EXHIBIT 10.5
BI INCORPORATED
COMMON STOCK PURCHASE WARRANT
THE TRANSFERABILITY OF THIS WARRANT IS
RESTRICTED AS PROVIDED IN ARTICLE 3
ORIGINAL GRANT DATE: NOVEMBER 3, 1993
REPRICE DATE: APRIL 18, 1994
****************************************************
This is to certify that for value received, receipt of which is acknowledged by
BI Incorporated, a Colorado Corporation, (the "Company"), Colorado Venture
Management (the "Warrant Holder"), or its registered permitted assigns, is
hereby granted the right to purchase Four Thousand Five Hundred (4,500) fully
paid and non-assessable shares of common stock of the Company (the "Warrant
Shares").
This Warrant is exercisable at the Purchase Price per share as provided in
Article 4, payable in cash or by certified or official bank check. Upon
surrender of this Warrant at the Company's principal executive offices
(presently located at 0000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000), together
with the annexed Subscription Form, duly executed, and with payment of the
Purchase Price for the Warrant Shares purchased, the Warrant Holder hereof shall
be entitled to receive a certificate or certificates for the Warrant Shares so
purchased.
1. EXERCISE OF WARRANT
The purchase rights represented by this Warrant are exercisable at the
option of the Warrant Holder hereof, in whole or in part as follows: 4,500
Warrant Shares may be purchased at any time from October 18, 1994 (six
months following the reprice date) until 5:00 p.m., Denver time, November
3, 1998.
2. ISSUANCE OF STOCK CERTIFICATES
The issuance of certificates representing Warrant Shares upon the exercise
of this Warrant shall be made without charge to the Warrant Holder
including, without limitation, any tax which may be payable in respect
thereof, and such certificates shall (subject to the provisions of Articles
3 hereof) be issued in the name of the Warrant Holder; provided, however,
that the Company shall not be required to pay any tax which may be payable
in respect of any transfer involved in the issuance and delivery of any
such certificate in a name other than that of the Warrant Holder and the
Company shall not be required to issue or deliver such certificates unless
or until the Warrant Holder requesting the issuance thereof shall have paid
to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
3. RESTRICTION OF TRANSFER OF WARRANT
The Warrant Holder, by his acceptance hereof, covenants and agrees that
this Warrant is being acquired as an investment and not with a view to the
distribution thereof, and may not be assigned, hypothecated or otherwise
disposed of in the absence of an opinion of counsel satisfactory to the
Company that an exemption from the registration requirements of the
Securities Act of 1933, as amended (the "1933 Act") is applicable to such
sale, transfer, assignment, hypothecation or other disposition.
4. PRICE
4.1 Definition. As used herein, the term "Purchase Price" shall mean the
purchase price as provided in Section 4.2, as such price may be
adjusted from time to time pursuant to Article 6.
4.2 Purchase Price. The purchase price shall be $5.13 per share, which is
the average closing price for the Company's Common Stock (as listed on
the National Association of Securities Dealers Automated Quotation
System) between the dates of February 23, 1994 and April 18, 1994.
5. REGISTRATION RIGHTS
5.1 Registration Under The Securities Act Of 1933. The Warrant Shares
have not been registered under the 1933 Act. Upon the exercise of
this Warrant, each certificate representing the Warrant Shares shall
bear the following legend:
The Shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended. They
may not be sold, offered for sale, transferred, assigned,
hypothecated or otherwise disposed of in the absence of an
effective registration statement as to such shares under that Act
or an opinion of counsel satisfactory to the issuer that an
exemption from registration is applicable to such sale, transfer,
assignment, hypothecation or other designation.
6. ADJUSTMENT RESULTING FROM COMMON STOCK REORGANIZATION
6.1 Subdivision and Combination. In case the Company shall at any time
subdivide or combine the outstanding shares of Common Stock, the
Purchase Price shall forthwith be proportionately decreased in the
case of subdivision or increased in the case of combination.
6.2 Reclassification, Consolidation, Merger, etc. In case of any
reclassification or change of the outstanding shares of Common Stock (other than
a change in par value to no par value, or from no par value to par value, or as
a result of a subdivision or combination), or in the case of any consolidation
of the Company with, or merger of the Company into, another corporation (other
than a consolidation or merger in which the Company is the surviving corporation
and which does not result in any reclassification or change of the outstanding
shares of Common Stock, except a change as a result of a subdivision or
combination of such shares or a change in par value, as aforesaid), the Warrant
Holder shall thereafter have the right to purchase the kind and number of shares
of stock and other securities and property receivable upon such
reclassification, change, consolidation or merger at a price equal to the
product of (x) the number of shares issuable upon exercise of this Warrant and
(y) the Purchase Price in effect immediately prior to the record date for such
reclassification, change, consolidation, merger, sale or conveyance as if such
holder had exercised this Warrant.
7. REPLACEMENT OF WARRANT
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant, and, in case of
loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable
expenses incidental thereto, and upon surrender and cancellation of this
Warrant, if mutilated, the Company will make and deliver a new Warrant of
like tenor, in lieu of this Warrant.
8. RESERVATION OF SHARES
The Company shall at all times reserve and keep available out of its
authorized shares of Common Stock, solely for the purpose of issuance upon
the exercise of this Warrant, such number of shares of Common Stock as
shall be issuable upon the exercise of this Warrant, hereof. The Company
covenants and agrees that, upon exercise of this Warrant and payment of the
Purchase Price therefor, all shares of Common Stock issuable upon such
exercise shall be duly and validly issued, fully paid and non-assessable.
9. NOTICES TO WARRANT HOLDER
Nothing contained in this Warrant shall be construed as conferring upon the
Warrant Holder the right to vote or to consent or to receive notice as a
shareholder in respect of any meetings of shareholders for the election of
directors or any other matter, or as having any rights whatsoever as a
shareholder of the Company. If, however, at any time prior to the
expiration of the warrant and prior to its exercise, any of the following
events shall occur.
(a) The Company shall take a record of the holders of its shares of Common
Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise that in cash, or a cash dividend or
distribution payable otherwise than out of current or retained
earnings, as indicated by the accounting treatment of such dividend or
distribution on the books of the Company; or
(b) The Company shall offer to all holders of its Common Stock (excluding
therefrom the Warrant Holder) any additional shares of capital stock
of the Company or securities convertible into or exchangeable for
shares of capital stock of the Company, or any option, right or
warrant to subscribe therefore; or
(c) A dissolution, liquidation or winding up of the Company (other than in
connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety
shall be proposed;
Then, in any one or more of said events, the Company shall give written
notice of such event at least fifteen (15) days prior to the date fixed as
a record date or the date of closing the transfer books, as the case may
be, for such dividend, distribution, conversion or exchange of securities
or subscription rights, or for voting on such proposed dissolution,
liquidation, winding up or sale, which notice shall specify the record date
or the date of closing the transfer books, as the case may be. Failure to
give such notice or any defect therein shall not affect the validity of any
action taken in connection with the declaration or payment of any such
dividend, or the issuance of any convertible or exchangeable securities, or
subscription rights, options, or warrants, or any proposed dissolution,
liquidation, winding up or sale.
10. SUCCESSORS
All the covenants, agreements, representations and warranties contained in
this Warrant shall bind the parties hereto and their respective heirs,
executors, administrators, distributees, successors and assigns.
11. HEADINGS
The Article and Section headings in this Warrant are inserted for purposes
of convenience only and shall have no substantive effect.
12. LAW GOVERNING
This warrant is delivered in the State of Colorado and shall be construed
and enforced in accordance with, and governed by, the laws of the State of
Colorado.
WITNESS the seal of the Company and the signatures of its duly authorized
President and Secretary.
BI INCORPORATED
By:_________________________________________
Xxxxx X. Xxxxxx, President/CEO
(SEAL)
____________________________________________
Xxxxxxxx X. Xxxxxxx, Xx., Secretary
BI INCORPORATED
SUBSCRIPTION FORM
(To be executed by the Registered Holder
in order to Exercise the Warrant)
The undersigned hereby irrevocably elects to exercise the right to purchase
_____________ shares of common Stock covered by the common Stock Purchase
Warrant dated ______________ (the "Warrant") according to the conditions thereof
and herewith makes payment of the Purchase Price of such shares in full.
I represent and agree that I am over eighteen (18) years of age, that I am
acquiring the Shares for investment and that I have no intention to transfer,
sell or otherwise dispose of such Shares, except as permitted pursuant to the
Agreement and in compliance with applicable securities laws.
I further acknowledge and understand that the Shares must be held indefinitely
unless they are subsequently registered under the Securities Act of 1933 or an
exemption from such registration is available. I further acknowledge and
understand that the Corporation is under no obligation to register the Shares
and that, in the absence of registration or an exemption therefrom, the Shares
may not be transferred. I understand that the instrument evidencing the Shares
will be imprinted with legends which prohibit the transfer of the Shares unless
they are registered or such registration is not required in the opinion of
counsel satisfactory to the Corporation. I do not have any contract, agreement
or arrangement with any persons to sell, transfer or grant participations to
such person or to any third person with respect to any of the Shares.
I am aware of the adoption of Rule 144 by the Securities and Exchange
commission, promulgated under the Securities Act of 1933, which permits limited
public resale of securities acquired in a non-public offering subject to the
satisfaction of certain conditions, including, among other things: the
availability of certain public information about the Corporation, the resale
occurring not less than two years after the party has purchased and paid for the
securities being sold during any three-month period not exceeding specified
limitations (generally, 1% of the total amount outstanding).
I agree further that said Shares are being acquired by me in accordance with and
subject to the terms, provisions and conditions of the Warrant, to all of which
I hereby expressly assent. These agreements shall bind and inure to the benefit
of my heirs, legal representatives, successors and assigns.
Very truly yours,
___________________________________
Name: _______________________________
Address:
___________________________________
___________________________________
Receipt of the above is hereby acknowledged:
BI INCORPORATED
By: ____________________________________
Title: ____________________________________
Date: ____________________________________
