EXHIBIT 10.7
THE SECURITIES DESCRIBED IN THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF
CERTAIN STATES, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED
OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (ii) TO THE EXTENT
APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING
TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH
OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN
EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE.
VENISON WARRANT AGREEMENT
This Warrant Agreement (the "AGREEMENT") dated as of June 25, 2003
between US Dataworks, Inc. (formerly Sonicport, Inc.) a Nevada corporation (the
"COMPANY"), and Xxxxx Xxxxxxx ("WARRANT HOLDER").
WHEREAS, on or around March 26, 2001, the Company issued the Warrant
Holder five hundred thousand (500,000) warrants (the "ORIGINAL WARRANTS")
entitling the Warrant Holder to purchase one share of Common Stock, $0.0001 par
value per share, of the Company (the "SHARES" or the "COMMON STOCK") at an
exercise price per share equal to one dollar ($1.00);
WHEREAS, pursuant to a certain letter agreement dated March 25, 2002
(the "LETTER AGREEMENT"), the Company issued the Warrant Holder fifty thousand
(50,000) warrants (the "ADDITIONAL WARRANTS") entitling the Warrant Holder to
purchase one share of Common Stock at an exercise price per share equal to fifty
cents ($0.50). The Letter Agreement further provided that the exercise price of
the Original Warrants was adjusted to an exercise price of fifty cents ($0.50)
per share of Common Stock;
WHEREAS, pursuant to a certain Convertible Promissory Note Extension
and Warrant Agreement dated May 5, 2003 (the "NOTE AND WARRANT AGREEMENT"), the
Company issued to Warrant Holder eight hundred thousand (800,000) warrants (the
"NEW WARRANTS"), each such New Warrant entitling the Warrant Holder to purchase
one share of Common Stock at an exercise price per share of twelve cents ($0.12)
per share. As provided under the Note and Warrant Agreement, the Warrant Holder
agreed to surrender all of his Original Warrants and Additional Warrants to be
cancelled by the Company.
WHEREAS, pursuant to a certain Note and Warrant Conversion Agreement,
of even date herewith (the "CONVERSION AGREEMENT") and as an inducement to cause
the Warrant Holder to persuade Messrs. Xxxx Xxxxxxx, Xxxx Xxxxxx and Xxxxxx
Xxxxx each to enter into such Conversion Agreement, the Company shall issue the
Warrant Holder this additional warrant (the "Venison Warrant") with terms and
conditions as set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
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1. ISSUANCE OF VENISON WARRANT CERTIFICATE. The Venison Warrant
certificate to be delivered pursuant to this Agreement, entitling the Warrant
Holder to acquire two hundred thousand (200,000) shares of Common Stock in
accordance with the term set forth in this Agreement (the "Venison Warrant
Certificate"), shall be executed on behalf of the Company by its Chief Executive
Officer, President or any Vice President under its corporate seal reproduced
thereon and attested by its corporate Secretary or one of its assistant
Secretaries. Unless otherwise set forth herein, all capitalized terms used
herein without definition shall have the meanings ascribed to such terms in the
Conversion Agreement.
2. RIGHT TO EXERCISE VENISON WARRANTS. All two hundred thousand
(200,000) Venison Warrants shall be exercised as of the Closing Date. Subject to
the provisions of this Agreement, Warrant Holder shall acquire from the Company
by virtue of a cashless exercise ("NET ISSUE EXERCISE"), and the Company shall
issue to Warrant Holder, at an exercise price per Share of seven cents ($0.07),
subject to adjustment as provided herein (the "EXERCISE PRICE"), one fully paid
and nonassessable Share upon surrender to the Company of the Venison Warrant
Certificate evidencing such Venison Warrant. The Warrant Holder shall deliver to
the Company the Venison Warrant Certificate and an executed Election to Exercise
form (attached hereto) and promptly thereafter receive, without the payment of
any additional consideration, such number of fully paid and nonassessable shares
of Common Stock as computed using the following formula:
X = Y (A-B)
-------
A
where
X = the number of Shares to be issued to the holder pursuant to this
Section 2.
Y = 200,000 Shares.
A = the closing stock price of one share of Common Stock as
reported by the American Stock Exchange national market the
trading day immediately prior to the Closing Date.
B = seven cents ($0.07).
The Company agrees that such shares of Common Stock shall be deemed to be issued
to the Warrant Holder as the record holder of such shares as of the close of
business on the Closing Date. A stock certificate for the shares of Common Stock
shall be delivered to the Warrant Holder within ten (10) days following the
Closing Date. No adjustments shall be made to the number of shares issuable upon
exercise of the Venison Warrants ("VENISON WARRANT SHARES") for any cash
dividends paid or payable to holders of record of Common Stock prior to the date
as of which the Warrant Holder shall be deemed to be the record holder of such
Venison Warrant Shares.
3. RESERVATION OF SHARES. The Company will at all times reserve and
keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued Shares or its authorized and issued Shares held in its
treasury for the purpose of enabling it to satisfy any obligation to issue
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Shares upon exercise of Venison Warrants, the full number of Shares deliverable
upon the exercise of all outstanding Venison Warrants. The Company covenants
that all Shares which may be issued upon exercise of Venison Warrants will be
validly issued, fully paid and nonassessable outstanding Shares of the Company.
4. REGISTRATION UNDER THE SECURITIES ACT OF 1933. Warrant Holder
represents and warrants to the Company that Warrant Holder is acquiring the
Venison Warrants for investment and with no present intention of distributing or
reselling any of the Venison Warrants. The Shares and the certificate or
certificates evidencing any such Shares shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF
CERTAIN STATES, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED
OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (ii) TO THE EXTENT
APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING
TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH
OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN
EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS AVAILABLE.
Certificates for Venison Warrants or Shares shall also bear such
legends as may be required from time to time by law. This Section 4
notwithstanding, the Company hereby agrees that the Warrant Holder shall have
"piggyback" registration rights entitling such Warrant Holder to include any and
all of the shares issued to Warrant Holder upon exercise of the Venison Warrants
in any future registration of any shares of the Company. The Company shall give
Warrant Holder at least ten (10) days' prior written notice for any proposed
registration of the Company's shares in order for such Warrant Holder to
determine whether any or all of the shares issued to Warrant Holder upon
conversion of the Notes or exercise of the New Warrants shall be included
therein. The Company's obligations pursuant to this Section 4 shall terminate on
the earlier to occur of: (a) the second anniversary of the date of issuance of
the Venison Warrant Shares and (b) such time when all Venison Warrant Shares
held by the Warrant Holder may be sold pursuant to Rule 144 under the Securities
Act during any three (3) month period.
5. RULE 144. If the Company shall be subject to the reporting
requirements of Section 13 of the 1934 Act, the Company will use its best
efforts to file timely all reports required to be filed from time to time with
the Commission (including but not limited to the reports under Section 13 and
15(d) of the 1934 Act referred to in subparagraph (c)(1) of Rule 144 adopted by
the Company under the Act). If there is a public market for any Shares of the
Company at any time that the Company is not subject to the reporting
requirements of either of said Section 13 or 15(d), the Company will, upon the
request of any holder of any Shares or Venison Warrants, use its best efforts to
make publicly available the information concerning the Company referred to in
subparagraph (c)(2) of said Rule 144. The Company will furnish to each holder of
any Shares or Venison Warrants, promptly upon request, (i) a written statement
of the Company's compliance with the requirements of subparagraphs (c)(1) or
(c)(2,) as the case may be, of said Rule 144, and (ii) written information
concerning the Company sufficient to enable such holder to complete any Form 144
required to be flied with the Commission pursuant to said Rule 144.
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6. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES AND CLASS OF
CAPITAL STOCK PURCHASABLE. The Exercise Price and the number of Shares
purchasable upon the exercise of each Venison Warrant are subject to adjustment
from time to time as set forth in this Section 6.
(i) ADJUSTMENT FOR CHANGE IN CAPITAL STOCK. If the Company:
pays a dividend or makes a distribution on its Common Stock, in each
case, in Shares of its Common Stock; subdivides its outstanding Shares
of Common Stock into a greater number of Shares; combines its
outstanding Shares of Common Stock into a smaller number of Shares;
makes a distribution on its Common Stock in Shares of its capital stock
other than Common Stock; or issues by reclassification of its Shares of
Common Stock any Shares of its capital stock; then the number and
classes of Shares purchasable upon exercise of each Venison Warrant in
effect immediately prior to such action shall be adjusted so that the
holder of any Venison Warrant thereafter exercised may receive the
number and classes of Shares of capital stock of the Company which such
Warrant Holder would have owned immediately following such action if
such Warrant Holder had exercised the Venison Warrant immediately prior
to such action.
(ii) CONSOLIDATION, MERGER OR SALE OF THE COMPANY. If the
Company is a party to a consolidation, merger or transfer of assets
that reclassifies or changes its outstanding Common Stock, the
successor corporation (or corporation controlling the successor
corporation or the Company, as the case may be) shall by operation of
law assume the Company obligations under this Agreement. Upon
consummation of such transaction the Venison Warrants shall
automatically become exercisable for the kind and amount of securities,
cash or other assets that the holder of a Venison Warrant would have
owned immediately after the consolidation, merger or transfer if the
Warrant Holder had exercised the Venison Warrant immediately before the
effective date of such transaction. As a condition to the consummation
of such transaction, the Company shall arrange for the person or entity
obligated to issue securities or deliver cash or other assets upon
exercise of the Venison Warrant to, concurrently with the consummation
of such transaction, assume the Company's obligations hereunder by
executing an instrument so providing and further providing for
adjustments which shall be as nearly equivalent as may be practical to
the adjustments provided for in this Section.
7. NOTICES TO COMPANY AND WARRANT HOLDER. Any notice or demand
authorized by this Agreement to be given or made by any registered holder of any
Venison Warrant Certificate to or on the Company shall be sufficiently given or
made if sent by registered mail, postage prepaid, addressed (until another
address is filed in writing by the Company with the Warrant Holders) to the
Company.
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Any notice pursuant to this Agreement to be given by the Company to
Warrant Holder shall be sufficiently given if sent by registered mail, postage
prepaid, addressed (until another address is filed in writing by Warrant Holder
with the Company) to Warrant Holder at the address provided on page 5 of this
Agreement, with a copy thereof to: Xxxxxx & Xxxxxx, 1900 Avenue of the Stars,
00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, ATTN: Xxxxxx X. Xxxxxxx, Esq.,
facsimile: (000) 000-0000, telephone: (000) 000-0000.
8. SUPPLEMENTS AND AMENDMENTS. The Company and Warrant Holder may from
time to time supplement or amend this Agreement in order to cure any ambiguity,
to correct or supplement any provision contained herein which may be defective
or inconsistent with any provisions herein, or to make any other provisions in
regard to matters or questions arising hereunder which the Company and Warrant
Holder may deem necessary or desirable and which the Company and Warrant Holder
deem shall not adversely affect the interests of other Warrant Holders.
9. SUCCESSORS. All the covenants and provisions of this Agreement by or
for the benefit of the Company or Warrant Holder shall bind and inure to the
benefit of their respective successors and assigns hereunder.
10. GOVERNING LAW. This Agreement and each Venison Warrant Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of Nevada and for all proposes shall be governed by and construed in
accordance with the laws of said State.
11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all proposes be deemed to
be an original, and such counterparts shall together constitute one and the same
instrument.
12. ATTORNEYS FEES. In the event of any action by the Warrant Holder
under or pursuant to this Agreement or any certificate issued pursuant hereto to
enforce the terms hereof, the Company shall pay all of the Warrant Holder's
reasonable attorneys' fees and costs in connection therewith.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, as of the date and year first above written.
US Dataworks, Inc.
/S/ XXXXX XXXXXXX /S/ XXXXX XXXXXXXX
------------------------------ --------------------------------
Xxxxx Xxxxxxx Xxxxx Xxxxxxxx
Its: President and COO
Address: _________________________
__________________________________
__________________________________
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US DATAWORKS, INC
NEW WARRANT CERTIFICATE
NO. _____ 200,000 VENISON WARRANTS
This Venison Warrant Certificate certifies that Xxxxx Xxxxxxx or
registered assigns, is the registered holder of a total of two hundred thousand
(200,000) warrants (the "VENISON WARRANTS") to purchase Common Stock, par value
$.0001 per share (the "COMMON STOCK") of US Dataworks, Inc., a Nevada
corporation (the "COMPANY"). Each Venison Warrant entitles the holder to acquire
from the Company, without the payment of any additional consideration by Net
Issue Exercise, such number of fully paid and nonassessable shares of Common
Stock as computed using the formula set forth in the Venison Warrant Agreement
(the "EXERCISE PRICE") upon surrender of this Venison Warrant Certificate and
delivery of the Election to Exercise Form at an office or agency of the Company,
subject to the terms and conditions set forth herein. As used herein, "SHARE" or
"SHARES" refers to the Common Stock of the Company and, where appropriate, to
the other securities or property issuable upon exercise of a Venison Warrant as
provided for in that certain Venison Warrant Agreement, of even date herewith
(the "VENISON WARRANT AGREEMENT"). Unless otherwise set forth herein, all
capitalized terms used herein without definition shall have the meanings
ascribed to such terms in the Venison Warrant Agreement.
The number of Shares and classes of capital stock issuable upon
exercise of the Venison Warrants are subject to adjustment upon the occurrence
of certain events set forth in the Venison Warrant Agreement. No adjustment
shall be made for any cash dividends on any Shares issuable upon exercise of
this Venison Warrant.
All Venison Warrants shall be exercised on the Closing Date. All
Venison Warrants evidenced hereby shall thereafter be void.
The Venison Warrants evidenced by this Venison Warrant Certificate are
part of a duly authorized issue of Venison Warrants issued pursuant to the
Venison Warrant Agreement, duly executed by the Company and Xxxxx Xxxxxxx. The
Venison Warrant Agreement is hereby incorporated by reference in and made a part
of this instrument and is hereby referred to for a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Company and the holders (the words "HOLDERS" or "HOLDER" meaning the registered
holders or registered holder of the Venison Warrant Certificates).
The Company may deem and treat the person(s) registered in the
Company's register as the absolute owner(s) of this Venison Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, and of any distribution to the
holder(s) hereof, and for all purposes, and the Company shall not be affected by
any notice to the contrary.
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF COMMON STOCK
ISSUABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF CERTAIN STATES, AND
MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO (I) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
ACT AND ANY APPLICABLE STATE LAWS, (II) TO THE EXTENT APPLICABLE, RULE 144 UNDER
THE ACT (OR ANY SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF
SECURITIES), OR (III) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY
SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER
THE ACT AND APPLICABLE STATE LAW IS AVAILABLE.
IN WITNESS WHEREOF, the Company has caused this Venison Warrant
Certificate to be duly executed under its corporate seal.
US Dataworks, Inc. Attested
--------------------------------- -----------------------------------
Xxxxxxx Xxxxx, Chief Executive Officer
-----------------------------------
Printed Name and Title
-2-
ELECTION TO EXERCISE
(To be executed upon exercise of the Venison Warrants)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Venison Warrant Certificate, to acquire
__________________________________________ Shares in accordance with the terms
hereof. The undersigned requests that certificates for such Shares be registered
in the name of _________________________________________________ whose address
is ________________________________________________________________ and that
such certificates be delivered to _____________________________________________
whose address is _____________________________________________________________.
Dated: __________________ Signature: ___________________________
Printed Name: ________________________
(SIGNATURE MUST CONFORM IN ALL RESPECTS TO NAME OF HOLDER AS SPECIFIED ON A THE
FACE OF THE VENISON WARRANT CERTIFICATE)
