EXHIBIT 10.21
NOTE PURCHASE AND LOAN AGREEMENT
This Note Purchase and Loan Agreement (the "Agreement") is entered into as
of this 16th day of December, 1996, by and among Plasma & Materials
Technologies, Inc., a California corporation (the "Company"), and the persons
listed on Schedule 1 attached hereto (collectively, the "Investors").
RECITALS:
The Investors have agreed to lend to the Company up to a maximum aggregate
principal amount of $6,250,000 (the "Loan"), on the terms and conditions set
forth herein and pursuant to subordinated promissory notes in the form attached
hereto as Exhibit A (each individually a "Note" and collectively the "Notes").
AGREEMENT:
For good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Company and the Investors agree as follows:
1. THE LOAN
1.1. The Loan. Each of the Investors, in reliance upon the
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representations, warranties, covenants and agreements of the Company
contained herein and subject to the terms and conditions of this
Agreement, hereby agree to provide a loan to the Company in the
principal amount set forth opposite such Investor's name on Schedule 1
attached hereto (the "Commitment"), which may be drawn upon by the
Company from time to time prior to January 1, 1998 (the "Commitment
Termination Date"). On and after the Commitment Termination Date, no
further amounts may be borrowed by the Company pursuant to this
Agreement.
1.2. The Notes. The obligation of the Company to repay the Loan shall be
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evidenced by the Notes. The Company shall make payments to the
Investors in accordance with the terms of the Notes and this
Agreement. Such payments shall be subordinated in the manner set forth
therein.
1.3. Issuance of Warrants. In consideration of the Commitment and the
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Loan, the Company has agreed to issue to each of the Investors
warrants to purchase that number of shares of the common stock of the
Company (the "Common Stock") set forth opposite such Investors name on
Schedule 1, on the terms and pursuant to the form of Common Stock
purchase warrant attached hereto as Exhibit B (the "Warrants").
1.4. Procedure for Requesting Advances.
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(a) The Company shall give each of the Investors notice of any
borrowing that it intends to make hereunder in the form of
Exhibit C attached hereto (a "Notice of Borrowing") not less than
10 business days prior to such borrowing, specifying
(i) the date for which funds are requested (the "Funding Date"),
(ii) the amount to be borrowed from each Investor, which shall be
such Investor's pro rata share of the amount requested, based
upon the ratio of such Investor's Commitment to the maximum
aggregate amount of the Loan ("Pro Rata Basis") and (iii) the
aggregate amount of such borrowing, which shall not exceed the
aggregate unfunded amount of the Loan.
(b) On the Funding Date specified in the Notice of Borrowing, subject
to the conditions set forth in Section 5, each of the Investors
shall make available to the Company the portion of its Commitment
on a Pro Rata Basis of such borrowing by wire transfer to the
account designated by the Company.
1.5. Interest Rate. If, during the time there are any amounts outstanding
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under any of the Notes, the interest rate payable under such Notes
shall be deemed by any competent court of law, governmental agency or
tribunal to exceed the maximum rate of interest permitted by
applicable law, then, for such time as the interest rate would be
deemed excessive, its application shall be suspended and there shall
be charged instead the maximum rate of interest permissible under such
laws. If the rate of interest payable on the Notes is ever reduced as
a result of the preceding sentence and at any time thereafter the
maximum rate permitted by applicable law shall exceed the applicable
rate of interest provided for in the Notes, then the rate of interest
shall be increased to such maximum rate for such period as is required
so that the total amount of interest received by the Investors is the
amount that would have been received but for the operation of the
preceding sentence.
1.6. Subordination. Repayment of the Loan shall be subordinated to certain
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other debts of the Company to the extent provided, and on the terms
and conditions set forth, in the Notes.
1.7. Payments. All payments of principal and interest due under the Notes
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shall be paid by the Company in immediately available funds to the
Investors on a Pro Rata Basis by wire transfer to such accounts as the
Investors shall designate, or by such other means as each Investor may
hereafter request.
2. CLOSING
2.1. Closing Date. The execution of this Agreement and the closing of the
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transactions contemplated hereby shall take place simultaneously at
the offices of Oppenheimer Wolff & Donnelly, 45 South Seventh Street,
Suite 3400, Minneapolis, Minnesota 55402, at 11 a.m., Minneapolis
time, on or about December 16, 1996, or as soon as practical
thereafter (the "Closing") or at such other place or different time or
day as may be mutually acceptable to the Investors and the Company,
provided that all other conditions to the Closing as provided in this
Agreement have been met to the reasonable satisfaction of, or waived
by, the Investors or the Company, as the case may be. The date and
time on which the Closing occurs is referred to as the "Closing Date."
2.2. Deliveries. At the Closing, the Company will deliver the Notes, the
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Warrants, and any other documents required by this Agreement.
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3. REPRESENTATIONS AND WARRANTIES BY THE COMPANY
To induce the Investors to enter into this Agreement and to make the
Commitment and the Loan, the Company hereby represents and warrants to the
Investors the following, except as disclosed in the Schedules attached
hereto, which exceptions shall be set forth in reasonable detail:
3.1. Organization, Standing, Etc. The Company is a corporation duly
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organized, validly existing and in good standing under the laws of the
State of California and has the requisite corporate power and
authority to own or lease its properties and to carry on its business
as it is now being conducted. The Company has the requisite corporate
power and authority to issue the Notes and the Warrants and the shares
of Common Stock issuable on exercise of the Warrants (the "Warrant
Shares") and to perform its obligations under this Agreement.
3.2. Governing Instruments. The copies of the articles of incorporation
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and bylaws of the Company, and all amendments thereto (collectively,
the "Charter Documents"), delivered to legal counsel for the Investors
prior to the execution of this Agreement, are true and complete copies
of the duly and legally adopted Charter Documents in effect as of the
date of this Agreement and the Closing Date.
3.3. Subsidiaries, Etc. Except for (i) the Company's wholly-owned
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subsidiary, Plasma & Materials Technologies (Korea) Co. Ltd. ("PMT
Korea"), (ii) Electrotech Limited and Electrotech Equipment Limited
(collectively, "Electrotech") and the direct and indirect subsidiaries
thereof and (iii) Energy Transfer Systems, Inc., a Delaware
corporation ("ETS"), the Company does not have any direct or indirect
ownership interest in any corporation, partnership, joint venture,
association or other business enterprise. For purposes of this
Section, references to the Company shall include PMT Korea,
Electrotech and ETS.
3.4. Qualification. The Company is duly qualified, licensed or
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domesticated as a foreign corporation in good standing in each
jurisdiction listed on Schedule 3.4. The Company has not failed to
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qualify, be licensed or domesticated in any jurisdiction in which the
failure to so qualify, be licensed or domesticated would have a
material adverse effect upon its business, properties or financial
condition ("Material Adverse Effect").
3.5. Financial Statements. The (i) audited financial statements of the
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Company for the fiscal year ended December 31, 1995, and (ii)
unaudited interim financial statements for the quarterly period ended
September 30, 1996, together with the notes thereto, complete and
correct copies of which are attached hereto as Schedule 3.5
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(collectively, the "Financial Statements"), present fairly the
financial position of the Company, as of such dates and the results of
operations for the periods covered thereby (subject, in the case of
such unaudited interim financial statements, to year-end audit
adjustments) and have been prepared in accordance with generally
accepted accounting principles consistently applied. Except as set
forth in the Financial Statements, the Company does not have any
liabilities, contingent or otherwise, other than (i) liabilities
incurred in the ordinary course of business subsequent to the date of
such quarterly Financial Statements; (ii) obligations
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under real and personal property leases disclosed pursuant to Section
3.17 and (iii) obligations under contracts and commitments incurred in
the ordinary course of business and not required under generally
accepted accounting principles to be reflected in the Financial
Statements, which, individually or in the aggregate, are not material
to the financial condition or operating results of the Company.
Except as disclosed in the Financial Statements, and, except as set
forth in Schedule 3.5, since the date of the quarterly Financial
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Statements, (i) there has been no material adverse change in the
business or condition, financial or otherwise, operations or prospects
of the Company; (ii) to the Company's knowledge, neither the business,
condition or operations of the Company nor any of its properties or
assets have been materially adversely affected as the result of any
legislative or regulatory change, any revocation or change in any
franchise, permit, license, or right to do business, or any other
event or occurrence, whether or not insured against; (iii) except for
the closing of the transactions contemplated by the Share Purchase
Agreement, dated as of July 17, 1996, among the Company, Electrotech
and the other parties thereto, as amended to date, which was approved
at a meeting of the shareholders of the Company on October 10, 1996
(the "Share Purchase Agreement"), the Company has not entered into any
material transaction other than in the ordinary course of business,
made any distribution on its capital stock, or redeemed or repurchased
any of its capital stock; and (iv) there has been no lien or
encumbrance placed upon any property of the Company.
3.6. Valid Issuance. The Notes and Warrants, when executed, issued and
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delivered pursuant to the terms of this Agreement, will be duly
authorized, validly issued and enforceable in accordance with their
respective terms and the terms of this Agreement, except as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally and to judicial limitations on the
enforcement of the remedy of specific performance and other equitable
remedies. The Warrant Shares have been reserved for issuance and,
when issued upon the exercise of the Warrants, will be duly
authorized, validly issued and outstanding, fully paid, nonassessable
and free and clear of all pledges, liens, encumbrances and
restrictions, except as set forth in Section 4 or the Charter
Documents.
3.7. Corporate Acts and Proceedings. This Agreement has been duly
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authorized by all necessary corporate action on behalf of the Company,
has been duly executed and delivered by authorized officers of the
Company, is a valid and binding agreement on the part of the Company
and is enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws affecting
the enforcement of creditors' rights generally and to judicial
limitations on the enforcement of the remedy of specific performance
and other equitable remedies. All corporate actions necessary to the
authorization, creation, issuance and delivery of the Notes, the
Warrants and the Warrant Shares and reservation of the Warrant Shares
contemplated hereunder have been taken by the Company.
3.8. Tax Returns and Audits. The Company has prepared and timely filed all
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federal, state and other tax returns required by law to be filed, has
paid or made provision for the payment of all taxes shown to be due
and all additional assessments, and adequate
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provisions have been made and are reflected in the Financial
Statements to the extent required by generally accepted accounting
principles for all current taxes and other charges to which the
Company is subject and which are not currently due and payable. None
of the income tax returns of the Company have been audited by the
Internal Revenue Service or the state taxing authority in such a
manner to bring such audit to the attention of the Company. The
Company does not know of any additional assessments or adjustments
pending or threatened against the Company or its assets for any
period, nor of any basis for any such assessment or adjustment, which
would have a Material Adverse Effect.
3.9. Title to Properties and Encumbrances. Except with respect to real
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and personal property leased pursuant to lease agreements disclosed in
the manner set forth in Section 3.17, the Company has good and
marketable title to all of its properties and assets, including all
properties and assets used in the conduct of its business, except for
property disposed of in the ordinary course of business since the date
of the quarterly Financial Statements, which properties and assets are
not subject to any mortgage, pledge, lease, lien, charge, security
interest, encumbrance or restriction, except (i) those which are shown
and described in the Financial Statements or disclosed in Schedule 3.5
or (ii) liens for taxes and assessments or governmental charges or
levies not at this time due or in respect of which the validity
thereof shall currently be contested in good faith by appropriate
proceedings.
3.10. Condition of Properties. The plant, offices, equipment, inventory
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and other assets of the Company have been kept in good condition and
repair in the ordinary course of business, and are reasonably fit and
suitable for the purposes for which they are being used and conform in
all material respects with applicable ordinances, regulations and
laws.
3.11. Litigation; Governmental Proceedings. There are no legal actions,
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suits, arbitrations or other legal, administrative or governmental
proceedings or investigations pending or, to the knowledge of the
Company, threatened against the Company, or its properties or business
or any executive officer or director of the Company, and neither the
Company nor any executive officer or director of the Company is aware
of any facts which are probable to result in or form the reasonable
basis for any such action, suit or other proceeding. The Company is
not in default with respect to any judgment, order or decree of any
court or any governmental agency or instrumentality. To the best of
its knowledge, the Company has not been threatened with any action or
proceeding under any business or zoning ordinance, law or regulation.
3.12. Compliance with Applicable Laws and Other Instruments. The
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properties, business and operations of the Company have been and are
being conducted in all material respects in accordance with all
applicable laws, rules and regulations of all governmental
authorities. Neither the execution nor delivery of, nor the
performance of or compliance with this Agreement, the Notes or the
Warrants, nor the consummation of the transactions contemplated hereby
or thereby will, with or without the giving of notice or passage of
time, result in any breach of, or constitute a default under, or
result in the imposition of any lien or encumbrance upon any asset or
property of the Company pursuant to, any agreement or other instrument
to which the Company is a party or by which it or any of
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its properties, assets or rights is bound or affected, and will not
violate the Charter Documents. The Company is not in violation of its
Charter Documents nor in violation of, or in default under, any lien,
indenture, loan or credit agreement, mortgage, lease, agreement,
instrument, commitment or arrangement in any material respect. Except
for the subordination provisions contained in the Notes, the Company
is not subject to any restriction which would prohibit it from
entering into, enforcing its rights, including requesting any
borrowing, or performing its obligations under this Agreement.
3.13. Environmental and Safety Laws. The Company is not, in any material
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respect, in violation of any applicable statute, law or regulation
relating to the environment or occupational health and safety, and no
material expenditures are or are reasonably anticipated to be required
in order to comply with any such existing statute, law or regulation.
3.14. Securities Laws. Based in part upon the representations of the
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Investors in Section 4, no consent, authorization, approval, permit or
order of or filing with any governmental or regulatory authority is
required under current laws and regulations in connection with the
execution and delivery of this Agreement or the offer, issuance, sale
or delivery of the Notes and the Warrants, other than the filing of a
Form D pursuant to Regulation D under the Securities Act of 1933, as
amended (the "Securities Act"), and the qualification thereof, if
required, under applicable state securities laws which qualification
has been or will be effected as a condition of this sale. Under the
circumstances contemplated by this Agreement, the offer, issuance,
sale and delivery of the Notes and the Warrants will not, under
current laws and regulations, require compliance with the prospectus
delivery or registration requirements of the Securities Act.
3.15. Patents and Other Intangible Rights. Except as set forth in
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Schedule 3.15, the Company (i) owns or has the right to use, free
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and clear of all liens, claims and restrictions, all patents, patent
applications, trademarks, service marks, trade names, copyrights,
trade secrets, licenses and similar rights with respect to the
foregoing, necessary for and used in the conduct of its business as
now conducted and as proposed to be conducted, to the Company's
knowledge, without infringing upon or otherwise acting adversely to
the right or claimed right of any person under or with respect to any
of the foregoing; (ii) is not contractually or, to the Company's
knowledge, otherwise obligated to make any material payments by way of
royalties, fees or otherwise to any owner of, licensor of, or other
claimant to, any patent, trademark, service mark, trade name,
copyright, trade secret or other intangible asset, with respect to the
use thereof or in connection with the conduct of its business or
otherwise; (iii) has not received any notice of conflict with the
asserted rights of others with respect to such matters; (iv) to the
Company's knowledge, owns or has the unrestricted right to use all
trade secrets, including know-how, customer lists, inventions,
designs, processes, computer programs and technical data used by the
Company in the development, operation and sale of all products and
services sold by it, free and clear of any rights, liens or claims of
others; and (v) to the Company's knowledge, is not using any
confidential information or trade secrets of others.
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3.16. Capital Stock.
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(a) The authorized capital stock of the Company as of the date
hereof is correctly set forth in the Financial Statements. All
of the outstanding shares of the Company were duly authorized and
validly issued and are fully paid and nonassessable.
(b) There are no outstanding subscriptions, options, warrants, calls,
contracts, demands, commitments, convertible securities or other
agreements or arrangements of any character or nature whatever,
other than this Agreement, the Warrants, the Share Purchase
Agreement or the Indenture for the 7 1/8% convertible
subordinated notes due 2001 in the original principal amount of
$86,250,000 (the "Indenture") under which the Company is
obligated to issue any securities of any kind representing an
ownership interest in the Company or as set forth in Schedule
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3.16. Neither the offer nor the issuance or sale of the Notes
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and Warrants constitutes an event under any anti-dilution
provisions of any securities issued (or issuable pursuant to
outstanding rights, warrants or options) by the Company or any
agreements with respect to the issuance of securities by the
Company, which will either increase the number of shares issuable
pursuant to such provisions or decrease the consideration per
share to be received by the Company pursuant to such provisions.
(c) No holder of any securities of the Company is entitled to any
preemptive or similar rights to purchase any securities of the
Company from the Company.
3.17. Assets and Contracts.
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(a) The Company has filed with its registration statement pursuant to
the Securities Act or pursuant to its periodic filing
requirements under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), all material agreements and
contracts, has provided a true and complete list of such
agreements and contracts to legal counsel for the Investors and
has not entered into any material agreements since the date of
its most recent filing.
(b) The Company has in all material respects substantially performed
its obligations required to be performed by it to date and is not
in default in any material respect under any contracts,
agreements, leases, documents, commitments or other arrangements
to which it is a party or by which it is otherwise bound. There
is not under any of such agreements, any existing material
default or event of default or event which, with notice or lapse
of time or both, would constitute an event of default by the
Company thereunder.
3.18. Outstanding Debt. The Company does not have any indebtedness
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incurred as the result of a direct borrowing of money, including, but
not limited to, indebtedness with respect to trade accounts, except as
set forth in the Financial Statements or pursuant to the Credit
Agreement and the Indenture, other than indebtedness incurred in the
ordinary course of business. The Company is not in default in the
payment of the principal of or interest or premium on any such
indebtedness, and no event has occurred or is continuing under the
provisions of any instrument, document or agreement evidencing or
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relating to any such indebtedness which with the lapse of time or the
giving of notice, or both, would constitute an event of default by the
Company thereunder. The Company is not committed or obligated to make
any loan or advance to any person or entity, nor does the Company own
any capital stock, securities or other equity, except for the stock of
its subsidiaries described in Section 3.3.
3.19. Accounts Receivable. To the extent that they exceed the reserves
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for doubtful accounts set forth in the Financial Statements, the
accounts receivable reflected therein and all accounts receivable of
the Company that have arisen since the September 30, 1996 (except such
accounts receivable as have been collected since such date) are valid
and enforceable claims, and the goods and services sold and delivered
which gave rise to such accounts were sold and delivered in conformity
with the applicable purchase orders, agreements and specifications. To
the Company's knowledge, such accounts receivable are subject to no
valid defense or offsets except routine customer complaints or
warranty demands of an immaterial nature.
3.20. Insurance Coverage. The Company has in full force policies of
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insurance issued by insurers of recognized responsibility insuring the
Company and its properties and business against such losses and risks,
and in such amounts, as in the Company's judgment, are acceptable for
the nature and extent of such business and its resources. The Company
is not in default with respect to any material provision contained in
any insurance policy, and has not failed to give any notice or present
any material existing claims it has under its insurance policies in a
timely fashion.
3.21. Licenses. The Company possesses from the appropriate agency,
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commission, board and government body and authority, whether state,
local or federal, all licenses, permits, authorizations, approvals,
franchises and rights which (i) are necessary for it to engage in the
business currently conducted by it, and (ii) if not possessed by the
Company, would have a Material Adverse Effect.
3.22. Employees. To the Company's knowledge, except as set forth in
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Schedule 3.22, no officer of the Company or employee of the Company
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(whose annual compensation is in excess of $80,000) has any present
plans to terminate his or her employment with the Company. Each
officer and other employee of the Company having access to the
confidential and proprietary information of the Company has executed
an agreement with the Company regarding confidentiality and
proprietary information.
3.23. Absence of Restrictive Agreements. To the Company's knowledge, no
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employee of the Company is subject to any secrecy or noncompetition
agreement or any agreement or restriction of any kind that would
impede in any way the ability of such employee to carry out fully all
activities of such employee in furtherance of the business of the
Company. To the Company's knowledge, no former employer of any
employee of the Company has any claim of any kind whatsoever in
respect of any of the patents or other intangible rights of the
Company described in Section 3.15 of this Agreement.
3.24. No Brokers or Finders. No person, firm or corporation has or will
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have, as a result of any contractual undertaking by the Company, any
right, interest or valid claim against
8
the Company or the Investors for any commission, fee or other
compensation as a finder or broker, or in any similar capacity, in
connection with the transaction contemplated by this Agreement. The
Company will indemnify and hold the each of the Investors harmless
against any and all liability with respect to any such commission, fee
or other compensation which may be payable or determined to be
payable.
3.25. Full Disclosure. The Company has not knowingly withheld from the
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Investors any material facts relating to the assets, business,
operations, financial condition or prospects of the Company. No
representation or warranty in this Agreement or in any written
certificate, schedule, statement or other document prepared by or on
behalf of the Company and furnished by the Company to any Investor
pursuant hereto or filed by the Company pursuant to the periodic
reporting requirements of the Exchange Act, as of the date furnished
to the Investor or filed under the Exchange Act, as the case may be,
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated herein or therein necessary to
make the statements herein or therein not misleading.
4. REPRESENTATIONS OF THE INVESTORS
Each of the Investors hereby severally represents and warrants to the Company
that:
4.1. Investment Intent. The Investor is purchasing the Note and Warrant
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for investment for such Investor's own account and not with the view
to, or for resale in connection with, any distribution or public
offering thereof. The Investor has no current plan or intention to
engage in a sale, exchange, transfer, distribution, redemption,
reduction in any way of the Investor's risk of ownership by short sale
or otherwise, or other disposition, directly or indirectly of the Note
or Warrant pursuant to this Agreement.
4.2. Knowledge and Experience. The Investor has substantial experience
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in evaluating and investing in private placement transactions of
securities in companies similar to the Company and has the knowledge
and experience in financial and business matters such that the
Investor is capable of evaluating the merits and risks of his
investment in the Company and has the capacity to protect his own
interests.
4.3. Location of Principal Office, Qualification as an Accredited
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Investor, Etc. The state of domicile of the Investor is the state
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set forth in the Investor's address on Schedule 1. The Investor, by
execution of this Agreement, hereby represents that such Investor
qualifies as an "accredited investor" for purposes of Regulation D
promulgated under the Securities Act. The Investor can bear the loss
of the entire investment in the Note without any material adverse
effect on such Investor's assets, net worth, business, operations or
prospects.
4.4. Acts and Proceedings. This Agreement has been duly authorized by
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all necessary action on the part of the Investor, has been duly
executed and delivered by the Investor, and is a valid and binding
agreement of the Investor and enforceable against the Investor in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar
laws affecting the enforcement
9
of creditor's rights generally and to judicial limitations on the
remedy of specific enforcement and other equitable remedies.
4.5. Disclosure of Information. The Investor acknowledges that the
-------------------------
Company has made available to the Investor at a reasonable time prior
to the execution of this Agreement the opportunity to ask questions
and receive answers concerning the terms and conditions of the
offering of the Note and Warrant and to obtain any additional
information (which the Company possesses or can acquire without
unreasonable effort or expense) as may be necessary to verify the
accuracy of information furnished to the Investor. The foregoing,
however, does not limit or modify the representations and warranties
of the Company in this Agreement or the right of the Investor to rely
thereon. The Investor acknowledges that in making the decision to
invest in the Company, Investor is not relying on any person, firm or
company, other than the Company and its officers, employees and/or
directors.
4.6. No Brokers or Finders. No person, firm or corporation has or will
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have, as a result of any contractual undertaking by the Investor, any
right, interest or valid claim against the Investor for any
commission, fee or other compensation as a finder or broker, or in any
similar capacity, in connection with the transactions contemplated by
this Agreement. The Investor will indemnify and hold the Company
harmless against any and all liability with respect to any such
commission, fee or other compensation which may be payable or
determined to be payable.
4.7. Restrictions on Resale; Rule 144. The Investor understands that (i)
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none of the Note, the Warrant, nor the Warrant Shares have been
registered under the Securities Act or any state securities laws
because they are being issued in transactions exempt from such
registration requirements, pursuant to Section 4(2) of the Securities
Act and applicable state securities laws, and (ii) that the reliance
of the Company and others upon these exemptions is predicated in part
upon this representation by the Investor. The Investor acknowledges
that the Note, the Warrant and the Warrant Shares must be held
indefinitely unless subsequently registered under the Securities Act
and any applicable state securities act or unless exemptions from such
registration are available. The Investor understands that none of the
Note, the Warrant nor the Warrant Shares may be transferred or resold
without (i) registration under the Securities Act and any applicable
state securities laws, or (ii) an exemption from the requirements of
the Securities Act and applicable state securities laws. The Investor
understands that an exemption from such registration is not presently
available pursuant to Rule 144 promulgated under the Securities Act by
the Securities and Exchange Commission (the "Commission") and that the
Investor may not sell any securities acquired hereunder in full
compliance with Rule 144.
4.8. Public Market. The Investor understands that no public market now
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exists for the Note or the Warrant.
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4.9. Legend; Stop Transfer. The Notes and Warrants shall bear the
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following legend:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER EITHER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE BLUE SKY LAWS, AND
IS SUBJECT TO CERTAIN INVESTMENT REPRESENTATIONS. THESE SECURITIES
MAY NOT BE SOLD, OFFERED FOR SALE OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION UNDER THE ACT, AND SUCH APPLICABLE BLUE SKY
LAWS OR AN EXEMPTION THEREFROM.
The Warrant Shares, if and when issued, shall bear a similar legend.
In addition, the Company shall make a notation regarding the
restrictions on transfer of the Notes, the Warrants and Warrant Shares
in its books and the Notes, Warrants and Warrant Shares shall be
transferred on the books of the Company only if transferred or sold
pursuant to an effective registration statement under the Securities
Act covering the securities to be transferred or an opinion of counsel
satisfactory to the Company that such registration is not required.
5. CONDITIONS OF THE INVESTORS' OBLIGATIONS.
The obligations of the Investors hereunder are subject to the fulfillment
or waiver by the Investors prior to or on the Closing Date and each Funding
Date of the conditions set forth in this Section.
5.1. Representations and Warranties. The representations and warranties
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of the Company under this Agreement shall be true in all material
respects as of the Closing Date and each Funding Date with the same
effect as though made on and as of such date.
5.2. Compliance with Agreement. The Company shall have performed and
-------------------------
complied with all covenants, agreements or conditions required by this
Agreement to be performed and complied with by it prior to or as of
the Closing Date and each Funding Date.
5.3. Certificate of Officers. The Company shall have delivered to the
-----------------------
Investors a certificate, dated as of the Closing Date or the Funding
Date, executed by the President and Chief Financial Officer of the
Company, certifying to the satisfaction of the conditions specified in
Sections 5.1 and 5.2.
5.4. Supporting Documents. Legal counsel for the Investors shall have
--------------------
received the following:
(a) as of the Closing Date only, a copy of resolutions of the Board
of Directors authorizing and approving the Notes and Warrants and
authorizing and approving the execution, delivery and performance
of this Agreement, all such resolutions to be certified by the
Secretary of the Company;
(b) a Certificate of Incumbency, dated as of the Closing Date or
Funding Date and executed by the Secretary of the Company
certifying the names, titles and
11
signatures of the officers authorized to execute this Agreement,
the Notes and the Warrants and certifying the Charter Documents
of the Company;
(c) as of the Closing Date only, a legal opinion of Company's
counsel, dated the Closing Date and covering such matters typical
in transactions of this type as may be reasonably requested by
legal counsel for the Investors; and
(d) such additional supporting documentation and other information as
the Investors or legal counsel for the Investors may reasonably
request.
5.5. Qualification under State Securities Laws. As of the Closing Date,
-----------------------------------------
all registrations, qualifications, permits and approvals required
under applicable state securities laws for the lawful execution and
delivery of this Agreement and the offer, sale, issuance and delivery
of the securities to the Investors at the closing shall have been
obtained or will be obtained in compliance with such laws.
6. CONDITIONS OF THE COMPANY'S OBLIGATION
The obligations of the Company to the Investors under this Agreement are
subject to the fulfillment on or before the Closing Date of each of the
following conditions:
6.1. Representations and Warranties. The representations and warranties
------------------------------
of the Investors contained in Section 4 shall be true and correct on
and as of the Closing with the same force and effect as if such
representations and warranties had been made on and as of the Closing;
and
6.2. Qualification under State Securities Laws. All registrations,
-----------------------------------------
qualifications, permits and approvals required under applicable state
securities laws for the lawful execution and delivery of this
Agreement and the offer, sale, issuance and delivery of the securities
to the Investors at the closing shall have been obtained or will be
obtained in compliance with such laws.
7. AFFIRMATIVE COVENANTS OF THE COMPANY
Until the later to occur of the maturity of the Loan and the repayment in
full of all amounts due to the Investors under the Notes, the Company covenants
and agrees to:
7.1. Indenture Covenants. Comply with the obligations and covenants of the
-------------------
Company set forth in the Indenture, which obligations and covenants
are incorporated in this Agreement by this reference; and
7.2. Financial Statements. Deliver to the Investors:
--------------------
(a) promptly upon transmission thereof, copies of all publicly
available reports, proxy statements, registration statements and
notifications filed by the Company with the Securities and
Exchange Commission or furnished to stockholders of the Company
or to any securities exchange, including, without limitation,
filings on Form 10-Q and Form 10-K, and any amendments thereto;
12
(b) concurrently with the delivery of the financial statements
referred to in Section 7.2(a) above, a certificate of the Chief
Executive Officer of the Company stating that the Company has
performed and observed each and every covenant contained in this
Agreement and the Notes to be performed by it and that no event
has occurred and no condition then exists which constitutes an
Event of Default, under this Agreement or any other loan
agreement or credit agreement of the Company, or would constitute
such an Event of Default upon the lapse of time or upon the
giving of notice and the lapse of time; or, if any such event has
occurred or any such condition exits, specifying the nature
thereof; and
(c) promptly provide to the other Investors copies of any notice of a
breach received from an Investor pursuant to Section 9.1 or
notice of acceleration under Section 10.1.
8. REGISTRATION RIGHTS
8.1. Incidental Registration. Each time the Company shall determine to
-----------------------
proceed with the actual preparation and filing of a registration
statement under the Securities Act in connection with the proposed
offer and sale for money by the Company of any of its securities by it
or any of its security holders (other than a registration statement on
Form S-4, S-8 or other limited purpose form), the Company will give
written notice of its determination to all record holders of Warrants
and Warrant Shares. Upon the written request of a record holder of any
Warrants or Warrant Shares given within 30 days after receipt of any
such notice from the Company, the Company will, except as herein
provided, cause all Warrant Shares, the record holders of which have
so requested registration thereof, to be included in such registration
statement, all to the extent requisite to permit the sale or other
disposition by the prospective seller or sellers of the Warrant Shares
to be so registered; provided, however, that nothing herein shall
prevent the Company from, at any time, abandoning or delaying any
registration; provided further, however, that if the Company
determines not to proceed with a registration after the registration
statement has been filed with the Commission and the Company's
decision not to proceed is primarily based upon the anticipated public
offering price of the securities to be sold by the Company, the
Company shall promptly complete the registration for the benefit of
those selling security holders who wish to proceed with a public
offering of their securities and who bear all expenses incurred by the
Company as the result of such registration after the Company has
decided not to proceed. If any registration pursuant to this Section
shall be underwritten in whole or in part, the Company may require
that the Warrant Shares requested for inclusion pursuant to this
Section be included in the underwriting on the same terms and
conditions as the securities otherwise being sold through the
underwriters. If in the good faith judgment of the managing
underwriter of such public offering the inclusion of all of the
Warrant Shares originally covered by a request for registration would
reduce the number of shares to be offered by the Company or interfere
with the successful marketing of the shares of stock offered by the
Company, the number of Warrant Shares to be included in the
underwritten public offering may be reduced pro rata among the holders
thereof requesting inclusion in such registration. Those Warrant
Shares which are thus excluded from the underwritten public offering
shall be withheld from the market by the holders
13
thereof for a period, not to exceed 180 days, which the managing
underwriter reasonably determines is necessary in order to effect the
underwritten public offering, provided that the executive officers and
directors of the Company shall have agreed to be bound by
substantially the same terms and conditions and the restriction shall
not apply to a registration relating solely to employee benefit plans
on Form S-1 or Form S-8 (or similar forms promulgated after the date
hereof) or a registration relating solely to a transaction pursuant
Rule 145 promulgated under the Securities Act on Form S-14 or Form S-
15 (or similar forms promulgated after the date hereof).
8.2. Registration Procedures. If and whenever the Company is required to
-----------------------
effect the registration of Warrant Shares under the Securities Act,
the Company will:
(a) prepare and file with the Commission a registration statement
with respect to such securities, and use its best efforts to
cause such registration statement to become and remain effective
for such period as may be reasonably necessary to effect the sale
of such securities, not to exceed six months;
(b) prepare and file with the Commission such amendments to such
registration statement and supplements to the prospectus
contained therein as may be necessary to keep such registration
statement effective for such period as may be reasonably
necessary to effect the sale of such securities, not to exceed
three months;
(c) furnish to the security holders participating in such
registration and to the underwriters of the securities being
registered such reasonable number of copies of the registration
statement, preliminary prospectus, final prospectus and such
other documents as such underwriters may reasonably request in
order to facilitate the public offering of such securities;
(d) use its best efforts to register or qualify the securities
covered by such registration statement under such state
securities or blue sky laws of such jurisdictions as such
participating holders may reasonably request within 20 days
following the original filing of such registration statement,
except that the Company shall not for any purpose be required to
execute a general consent to service of process or to qualify to
do business as a foreign corporation in any jurisdiction wherein
it is not so qualified;
(e) notify the security holders participating in such registration,
promptly after it shall receive notice thereof, of the time when
such registration statement has become effective or a supplement
to any prospectus forming a part of such registration statement
has been filed;
(f) notify such holders promptly of any request by the Commission for
the amending or supplementing of such registration statement or
prospectus or for additional information;
(g) prepare and file with the Commission, promptly upon the request
of any such holders, any amendments or supplements to such
registration statement or
14
prospectus which, in the opinion of counsel for such holders (and
concurred in by counsel for the Company), is required under the
Securities Act or the rules and regulations thereunder in
connection with the distribution of the Warrant Shares by such
holder;
(h) prepare and promptly file with the Commission and promptly notify
such holders of the filing of such amendment or supplement to
such registration statement or prospectus as may be necessary to
correct any statements or omissions if, at the time when a
prospectus relating to such securities is required to be
delivered under the Securities Act, any event shall have occurred
as the result of which any such prospectus or any other
prospectus as then in effect would include an untrue statement of
a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances in
which they were made, not misleading;
(i) advise such holders, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by
the Commission suspending the effectiveness of such registration
statement or the initiation or threatening of any proceeding for
that purpose and promptly use its best efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such
stop order should be issued; and
(j) not file any amendment or supplement to such registration
statement or prospectus to which a majority in interest of such
holders shall have reasonably objected on the grounds that such
amendment or supplement does not comply in all material respects
with the requirements of the Securities Act or the rules and
regulations thereunder, after having been furnished with a copy
thereof at least two business days prior to the filing thereof,
unless in the opinion of counsel for the Company the filing of
such amendment or supplement is reasonably necessary to protect
the Company form any liabilities under any applicable federal or
state law and such filing will not violate applicable law.
8.3. Expenses. With respect to each inclusion of Warrant Shares in a
--------
registration statement pursuant to Section 8.1, the Company shall bear
the following fees, costs and expenses: all registration, filing and
NASD fees, printing expenses, fees and disbursements of counsel and
accountants for the Company and all legal fees and disbursements and
other expenses of complying with state securities or blue sky laws of
any jurisdictions in which the securities to be offered are to be
registered or qualified. Fees and disbursements of counsel and
accountants for the selling security holders, underwriting discounts
and commissions and transfer taxes for selling security holders and
any other expenses incurred by the selling security holders not
expressly included above shall be borne by the selling security
holders.
8.4. Indemnification.
---------------
(a) The Company will indemnify and hold harmless each holder of
Warrant Shares which are included in a registration statement
pursuant to the provisions of this
15
Section and any underwriter (as defined in the Securities Act)
for such holder and each person, if any, who controls such holder
or such underwriter within the meaning of the Securities Act,
from and against any and all loss, damage, liability, cost and
expense to which such holder or any such underwriter or
controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, damages, liabilities, costs or
expenses are caused by any untrue statement or alleged untrue
statement of any material fact contained in such registration
statement, any prospectus contained therein or any amendment or
supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made,
not misleading; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, damage,
liability, cost or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or
alleged omission so made in conformity with information furnished
by such holder, such underwriter or such controlling person in
writing specifically for use in the preparation thereof.
(b) Each holder of Warrant Shares which are included in a
registration pursuant to the provisions of this Section severally
will indemnity and hold harmless the Company, any controlling
person and any underwriter from and against any and all loss,
damage, liability, cost or expense to which the Company or any
controlling person and/or any underwriter may become subject
under the Securities Act or otherwise, insofar as such losses,
damages, liabilities, costs or expenses are caused by any untrue
or alleged untrue statement of any material fact contained in
such registration statement, any prospectus contained therein or
any amendment or supplement thereto, or arise out of or are based
upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in 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 so made in reliance
upon and in strict conformity with written information furnished
by such holder specifically for use in the preparation thereof
and only to the extent of proceeds from the sale of Warrant
Shares.
(c) Promptly after receipt by an indemnified party pursuant to the
provisions of paragraph (a) or (b) of this Section of notice of
the commencement of any action involving the subject matter of
the foregoing indemnity provisions, such indemnified party will,
if a claim thereof is to be made against the indemnifying party
pursuant to the provisions of said paragraph (a) or (b), promptly
notify the indemnifying party of the commencement thereof; but
the omission to so notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party
otherwise than hereunder. In case such action is brought against
any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party shall have the
right to participate in, and, to the extent that it may wish,
jointly with any other indemnifying party
16
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, if the
defendants in any action include both the indemnified party and
the indemnifying party and there is a conflict of interest which
would prevent counsel for the indemnifying party from also
representing the indemnified party, the indemnified party or
parties shall have the right to select separate counsel to
participate in the defense of such action on behalf of such
indemnified party or parties. 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 pursuant to the provisions of said
paragraph (a) or (b) for any legal or other expense subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation, unless (i)
the indemnified party shall have employed counsel in accordance
with the proviso of the preceding sentence, (ii) the indemnifying
party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a
reasonable time after the notice of the commencement of the
action, or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of
the indemnifying party.
9. EVENTS OF DEFAULT
An "Event of Default" shall occur upon the occurrence of any of the
following events:
9.1. Representations and Warranties. Any representation or warranty made
------------------------------
by the Company herein shall prove to have been incorrect in any
material respect on or as of the date made and remains unremedied for
a period of thirty (30) days after an Investor provides the Company
with written notice of such breach; provided, however that in the
event such breach has not been remedied at the end of such 30-day
period, but the Company is diligently working to remedy it, the
Company shall have an additional thirty (30) days to remedy such
breach;
9.2. Covenants. The Company shall default in the observance or
---------
performance of any material covenant or agreement contained in this
Agreement and such default shall continue unremedied for a period of
the earlier of thirty (30) days from the date an executive officer of
the Company has actual knowledge of such default or thirty (30) days
after an Investor has provided the Company with written notice of such
default; provided, however that in the event such default has not been
remedied at the end of such 30-day period, but the Company is
diligently working to remedy it, the Company shall have an additional
thirty (30) days to remedy such default; or
9.3. Notes. An event of default shall occur under the Notes; or
-----
9.4. Indenture. An event of default shall occur under the Indenture.
---------
10. REMEDIES UPON AN EVENT OF DEFAULT.
Upon the occurrence of an Event of Default, unless such Event of Default
shall have been waived or cured prior to the exercise of the remedies set
forth in this Section:
17
10.1. Acceleration. Upon the occurrence of an Event of Default, each
------------
Investor shall have the option to declare the principal amount of
such Investor's Note, and all accrued but unpaid interest thereon, to
be immediately due and payable upon written notice to the Company;
provided, however, that payment of such amount shall be subject to
the subordination provisions in the Note.
10.2. Other Remedies. Each Investor shall have all other remedies at law
--------------
or in equity, afforded to holders of debt or otherwise provided for
by this Agreement.
11. MISCELLANEOUS
11.1. Changes, Waivers, Etc. Neither this Agreement nor any provision
---------------------
hereof may be changed, waived, discharged or terminated orally, but
only by a statement in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is
sought.
11.2. Notices. All notices, requests, consents and other communications
-------
required or permitted hereunder shall be in writing and shall be
delivered, or mailed first-class postage prepaid, registered or
certified mail, as follows:
(a) if to the Investors, to the addresses listed on Schedule 1; and
(b) if to the Company, to:
Plasma Materials & Technologies, Inc.
9255 Deering Avenue
Chatsworth, California 91311
Attention: Chief Financial Officer
and such notices and other communications shall for all purposes of
this Agreement be treated as being effective or having been given if
delivered personally, or, if sent by mail, when received. Any party
may change its address for such communications by giving notice
thereof to the other parties in conformity with this Section.
11.3. Survival of Representations, Warranties, Agreements, Etc. All
--------------------------------------------------------
representations, warranties, covenants and agreements contained
herein or in any certificate delivered pursuant to this Agreement
shall survive the execution and delivery of this Agreement or such
certificate, as the case may be, any investigation at any time made
by the Investors or on their behalf, and the closing of the
transactions contemplated by this Agreement. All statements
contained in any certificate, instrument or other writing prepared by
or on behalf of the Company and delivered by the Company pursuant to
this Agreement or in connection with or in contemplation of the
transactions herein contemplated shall constitute representations and
warranties by the Company hereunder.
11.4. Successors and Assigns. The terms and conditions of this Agreement
----------------------
shall inure to the benefit of and be binding upon and be enforceable
by the successors and assigns of the
18
parties hereto, including the holder or holders from time to time of
any of the Notes, Warrants or Warrant Shares.
11.5. Entire Agreement. This Agreement, the schedules hereto, the
----------------
documents referenced herein and the exhibits thereto, constitute the
entire understanding and agreement of the parties hereto with
respect to the subject matter hereof and thereof and supersede all
prior and contemporaneous agreements or understandings, inducements
or conditions, express or implied, written or oral, between the
parties with respect hereto and thereto. The express terms hereof
control and supersede any course of performance or usage of the
trade inconsistent with any of the terms hereof.
11.6. Other Remedies. Any and all remedies herein expressly conferred
--------------
upon a party shall be deemed cumulative with, and not exclusive of,
any other remedy conferred hereby or by law on such party, and the
exercise of any one remedy shall not preclude the exercise of any
other.
11.7. Delays or Omissions. Except as expressly provided herein, no delay
-------------------
or omission to exercise any right, power or remedy accruing to any
party under this Agreement shall impair any such right, power or
remedy of such party nor shall it be construed to be a waiver of any
such breach or default, or an acquiescence thereto, or of a similar
breach or default thereafter occurring; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any
party hereto of any breach of default under the Agreement, or any
waiver on the part of any party of any provisions or conditions of
this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing.
11.8. Attorneys' Fees. Should suit be brought to enforce any provision
---------------
of this Agreement, the prevailing party shall be entitled to
recover, as an element of the costs of suit and not as damages,
reasonable attorneys' fees to be fixed by the court (including,
without limitation, costs, expenses and fees on any appeal). The
prevailing party shall be the party entitled to recover its costs of
suit, regardless of whether such suit proceeds to final judgment. A
party not entitled to recover its costs shall not be entitled to
recover attorneys' fees. No sum for attorneys' fees shall be
counted in calculating the amount of a judgment for purposes of
determining if a party is entitled to recover costs or attorneys'
fees.
11.9. Payment of Fees and Expenses of the Investors. The Company agrees
---------------------------------------------
to reimburse the Investors for reasonable legal expenses incurred
for one special legal counsel to the Investors, Oppenheimer, Wolff &
Donnelly. in connection with the transactions contemplated by this
Agreement.
11.10. Construction of Agreement. This Agreement has been negotiated by
-------------------------
the respective parties hereto and their attorneys and the language
hereof shall not be construed for or against any party. A reference
in this Agreement to any section shall include a reference to every
section the number of which begins with the number of the section to
which reference is specifically made (e.g. a reference to Section 11
shall include a reference to
19
Section 11.1 through 11.13 inclusive). The titles and headings
herein are for reference purposes only and shall not in any manner
limit the construction of this Agreement which shall be considered
as a whole. A reference to a section means a section of this
Agreement, unless the context expressly otherwise requires.
11.11. Governing Law. This Agreement shall be governed by and construed
-------------
under the laws of the State of California.
11.12. Counterparts. This Agreement may be executed concurrently in two
------------
or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
11.13. Severability. Should any one or more of the provisions of this
------------
Agreement or of any agreement entered into pursuant to this
Agreement be determined to be illegal or unenforceable, all other
provisions of this Agreement and of each other agreement entered
into pursuant to this Agreement, shall be given effect separately
from the provision or provisions determined to be illegal or
unenforceable and shall not be affected thereby.
IN WITNESS WHEREOF, the Company and each of the Investors has caused this
Agreement to be executed by its duly authorized representatives in counterpart.
COMPANY: PLASMA & MATERIALS TECHNOLOGIES, INC.
By: /s/ John W. LaValle
-------------------------------------------
Its: VP, CFO, Corp. Secretary
----------------------------------------
INVESTORS: ST. PAUL FIRE AND MARINE INSURANCE COMPANY
By: /s/ Brian D. Jacobs
-------------------------------------------
Its Authorized Representative
-----------------------------------------
BRENTWOOD ASSOCIATES V, L.P.
By: Brentwood V Ventures, L.P.
Its: General Partner
By: /s/ G. Bradford Jones
-------------------------------------------
Its General Partner
20
SBIC PARTNERS, L.P.,
a Texas limited partnership
By: Forrest Binkley & Brown L.P.,
a Texas limited partnership
By: Forrest Binkley & Brown Venture Co.,
a Texas corporation
General Partner
By: /s/ Jeffrey J. Brown
---------------------------------
Jeffrey J. Brown
Office of the President
By: SL-SBIC Partners, L.P.,
a Texas limited partnership
By: FW-SBIC, Inc.,
a Texas corporation
General Partner
By: /s/ Peter Sterling
---------------------------------
Peter Sterling
Chairman
/s/ Bruce Hendry
----------------------------------------------
BRUCE HENDRY
TONKAWA N.G. PARTNERS
By /s/ John P. Nagel
--------------------------------------------
John P. Nagel
General Partner
21
SCHEDULE 1
NAMES AND ADDRESSES OF INVESTORS
==============================================================================================
Maximum Principal Number of
Name and Address of Investor Amount of Note Warrant Shares
- ----------------------------------------------------------------------------------------------
St. Paul Fire and Marine Insurance Company $1,250,000 49,020
c/o St. Paul Venture Capital
8500 Normandale Lake Boulevard
Suite 1940
Bloomington, Minnesota 55437
Attention: Brian Jacobs
- ----------------------------------------------------------------------------------------------
SBIC Partners, L.P. $1,250,000 49,020
201 Main Street
Suite 2302
Fort Worth, Texas 76102
- ----------------------------------------------------------------------------------------------
Brentwood Associates V, L.P. $1,250,000 49,020
c/o Brentwood Associates
11150 Santa Monica Boulevard
Suite 1200
Los Angeles, California 90025
Attention: Brad Jones
- ----------------------------------------------------------------------------------------------
Bruce Hendry $1,250,000 49,020
Summit Investment Corp.
900 Second Avenue South
Suite 500
Minneapolis, Minnesota 55402
- ----------------------------------------------------------------------------------------------
Tonkawa N.G. Partners $1,250,000 49,020
c/o Carlson Investment Group
P.O. Box 59159
Minneapolis, Minnesota 55459
Attention: John Nagel
- ----------------------------------------------------------------------------------------------
TOTAL: $6,250,000 245,100
==============================================================================================
EXHIBIT A
FORM OF SUBORDINATED PROMISSORY NOTE
Filed herewith as Exhibit 4.5 to the Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1996.
EXHIBIT B
FORM OF WARRANT
Filed herewith as Exhibit 4.6 to the Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1996.
EXHIBIT C
NOTICE OF BORROWING
[Investors]
[Addresses]
Ladies and Gentlemen:
This Notice of Borrowing is delivered to you pursuant to Section 1.4 of the
Note Purchase and Loan Agreement, dated as of December __, 1996 (together will
all amendments, if any, from time to time made thereto, the "Note Agreement"),
among you and the undersigned. Capitalized terms used without definition herein
have the meanings specified in the Note Agreement.
The undersigned hereby requests that an amount of the Loan equal to
$_______ in the aggregate ($_____ from each of the Investors) be made to the
undersigned on _________, 199__ ("Funding Date").
The undersigned hereby represents and warrants to the Investors that as of
the date hereof:
(a) no Event of Default has occurred and is continuing;
(b) the representations and warranties of the undersigned set forth in the
Note Agreement are true and correct in all material respects as if
made on and as of the date hereof, except to the extent such
representations and warranties relate solely to an earlier date, in
which case such representations and warranties were true and correct
as of such date; and
(c) the undersigned has complied with each covenant and other agreement
set forth in the Note Agreement.
The undersigned agrees that if prior to the Funding Date any matter
certified herein will not be true and correct as of the Funding Date, the
undersigned will immediately so notify the Investors. Each matter certified
herein shall be deemed to be certified as true and correct on the Funding Date.
Please deliver the proceeds of the Loan requested in this Notice of
Borrowing by wire transfer in accordance with the following instructions:
__________________________________
__________________________________
__________________________________
The undersigned has caused this Notice of Borrowing to be executed and
delivered by its duly authorized officer as of this ___ day of ___________,
199__.
PLASMA MATERIALS & TECHNOLOGIES, INC.
By:___________________________________________
Its:_______________________________________