Exhibit 10.62
GAMECRAFT, INC.
SECURED CONVERTIBLE DEBENTURE
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$1,500,000 March 11, 2002 Las Vegas, Nevada
Gamecraft, Inc., a Nevada corporation (hereinafter referred to
as the "Company"), for value received, hereby promises to pay to Mikohn Gaming
Corporation, a Nevada corporation, 000 Xxxxx Xxxx, X.X. Box 98686, Las Vegas,
Nevada 89193-8686, or to its successors and assigns (hereinafter referred to as
"Holder" or "Mikohn"), the principal sum of One Million Five Hundred Thousand
Dollars ($1,500,000) in lawful money of the United States of America, plus
simple interest on the unpaid principal balance of this debenture at an annual
rate of ten percent (10%). All principal and accrued interest shall be due and
payable three (3) years from the date hereof. Any payment made by the Company
shall be applied first to the payment of accrued interest and then to the unpaid
principal balance.
The Company covenants and agrees that so long as any portion
of this debenture remains outstanding and unpaid either as to the principal
hereof or the interest hereon, it will comply with the following provisions, to
which this debenture is subject and by which it will be governed:
1. Acceleration of Maturity. Upon the occurrence of any
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of the following events, to-wit:
(a) Nonpayment within ten (10) days after the Company's
receipt of written notice that the Company has
defaulted in the payment of any of the principal or
of any interest on this debenture;
(b) Any receivership, insolvency proceeding, bankruptcy,
assignment for the benefit of creditors,
reorganization, whether or not pursuant to bankruptcy
laws, dissolution, liquidation or any other
marshalling of assets and liabilities of the Company;
(c) The Company's failure to cure any material breach of
this debenture by the Company within ten (10) days
after the Company has received written notice of such
breach;
(d) The Company's failure to cure any material
non-compliance by the Company with the covenants
contained in this debenture within ten (10) days
after the Company has received written notice of such
non-compliance;
(e) Ten (10) days after the Company's receipt of written
demand for payment following the closing of the
Company's registered initial public offering of its
common stock ("IPO"); or
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(f) Ten (10) days after the Company's receipt of written
notice that Xxxxxx has achieved an installed base of
500 games under the License Agreement of even date
hereof between the Company and Mikohn ("License
Agreement") but not earlier than two (2) years from
the date hereof; provided, however, if Xxxxxx does
not attain regulatory approval of the Game (as
defined in the License Agreement) within fifteen (15)
months from the date hereof, this clause 1(f) shall
have no force or effect.
the Holder may declare the entire principal and accrued interest on this
debenture due and payable immediately, and upon such declaration this debenture
shall become immediately due and payable without further notice, demand or
presentment.
The Company agrees to pay all reasonable costs of collection,
including reasonable attorneys' fees, in the event that payment shall not be
made under the terms and conditions of this debenture.
2. Security Agreement. This debenture will be secured by
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a security agreement (the "Security Agreement") collateralized by the
intellectual property comprising a video poker game known as "Heads Up Poker"
(the "Intellectual Property"). The Security Agreement will be in the form of
Exhibit A attached hereto. At any time prior to the full repayment of this
debenture, the Company can require the Holder to release its security interest
in the collateral by delivering to the Holder a standby letter of credit from a
bank and in a form reasonably acceptable to the Holder guarantying repayment of
this debenture in accordance with its terms.
3. Conversion Option. At any time during the term of
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this debenture, Holder shall have the option of exercising its conversion
rights as set forth in Section 4.
4. Conversion Rights. This debenture shall be
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convertible, in whole or in part, into fully paid and nonassessable shares
of common stock of the Company, at the option of Holder, upon the following
terms:
(a) Subject to the receipt of prior approval from the
Mississippi Gaming Commission and any other gaming
regulatory body whose approval is required, as
reasonably determined by counsel for the Company,
Holder shall have the right, at its option, to
convert all or part of the principal and accrued
interest due under this debenture (the
"Indebtedness") into shares of common stock of the
Company at a price, which shall be the lower of,
[i] two and 33/100 dollars ($2.33) per share or
[ii] the lowest price paid by any person to
purchase shares of common stock in the Company,
through conversion of debt or otherwise, after the
date hereof.
(b) To convert this debenture into shares of the
Company's common stock, Holder shall (i) surrender
this debenture at the principal office of the
Company, duly endorsed in blank, and (ii) give
written notice to the
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Company that it elects to convert all, or any part
of this debenture, which notice shall specify the
portion hereof to be converted. As promptly as
possible thereafter, the Company shall issue and
deliver to Holder certificates representing the
number of its common shares into which this
debenture has been converted. Thereupon, accrued
interest and the principal amount of this
debenture, or the portion thereof converted, shall
be deemed to have been satisfied and discharged,
and the common shares into which this debenture
shall be so converted shall be fully paid and
non-assessable shares. In the event this debenture
has not been converted in full, the Company shall
issue and deliver to Holder a new debenture
identical to the one surrendered, except that it
shall be in the correct principal amount after the
partial conversion.
(c) The conversion rights created by this debenture are
non-assignable without the written consent of the
Company. All shares issued upon the exercise of the
conversion rights created by this debenture shall be
subject to that certain Registration Rights Agreement
between Holder and the Company a copy of which is
attached as Exhibit B hereto.
5. Transfer and Investment Representation. By acceptance
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of this debenture, Holder represents that this debenture is being acquired and
will be acquired for Holder's own account for investment and with no intention
at the time of such purchase or acquisition of distributing or reselling the
same or any part thereof to the public. Holder understands that this debenture
has not been registered under the federal Securities Act of 1933 or any state
securities laws and that this debenture may not be subsequently transferred or
resold without (i) such registration, or (ii) the existence of an exemption
from the applicable registration requirements as confirmed in writing by legal
counsel reasonably acceptable to the Company. In furtherance of this
representation, Xxxxxx agrees that this debenture shall be legended to prohibit
transfer, sale or other disposition except in compliance with such investment
representation.
6. Transfer of Debenture. By acceptance of this
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debenture, Holder agrees to give written notice to the Company before
transferring this debenture or transferring any shares of the Company's common
stock issuable or issued upon the exercise of this debenture of Holder's
intention to do so, describing briefly the manner of any proposed transfer of
this debenture or Holder's intention as to the shares of common stock issuable
upon the exercise hereof or the intended disposition to be made of shares of
common stock upon such exercise. Promptly upon receiving such written notice,
the Company shall present copies thereof to legal counsel for the Company. If,
in the opinion of such counsel, the proposed transfer of this debenture or
disposition of shares may be effected without registration or qualification
(under any federal or state law) of this debenture or the shares of common
stock issuable or issued upon the exercise hereof, the Company, as promptly as
practicable, shall notify Holder of such opinion, whereupon Holder shall be
entitled to transfer this debenture, or to exercise this debenture in
accordance with its terms and dispose of the shares received upon such exercise
or to dispose of shares of common stock received upon the previous exercise of
this debenture, all in accordance with the terms of the notice
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delivered by Holder to the Company, provided that an appropriate legend in
substantially the form set forth at the end of this debenture respecting the
foregoing restrictions on transfer and disposition may be endorsed on this
debenture or the certificates for such shares.
7. Representations, Warranties and Covenants of the
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Company. So long as any amount is owing to Holder pursuant to this debenture,
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the Company covenants and agrees with Holder as follows:
(a) On the date above first written, the Company shall be
a corporation duly organized and existing under the
laws of Nevada, with authorized capital stock
consisting of 10,000,000 shares of common stock, no
par value.
(b) The Company has the corporate power and authority to
execute, deliver and perform this debenture, and
the other instruments and documents required or
contemplated herein. Such execution, delivery and
performance have been duly authorized by all
necessary action on the part of the Company, do not
and will not require the approval of the
shareholders of the Company and do not and will not
contravene the Certificate of Incorporation or
By-Laws of the Company or conflict with, result in
a breach of, or entitle any person or entity to
terminate, accelerate or call a default with
respect to, or result in the creation or imposition
of any lien, charge, encumbrance or claim of any
nature whatsoever upon any of the property, real or
personal, tangible or intangible, of the Company
pursuant to, any agreement or instrument to which
the Company is a party or by which the Company is
bound, except for any lien, charge, encumbrance or
claim that individually or in the aggregate does
not or will not have a material adverse affect on
the business or assets of the Company. The
execution, delivery and performance of this
debenture by the Company will not result in any
violation by the Company of any law, rule or
regulation applicable to the Company. The Company
is not a party to, or subject to or bound by, any
judgment, injunction or decree of any court or
governmental authority which may restrict or
interfere with the performance of this debenture.
The debenture is valid and binding obligation of
the Company enforceable in accordance with its terms.
(c) The Company is not a party to or, to the Company's
knowledge, threatened by any litigation, proceeding,
or controversy before any court or administrative
agency which might materially adversely affect the
transactions contemplated by this debenture.
(d) Within thirty (30) days after the end of each fiscal
quarter, the Company shall deliver to Holder
unaudited financial statements (consisting of a
balance sheet and a statement of receipts and
expenditures) for such fiscal quarter, which
financial statements shall be certified as correct by
the chief financial officer of the Company.
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(e) Within ninety (90) days after the end of each fiscal
year, the Company shall deliver to Holder a copy of
its financial statements for such fiscal year, which
financial statements shall have been audited by
certified public accountants at the Company's
expense.
(f) The Company shall make available to an authorized
representative of Holder the right to enter the
business premises of the Company during normal
business hours, upon reasonable prior notice to the
Company, for the purpose of inspecting the books
and records of the Company; provided, however, that
any information obtained by Holder as a result of
such inspection shall be maintained by Holder as
confidential information of the Company and shall
not be used or disclosed by Holder for any purpose
without the prior written consent of the Company;
(g) The Company shall reserve and set aside a sufficient
number of authorized shares of its common stock for
issuance to Holder upon the exercise of the
conversion rights contained in this debenture;
(h) The Company shall not, without the prior approval of
Holder, authorize any class of capital stock other
than the shares currently authorized by the Company's
articles of incorporation;
(i) The Company shall not, without the prior approval of
Holder, declare or issue any dividends on its capital
stock, other than dividends payable solely in shares
of the Company's common stock;
(j) The Company shall not merge or consolidate with or
into any other entity (other than a merger with a
subsidiary corporation) without the prior approval of
Holder;
(k) Within the last ninety (90) days, the Company has not
sold shares of its common stock to any person,
through conversion of debt or otherwise, at a price
lower than two and 33/100 dollars ($2.33) per share.
8. Severability. If any term, provision, covenant or
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condition of this debenture, or any application thereof, should be held by a
court of competent jurisdiction to be invalid, void, or unenforceable, all
provisions, covenants and conditions of this debenture and all applications
thereof not held invalid, void or unenforceable, shall continue in full force
and effect and shall in no way be affected, impaired or invalidated thereby.
9. Notices. All demands and notices to be given
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hereunder shall be delivered or sent by certified mail, return receipt
requested; in the case of the Company, addressed to its corporate headquarters,
00000 Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx, Xxxxxxxxxx 00000,
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Attention: President, until a new address shall have been substituted by like
notice; and in the case of Xxxxxx, addressed to Xxxxxx at the address written
above, until a new address shall have been substituted by like notice.
10. Choice of Law. The laws of the State of Nevada
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shall govern the validity, construction, performance and effect of this
debenture.
IN WITNESS WHEREOF, the Company has caused this debenture to
be executed and delivered by its duly authorized officer as of the date first
above written.
GAMECRAFT, INC.
By: _________________________
Its: _________________________
THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF THE STATE OF CALIFORNIA,
NEVADA, OR ANY OTHER STATE. THIS DEBENTURE MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR
APPROPRIATE EXEMPTION FROM REGISTRATION UNDER THE FOREGOING LAWS. ACCORDINGLY,
THIS DEBENTURE MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF WITHOUT (i)
THE OPINION OF COUNSEL SATISFACTORY TO THIS CORPORATION THAT SUCH TRANSFER MAY
LAWFULLY BE MADE WITHOUT REGISTRATION UNDER THE FEDERAL SECURITIES ACT OF 1933
AND THE SECURITIES LAWS OF THE STATE OF CALIFORNIA, NEVADA OR ANY OTHER
APPLICABLE STATE SECURITIES LAWS; OR (ii) SUCH REGISTRATION. THIS LEGEND
REPRESENTS A RESTRICTION ON TRANSFERABILITY OF THIS DEBENTURE.
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SECURED CONVERTIBLE DEBENTURE EXERCISE
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(To be signed only upon exercise of debenture)
The undersigned, the holder of the foregoing debenture, hereby
irrevocably elects to exercise the conversion right represented by such
convertible debenture for ________________ of the shares of Common Stock of
Gamecraft, Inc. to which such convertible debenture relates and requests that
the certificates for such shares be issued in the name of, and be delivered to
________________, whose address is set forth below the signature of the
undersigned.
Dated:_________________, 200___
_____________________________
_____________________________
_____________________________
(Name and Address of Holder)
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SECURED CONVERTIBLE DEBENTURE ASSIGNMENT
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(To be signed only upon transfer of debenture)
FOR VALUE RECEIVED, Mikohn Gaming Corporation hereby sells,
assigns and transfers unto [insert name and address of transferee] the foregoing
secured convertible debenture and the right to acquire the shares of common
stock of Gamecraft, Inc., to which such secured convertible debenture relates
and appoints __________________ attorney to transfer such purchase right on the
books of Gamecraft, Inc. with full power of substitution in the premises.
Dated:_________________, 200___
MIKOHN GAMING CORPORATION
By: __________________________
Its: __________________________
ACKNOWLEDGED AND APPROVED.
Dated:__________________, 200___.
GAMECRAFT, INC.
By: ___________________________
Its: ___________________________
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