SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13E-3
AMENDMENT NO. 1
RULE 13E-3 TRANSACTION STATEMENT
UNDER SECTION 13(e) OF THE SECURITIES EXCHANGE ACT OF 1934
LASER TECHNOLOGY, INC.
----------------------
(Name of the Issuer)
LASER TECHNOLOGY, INC., LTI ACQUISITION CORP., LTI MERGER SUB, INC.,
DAVID WILLIAMS, DEWORTH WILLIAMS, PAMELA J. SEVY, EDWARD F. COWLE,
JEREMY G. DUNNE, KAMA-TECH CORPORATION AND KAMA-TECH (HK), LTD.
---------------------------------------------------------------
(Names of Persons Filing statement)
COMMON STOCK, $0.01 PAR VALUE
-----------------------------
(Title of Class of Securities)
518074208
---------
(CUSIP Number of Class of Securities)
For Laser Technology, Inc.: For LTI For Kama-Tech Corporation
Acquisition Corp., and Kama-Tech (HK), Ltd.:
LTI Merger Sub, Inc.,
Leonard Neilson, Esq. David Williams, Deworth Richard Forsyth, Esq.
8160 South Highland Williams, Pamela J. Sevy, Sullivan Wertz
Drive Suite 209 Edward F. Cowle, and McDade & Wallace
Sandy, UT 84093 Jeremy G. Dunne: 945 Fourth Avenue
San Diego, CA 92101
James C. Lewis, Esq.
10 West 100 South #615
Salt Lake City, UT 84101
- --------------------------------------------------------------------------------
(Name, Address, and Telephone Numbers of Person Authorized to Receive
Notices and Communications on Behalf of the Persons Filing statement)
This statement is filed in connection with (check the appropriate box):
a. [X] The filing of solicitation materials or an information statement
subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the
Securities Exchange Act of 1934.
b. [_] The filing of a registration statement under the Securities Act of
1933.
c. [_] A tender offer.
d. [_] None of the above.
Check the following box if the soliciting materials or information statement
referred to in checking box (a) are preliminary copies: [X]
Check the following box if the filing is a final amendment reporting the results
of the transaction: [_]
CALCULATION OF FILING FEE*
TRANSACTION VALUE AMOUNT OF FILING FEE
- ----------------- --------------------
$8,262,090 $668.40
*The transaction valuation was based upon the sum of the product of 3,926,195
shares of common stock, $0.01 par value, of Laser Technology, Inc., to be
acquired in the transaction, at a price of $2.06 per share in cash, together
with a sum for outstanding options representing the difference between $2.06 and
the exercise price per share pertaining to a total of 459,600 shares under
options. The amount of the filing fee, calculated in accordance with Rule
0-11(b) of the Securities Exchange Act of 1934, equals $80.90 per million
dollars of transaction value.
[X] Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) of the Securities Exchange Act of 1934 and identify the filing with
which the offsetting fee was previously paid. Identify the previous filing by
registration statement number, or the Form or Schedule and the date of its
filing.
Amount Previously Paid: $668.40
Form or Registration No.: Schedule 14A
Filing Party: Laser Technology, Inc.
Date Filed: August 26, 2003
INTRODUCTION
This Rule 13e-3 Transaction statement on Schedule 13E-3 (the "Schedule
13E-3") is being filed by (i) Laser Technology, Inc., a Delaware corporation
("Laser Technology"), the issuer of the equity securities that are the subject
of the Rule 13e-3 transaction, (ii) LTI Acquisition Corp., a Delaware
corporation ("LTI Acquisition"); (iii) LTI Merger Sub, Inc., a wholly-owned
subsidiary of LTI Acquisition ("LTI Merger Sub"); and (iv) the beneficial owners
of common stock of LTI Acquisition, who are: David Williams, H. Deworth
Williams, Pamela J. Sevy, Edward F. Cowle, Jeremy G. Dunne, Kama-Tech
Corporation and Kama-Tech (HK), Ltd., (together the "Acquisition Group"),
together being the record owners of 28.4% of Laser Technology's common stock, in
connection with the proposed merger of LTI Merger Sub with and into Laser
Technology (the "Merger"), with Laser Technology as the surviving corporation.
As a result of the proposed Merger, (i) Laser Technology will cease to be a
publicly held company and will become a private corporation, all the stock of
which will be beneficially owned by LTI Acquisition, and (ii) each issued and
outstanding share of Laser Technology common stock will be converted into the
right to receive $2.06 in cash, except shares held in treasury and shares
beneficially owned by LTI Acquisition and Acquisition Group, or by any holder
who properly demands appraisal rights under Delaware law will be cancelled.
This is an amendment to a Schedule 13E-3 previously filed by the filing
persons named above. Laser Technology has also previously filed a preliminary
proxy statement, pursuant to Section 14(a) of the Securities Act of 1934, as
amended (the "Exchange Act"), pertaining to the proposed Merger. Concurrently
with the filing of this amended Schedule l3E-3, Laser Technology is filing an
amendment to the preliminary proxy statement, pursuant to which the Laser
Technology board of directors is soliciting proxies from stockholders of Laser
Technology in connection with the Merger. The information in the preliminary
proxy statement, including all appendices and exhibits thereto, is expressly
incorporated by reference into this Schedule 13E-3 in its entirety and responses
to each item in this Schedule 13E-3 are qualified in their entirety by the
information contained in the proxy statement and the appendices and exhibits to
the proxy statement. Capitalized terms used but not defined in this Schedule
13E-3 have the meanings given to them in the proxy statement.
Item 1. Summary Term Sheet.
The information contained in the proxy statement under the heading
"Summary Term Sheet" is incorporated into this Schedule 13E-3 by reference.
Item 2. Subject Company Information.
(a) Name and Address.
The information contained in the proxy statement under the caption
"Summary Term Sheet--Parties to the Merger Agreement" and "The Companies" is
incorporated into this Schedule 13E-3 by reference.
(b) Securities.
The information contained in the proxy statement under the caption
"Summary Term Sheet--Record Date and Quorum" and "The Special Meeting - Record
Date; Stock Entitled to Vote; Quorum" is incorporated into this Schedule 13E-3
by reference.
(c) Trading Market and Price.
The information contained in the proxy statement under the caption "Market
Price and Dividend Information" is incorporated into this Schedule 13E-3 by
reference.
(d) Dividends.
The information contained in the proxy statement under the caption "Market
Price and Dividend Information" is incorporated into this Schedule 13E-3 by
reference.
(e) Prior Public Offerings.
Not applicable.
(f) Prior Stock Purchases.
Not applicable.
Item 3. Identity and Background of the Filing Person.
(a)-(c) Name and Address; Business and Background of Entities; Business
and Background of Natural Persons.
The information contained in the proxy statement under the captions
"Summary Term Sheet--Parties to the Merger Agreement" and "The Companies" is
incorporated into this Schedule 13E-3 by reference.
Item 4. Terms of the Transaction.
(a)(1) Tender Offers.
Not applicable.
(a)(2)(i) Transaction Description.
The information contained in the proxy statement under the captions
"Summary Term Sheet," "Special Factors" and "The Merger Agreement" is
incorporated into this Schedule 13E-3 by reference.
(a)(2)(ii) Consideration.
The information contained in the proxy statement under the captions
"Summary Term Sheet," "Special Factors" and "The Merger Agreement," is
incorporated into this Schedule 13E-3 by reference.
(a)(2)(iii) Reasons for the Transaction.
The information contained in the proxy statement under the captions
"Special Factors--Background of the Merger; Recommendation of the Special
Committee; Recommendation of Our Board of Directors; Opinion of Andersen,
Weinroth & Partners, LLC; LTI Acquisition's and Affiliates' Position as to the
Fairness of the Merger; The Special Committee's and Board of Director's
Purposes, Alternatives and Reasons for the Merger; LTI Acquisition's and
Affiliates' Purposes, Alternatives and Reasons for the Merger; and Effects of
the Merger," is incorporated into this Schedule 13E-3 by reference.
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(a)(2)(iv) Vote Required For Approval.
The information contained in the proxy statement on the cover page and
under the captions "Summary Term Sheet--Conditions to the Merger," "The Special
Meeting--Vote Required," and "The Merger Agreement--Conditions to the Merger" is
incorporated into this Schedule 13E-3 by reference.
(a)(2)(v) Differences in the Rights of Security Holders.
The information contained in the proxy statement under the captions
"Summary Term Sheet--Merger Consideration and Payment for Shares; Interests of
Certain Persons in the Merger," "Special Factors--Interests of Certain Persons
in the Merger; Merger Consideration; and Effect on Stock Options and Warrants"
is incorporated into this Schedule 13E-3 by reference.
(a)(2)(vi) Accounting Treatment.
The information contained in the proxy statement under the caption
"Special Factors--Accounting Treatment" is incorporated into this Schedule 13E-3
by reference.
(a)(2)(vii) Income Tax Consequences.
The information contained in the proxy statement under the captions
"Summary Term Sheet--Material U.S. Federal Income Tax Consequences" and "Special
Factors--Material U.S. Federal Income Tax Consequences" is incorporated into
this Schedule 13E-3 by reference.
(b) Purchases.
The information contained in the proxy statement under the caption
"Special Factors--Interests of Certain Persons in the Merger" is incorporated
into this Schedule 13E-3 by reference.
(c) Different Terms.
The information contained in the proxy statement under the captions
"Summary Term Sheet--Merger Consideration and Payment for Shares" and "Special
Factors--Payment of Shares" is incorporated into this Schedule 13E-3 by
reference.
(d) Appraisal Rights.
The information contained in the proxy statement under the captions
"Summary Term Sheet--Appraisal Rights" and "Special Factors--Appraisal Rights"
is incorporated into this Schedule 13E-3 by reference.
(e) Provisions for Unaffiliated Security Holders.
None.
(f) Eligibility for Listing or Trading.
Not applicable.
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Item 5. Past Contacts, Transactions, Negotiations and Agreements.
(a) Transactions with Laser Technology.
None.
(b)-(c) Significant Corporate Events; Negotiations or Contracts.
The information contained in the proxy statement under the captions
"Summary Term Sheet--Interests of Certain Persons in the Merger," "Special
Factors--Background of the Merger; Interests of Certain Persons in the Merger"
is incorporated into this Schedule 13E-3 by reference.
(d) Conflicts of Interest.
The information contained in the proxy statement under the captions
"Summary Term Sheet--Interests of Certain Persons in the Merger," "Special
Factors--Background of the Merger; Interests of Certain Persons in the Merger,"
and "The Merger Agreement--Terms of the Merger" is incorporated into this
Schedule 13E-3 by reference.
(e) Agreements Involving the Subject Company's Securities.
The information contained in the proxy statement on the cover page and
under the captions "Summary Term Sheet--Interests of Certain Persons in the
Merger; The Merger," "Special Factors--Background of the Merger; Fairness of the
Merger; Recommendation of the Special Committee of Our Board of Directors;
Interests of Certain Persons in the Merger," "The Special Meeting--Purpose of
the Special Meeting," and "The Merger Agreement--Appraisal Rights," is
incorporated into this Schedule 13E-3 by reference.
Item 6. Purposes of the Transaction and Plans or Proposals.
(a) Purposes.
The information contained in "Special Factors--Background of the Merger;
Fairness of the Merger; Recommendation of the Special Committee of Our Board of
Directors; The Special Committee's and Board of Director's Purposes,
Alternatives and Reasons for the Merger; LTI Acquisition's and Affiliates'
Purposes, Alternatives and Reasons for the Merger; and Effects of the Merger,"
is incorporated into this Schedule 13E-3 by reference.
(b) Use of Securities Acquired.
The information contained in the proxy statement under the captions
"Summary Term Sheet," "Special Factors--Fairness of the Merger; Recommendation
of the Special Committee of Our Board of Directors; and Effects of the Merger,"
is incorporated into this Schedule 13E-3 by reference.
(c) Plans.
The information contained in the proxy statement under the captions
"Summary Term Sheet--The Merger; Interests of Certain Persons in the Merger,"
"Special Factors--Background of the Merger; Interests of Certain Persons in the
Merger; and Effects of the Merger," is incorporated into this Schedule 13E-3 by
reference.
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Item 7. Purposes, Alternatives, Reasons and Effects.
(a) Purposes.
The information contained in the proxy statement under the captions
"Summary Term Sheet" and "Special Factors--Background of the Merger; Fairness of
the Merger; Recommendation of the Special Committee of Our Board of Directors;
The Special Committee's and Board of Director's Purposes, Alternatives and
Reasons for the Merger; LTI Acquisition's and Affiliates' Purposes, Alternatives
and Reasons for the Merger; and Effects of the Merger," is incorporated into
this Schedule 13E-3 by reference.
(b) Alternatives.
The information contained in the proxy statement under the captions
"Special Factors--Fairness of the Merger; Recommendation of the Special
Committee of Our Board of Directors; Opinion of Andersen, Weinroth & Partners,
LLC; The Special Committee's and Board of Director's Purposes, Alternatives and
Reasons for the Merger; Effects of the Merger," is incorporated into this
Schedule 13E-3 by reference.
(c) Reasons.
The information contained in the proxy statement under the captions
"Summary Term Sheet--Opinion of Our Financial Advisor; Recommendation of the
Special Committee; LTI Acquisition's and Affiliates' Position as to the Fairness
of the Merger; Opinion of Our Financial Advisor," and "Special
Factors--Background of the Merger; Fairness of the Merger; Recommendation of the
Special Committee of Our Board of Directors; Recommendation of Our Board of
Directors; The Special Committee's and Board of Director's Purposes,
Alternatives and Reasons for the Merger; LTI Acquisition's and Affiliates'
Purposes, Alternatives and Reasons for the Merger; and Effects of the Merger,"
is incorporated into this Schedule 13E-3 by reference.
(d) Effects.
The information contained in the proxy statement under the captions
"Summary Term Sheet" and "Special Factors--Effects of the Merger; Material U.S.
Federal Income Tax Consequences" is incorporated into this Schedule 13E-3 by
reference.
Item 8. Fairness of the Going-Private Transaction.
(a)-(b) Fairness; Factors Considered in Determining Fairness.
The information contained in the proxy statement under the captions
"Summary Term Sheet--Recommendation of the Special Committee; Opinion of Our
Financial Advisor; LTI Acquisition's and Affiliates' Position Concerning
Fairness," "Special Factors--Fairness of the Merger; Recommendation of the
Special Committee of Our Board of Directors; Recommendation of Our Board of
Directors; LTI Acquisition's and Affiliates' Position as to the Fairness of the
Merger; and Opinion of Andersen, Weinroth & Partners, LLC," is incorporated into
this Schedule 13E-3 by reference.
(c) Approval of Security Holders.
The information contained in the proxy statement on the cover page and
under the captions "Summary Term Sheet--Purpose of the Special Meeting; Vote
Required; The Merger," "The Special Meeting--Voting by Our Directors, Executive
Officers and Certain Shareholders; Voting of Common
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Stock," and "The Merger Agreement--Terms of the Merger" is incorporated into
this Schedule 13E-3 by reference.
(d) Unaffiliated Representative.
The information contained in the proxy statement under the captions
"Summary Term Sheet--Special Committee; Fairness of the Merger; Recommendation
of the Special Committee; LTI Acquisition's and Affiliates' Position Concerning
Fairness," "Special Factors--Background of the Merger; Fairness of the Merger;
Recommendation of the Special Committee of Our Board of Directors; Opinion of
Andersen, Weinroth & Partners, LLC; LTI Acquisition's and Affiliates' Position
as to the Fairness of the Merger," and "The Merger Agreement--Terms of the
Merger" is incorporated into this Schedule 13E-3 by reference.
(e) Approval Of Directors.
The information contained in the proxy statement under the captions
"Summary Term Sheet--Special Committee; Recommendation of the Special Committee;
LTI Acquisition's and Affiliates' Position Concerning Fairness," "Special
Factors--Background of the Merger; Fairness of the Merger; Recommendation of the
Special Committee of Our Board of Directors; Recommendation of Our Board of
Directors; Opinion of Andersen, Weinroth & Partners, LLC," and "The Merger
Agreement--Terms of the Merger" is incorporated into this Schedule 13E-3 by
reference.
(f) Other Offers.
The information contained in the proxy statement under the caption
"Special Factors--Background of the Merger" is incorporated into this Schedule
13E-3 by reference.
Item 9. Reports, Opinions, Appraisals and Negotiations.
(a)-(c) Report, Opinion Or Appraisal; Preparer And Summary Of the Report,
Opinion or Appraisal; Availability of Documents.
The information contained in the proxy statement under the captions
"Summary Term Sheet--Opinion of Our Financial Advisor" and "Special
Factors--Background of the Merger; Opinion of Andersen, Weinroth & Partners,
LLC," is incorporated into this Schedule 13E-3 by reference.
The full text of the written opinion of Andersen, Weinroth & Partners,
LLC, dated July 31, 2003, is attached to the proxy statement as Appendix B
thereto and is incorporated into this Schedule 13E-3 by reference.
Item 10. Source and Amounts of Funds or Other Consideration.
The information contained in the proxy statement under the captions
"Summary Term Sheet--Costs and Expenses of the Merger; Financing of the Merger,"
"Special Factors--Fees and Expenses of the Merger; Financing of the Merger," and
"The Merger Agreement--Terms of the Merger," is incorporated into this Schedule
13E-3 by reference.
6
Item 11. Interest in Securities of the Subject Company.
(a) Securities Ownership.
The information contained in the proxy statement under the captions "The
Companies--LTI Acquisition" and "Security Ownership of Certain Beneficial Owners
and Management" is incorporated into this Schedule 13E-3 by reference.
(b) Securities Transactions.
On August 7, 2003, Edward F. Cowle gifted a total of 94,405 shares of
Laser Technology's common stock, to his brother Tod Cowle. As a result of this
transaction, Mr. Cowle now beneficially holds 102,220 shares of Laser
Technology.
Except as indicated in the preceding paragraph, there have been no
transactions in the securities of Laser Technology during the past sixty (60)
days.
Item 12. The Solicitation or Recommendation.
The information contained in the proxy statement under the captions
"Summary Term Sheet--Special Committee; Recommendation of the Special Committee;
Vote Required; Opinion of Our Financial Advisor; LTI Acquisition's and
Affiliates' Position Concerning Fairness," "Special Factors--Background of the
Merger; Fairness of the Merger; Recommendation of the Special Committee of Our
Board of Directors; Recommendation of Our Board of Directors; Opinion of
Andersen, Weinroth & Partners, LLC; LTI Acquisition's and Affiliates' Position
as to the Fairness of the Merger," and the information contained on the cover
page of the proxy statement, are each incorporated into this Schedule 13E-3 by
reference.
Item 13. Financial Statements.
(a) Financial Information.
The information contained in the proxy statement under the caption
"Selected Financial Information" is incorporated into this Schedule 13E-3 by
reference. The information contained in Item 8 of Laser Technology's Annual
Report on Form 10-KSB for the fiscal year ended September 30, 2002, is
incorporated into this Schedule 13E-3 by reference. The information contained in
Item 1 of Laser Technology's Quarterly Report on Form 10-QSB for the quarter
ended June 30, 2003 is incorporated into this Schedule 13E-3 by reference.
(b) Pro Forma Information.
The information contained in the proxy statement under the caption "Pro
Forma and LTI Acquisition Financial Information" is incorporated into this
Schedule 13E-3 by reference.
Item 14. Persons/Assets, Retained, Employed, Compensated or Used.
(a)-(b) Solicitations or Recommendations; Employees and Corporate Assets.
The information contained in the proxy statement under the caption "The
Special Meeting--Solicitation of Proxies" is incorporated into this Schedule
13E-3 by reference.
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Item 15. Additional Information.
Other Material Information
The information contained in the proxy statement, including all appendices
and exhibits thereto, is incorporated into this Schedule 13E-3 by reference.
Item 16. Exhibits.
(a) Preliminary proxy statement filed with the Securities and Exchange
Commission on August 26, 2003, and Amendment No. 1 to the proxy statement filed
concurrently with this amended Schedule 13E-3 (incorporated into this Schedule
13E-3 by reference to the preliminary proxy statement).
(b) Funding Agreement dated July 31, 2003, as amended, between Laser
Technology, LTI Acquisition and Kama-Tech (HK) Ltd., pertaining to a bank
account at Wells Fargo Bank West N.A., Greenwood Village, Colorado, Account No.
2153813775, together with a Letter of Credit Commitment from Sumitomo, as
amended.
(c) Opinion of Andersen, Weinroth & Partners, LLC, financial advisor to
the special committee of the board of directors of Laser Technology, dated July
31, 2003 (included as Appendix B to the preliminary proxy statement incorporated
into this Schedule 13E-3 by reference to the preliminary proxy statement).
(d) Agreement and Plan of Merger, dated as of July 31, 2003, by and among
Laser Technology and LTI Acquisition (included as Appendix A to the preliminary
proxy statement incorporated into this Schedule 13E-3 by reference to the
preliminary proxy statement).
(e) None.
(f) Section 262 of the General Corporation Law of the State of Delaware
(included as Appendix C to the preliminary proxy statement incorporated into
this Schedule 13E-3 by reference to the preliminary proxy statement).
(g) None.
(h) None.
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SIGNATURES
After due inquiry and to the best of their knowledge and belief, the
undersigned certify that the information contained in this statement is true,
complete and correct, on October ___, 2003.
LASER TECHNOLOGY, INC.
By: /s/ Eric Miller
------------------------------------
Name: Eric Miller
Title: CEO
LTI ACQUISITION CORP.
By: /s/ David Williams
------------------------------------
Name: David Williams
Title: President
LTI MERGER SUB, INC.
By: /s/ David Williams
------------------------------------
Name: David Williams
Title: President
/s/ David Williams
----------------------------------------
David Williams
/s/ H. Deworth Williams
----------------------------------------
H. Deworth Williams
/s/ Pamela J. Sevy
----------------------------------------
Pamela J. Sevy
/s/ Jeremy G. Dunne
----------------------------------------
Jeremy G. Dunne
/s/ Edward F. Cowle
----------------------------------------
Edward F. Cowle
KAMA-TECH CORPORATION
By: /s/ Toshiya Kamakura
------------------------------------
Name: Toshiya Kamakura
Title: President
KAMA-TECH (HK) LTD.
By: /s/ Ichiro Kamakura
------------------------------------
Name: Ichiro Kamakura
Title: President
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AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of July 31,
2003, by and between Laser Technology, Inc., a Delaware corporation ("LTI"), LTI
Acquisition Corp., a Delaware corporation ("LAC"), and KAMA-TECH (HK) LTD., a
corporation organized under the laws of Hong Kong, and shareholder of LAC
("KAMA-TECH"). Capitalized terms not otherwise defined herein shall have the
respective meanings set forth in the Merger Agreement (as defined below).
RECITALS
A. Simultaneously herewith, LTI and LAC have entered into an Agreement and
Plan of Merger, dated as of the date hereof (the "Merger Agreement"), pursuant
to which LTI has agreed to engage in a business combination with LAC on the
terms set forth therein (the "Merger").
B. Under the terms of Section 3.8 of the Merger Agreement ("Section 3.8"),
LAC is required, at the time of execution of the Merger Agreement, to make
financial arrangements in an amount equal to the Merger Consideration plus the
Option Termination Payments (together referred to hereinafter as the "Purchase
Consideration"), through one or a combination of the following: (i) the securing
of a letter of credit funding for the Purchase Consideration; (ii) the deposit
of the Purchase Consideration into an escrow account (the "Escrow Account"); or
(iii) the establishment of such other financial arrangement as may be acceptable
to the Special Committee or to LTI.
C. The shareholders of LAC have (i) deposited the sum of US$3,437,234 in
cash (the "Cash Deposit") into a bank account at Wells Fargo Bank West N.A. (the
"Bank"), Greenwood Village, Colorado, Account No. 2153813775 (the "Account"),
and (ii) secured a letter of credit funding from Sumitomo Mitsui Banking
Corporation ("SUMITOMO") in the amount of US$4,630,000 (the "Letter of Credit").
A copy of a statement from Wells Fargo Bank, confirming the Cash Deposit in the
Account, and a copy of the Letter of Credit are attached hereto as Exhibits "A"
and "B," respectively. The total of the Cash Deposit and the Letter of Credit is
equal to the Purchase Consideration.
D. The Parties are entering into this Agreement to satisfy the
requirements of the Special Committee and the board of directors of LTI in
accordance with Section 3.8 referenced above.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements contained in this Agreement, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Agreement Concerning Financial Arrangements. In order to satisfy the
requirements of Section 3.8, LAC has established the Account and, with the
assistance of KAMA-TECH, the Letter of Credit, and will maintain the Account
and, along with KAMA-TECH, the Letter of Credit, without any changes or
modifications, until the Effective Time or the termination of the Merger
Agreement in accordance with Section 7 therein (the earlier of which to occur
shall be the "Conclusion Date"). LAC and KAMA-TECH agree that the Cash Deposit
and Letter of Credit have been arranged exclusively for the purpose of
completing the purchase of shares of LTI and payment of the Option Termination
Payments under the terms of
1
the Merger Agreement, and that such Cash Deposit and Letter of Credit will not
be used for any purpose other than the payment of the Purchase Consideration at
Closing. Further, in order to ensure that the Letter of Credit shall remain in
effect until, and be available at, the Conclusion Date, KAMA-TECH agrees to
extend the operation of such Letter of Credit from time to time, as necessary,
through the Conclusion Date (provided, however, that in no case shall KAMA-TECH
be required to extend such Letter of Credit past December 31, 2003).
2. NOTIFICATION AND INSTRUCTIONS TO BANK. Upon execution of this
Agreement, LAC shall promptly provide the Bank with a copy of this Agreement,
together with a cover letter instructing the Bank (receipt of such letter to be
acknowledged by the Bank and a copy thereof delivered as soon as practicable to
LTI) that (i) the release of funds from the Account shall be governed by this
Agreement, (ii) the Cash Deposit in the Account is solely for the purpose of
effectuating a Closing under the Merger Agreement, and (iii) none of the funds
in the Account are to be released to LAC or any officer, director, agent or
employee of LAC, or any signatory on the Account, for any reason except (a) upon
the Closing of the Merger Agreement, or (b) upon the termination of the Merger
Agreement, pursuant to written instructions from LAC attaching a copy of a
notice of release sent to LTI by overnight courier at least three (3) days prior
to the date of the instructions. Until such Conclusion Date, LAC shall cause the
Bank to provide to LTI such verification of the Cash Deposit, and receipt and
acknowledgment of the instructions described above, as LTI may reasonably
request.
3. NOTIFICATION AND INSTRUCTIONS TO SUMITOMO. Upon execution of this
Agreement, LAC and/or KAMA-TECH shall promptly provide SUMITOMO with a copy of
this Agreement, together with a cover letter instructing SUMITOMO (receipt of
such letter to be acknowledged by SUMITOMO and a copy thereof delivered as soon
as practicable to LTI) that (i) the release of funds under the Letter of Credit
shall be governed by this Agreement, (ii) the Letter of Credit is solely for the
purpose of effectuating a Closing under the Merger Agreement and (iii) neither
all nor a portion of the Letter of Credit are to be released to KAMA-TECH, LAC
or any officer, director, agent or employee of KAMA-TECH, LAC, or any signatory
on the Letter of Credit, for any reason except (a) upon the Closing of the
Merger Agreement, or (b) upon the termination of the Merger Agreement, pursuant
to written instructions from LAC and/or KAMA-TECH attaching a copy of a notice
of release sent to LTI by overnight courier at least three (3) days prior to the
date of the instructions. Until such Conclusion Date, LAC and KAMA-TECH shall
cause SUMITOMO to provide to LTI such verification of the Letter of Credit, and
receipt and acknowledgment of the instructions described above, as LTI may
reasonably request.
4. MISCELLANEOUS.
(a) BENEFIT AND ASSIGNMENT. This Agreement shall be binding upon each
party hereto and such party's successors and assigns.
(b) HEADINGS. The section headings herein are for convenience only and
shall not affect the construction hereof.
(c) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado. Any suit, action or
proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with, this Agreement or the transactions contemplated
hereby or thereby may be brought in any federal or state court located in the
State of Colorado, and each of the parties hereby consents to the jurisdiction
of such courts (and of the appropriate appellate courts therefrom) in any such
suit,
2
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court.
(d) SEVERABILITY. If any term, provision, covenant or restriction of this
Agreement is held to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
(e) AMENDMENTS; ENTIRE AGREEMENT. This Agreement may not be modified,
amended, altered or supplemented, except upon the execution and delivery of a
written agreement executed by the parties hereto. This Agreement contains the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements and
understandings, oral or written, with respect to such transactions.
(f) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same Agreement.
(g) NOTICES. All notices, requests and other communications to either
party hereunder shall be in writing (including facsimile or similar writing) and
shall be given,
(i) if to LTI:
Laser Technology, Inc.
7070 South Tuscon Way, Garden Level B
Englewood, CO 80112
Attention: Eric A. Miller
Telephone: (303) 649-1000
Facsimile: (303) 649-9710
with a copy (which shall not constitute notice) to:
Leonard Neilson, Esq.
8160 South Highland Drive, Suite 209
Sandy, UT 84093
Telephone: (801) 733-0800
Facsimile:(801) 733-0808
(ii) if to LAC:
Laser Acquisition Corp.
4875 DTC Boulevard #5-203
Denver, CO 80237
Attention: David Williams
Telephone: (303) 551-0670
Facsimile: (303) 551-0671
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with a copy (which shall not constitute notice) to:
James C. Lewis, Esq.
10 West 100 South #615
Salt Lake City, UT 84101
Telephone: (801) 994-3846
Facsimile: (801) 355-0289
(iii) if to KAMA-TECH:
Kama-Tech Corporation
739 Design Court, # 503
Chula Vista, CA 91911
Telephone: (619) 421-7858
Facsimile: (619) 421-8015
with a copy (which shall not constitute notice) to:
Richard Forsyth
Sullivan, Wertz, McDade & Wallace
945 4th Ave.
San Diego, CA 92101
Telephone: (619) 233-1888
Facsimile: (619) 696-9476
or to such other address or facsimile number as either party may hereafter
specify for the purpose by notice to the other party hereto. Each such notice,
request or other communication shall be effective (i) if given by facsimile,
when such facsimile is transmitted to the facsimile number specified in this
Section 3(g) and the appropriate facsimile confirmation is received or (ii) if
given by any other means, when delivered at the address specified in this
Section 3(g).
(h) EXPENSES. Each party hereto shall pay its own expenses incurred in
connection with this Agreement, except as otherwise specifically provided
herein.
(i) SURVIVAL. All representations, warranties and covenants contained
herein shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
(j) TERMINATION. This Agreement shall terminate upon the earliest to occur
of (a) the termination of the Merger Agreement in accordance with its terms or
(b) Closing of the Merger.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed as of the date first above written.
LASER TECHNOLOGY, INC.
By: /s/ Eric A. Miller
-------------------------------------
Name: Eric A. Miller
Title: President and CEO
LTI ACQUISITION CORP.
By: /s/ David Williams
-------------------------------------
Name: David Williams
Title: President
KAMA-TECH (HK) LTD.
By: /s/ Ichiro Kamakura
-------------------------------------
Name: Ichiro Kamakura
Title: President
5
FIRST AMENDMENT TO
FUNDING AGREEMENT
THIS AMENDMENT (the "Amendment") is made and entered into as of August __,
2003, by and between Laser Technology, Inc., a Delaware corporation ("LTI"), LTI
Acquisition Corp., a Delaware corporation ("LAC"), and KAMA-TECH (HK) LTD., a
corporation organized under the laws of Hong Kong and shareholder of LAC
("KAMA-TECH").
RECITALS
A. On or about July 31, 2003, the parties entered into an agreement (the
"Funding Agreement"), in connection with that certain Agreement and Plan of
Merger between LTI, LAC, and LTI Merger Sub, Inc., a Delaware corporation, and
certain shareholders of LTI, entered into as of the same date (the "Merger
Agreement"), pursuant to which, among other things, LTI and Kama-Tech made
certain representations and warranties pursuant to Section 3.8 of the Merger
Agreement.
B. Subsequent to the execution of the Funding Agreement, Edward Cowle, one
of the principals of LTI, gifted a total of 94,405 shares of common stock held
by him, to his brother, Tod Cowle (the "Gifted Shares"). As a result of this
transaction, the amount of the Purchase Consideration set forth in the Funding
Agreement, and in Section 3.8 of the Merger Agreement, has increased by the sum
of $194,474.30, representing the number of Gifted Shares, multiplied by the
purchase price per share of $2.06 in the Merger Agreement. This sum has been
transferred to the Account at the Bank (as defined in the Funding Agreement),
and the Funding Agreement needs to be amended to reflect this change.
C. Under paragraph 2 of the Funding Agreement, LAC is required to cause
the Bank to provide, until the Conclusion Date (as defined therein), such
verification of the Cash Deposit (as defined therein), as LTI may reasonably
request, and receipt and acknowledgement of the instructions described in
paragraph 2 of the Funding Agreement. LTI has requested that LAC cause the Bank
to provide such acknowledgement of the instructions. LAC has notified the Bank
of the existence of the Funding Agreement and its terms, and provided the Bank
with a copy of the Merger Agreement and Funding Agreement. However, it has not
been able to obtain the acknowledgement from the Bank. In lieu of such
acknowledgement, the parties have agreed that: (a) LAC will make Elizabeth
Hearty, in her capacity as Secretary and Chief Financial Officer of LTI, a
signatory on the Account; (b) the Account will be amended with the Bank so that
Ms. Hearty will be a required signatory on any disbursements from the Account;
and (c) Ms. Hearty will be required to agree to these terms, as set forth below,
and agree that she will not make any disbursements except for the purpose of
completing the purchase of shares of LTI under the Merger Agreement or with
respect to the termination of the Merger Agreement, as the case may be.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements contained in this Amendment, and other good and
valuable consideration, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Paragraph C of the Premises of the Funding Agreement shall be amended
to add the following paragraph:
As of August 13, 2003, the shareholders of LAC have (i) deposited
the sum of US$3,631,708.30, in cash (the "Cash Deposit") into a bank
account at Wells Fargo Bank West N.A. (the "Bank"), Greenwood Village,
Colorado, Account No. 2153813775 (the "Account"), and (ii) secured a
letter of credit funding from Sumitomo Mitsui Banking Corporation
("SUMITOMO") in the amount of US$4,630,000 (the "Letter of Credit"). A
copy of a statement from Wells Fargo Bank, confirming the Cash Deposit in
the Account, and a copy of the Letter of Credit are attached hereto as
Exhibits "A" and "B," respectively. The total of the Cash Deposit and the
Letter of Credit is equal to the Purchase Consideration.
2. As of the date of this Amendment, Elizabeth Hearty has been made a
signatory on the Account. Attached hereto as Exhibit "C," is a letter from the
Bank, verifying that: (a) Ms. Hearty is a signatory on the Account; (b) the
signature of Ms. Hearty is required for any disbursements on the Account, and
(c) the signatories on the Account may not be changed without the express
written consent of Ms. Hearty. By executing this Amendment, below, Ms. Hearty
agrees to the terms of this Amendment, and further agrees that she will not
authorize any disbursements, withdrawals or payments from the Account, or any
change in the signatories on the Account, for any purpose except the purchase of
shares of LTI pursuant to the terms of the Merger Agreement, or the termination
of the Merger Agreement, and pursuant to joint written instructions from LAC and
LTI. In the event that Ms. Hearty is unable, for any reason, to perform her
responsibilities as outlined in this Amendment, LAC, in consultation with LTI,
shall confirm such in writing with the Bank (with a written copy of such
confirmation provided to LTI in advance of its delivery to the Bank), and LAC
shall promptly appoint such other individual, as designated by LTI, in its sole
discretion, to act as a required signatory on the Account. In no event shall LAC
appoint a replacement signatory for Ms. Hearty unless such replacement signatory
shall have been approved by LTI. Upon execution of this Amendment by LAC, LTI
and Kama-Tech, and by Ms. Hearty as provided below, this paragraph shall be in
lieu of the requirement in the last sentence of paragraph 2 of the Funding
Agreement, that the Bank provide acknowledgement of the instructions.
3. Except as the Funding Agreement may be amended and modified as a result
of paragraphs 1 and 2 above, the Funding Agreement shall remain unchanged and in
full force.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be signed as of the date first above written.
LASER TECHNOLOGY, INC.
By: /s/ Eric A. Miller
------------------------------------
Name: Eric A. Miller
Title: President and CEO
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LTI ACQUISITION CORP.
By: /s/ David Williams
------------------------------------
Name: David Williams
Title:
KAMA-TECH (HK) LTD.
By: /s/ Ichiro Kamakura
------------------------------------
Name: Ichiro Kamakura
Title: President
ACKNOWLEDGEMENT AND AGREEMENT TO TERMS
The undersigned, acting in her capacity as Secretary and CFO of LTI,
hereby acknowledges the terms of the above Amendment, and agrees that she will
(a) act as a signatory on the Account, as outlined in the Amendment; (b) not
effect any disbursements, withdrawals, or payments on the Account except
pursuant to the written instructions as outlined above; (c) not agree to change
or otherwise amend the signatories (including herself) to the Account except
pursuant to the written instructions outlined above; and (d) as an officer and
fiduciary of LTI, comply in all respects with the terms of the Amendment.
DATED the ___ day of August, 2003.
/s/ Elizabeth Hearty
----------------------------------------
Elizabeth Hearty
3