EXHIBIT 10.25
THIS WARRANT AND THE SHARES ISSUABLE UPON THE EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR ANY APPLICABLE STATE SECURITIES LAW. THIS WARRANT OR SUCH SHARES MAY
NOT BE SOLD, DISTRIBUTED, PLEDGED, OFFERED FOR SALE, ASSIGNED,
TRANSFERRED, OR OTHERWISE DISPOSED OF UNLESS: (A) THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES
LAW COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES; (B) THE
COMPANY (DEFINED BELOW) RECEIVES AN OPINION OF LEGAL COUNSEL FOR THE
HOLDER OF THIS WARRANT STATING THAT SUCH TRANSACTION IS EXEMPT FROM
REGISTRATION AND SUCH OPINION IS IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE COMPANY; OR (C) PURSUANT TO RULE 144 UNDER SUCH
ACT.
WARRANT TO PURCHASE
SHARES OF COMMON STOCK
VENDINGDATA CORPORATION
THIS IS TO CERTIFY THAT, for value received,________________ (the
"Holder") is entitled, during a specified period of time as set forth in Section
3 herein (the "Exercise Period"), to purchase from VendingData Corporation, a
Nevada corporation (the "Company"),________________ (_______________ )
post-reverse split fully paid and nonassessable shares of the Company's common
stock, par value $0.001 per share (the "Common Stock"), at an exercise price per
share as set forth in Section 1 herein (the "Exercise Price") (such number of
shares and the Exercise Price being subject to adjustment as provided herein).
The term "Warrant," as used herein, refers to this Warrant to Purchase Shares of
Common Stock, the term "Warrant Shares," as used herein, refers to the shares of
Common Stock purchasable hereunder, and the term "Parties," as used herein,
refers collectively to the Holder and the Company. This Warrant is issuable only
as part of a Unit or Units consisting of that certain $ _________principal
amount 10% Note due December 15, 2005, dated as of the same date hereof to
Holder (as "Purchaser") and the Company (as "Obligor") (collectively hereinafter
the "Note"), pursuant to a private placement strictly limited to accredited
investors (the "Offering"). Each Unit shall consist of a Warrant to purchase
6,000 shares, post-reverse split of 1-for-5, of Common Stock and $50,000
principal amount in the form of the Note.
TERMS AND CONDITIONS
This Warrant is subject to the following terms, provisions, and
conditions:
1. EXERCISE PRICE. The Exercise Price shall be $2.25 per share,
post-reverse split of 1-for-5. On December 16, 2004, the Exercise Price shall be
adjusted from $2.25 per share, post-reverse split of 1-for-5, to $1.50 per
share, post-reverse split of 1-for-5, if the average closing price of the
Company's common stock on a stock exchange or other quotation medium over the
twenty (20) previous business days is not at least Three Dollars ($3.00) per
share.
2. MANNER OF EXERCISE; ISSUANCE OF CERTIFICATES; PAYMENT FOR SHARES.
Subject to the provisions hereof, this Warrant may be exercised by the Holder,
in whole or in part (but in not less than 1,000 share increments): (a) by the
surrender of this Warrant, together with an exercise agreement in the form
attached hereto (the "Exercise Agreement"), duly completed and executed by the
Holder, to the Company during normal business hours on any business day at the
Company's principal executive offices (or such other location as the Company may
designate by notice to the Holder); and (b) upon the payment to the Company in
cash, by certified or official bank check or by wire transfer for the account of
the Company in the amount of the Exercise Price multiplied by the number of
Warrant Shares for which the Warrant is being exercised.
The Warrant Shares so purchased shall be deemed to be issued to the
Holder, as the record owner of such Warrant Shares, as of the close of business
on the date on which this Warrant shall have been surrendered, the completed
Exercise Agreement shall have been delivered, and payment shall have been made
for such Warrant Shares as set forth above. Certificates for the Warrant Shares
so purchased, representing the aggregate number of shares specified in the
Exercise Agreement, shall be delivered to the Holder within a reasonable time,
not exceeding ten (10) business days, after this Warrant shall have been so
exercised. The certificates so delivered shall be in such denominations as may
be reasonably requested by the Holder and shall be registered in the name of the
Holder or such other name as shall be designated by the Holder. If this Warrant
shall have been exercised only in part, then, unless this Warrant has expired,
the Company shall, at its expense, at the time of delivery of such certificates,
deliver to the Holder a new warrant representing the number of Warrant Shares
with respect to which this Warrant shall not then have been exercised.
3. EXERCISE PERIOD. This Warrant may be exercised any time after
December 1, 2004 and before 2:00 p.m., Las Vegas, Nevada time, December 15,
2007.
4. REDEMPTION. Notwithstanding anything else herein to the contrary,
this Warrant may be called and redeemed, if not previously exercised, after the
Company gives written notice to the Holder of the Company's election to call and
redeem (the "Redemption Notice") the Warrant and if, within thirty (30) days of
such Redemption Notice, the Holder has not exercised the Warrant pursuant to the
terms hereof. In no event may the Company elect to redeem the Warrant prior to
December 1, 2004. In the event of such redemption, the Company must pay to the
Holder consideration equal to the par value of the shares issuable pursuant to
the Warrant.
5. COVENANTS OF THE COMPANY. The Company hereby covenants and agrees as
follows:
(a) SHARES TO BE FULLY PAID. All Warrant Shares shall, upon issuance in
accordance with the terms of this Warrant, be validly issued, fully paid, and
non-assessable.
(b) RESERVATION OF SHARES. During the Exercise Period, the Company
shall at all times have authorized, and reserved for the purpose of issuance
upon exercise of this Warrant, a sufficient number of shares of Common Stock to
provide for the exercise of this Warrant.
(c) SUCCESSORS AND ASSIGNS. This Warrant shall be binding upon any
entity succeeding to the Company by merger, consolidation, or acquisition of all
or substantially all the Company's assets.
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6. ADJUSTMENT PROVISIONS. During the Exercise Period, the Exercise
Price and the number of Warrant Shares shall be subject to adjustment from time
to time as provided in this Section 6. If the Company shall, prior to the
payment of the Note in full, (a) declare a dividend or make a distribution of
Common Stock payable in shares of Common Stock, (b) subdivide its outstanding
shares of Common Stock, into a greater number of shares of Common Stock, (c)
combine its outstanding shares of Common Stock into a smaller number of shares
of Common Stock, or (d) issue any shares of capital stock of the Company by
reclassification or capital reorganization of its shares of Common Stock, then
the number of Warrant Shares and the Exercise Price in effect immediately prior
to such action shall be adjusted so that the Holder shall be entitled to receive
the number and kind of shares of Common Stock or other Capital Stock which the
Holder would have owned or have been entitled to receive immediately after such
action had the Holder exercised the Warrant immediately prior to the record date
in the case of (a), or the effective date in the case of (b), (c) or (d). In the
event that any adjustment of the Exercise Price as required herein results in a
fraction of a cent, such Exercise Price shall be rounded up to the nearest cent.
7. PAYMENT OF EXPENSES. The Company and the Holder shall each be
responsible for their own costs and expenses payable in connection with: (a) the
negotiation, preparation, execution and delivery of this Warrant and the other
agreements to be executed in connection herewith; and (b) the issuance of
certificates for Warrant Shares upon the exercise of this Warrant. The Company
shall pay any issuance tax in connection with the issuance of certificates for
Warrant Shares; provided, however, that the Holder shall be responsible for any
income or other taxes in connection with such issuance.
8. NO RIGHTS OR LIABILITIES AS A STOCKHOLDER. This Warrant shall not
entitle the Holder to any voting rights or other rights as a stockholder of the
Company. No provision of this Warrant, in the absence of affirmative action by
the Holder to purchase Warrant Shares, and no mere enumeration herein of the
rights or privileges of the Holder, shall give rise to any liability of such
Holder for the Exercise Price or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the Company.
9. TRANSFER, EXCHANGE, AND REPLACEMENT OF WARRANT. This Warrant, nor
any interest in this Warrant, may be sold, distributed, assigned, offered,
pledged or otherwise transferred without the express written consent of the
Company.
(a) EXCHANGE OF WARRANTS; REPLACEMENTS OF WARRANTS. This Warrant is
exchangeable upon the surrender hereof by the Holder to the Company at its
office for a new Warrant of like tenor and date representing in the aggregate
the right to purchase the number of shares of Common Stock purchasable
hereunder, each of such new Warrants to represent the right to purchase such
number of shares of Common Stock (not to exceed the aggregate total number
purchasable hereunder) as shall be reasonably designated by the Holder at the
time of such surrender. 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 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.
(b) CANCELLATION: PAYMENT OF EXPENSES. Upon the surrender of this
Warrant in connection with any transfer, exchange, or replacement as provided in
this Section 9, this Warrant shall be promptly canceled by the Company. The
Company and the Holder shall each be responsible for their own costs and
expenses payable in connection with the preparation, execution, and delivery of
new Warrants pursuant to this Section 9. The Holder shall be responsible for any
tax which may be payable in connection with any transfer of a certificate for
Warrant Shares.
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(c) REGISTRAR. The Company shall maintain, at its principal executive
offices (or such other location as the Company may designate by notice to the
Holder), a registrar for this Warrant, in which the Company shall record the
name and address of the person in whose name this Warrant has been issued, as
well as the name and address of each transferee and each prior owner of this
Warrant.
10. AMENDMENTS. No amendment or modification of this Warrant shall be
deemed effective unless and until such amendment or modification is an express
writing executed by both the Parties.
11. GOVERNING LAW. This Warrant shall be governed by and construed and
enforced in accordance with the internal laws of the State of Nevada without
regard to the body of law controlling conflicts of law. The parties hereto
hereby submit to the exclusive jurisdiction of the courts located in Xxxxx
County, Nevada, with respect to any dispute arising under this Warrant and the
transactions contemplated hereby.
12. Registration Rights.
(a) PIGGYBACK REGISTRATION RIGHTS. Whenever the Company proposes to
register any of its equity securities under the Securities Act (other than a
registration on Form S-4 or Form S-8 or any successor or similar forms) and the
registration form to be used may be used for the registration of the Warrant
Shares, whether or not for sale for its own account, the Company will give
prompt written notice to Holder of its intention to effect such a registration
and will include in such registration all of the Warrant Shares with respect to
which the Company has received written request for inclusion therein within
twenty (20) days after the receipt of the Company's notice; provided, however,
such "piggyback" registration (a "Piggyback Registration") shall be subject to
the terms and conditions of an underwriting agreement among the Company, Holder
and the managing underwriter, if applicable, the customary underwriter cut back
provisions and the execution of a customary standstill of not less than one
hundred and eighty (180) days. In addition, the Company and the managing
underwriters, if applicable, shall have the right to terminate or withdraw any
registration initiated by the Company or to reduce the number of shares proposed
to be registered in view of market conditions.
(b) REGISTRATION PROCEDURE. Upon the request by Holder to initiate
either a Piggyback Registration or a Demand Registration, the Company will use
its best efforts to effect the registration of the relevant Warrant Shares in
accordance with the intended method of disposition thereof.
(c) RESTRICTIONS. The registration rights granted under this Section 12
are expressly subject to the following terms and conditions: (a) Holder, along
with other investors in the Offering, as a group, shall each be entitled to
initiate only two (2) Piggyback Registrations; and (b) Holder may not assign any
of its rights granted under this Section 12.
(d) FEES. The Company shall pay all Registration Expenses relating to
any registration of the Warrant Shares hereunder. "Registration Expenses" shall
mean all reasonable fees and expenses incident to the Company's performance of
or compliance with this Section 12. Notwithstanding the foregoing, Holder shall
pay any and all underwriting discounts, commissions and transfer taxes
attributable to the Warrant Shares and the fees of Holder's own counsel in
connection with the sale of the Warrant Shares.
(e) COOPERATION; INDEMNIFICATION BY HOLDER. In connection with any
registration statement in which Holder is participating, Holder will furnish to
the Company in writing such information and documents as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify and hold harmless
the Company, its affiliates and their respective officers, directors, employees
and affiliates against any losses, claims, damages, liabilities, joint or
several, to which such parties may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
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or are based upon: (a) any untrue or alleged untrue statement of a material fact
contained in the registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or in any application; or (b) any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the extent
that such untrue statement or omission is made in such registration statement,
any such prospectus or preliminary prospectus or any amendment or supplement
thereto, or in any application, in reliance upon and in conformity with written
information prepared and furnished to the Company by such holder expressly for
use therein, and such holder will reimburse the Company, its affiliates and
their respective officers, directors, employees and affiliates for any legal or
any other expenses incurred by them in connection with investigating or
defending any such loss, claim, liability, action or proceeding; provided,
however, that the obligation to indemnify will be individual to Holder and will
be limited to the net amount of proceeds received by Holder from the sale of the
Warrant Shares pursuant to such registration statement.
(f) TERMINATION. The ability of Holder to initiate a Piggyback
Registration shall terminate upon the earlier to occur of: (a) three (3) years
after the date of this Warrant; (b) the date Holder no longer holds the Warrant
Shares; (c) the exercise by Holder of the two (2) Piggyback Registrations
granted by Section 12; or (d) the ability of Holder to sell its Warrant Shares
then owned immediately pursuant to Rule 144 of the Securities Act.
13. EXPIRATION DATE. This Warrant shall expire and become null and void
and of no further force or effect at 5:00 p.m. Las Vegas, Nevada time no later
than December 15, 2007.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
VENDINGDATA CORPORATION
a Nevada corporation
By:
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Xxxxxx X. Xxxx
President and Chief Executive Officer
Date:
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EXERCISE AGREEMENT
TO: VENDINGDATA CORPORATION (THE "COMPANY")
The undersigned, pursuant to the provisions set forth in the attached
Warrant to Purchase Shares of Common Stock (the "Warrant") hereby irrevocably
elects and agrees to purchase ____________ shares (the "Exercised Shares") of
the Company's common stock ("Common Stock") covered by the Warrant and makes
payment herewith in full therefore at the price per share provided by the
Warrant in cash or by certified or official bank check in the amount of
$________________. If said number of shares of Common Stock shall not be all the
shares purchasable under the Warrant, a new warrant is to be issued in the name
of said undersigned covering the balance of the shares purchasable thereunder
less any fraction of a share paid in cash. Please issue a certificate or
certificates for the Exercised Shares in the name of and pay any cash for any
fractional share to:
NAME:
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SIGNATURE:
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DATED:
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ADDRESS:
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NOTE: The above signature should correspond
exactly with the name on the face of the
Warrant.
