shares by September 1,
1997.
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5. Remedies. Upon the occurrence of any Event of Default and at any time
thereafter the Representative shall have, in addition to all other rights and
remedies, the remedies of a secured party under the Uniform Commercial Code (the
"UCC") as then in effect in Florida, regardless of whether the UCC applies to
the security transactions covered by this Agreement, including without
limitation the right to accelerate the maturity of the Obligations, without
notice or demand, and to take possession of the Collateral and any proceeds
thereof wherever located. The Company shall make the Collateral available to the
Representative at a place to be designated by the Representative that is
reasonably convenient for both parties. If notice is required, the
Representative shall give to the Company at least five days' prior written
notice of the time and place of any public sale of the Collateral or of the time
after which any private sale or any other intended disposition is to be made.
6. Waiver; Amendment. No change, amendment, modification, termination,
waiver or discharge, in whole or in part, of this Agreement (collectively, an
"Amendment") shall be effective unless in writing and signed by the party
against whom such Amendment is sought; provided, however, that in the case of an
Amendment sought against the Representative hereof and the Payees of the Notes,
such Amendment shall be effective if in writing and signed by the Representative
upon due approval and authorization of such Amendment by the holders of at least
two-thirds of the outstanding principal amount of the Notes, except in the event
of an amendment to Schedule 2 hereof, which the Company and the Representative
may, by written consent, amend as necessary.
7. Notice to Payees. All communications provided for or permitted hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered, sent by recognized international courier or mailed by registered
mail, postage prepaid and return receipt requested, or transmitted by telefax,
telex or telegraph and confirmed by a similar mailed writing to the relevant
party at the address listed on the first page hereof or to such other address as
the parties may designate in writing.
8. General: All of the rights of the Representative under this Agreement
shall be cumulative and shall inure to the benefit of its successors and
assigns. All Obligations of the Company hereunder shall be binding upon the
successors and assigns of the Company.
9. Choice of Law; Consent to Jurisdiction. This Agreement and the
transaction contemplated hereunder shall be governed by and construed in
accordance with the laws of the State of Florida for contracts to be entered
into and performed wholly within Florida.
(a) Each party hereto (i) irrevocably and unconditionally consents and
agrees that any legal or equitable action or proceeding arising under or in
connection with this Agreement shall be brought only in the courts of the
States of Florida or federal courts sitting in the State of Florida, and
(ii) by execution and delivery of this Agreement, irrevocably and
unconditionally submits to and accepts, generally and unconditionally, the
jurisdiction of the aforesaid courts, and irrevocably and
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unconditionally waives any and all rights such party may have to object to
such jurisdiction.
(b) Each party hereto hereby irrevocably and unconditionally agrees
(i) to the extent such party is not otherwise subject to service of process
in the State of Florida to appoint and maintain an agent in the State of
Florida as such party's agent for acceptance of legal process; and (ii)
that service of process may also be made on such party by prepaid certified
mail with a proof of mailing receipt validated by the united states postal
service constituting evidence of valid service, and that service made
pursuant to (i) or (ii) above shall have the same legal force and effect as
if served upon such party personally within the State of Florida, as the
case may be. For purposes of implementing the agreement of each party who
is not otherwise subject to service of process in the State of Florida to
appoint and maintain an agent for service of process in the State of
Florida, each such party does hereby appoint the following persons, which
appointment shall be kept in full force and effect from and after the
closing for so long as such party or one of its affiliates is a party
hereto: (1)William E.Clegg,III and (2) ___________________________________.
10. Release of Security Interest. Immediately upon the full satisfaction of
all of the Obligations or termination of such Obligations upon conversion of the
Notes as provided for therein, the Representative will take such actions as the
Company reasonably requests to effect a complete release of the security of the
Collateral under this Agreement.
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11. Interpretation. The parties acknowledge and agree that each party and
its counsel have reviewed and negotiated the terms and provisions of this
Agreement and have contributed to their revision; the normal rule of
construction, to the effect that any ambiguities are resolved against the
drafting party shall not be employed in the interpretation of it; and its terms
and provisions shall be construed fairly as to all parties hereto and not in
favor of or against any party, regardless of which party was generally
responsible for the preparation of this Agreement
Dated: February ___, 1997
Debtor:
Plastigone Technologies, Inc.
By:_____________________________
Name:___________________________
Title:__________________________
Secured Party:
Oakes, Fitzwilliams & Co. Limited
By:_____________________________
Name:___________________________
Title:__________________________
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Page: 1 of 3
Debtor: Plastigone Technologies, Inc.
2814 South Street
Fort Myers, Florida 33916
Secured Party: Oakes, Fitzwilliams & Co. Limited
Byron House
7-9 St. James's Street
London SW1A 1EE
England
SCHEDULE "A"
TO
FORM UCC-1
FINANCING STATEMENT
Item 6. This FINANCING STATEMENT covers the following types or items of
property:
Any and all machinery, equipment, furniture and fixtures set forth the 1996
appraisal of Plastigone Technologies, Inc. annexed hereto as Schedule 1,
together with the products and proceeds thereof and insurance thereon, all
payments and other distributions with respect thereto and any and all renewals,
substitutions, modifications and extensions of any and all of the foregoing, in
each case arising from or with respect to all or any part of the foregoing, in
each case whether now existing or hereafter acquired or created, whether owned
beneficially or of record and whether owned individually, jointly or otherwise.
<PAGE>
Schedule 2 to Security Agreement
PLASTIGONE TECHNOLOGIES, INC.
-----------------------------
Machinery and Equipment
as of October 30, 1996
----------------------
Quantity Description
- -------- -----------
1 Main production line, with:
- Rail car unloading system for resin;
- 3 - Corrugated galvanized steel raw material
silos;
- 1 - Ingersoll-Rand 15 HP air compressor unit;
- 1 - Ingersoll-Rand 10 HP air compressor unit
(under repair);
- 1 - Ingersoll-Rand DXR refrigerated air
dryer;
- 1 - Raw material transfer system with
2 - 5 HP and 1 - 10 HP vacuum pumps;
- 1 Una-Dyn floor filter, 20" size, Serial
# FF2092241;
- 1 - Davis-Standard 3.5" extruder, Model
DS35, Serial # M7195, Date 7/20/92;
- 1 - NRM 6" extruder, Model 6" PRM, Serial
# 16063;
- 2 - Process blenders; - 2 - Multi-hopper blenders;
- 1 - Closed loop chilled water system with
2 - Carrier compressors, Model B275-160A,
with independent fan coil units;
- 1 - Hydraulic screen changer;
- 1 - 92" casting machine;
- 1 - NRM product winder, 90" dual horizontal
oscillating turret type, Date 7/70, Serial
# 13669;
- 1 - Automatic scrap recycle unit; - 1 - Beta
scanner for product control; - 1 - Custom
table/elevator; and including all supports,
catwalks, piping, wiring, controls and weather
enclosures in yard.
<PAGE>
Quantity Description
- -------- -----------
1 Lot testing equipment including:
Mettler electronic balance, drop ball tester, light
transmission and reflectivity tester, 2 - Q-Panel
QUV accelerated weather tester, Model QUV, Serial #
89-5240-38, xxx.
1 Lot general plant equipment including benches,
tables, racks, scales, shrink wrapper, lathe, etc.
1 Lot spare rollers including 7 - silicon rollers, 4 -
stainless steel rollers, 4 - embossing rollers.
1 Lot office furniture and equipment including desks,
chairs, conference table, cabinets, photocopier,
typewriter, fax machine, computer network with
American Megatrend 386-30 CPU server for 6 stations,
etc.
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