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EXHIBIT 10.23
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
HEREUNDER HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER THE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION (TOGETHER, THE "SECURITIES
LAWS") AND MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED OR
ENCUMBERED IN THE ABSENCE OF COMPLIANCE WITH SUCH SECURITIES LAWS AND UNTIL THE
COMPANY (AS DEFINED HEREIN) THEREOF SHALL HAVE RECEIVED AN OPINION FROM COUNSEL
ACCEPTABLE TO IT THAT THE PROPOSED DISPOSITION WILL NOT VIOLATE ANY APPLICABLE
SECURITIES LAWS.
Warrant G-1
INNOVATIVE GAMING CORPORATION OF AMERICA
WARRANT TO PURCHASE
COMMON STOCK
This Warrant and Warrant No. G-2 of even date herewith replaces that
certain Warrant issued June 1, 1999 to Holder.
For value received, Xxxxxx X. Xxxxxxxxx or his successors or assigns
("Holder"), is entitled to subscribe for and purchase from Innovative Gaming
Corporation of America, a Minnesota corporation (the "Company"), up to
TWENTY-FIVE THOUSAND (25,000) fully paid and nonassessable shares of the
Company's common stock, $.01 par value ("Common Stock"), at the price of $1.25
per share, subject to adjustments as noted below (the "Warrant Exercise Price").
This Warrant may be exercised by Holder at any time after the earlier
of (i) registration of the Warrant Shares pursuant to Section 6(i)
hereof or (ii) September 1, 1999 and prior to June 1, 2002.
This Warrant is subject to the following provisions, terms and
conditions:
1. EXERCISE. The rights represented by this Warrant may be exercised by
the Holder, in whole or in part, by written notice of exercise delivered to the
Company at least twenty (20) days prior to the intended date of exercise and by
the surrender of this Warrant (properly endorsed if required) at the principal
office of the Company and upon payment to it by cash, certified check or bank
draft of the purchase price for such shares. The shares so purchased shall be
deemed to be issued as of the close of business on the date on which this
Warrant has been exercised by payment to the Company of the Warrant Exercise
Price. Certificates for the shares of stock so purchased shall be delivered to
the Holder within fifteen (15) days after the rights represented by this Warrant
shall have been so exercised and, unless this Warrant has expired, a new Warrant
representing the number of shares, if any, with respect to which this Warrant
has not been exercised shall also be delivered to the Holder within such time.
2. COVENANTS OF THE COMPANY. The Company covenants and agrees that all
shares that may be issued upon the exercise of the rights represented by this
Warrant (the "Warrant Shares") shall, upon issuance, be duly authorized and
issued, fully paid and nonassessable shares. The Company further covenants and
agrees that during the period within which the rights
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represented by this Warrant may be exercised, the Company will at all times have
authorized, and reserved for the purpose of issue or transfer upon exercise of
the subscription rights evidenced by this Warrant, a sufficient number of shares
of its Common Stock to provide for the exercise of the rights represented by
this Warrant.
3. ANTIDILUTION ADJUSTMENTS. The foregoing provisions are, however,
subject to the following:
(1) The Warrant Exercise Price shall be subject to adjustment
from time to time as hereinafter provided. Upon each adjustment of the Warrant
Exercise Price, the Holder shall thereafter be entitled to purchase, at the
Warrant Exercise Price resulting from such adjustment, the number of shares
obtained by multiplying the Warrant Exercise Price in effect immediately prior
to such adjustment by the number of shares purchasable pursuant hereto
immediately prior to such adjustment and dividing the product thereof by the
Warrant Exercise Price resulting from such adjustment.
(2) In case the Company shall at any time divide the
outstanding shares of its Common Stock into a greater number of shares (whether
pursuant to a stock split, stock dividend or otherwise), and conversely in case
the outstanding shares of its common stock shall be combined into a smaller
number of shares, the Warrant Exercise Price in effect immediately prior to such
division or combination shall be proportionately adjusted to reflect the
reduction or increase in the value of each such common share.
(3) If any capital reorganization or reclassification of the
capital stock of the Company, or consolidation or merger of the Company with
another corporation, or the sale of all or substantially all of its assets to
another corporation shall be effected in such a way that holders of the
Company's Common Stock shall be entitled to receive stock, securities or assets
with respect to or in exchange for such common shares, then, as a condition of
such reorganization, reclassification, consolidation, merger or sale, the Holder
shall have the right to purchase and receive upon the basis and upon the terms
and conditions specified in this Warrant and in lieu of the shares of the common
stock of the Company immediately theretofore purchasable and receivable upon the
exercise of the rights represented hereby, such shares of stock, other
securities or assets as would have been issued or delivered to the Holder as if
it had exercised this Warrant and had received such shares of common stock prior
to such reorganization, reclassification, consolidation, merger or sale. The
Company shall not effect any such consolidation, merger or sale, unless prior to
the consummation thereof the successor corporation (if other than the Company)
resulting from such consolidation or merger or the corporation purchasing such
assets shall assume by written instrument executed and mailed to the registered
Holder of this Warrant at the last address of such Holder appearing on the books
of the Company, the obligation to deliver to such Holder such shares of stock,
securities or assets as, in accordance with the foregoing provisions, such
Holder may be entitled to purchase.
(4) If the Company takes any other action, or if any other
event occurs which does not come within the scope of the provisions of Sections
3(1) through 3(3), but which should result in an adjustment in the Warrant
Exercise Price and/or the number of shares subject to this Warrant in order to
fairly protect the purchase rights of the Holder, an appropriate adjustment in
such purchase rights shall be made by the Company.
(5) Upon any adjustment of the Warrant Exercise Price, the
Company shall give written notice thereof, by first class mail, postage prepaid,
addressed to the registered Holder of this Warrant at the address of such Holder
as shown on the books of the Company, which
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notice shall state the Warrant Exercise Price resulting from such adjustment and
the increase or decrease, if any, in the number of shares purchasable at such
price upon the exercise of this Warrant, setting forth in reasonable detail the
method of calculation and the facts upon which such calculation is based.
4. NO VOTING RIGHTS. This Warrant shall not entitle the Holder to any
voting rights or other rights as a stockholder of the Company.
5. EXERCISE LIMITATION. No Warrant Shares shall be issued upon exercise
of this Warrant if the sum of 1) the number of Common Stock beneficially owned
by the Holder (other than shares of Common Stock which may be deemed
beneficially owned through ownership of the unexercised portion of the Warrant;
and 2) the number of Warrant Shares issuable upon exercise of this Warrant would
result in beneficial ownership by the Holder of more than 4.9% of the Company's
issued and outstanding Common Stock.
6. REGISTRATION RIGHTS.
(1) Registration of Warrant Shares. Within thirty (30) days
from the date hereof, the Company shall file a registration statement with the
Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as
amended, for the purpose of registering the Warrant Shares. The Holder shall
furnish the Company with such information as may be required from such holder in
connection with such registration statement and will cooperate to cause such
registration to become effective at the earliest practicable time. The Holder
understands that such registration is also subject to gaming regulatory approval
from certain gaming jurisdictions. The Company shall keep effective and maintain
any registration, qualification, notification, or approval specified in this
section for such period as may be reasonably necessary for such Holder or
Holders of such Warrants and/or such Warrant Shares to dispose thereof and from
time to time shall amend or supplement the prospectus used in connection
therewith to the extent necessary in order to comply with applicable law.
(2) Expenses. The Company shall pay the total expenses for the
shares being registered for such Holder's account provided that the Holder shall
pay all underwriting or brokerage discounts and commissions attributable to the
sale of shares for its account and any fees and disbursements of counsel
retained by it.
(3) Indemnification. The Company will indemnify each of the
Holder and each underwriter of the shares being so registered and controlling
persons of both such holders and such underwriters against all claims, losses,
damages and liability (or actions in respect thereof) arising out of or based
upon any untrue statement (or alleged untrue statement) of a material fact
contained in any prospectus or other documents incident to any registration
statement filed pursuant to this Section 6, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
such holder and each such underwriter and controlling person for any legal or
other expenses reasonably incurred by each such holder and each such underwriter
and controlling person in connection with investigating or defending any such
claim, loss, damage, liability or action; provided, that the Company will not be
liable in any such case to the extent that any such claim, loss, damage or
liability arises out of or is based upon any untrue statement or omission based
upon written information furnished to the Company by any such holder or any such
underwriter or controlling persons. The Holder will indemnify the Company and
any controlling persons of the Company against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based upon any
untrue statement (or alleged untrue
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statement) of a material fact which is contained in the written information
furnished by such holder for use in any prospectus or other documents incident
to any such registration statement, or any omission (or alleged omission) to
state in the written information so provided a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Company and each such controlling person of the Company for
any legal or other expenses reasonably incurred by the Company and each such
controlling person of the Company in connection with investigating or defending
any such claim, loss, damage, liability or action.
7. AMENDMENT. Neither this Warrant nor any term hereof may be amended,
waived, discharged or terminated orally but only by an instrument in writing
signed by the party against which enforcement of the amendment, waiver,
discharge or termination is sought.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
and delivered by a duly authorized officer as of the 1st day of June, 1999.
INNOVATIVE GAMING CORPORATION
OF AMERICA
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Its: Director
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INNOVATIVE GAMING CORPORATION OF AMERICA
WARRANT EXERCISE
(TO BE SIGNED ONLY UPON EXERCISE OF WARRANT)
The undersigned, the holder of the foregoing Warrant, hereby
irrevocably elects to exercise the purchase right represented by such Warrant
for, and to purchase thereunder, shares of the Common Stock of
Innovative Gaming Corporation of America to which such Warrant relates and
herewith makes payment of $ therefor in cash or by certified or
cashier's check 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. If said number of
shares shall not be all the shares purchasable under the Warrant, a new Warrant
is to be issued in the name of the undersigned for the balance remaining of the
shares purchasable thereunder. The undersigned, the holder of the foregoing
Warrant, hereby represents and warrants to Innovative Gaming Corporation of
America that it is in compliance with the Exercise Limitation of Section 5 of
the foregoing Warrant.
Name of Warrant Holder:
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(Please print)
Address of Warrant Holder:
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Tax Identification No. or
Social Security No. of Warrant Holder:
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Signature
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NOTE: The above signature should correspond
exactly with the name of the Warrant Holder as
it appears on the first page of the Warrant or
on a duly executed Warrant Assignment.
Dated:
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