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EXHIBIT 4.5
NEW VASCO WARRANT AGREEMENT
This Agreement is by and among VASCO Data Security
International, Inc., a Delaware corporation ("New VASCO"), VASCO CORP., a
Delaware corporation ("Current VASCO") and the undersigned (the
"Warrantholder"), which is the holder of warrants to acquire shares of common
stock of Current VASCO (the "Current VASCO Warrants"), copies of which are
attached hereto as Schedule(s) ______ and originals of which have been delivered
to New VASCO.
Pursuant to the Prospectus of New VASCO dated _____________,
1997, as supplemented and amended prior to the Expiration Date as defined
therein (the "Prospectus"), New VASCO has offered to the Warrantholder the right
to acquire the same number of shares of common stock of New VASCO on the same
terms and conditions, including the exercise price and the expiration date, as
provided for in the Current VASCO Warrants, in exchange for (i) the cancellation
of the Current VASCO Warrants and (ii) the release set forth in Section 3 below
in favor of Current VASCO or any of its predecessor entities (the "VASCO
Predecessors") consisting of VASCO Corp., a corporation incorporated in Delaware
on May 22, 1984 ("Old VASCO"), and Ridge Point Enterprises, Inc., incorporated
in Utah on January 7, 1985 (and subsequently renamed VASCO Corp. ("VASCO Utah"),
and the respective successors and assigns of each of the foregoing, including
New VASCO (Current VASCO, New VASCO, the VASCO Predecessors and all such
successors and assigns being collectively referred to hereinafter as "VASCO").
NOW, THEREFORE, for good and valuable consideration, the
receipt of which hereby is acknowledged, the parties hereto agree as follows:
1. GRANT OF NEW VASCO WARRANTS. New VASCO hereby grants to the
Warrantholder warrants to purchase shares of common stock of New VASCO in
accordance with the provisions, and on the same terms and conditions, set forth
in the Current VASCO Warrants but modified so that all references in the Current
VASCO Warrants to "VASCO Corp." shall be changed and deemed to refer to "VASCO
Data Security International, Inc." and all references to shares of "Common Stock
of VASCO Corp." or similar terms shall be changed and deemed to refer to shares
of "Common Stock of VASCO Data Security International, Inc." or similar terms.
The purchase price per share of New VASCO common stock and the number of such
shares purchasable pursuant to a New VASCO Warrant shall be adjusted from time
to time as provided in Exhibit A hereto. The Current VASCO Warrants as so
modified by the preceding are incorporated herein as if set forth in full hereto
with such modifications and are herein referred to as the "New VASCO Warrants."
The Warrantholder acknowledges that the grant of New VASCO Warrants and the
cancellation of the Current VASCO Warrants effected by this Agreement may result
in the recognition of gain or loss for tax purposes by the Warrantholder, and
further agrees that such tax consequences are solely his, her or its
responsibility, and not that of Current VASCO or New VASCO. The Warrantholder
shall have no rights as a stockholder with respect to the New VASCO common stock
into which the New VASCO Warrants are exercisable until proper exercise of a New
VASCO Warrant and delivery to the
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Warrantholder of such shares as provided in the New VASCO Warrants. All shares
acquired by the Warrantholder pursuant to this Agreement shall be subject to any
restrictions on sale, encumbrance and other disposition under applicable
securities laws.
2. CANCELLATION OF CURRENT VASCO WARRANTS. The Current VASCO
Warrants hereby are canceled and shall be of no further force and effect. The
Warrantholder hereby agrees to the cancellation of the Current VASCO Warrants.
3. RELEASE. The Warrantholder hereby forever releases and
fully discharges VASCO, and each of them, from and against all direct or
indirect demands, claims, payments, obligations, actions or causes of action,
assessments, losses, liabilities, damages (including without limitation special,
consequential, exemplary, punitive and similar damages), reasonable costs and
expenses paid or incurred, or diminutions in value of any kind or character
(whether or not known or asserted prior to the date hereof, fixed or unfixed,
conditional or unconditional, xxxxxx or inchoate, liquidated or unliquidated,
secured or unsecured, accrued, absolute, contingent or otherwise), that the
Warrantholder now has or ever had against VASCO or the assets of Current VASCO
or any of the VASCO Predecessors as a result of acts or omissions occurring on
or before the date of the Prospectus which arise from or are in connection with
(i) any prior authorization, designation or issuance of stock,
any stock split, reclassification, redesignation, dividend or
distribution of or upon stock, any amendment to the certificate or
articles of incorporation or bylaws including those affecting the
amount, rights, powers or preferences of stock, and any failure to
properly authorize, approve or effect any of the foregoing actions,
including (a) the failure by Old VASCO to document whether an amendment
to its Certificate of Incorporation was duly authorized or to file a
Certificate of Amendment with the Delaware Secretary of State to amend
its Certificate of Incorporation in December 1984 to effect a
three-for-one stock split to increase the 50,000 authorized shares of
its common stock to 150,000 authorized common shares and to provide
for 600,000 shares of non-voting common stock prior to purportedly
effecting the stock split and issuing a number of such non-voting
common shares which cannot be determined due to the unavailability of
documentation concerning any purported issuance of such non-voting
common shares, (b) the failure by Old VASCO to document whether
director and stockholder approval was obtained for an amendment to its
Certificate of Incorporation increasing the number of authorized
shares of common stock to 6,900,000 shares in September 1986, (c) the
purported issuance of 317,181 shares of preferred stock in November
1989 by VASCO Utah at a time when the issuance of preferred shares was
not authorized by VASCO Utah's charter, and (d) the purported issuance
of 317,181 shares of preferred stock by Current VASCO in connection
with the 1990 merger when, although Current VASCO's Certificate of
Incorporation authorized 500,000 shares of preferred stock, the
rights, powers and preferences of such stock were not specified
in Current VASCO's Certificate of Incorporation and its
Certificate of Incorporation did not provide its Board of Directors
the power to designate such rights, powers and preferences;
(ii) any failure to properly design, approve, adopt,
administer, or authorize the number of shares subject to, any stock
option plan or program, including actions required to allow for options
awarded thereunder to be treated as incentive stock options under the
Internal Revenue Code of 1986, as amended (the "Code"), including,
beginning in 1985, the failure by Old VASCO, VASCO Utah and/or Current
VASCO to (a) document approval by the Board of Directors and
stockholders of stock option plans, (b) specify and authorize the
number of shares of stock to be subject to such plans, (c) reserve the
number of shares subject to such plans, (d) document the authorization
for the grant of options pursuant to such plans and the issuance of
shares upon exercise of such options, and (e) design such plans in a
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manner that would ensure options granted thereunder would be treated as
incentive stock options;
(iii) any organization or any merger, consolidation, share
exchange, reorganization, recapitalization, sale of assets or like
event, or any failure properly to authorize, approve, effect or
consummate same, including (a) the failure to document the approval by
Old VASCO's stockholders of the September 1986 reorganization through
the share exchange undertaken by Old VASCO and Ridge Point
Enterprises, Inc./VASCO Utah, (b) the failure to document whether all
stockholders of Old VASCO voluntarily exchanged their shares for
shares of Ridge Point Enterprises, Inc./VASCO Utah, (c) the failure to
document the mechanics of the exchange of 6,900,000 shares of Old VASCO
for 12,800,000 common shares of Ridge Point Enterprises, Inc./VASCO
Utah, and (d) the following procedural irregularities which call into
question the validity of the intended 1990 merger of VASCO Utah and
Current VASCO, as well as Current VASCO's title to the assets of VASCO
Utah purportedly succeeded to by Current VASCO by virtue of the
merger: (1) the incorporation of Current VASCO, after the date of the
1990 merger agreement, (2) Current VASCO's approval of the plan of
merger, including approval of the plan of merger prior to the
incorporation of Current VASCO, the lack of documented stockholder
approval as called for by the plan of merger and the effectiveness of
the approval by Current VASCO's then Board of Directors, (3) the
authorization and issuance of shares of common and preferred stock by
Current VASCO pursuant to the merger, (4) the adoption of Current
VASCO's initial bylaws, appointment of Current VASCO's initial
directors and the election of its initial officers, and (5) the
administrative dissolution of VASCO Utah in July 1990 prior to the
filing of a Certificate of Merger with the State of Delaware in
August, 1990, (6) the failure to file Articles of Merger with the
State of Utah in connection with the intended merger of VASCO Utah and
Current VASCO in August 1990;
(iv) the dissolution, liquidation or winding up of any of
Current VASCO's predecessors, or any failure properly to approve or
effect said dissolution, liquidation or winding up, including (a) the
failure to properly document any stockholder approval of the
dissolution of Old VASCO and to document actions taken to dissolve,
liquidate and wind-up Old VASCO in August 1987, (b) the failure to vest
effectively title and ownership in VASCO Utah of Old VASCO's assets and
to document the assumption by VASCO Utah of Old VASCO's liabilities,
and (c) the administrative dissolution of VASCO Utah in July 1990
prior to the intended merger transaction with Current VASCO and before
the filing of a Certificate of Merger with the State of Delaware in
August 1990; and
(v) any failure to afford security holders any appraisal,
preemptive or other rights, whether accorded by statute or by the
articles of incorporation, certificate of incorporation or bylaws of
Current VASCO or any of its predecessors, in connection with any of the
matters described in the foregoing clauses (i), (ii), (iii) or (iv)
including (a) the failure of Old VASCO to document whether it afforded
its stockholders, in connection with any issuances of Old VASCO capital
stock subsequent to the initial issuance of 50,000 common shares in
connection with the incorporation of Old VASCO in May 1984, the
preemptive rights to purchase, upon the issuance or sale of Old VASCO
stock (or securities convertible into Old VASCO stock), shares (or
securities) in proportion to the amount of Old VASCO common stock then
owned by such holder, subject to conditions and time limitations
prescribed (and at a price determined as permitted by law), by Old
VASCO's Board of Directors, as provided for
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in the Old VASCO Certificate of Incorporation and (b) the failure of
VASCO Utah to document whether it afforded its stockholders the
appraisal rights provided for by Utah law in connection with the
intended 1990 merger of VASCO Utah with Current VASCO.
(The matters listed in the foregoing clauses (i), (ii), (iii),
(iv) and (v) are collectively referred to in this document and the Prospectus as
the "Corporate Matters").
The Warrantholder hereby irrevocably waives his rights under
any applicable statute, rule, regulation, legal principle, or legal doctrine
that provides that a general release does not extend to claims which a releasing
party does not know or suspect to exist in its favor at the time of executing
such release, which if known by the releasing party would have materially
affected its settlement with the released party. Notwithstanding the foregoing,
to the extent federal or state securities laws limit the release of a claim
under a federal securities law or under a state securities law, as applicable,
to mature, ripened claims of which the releasing party had knowledge before
signing the release, the release of a federal securities law claim or state
securities law claim shall be limited to a release of mature, ripened claims
of which the releasing party had knowledge prior to signing the release.
4. CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS OF
WARRANTHOLDER. The Warrantholder hereby represents, warrants and covenants that
(i) the Warrantholder has received and adequately studied the Prospectus, (ii)
the Warrantholder has had adequate opportunity to consult legal counsel of
Warrantholder's choice regarding this Agreement, (iii) the Warrantholder has
executed and delivered this Agreement and the release set forth herein pursuant
to the free will of the Warrantholder with the intention that the release be a
general release to the full extent provided herein, (iv) the Warrantholder has
not sold, assigned or otherwise transferred any rights or remedies arising from
or in connection with the Corporate Matters, and (v) the Current VASCO Warrants
are the only warrants held by the Warrantholder to acquire capital stock of
Current VASCO or any of the VASCO Predecessors. Current VASCO and the
Warrantholder each acknowledges and agrees that this Agreement does not affect
any rights or claims the Warrantholder may have against VASCO arising out of any
matter or transaction arising from and after the date of the Prospectus.
Further, it is expressly understood that this Agreement (i) will effect a
release of any and all Associated Corporate Matter Claims (as defined in the
Prospectus) the Warrantholder may have even if less than all of the
Warrantholder's Current VASCO Securities (as defined in the Prospectus) are
exchanged in the Exchange Offer (as defined in the Prospectus), and (ii) does
not release and discharge (a) any rights or remedies Current VASCO in its own
right, or as successor to the rights of the VASCO Predecessors, may have against
any person or entity arising out of the Corporate Matters, or (b) any rights or
remedies unrelated to the Corporate Matters the Warrantholder has as a current
security holder of Current VASCO.
5. EXCHANGE OFFER; EFFECTIVE DATE. This Agreement is subject
to the terms and conditions of the Exchange Offer, as defined in the Prospectus,
and will become effective and binding on the parties hereto upon acceptance by
New VASCO of shares of common stock of Current VASCO tendered pursuant to the
Exchange Offer. Without limiting the foregoing, the Warrantholder has the right
to withdraw this Agreement in accordance with the specific provisions in the
Prospectus under the heading "THE EXCHANGE OFFER - Withdrawal Rights."
6. GENERAL. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof and supersedes all prior
and contemporaneous agreements or understandings, oral or written, with respect
to the subject matter hereof. This Agreement shall be governed by and construed
in accordance with the internal laws and not the
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conflicts of law rules of the State of Illinois, and the invalidity or
unenforceability of any term or provision of this Agreement shall not affect the
validity or enforceability of any other term or provision hereof. This Agreement
is binding on and inures to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns and in
addition, the provisions of the release set forth in Section 3 inure to the
benefit of each of the entities included within the above definition of VASCO.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement.
New VASCO: VASCO DATA SECURITY INTERNATIONAL, INC.
By
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Its
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Current VASCO: VASCO CORP.
By
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Its
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Warrantholder: Printed Name
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Signature
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Title
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Address
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Dated , 1997
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EXHIBIT A
ADJUSTMENT OF EXERCISE PRICE AND
NUMBER OF SHARES PURCHASABLE
1. In case, prior to the expiration of a New VASCO Warrant by
exercise or by its terms, New VASCO shall issue any shares of New VASCO common
stock as a stock dividend or subdivide the number of outstanding shares of New
VASCO common stock into a greater number of shares, then in either of such
cases, the then applicable exercise price per share of the shares of New VASCO
common stock purchasable pursuant to that New VASCO Warrant in effect at the
time of such action shall be proportionately reduced and the number of shares at
that time purchasable pursuant to that New VASCO Warrant shall be
proportionately increased; and conversely, in the event New VASCO shall contract
the number of outstanding shares of New VASCO common stock by combining such
shares into a smaller number of shares, then, in such case, the then applicable
exercise price per share of the shares of New VASCO common stock purchasable
pursuant to that New VASCO Warrant in effect at the time of such action shall be
proportionately increased and the number of shares of NEW VASCO common stock
purchasable pursuant to that New VASCO Warrant shall be proportionately
decreased. If New VASCO shall, at any time during the term of a New VASCO
Warrant, declare a dividend payable in cash on the New VASCO common stock and
shall, at substantially the same time, offer to its stockholders a right to
purchase new shares of New VASCO common stock from the proceeds of such dividend
or for an amount substantially equal to the dividend, all New VASCO common stock
so issued shall, for the purpose of that New VASCO Warrant, be deemed to have
been issued as a stock dividend. Any dividend paid or distributed upon the New
VASCO common stock shall be treated as a dividend paid in New VASCO common stock
to the extent that shares of New VASCO common stock are issuable upon conversion
thereof.
2. In case, prior to the expiration of a New VASCO Warrant by
exercise or by its terms, New VASCO shall be recapitalized by reclassification
of its outstanding New VASCO common stock (other than a change in par value to
no par value), or New VASCO or a successor corporation shall consolidate or
merge with or convey all or substantially all of its or of any successor
corporation's property and assets to any other corporation or corporations (any
such other corporations being included within the meaning of the term "successor
corporation" hereinbefore used in the event of any consolidation or merger of
any such other corporation with, or the sale of all or substantially all of the
property of any such other corporation to, another corporation or corporations),
then, as a condition of such recapitalization, consolidation, merger or
conveyance, lawful and adequate provision shall be made whereby the
Warrantholder shall thereafter have the right to purchase, upon the basis and on
the terms and conditions specified in that New VASCO Warrant, in lieu of the
shares of New VASCO common stock theretofore purchasable upon the exercise of
that New VASCO Warrant, such shares of stock, securities or assets of the other
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corporation as to which the Warrantholder would have been entitled had that New
VASCO Warrant been exercised immediately prior to such recapitalization,
consolidation, merger or conveyance; and in any such event, the rights of that
Warrantholder to any adjustment in the number of shares of New VASCO common
stock purchasable upon the exercise of that New VASCO Warrant, as hereinbefore
provided, shall continue and be preserved in respect of any stock which the
Warrantholder becomes entitled to purchase.
3. In case, prior to the expiration of a New VASCO Warrant by
exercise or by its terms, New VASCO shall sell all or substantially all of its
property or dissolve, liquidate or wind up its affairs, lawful provision shall
be made as part of the terms of any such sale, dissolution, liquidation or
winding up, so that the Warrantholder may thereafter receive upon exercise
hereof in lieu of each share of New VASCO common stock which he would have been
entitled to receive, the same kind and amount of any securities or assets as may
be issuable, distributable or payable upon any such sale, dissolution,
liquidation or winding up with respect to each share of New VASCO common stock;
provided, however, that in any case of any such sale or of dissolution,
liquidation or winding up, the right to exercise that New VASCO Warrant shall
terminate on a date fixed by New VASCO. Such date so fixed shall be no earlier
than 3:00 p.m., New York City time, on the forty-fifth (45th) day next
succeeding the date on which notice of such termination of the right to exercise
that New VASCO Warrant has been given by mail to the Warrantholder at its
address as it appears on the books of New VASCO.
4. Upon any exercise of a New VASCO Warrant by the
Warrantholder, New VASCO shall not be required to deliver fractions of one
share, but may adjust the exercise price payable by that New VASCO Warrant in
respect of any such fraction of one share on the basis of the exercise price per
share then applicable upon exercise of that New VASCO Warrant.
5. In case, prior to the expiration of a New VASCO Warrant by
exercise or by its terms, New VASCO shall determine to take a record of is
stockholders for the purpose of determining stockholders entitled to receive any
dividend, stock dividend, distribution or other right whether or not it may
cause any change or adjustment in the number, amount, price or nature of the
securities or assets deliverable upon the exercise of that New VASCO Warrant
pursuant to the foregoing provisions, New VASCO shall give at least ten (10)
days' prior written notice to the effect that it intends to take such record to
the Warrantholder at its address as it appears on the books of New VASCO, said
notice to specify the date as of which such record is to be taken, the purpose
for which such record is to be taken, and the effect which the action which may
be taken will have upon that New VASCO Warrant.
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SCHEDULE ______
ATTACHED HERETO
