DEFINITIONS
(i) | 6,000,000 shares of Common Stock at $2.65 per share (the “$2.65 Warrants”); | ||
(ii) | 4,000,000 shares of Common Stock at $3.00 per share; | ||
(iii) | 2,000,000 shares of Common Stock at $3.50 per share; |
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(iv) | 1,000,000 shares of Common Stock at $4.00 per share; | ||
(v) | 1,000,000 shares of Common Stock at $4.50 per share; | ||
(vi) | 1,000,000 shares of Common Stock at $5.00 per share; and | ||
(vii) | 1,000,000 shares of Common Stock at $5.50 per share. |
(i) | any merger, consolidation, amalgamation, share exchange, business combination, issuance of securities, acquisition of securities, reorganization, recapitalization, tender offer, exchange offer or other similar transaction: (i) in which the Company is a constituent corporation; (ii) in which a Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) of Persons directly or indirectly acquires beneficial or record ownership of securities representing more than 50% of the outstanding securities of any class of voting securities of the Company; or (iii) in which the Company issues securities representing more than 50% of the outstanding securities of any class of voting securities of the Company; or |
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(ii) | any sale, lease, exchange, transfer, license, acquisition or disposition of any business or assets that constitute or account for: (i) more than 50% of the consolidated net revenues of the Company, consolidated net income of the Company or consolidated book value of the assets of the Company; or (ii) more than 50% of the fair market value of the assets of the Company. |
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(i) | Warrants to purchase 22,000,000 shares of Common Stock shall vest and first become exercisable subject to both (a) the Company having entered into Participation Agreements on or before December 31, 2009 for the Placement of a Cumulative Total of 2,000 EGMs and (b) the actual Placement of a Cumulative Total of 1,000 EGMs on or before December 31, 2009; |
(ii) | Warrants to purchase 22,000,000 shares of Common Stock (and, to the extent they have not previously vested and become exercisable, the Warrants referenced in clause (i) hereof) shall vest and first become exercisable subject to both (a) the Company having entered into Participation Agreements on or before December 31, 2010 for the Placement of a Cumulative Total of 3,000 EGMs and (b) the actual Placement of a Cumulative Total of 2,000 EGMs on or before December 31, 2010; |
(iii) | Warrants to purchase 22,000,000 shares of Common Stock (and, to the extent they have not previously vested and become exercisable, the Warrants referenced in clauses (i) and (ii) hereof) shall vest and first become exercisable subject to both (a) the Company having entered into Participation Agreements on or before December 31, 2011 for the Placement of a Cumulative Total of 4,000 EGMs and (b) the actual Placement of a Cumulative Total of 3,000 EGMs on or before December 31, 2011; and |
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(iv) | Warrants to purchase 22,000,000 shares of Common Stock (and, to the extent they have not previously vested and become exercisable, the Warrants referenced in clauses (i) through (iii) hereof) shall vest and first become exercisable subject to both (a) the Company having entered into Participation Agreements on or before December 31, 2012 for the Placement of a Cumulative Total of 5,000 EGMs and (b) the actual Placement of a Cumulative Total of 4,000 EGMs on or before December 31, 2012. |
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PURCHASE AND SALE
(i) | Subject to the Placement of 1,000 EGMs on or before the Closing Date, the Company shall (a) issue to Elixir 25,000,000 shares of Common Stock (referred to herein as the “Initial Shares”) and the Warrants, (b) reduce the exercise price of all of the 2006 Warrants (other than the $2.65 Warrants) by $1.00 and (c) amend the terms of the 2006 Warrants so that they are freely transferable, subject to applicable law; |
(ii) | Subject to both (a) the Company having entered into Participation Agreements for the Placement of a Cumulative Total of 2,000 EGMs and (b) the actual Placement of a Cumulative Total of 1,000 EGMs, the Company shall issue to Elixir an additional 15,000,000 shares of Common Stock and further reduce the exercise price of all of the 2006 Warrants (other than the $2.65 Warrants) by $1.00; |
(iii) | Subject to both (a) the Company having entered into Participation Agreements for the Placement of a Cumulative Total of 3,000 EGMs and (b) the actual Placement of a Cumulative Total of 2,000 EGMs, the Company shall issue to Elixir an additional 10,000,000 shares of Common Stock (and, to the extent not previously performed, (y) issue the shares of Common Stock and (z) implement the reduction in the exercise price of all of the 2006 Warrants, referenced in clause (ii) hereof) and further reduce the exercise price of all of the 2006 Warrants (other than the $2.65 Warrants) by $1.00; and |
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(iv) | Subject to both (a) the Company having entered into Participation Agreements for the Placement of a Cumulative Total of 4,000 EGMs and (b) the actual Placement of a Cumulative Total of 3,000 EGMs, the Company shall issue to Elixir an additional 5,000,000 shares of Common Stock (and, to the extent not previously performed, (y) issue the shares of Common Stock and (z) implement the reductions in the exercise price of all of the 2006 Warrants, referenced in clauses (ii) and (iii) hereof). |
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(i) | this Agreement duly executed by the Company; | ||
(ii) | one or more certificates evidencing the Initial Shares; | ||
(iii) | the New Warrants registered in the name of Elixir and duly executed by the Company; | ||
(iv) | the amended 2006 Warrants; | ||
(v) | the Registration Rights Agreement duly executed by the Company; and | ||
(vi) | an affidavit of an officer of the Company certifying that the Company is not a “United States real property holding corporation” as defined in Section 897 of the Code. |
(i) | this Agreement duly executed by Elixir; and | ||
(ii) | the Registration Rights Agreement duly executed by Elixir. |
(i) | the representations and warranties of Elixir contained in the Transaction Documents and qualified as to materiality shall be true and correct and any such representations and warranties not so qualified shall be true and correct in all material respects, as of the date hereof and as of the Closing Date; |
(ii) | all obligations, covenants and agreements of Elixir required to be performed at or prior to the Closing Date shall have been performed, including, but not limited to, the Placement of at least 1,000 EGMs; |
(iii) | the delivery by Elixir of the items set forth in Section 2.3(b) of this Agreement; |
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(iv) | the Company’s receipt of Shareholder Approval and, if necessary, the approval by the shareholders of Melco of the terms of the Transaction Documents and the transactions contemplated thereunder; |
(v) | If applicable, the waiting period applicable to the consummation of the transaction contemplated by the Transaction Documents under the HSR Act shall have expired or been terminated, and there shall not be in effect any voluntary agreement between the Company, Melco or Elixir and the Federal Trade Commission or the Department of Justice pursuant to which the Company, Melco or Elixir has agreed not to consummate the transaction contemplated by the Transaction Documents for any period of time (“HSR Clearance”); | ||
(vi) | the Company’s receipt of AMEX Approval; |
(vii) | the filing of the Amendment by the Company with the Nevada Secretary of State and the effectiveness of the Amendment; and |
(viii) | on the Closing Date, (A) no legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by the Transaction Documents and (B) there shall exist no actual or potential regulatory impediment to the legal and beneficial ownership of the Securities by Elixir. |
(i) | the representations and warranties of the Company contained in the Transaction Documents and qualified as to materiality shall be true and correct and any such representations and warranties not so qualified shall be true and correct in all material respects, as of the date hereof and as of the Closing Date; |
(ii) | all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed; |
(iii) | on the Closing Date, (A) no legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by the Transaction Documents and (B) there shall exist no actual or potential regulatory impediment to the legal and beneficial ownership of the Securities by Elixir; |
(iv) | the Company’s receipt of Shareholder Approval and, if necessary, the approval by the shareholders of Melco of the terms of the Transaction Documents and the transactions contemplated thereunder; |
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(v) | the receipt of HSR Clearance; | ||
(vi) | the Company’s receipt of AMEX Approval; | ||
(vii) | the filing of the Amendment by the Company with the Nevada Secretary of State and the effectiveness of the Amendment; |
(viii) | the delivery by the Company of the items set forth in Section 2.3(a) of this Agreement; |
(ix) | a legal opinion of Elixir Nevada Counsel, in form and substance reasonably satisfactory to Elixir; |
(x) | the initial Elixir Nominees shall have been elected to the Company Board effective as of the Closing Date; |
(xi) | the completion by Elixir and its advisors of legal, financial and business due diligence to its reasonable satisfaction; |
(xii) | in connection with that certain 8% Senior Secured Promissory Notes Agreement (the “8% Notes Agreement”), Bricoleur Capital Management shall have executed a waiver, which shall be in full force and effect, to the effect that the transactions contemplated under this Agreement and the other Transaction Documents do not constitute a change in control of the Company pursuant to the 8% Notes Agreement;. |
(xiii) | the Company shall have delivered to Elixir a certificate, dated the Closing Date, duly executed by its Chief Executive Officer to the effect set forth in clauses (i) and (ii) above; and |
(xiv) | the Company shall have delivered to Elixir a certificate, dated the Closing Date, of the Secretary or Assistant Secretary of the Company certifying as to (i) the certificate of incorporation and bylaws of the Company as in effect on the Closing Date, (ii) all resolutions of the board of directors (and committees thereof) of the Company relating to the Transaction Documents and the transactions contemplated thereby, and (iii) the incumbency of all officers of the Company executing the Transaction Documents and any other agreement or document contemplated thereby. |
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REPRESENTATIONS AND WARRANTIES
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(i) | “Controlled Group Liability” means any and all liabilities, contingent or otherwise (A) under Title IV of ERISA, (B) under Section 302 of ERISA, (C) under Sections 412 and 4971 of the Code, (D) resulting from a violation of the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code or the group health plan requirements of Sections 601 et seq. of the Code and Section 601 et seq. of ERISA, and (E) under corresponding or similar provisions of foreign laws or regulations, in each case, other than pursuant to the Company Benefit Plans and Company Foreign Plans in the case of the Company and Company Benefit Plans and Company Foreign Plans in the case of the Company. |
(ii) | “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, together with the rules and regulations thereunder. |
(iii) | “ERISA Affiliate” means, with respect to any entity, trade or business, any other entity, trade or business that is a member of a group described in Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA that includes the first entity, trade or business, or that is a member of the same “controlled group” as the first entity, trade or business pursuant to Section 4001(a)(14) of ERISA. |
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(iv) | “Company Benefit Plans” means all employee benefit plans, programs, policies, agreements, and other arrangements providing compensation or benefits to any current or former employee, consultant or director in respect of services provided to Company or any of its Subsidiaries or to any beneficiary or dependent thereof, and whether covering one individual or more than one individual, sponsored or maintained by Company or any of its Subsidiaries, as the case may be, or to which Company or any of its Subsidiaries contributes or is obligated to contribute or could have any liability or is party;provided, however, that Company Benefit Plans shall not include any Company Foreign Plan or any “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or any other plan, program or arrangement maintained by an entity other than Company or any of its Subsidiaries pursuant to any collective bargaining agreements. Without limiting the generality of the foregoing, the term “Company Benefit Plans” includes any defined benefit or defined contribution pension plan, profit sharing plan, stock ownership plan, deferred compensation agreement or arrangement, vacation pay, health, sickness, life, disability or death benefit plan (whether provided through insurance, on a funded or unfunded basis or otherwise), employee stock option or stock purchase plan, bonus or incentive plan or program, severance pay plan, agreement, arrangement or policy (including statutory severance and termination indemnity plans), practice or agreement, employment agreement, retiree medical benefits plan and each other employee benefit plan, program or arrangement, including each “employee benefit plan” (within the meaning of Section 3(3) of ERISA). For purposes of this Agreement, the term “Company Foreign Plan” shall refer to each material plan, program or contract that is subject to or governed by the laws of any jurisdiction other than the United States, and which would have been treated as a Company Benefit Plan had it been a United States plan, program or contract.Schedule 3.1(k)(a) lists all Company Benefit Plans and Company Foreign Plans. |
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(i) | Schedule 3.1(s) sets forth a true and complete list of all patents, patent applications, trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights necessary or material for use by the Company and its Subsidiaries in connection with their respective businesses as currently conducted (collectively, the “Intellectual Property Rights”). |
(ii) | The Company or a Subsidiary is the exclusive owner of the entire right, title and interest in and to, or has a valid license to use, the Intellectual Property Rights in connection with the business. The Company or a Subsidiary is entitled to use all Intellectual Property Rights in the continued operation of the business without limitation, subject only to the terms of any licenses with respect thereto. The Intellectual Property Rights have not been adjudged invalid or unenforceable in whole or in part, and are valid and enforceable. |
(iii) | The conduct of the business as currently conducted does not infringe or misappropriate the intellectual property of any third party, and no Action alleging any of the foregoing is pending, and no administrative, regulatory or judicial petition, appeal, demand, claim, lien, notice of noncompliance or violation has been threatened or asserted against the Company or any Subsidiary alleging any of the foregoing. Neither the Company nor any Subsidiary has received a notice (written or otherwise) that the Intellectual Property Rights violate or infringe upon the asserted rights of any Person. No Person is engaging in any activity that infringes the Intellectual Property Rights. |
(iv) | No Intellectual Property Right is subject to any outstanding decree, order, injunction, judgment or ruling restricting the use of such Intellectual Property Right or that would impair the validity or enforceability of such Intellectual Property Right. |
(v) | The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. |
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OTHER AGREEMENTS OF THE PARTIES
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PLACEMENT OF EGMS
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MISCELLANEOUS
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If to the Company: | VendingData Corporation | |
1120 Town Center Drive, Suite 260 | ||
Las Vegas, NV 89144 | ||
Facsimile: (702) 733-7197 | ||
Attn: Mark R. Newburg |
With a copy to: | Greenberg Traurig, LLP | |
650 Town Center Drive, Suite 1700 | ||
Costa Mesa, CA 92626 | ||
Facsimile: (714) 708-6501 | ||
Attn.: Daniel K. Donahue | ||
If to Elixir: | Elixir Group Limited | |
38/F., The Centrium, | ||
60 Wyndham Street | ||
Central, Hong Kong | ||
Facsimile: (852) 3162 2579 | ||
Attn.: Gordon Yuen | ||
With a copy to: | Latham & Watkins | |
41st Floor, One Exchange Square | ||
8 Connaught Place, Central | ||
Hong Kong | ||
Facsimile: (852) 2912-2501 | ||
Attn.: John A. Otoshi |
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VENDINGDATA CORPORATION | ||||
By: | ||||
Mark R. Newburg, President and Chief Executive Officer | ||||
ELIXIR GROUP LIMITED | ||||
By: | ||||
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i. | Authorization of Warrant Shares. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant, be duly authorized, validly issued, fully paid and nonassessable and free and clear of all Liens caused by the Company (except as resulting from the restrictions on transfer set forth in the Transaction Documents) but not including the restrictions on resale of restricted securities set forth in the Securities Act or any Lien imposed under any other U.S. law, rule or regulation. |
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ii. | Delivery of Certificates Upon Exercise. Certificates for shares purchased hereunder shall be promptly transmitted by the transfer agent of the Company to the Holder subject to the Holder’s delivery to the Company of the Notice of Exercise Form, surrender of this Warrant (if required) and payment of the aggregate Exercise Price as set forth above. |
iii. | Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and upon surrender of this Warrant, at the time of delivery of the certificate or certificates representing Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant. |
iv. | No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the VWAP of one Warrant Share or round up to the next whole share. |
v. | Charges, Taxes and Expenses. Issuance and delivery of certificates for Warrant Shares shall be made without charge to the Holder for any issue or transfer tax, withholding tax, transfer agent fees or other incidental tax or expense in respect of the issuance of such certificate, all of which taxes and expenses shall be paid by the Company, and such certificates shall be issued in the name of the Holder or in such name or names as may be directed by the Holder;provided,however, that in the event certificates for Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder; and the Company may require, as a condition thereto, the payment of a sum equal to the transfer tax incurred by it as a result of such assignment. |
vi. | Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof. |
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W’ = W x | A | |
O +P | ||
M |
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W’ | = | the adjusted Warrant Shares | ||
W | = | the Warrant Shares immediately prior to any such issuance. | ||
O | = | the number of shares of Common Stock outstanding, on a Fully Diluted Basis, immediately prior to the issuance of such additional shares of Common Stock. | ||
P | = | the aggregate consideration received for the issuance of such additional shares of Common Stock. | ||
M | = | the VWAP per share of Common Stock on the date of issuance of such additional shares. | ||
A | = | the number of shares of Common Stock outstanding, on a fully diluted basis, immediately after the issuance of such additional shares of Common Stock. |
W’ = W x | O + D | |
O +P | ||
M |
W’ = | the adjusted Warrant Shares. |
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W | = | the Warrant Shares immediately prior to any such issuance. | ||
O | = | the number of outstanding immediately, on a fully diluted basis, prior to the issuance of such securities. | ||
P | = | the aggregate consideration received for the issuance of such securities. | ||
M | = | the VWAP per share of Common Stock on the date of issuance of such securities. | ||
D | = | the maximum number of shares of Common Stock deliverable upon conversion or in exchange for or upon exercise of such securities at the initial conversion, exchange or exercise rate. |
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i. | Adjustment to Exercise Price. Upon any adjustment pursuant to Section 4 hereof, the Company shall promptly thereafter cause to be mailed to the Holder a notice setting forth the number of underlying shares of Common Stock with respect to the Warrant and the Exercise Price after such adjustment, and setting forth in reasonable detail the method of calculation and the facts upon which such calculations are based. |
ii. | Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common Stock; (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock; (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights; (D) the approval of any stockholders of the Company shall be required in connection with any reclassification of the Common Stock, any consolidation, merger or other business combination to which the Company is a party or any sale or transfer of all or substantially all of the assets of the Company, whereby the Common Stock is converted into other securities, cash or property; (E) a tender offer or exchange offer will be commenced (whether by the Company or another person) pursuant to which holders of the Common Stock will be permitted to tender or exchange their shares for other securities, cash or property; (F) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company; or (G) the Company proposes to take any other action that would require an adjustment of Exercise Price pursuant to Section 4; |
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VENDINGDATA CORPORATION | ||||
By: | ||||
Mark R. Newburg, | ||||
President and Chief Executive Officer | ||||
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Name of Investing Entity: |
Signature of Authorized Signatory of Investing Entity: |
Name of Authorized Signatory: |
Title of Authorized Signatory: |
Date: |
this form and supply required information.
Do not use this form to exercise the Warrant.)
Holder’s Signature: |
Holder’s Address: |
Signature Guaranteed: |
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i. | Authorization of Warrant Shares. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant, be duly authorized, validly issued, fully paid and nonassessable and free and clear of all Liens caused by the Company (except as resulting from the restrictions on transfer set forth in the Transaction Documents) but not including the restrictions on resale of restricted securities set forth in the Securities Act or any Lien imposed under any other U.S. law, rule or regulation. |
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ii. | Delivery of Certificates Upon Exercise. Certificates for shares purchased hereunder shall be promptly transmitted by the transfer agent of the Company to the Holder subject to the Holder’s delivery to the Company of the Notice of Exercise Form, surrender of this Warrant (if required) and payment of the aggregate Exercise Price as set forth above. |
iii. | Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and upon surrender of this Warrant, at the time of delivery of the certificate or certificates representing Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant. |
iv. | No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the VWAP of one Warrant Share or round up to the next whole share. |
v. | Charges, Taxes and Expenses. Issuance and delivery of certificates for Warrant Shares shall be made without charge to the Holder for any issue or transfer tax, withholding tax, transfer agent fees or other incidental tax or expense in respect of the issuance of such certificate, all of which taxes and expenses shall be paid by the Company, and such certificates shall be issued in the name of the Holder or in such name or names as may be directed by the Holder;provided,however, that in the event certificates for Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder; and the Company may require, as a condition thereto, the payment of a sum equal to the transfer tax incurred by it as a result of such assignment. |
vi. | Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof. |
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W’ = W x | A | |
O +P | ||
M |
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W’ | = | the adjusted Warrant Shares | ||
W | = | the Warrant Shares immediately prior to any such issuance. | ||
O | = | the number of shares of Common Stock outstanding, on a Fully Diluted Basis, immediately prior to the issuance of such additional shares of Common Stock. | ||
P | = | the aggregate consideration received for the issuance of such additional shares of Common Stock. | ||
M | = | the VWAP per share of Common Stock on the date of issuance of such additional shares. | ||
A | = | the number of shares of Common Stock outstanding, on a fully diluted basis, immediately after the issuance of such additional shares of Common Stock. |
W’ = W x | O + D | |
O +P | ||
M |
W’ = | the adjusted Warrant Shares. |
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W | = | the Warrant Shares immediately prior to any such issuance. | ||
O | = | the number of outstanding immediately, on a fully diluted basis, prior to the issuance of such securities. | ||
P | = | the aggregate consideration received for the issuance of such securities. | ||
M | = | the VWAP per share of Common Stock on the date of issuance of such securities. | ||
D | = | the maximum number of shares of Common Stock deliverable upon conversion or in exchange for or upon exercise of such securities at the initial conversion, exchange or exercise rate. |
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i. | Adjustment to Exercise Price. Upon any adjustment pursuant to Section 4 hereof, the Company shall promptly thereafter cause to be mailed to the Holder a notice setting forth the number of underlying shares of Common Stock with respect to the Warrant and the Exercise Price after such adjustment, and setting forth in reasonable detail the method of calculation and the facts upon which such calculations are based. |
ii. | Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common Stock; (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock; (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights; (D) the approval of any stockholders of the Company shall be required in connection with any reclassification of the Common Stock, any consolidation, merger or other business combination to which the Company is a party or any sale or transfer of all or substantially all of the assets of the Company, whereby the Common Stock is converted into other securities, cash or property; (E) a tender offer or exchange offer will be commenced (whether by the Company or another person) pursuant to which holders of the Common Stock will be permitted to tender or exchange their shares for other securities, cash or property; (F) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company; or (G) the Company proposes to take any other action that would require an adjustment of Exercise Price pursuant to Section 4; |
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VENDINGDATA CORPORATION | ||||
By: | ||||
Mark R. Newburg, | ||||
President and Chief Executive Officer | ||||
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Name of Investing Entity: |
Signature of Authorized Signatory of Investing Entity: |
Name of Authorized Signatory: |
Title of Authorized Signatory: |
Date: |
this form and supply required information.
Do not use this form to exercise the Warrant.)
Holder’s Signature: |
Holder’s Address: |
Signature Guaranteed: |
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(B) | If the offering pursuant to an Incidental Registration is to be an underwritten offering, then each Holder making a request for its Registrable Securities to be included therein must, and the Company shall make such arrangements with the underwriters so that each such Holder may, participate in such underwritten offering on the same terms as the Company and other Persons selling securities in such underwritten offering. If the offering pursuant to such registration is to be on any other basis, then each Holder making a request for an Incidental Registration pursuant to this Section 2(d) must participate in such offering on such basis. |
(C) | Each Holder shall be permitted to withdraw all or part of such Holder’s Registrable Securities from an Incidental Registration at any time prior to effectiveness of the Registration Statement. |
(A) | first, 100% of the securities that the Company or the Bricoleur Parties (with respect to the Bricoleur Parties, subject to the conditions in Section 2(d)(i)(4)); |
(B) | second, and only if all the securities referenced in clause (i) have been included, the number of Registrable Securities of such class that, in the opinion of such underwriter or underwriters (or in the case of an Incidental Registration not being underwritten, the Company), can be sold without having such adverse effect shall be included therein, with such number to be allocatedprorata among the Holders which have requested participation in the Incidental Registration (based, for each such Holder, on the percentage derived by dividing (x) the number of Registrable Securities of such class which such Holder has requested to include in such Incidental Registration by (y) the aggregate number of Registrable Securities of such class which all such Holders have requested to include); and |
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(C) | third, and only if all of the Registrable Securities referenced in clauses (i) and (ii) have been included, any other securities eligible for inclusion in such registration shall be included therein. |
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SIGNATURE PAGES FOLLOW]
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VENDINGDATA CORPORATION | ||||||
By: | /s/ Mark R. Newburg | |||||
Mark Newburg, | ||||||
President and Chief Executive Officer | ||||||
ELIXIR GROUP LIMITED | ||||||
By: | , | |||||
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VendingData Corporation
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(a) | Full Legal Name of Selling Securityholder |
(b) | Full Legal Name of Registered Holder (if not the same as (a) above) through which Registrable Securities Listed in Item 3 below are held: |
(c) | Full Legal Name of Natural Control Person (which means a natural person who directly or indirectly alone or with others has power to vote or dispose of the securities covered by the questionnaire): |
Telephone: | ||
Fax: | ||
Contact Person: | ||
(a) | Type and Number of Registrable Securities beneficially owned: |
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(a) | Are you a broker-dealer? |
(b) | If “yes” to Section 4(a), did you receive your Registrable Securities as compensation for investment banking services to the Company. |
Note: | If no, the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement. |
(c) | Are you an affiliate of a broker-dealer? |
(d) | If you are an affiliate of a broker-dealer, do you certify that you bought the Registrable Securities in the ordinary course of business, and at the time of the purchase of the Registrable Securities to be resold, you had no agreements or understandings, directly or indirectly, with any person to distribute the Registrable Securities? |
Note: | If no, the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement. |
(a) | Type and Amount of Other Securities beneficially owned by the Selling Securityholder: |
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Dated: | Beneficial Owner: | |||||||
By: | ||||||||
Name: | ||||||||
Title: |
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1 | What securities are intended to be included here? |
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EXHIBIT C
VENDINGDATA CORPORATION
CHARTER FOR THE
CONFLICTS COMMITTEE
OF THE BOARD OF DIRECTORS
Adopted ________ 2007
1. PURPOSE
The Conflicts Committee (the “Committee”) shall have the power to veto any agreement or transaction between VendingData Corporation (the “Company”) and its subsidiaries, on the one hand (each a “VendingData Company” and collectively, the “VendingData Companies”), and Elixir Group Limited (“Elixir”) and its affiliates other than the VendingData Companies (each an “Elixir Company” and collectively the “Elixir Companies”) involving an aggregate amount in excess of US$[200,000](a “Material Transaction”) and that has been approved by the Board of Directors of any VendingData Company (“Board”). The Committee shall exercise its veto power with a view to ensuring that any Material Transaction approved by the Board is fair to all stockholders of the Company. In any case where the Committee exercises its veto power with respect to a Material Transaction, it may suggest modifications to such Material Transaction.
2. COMPOSITION OF THE COMMITTEE
The Committee shall be comprised of not less than three directors each of whom (i) shall be an “independent director” under American Stock Exchange Rule 121A(2) or any successor rule and meet the criteria for independence as set forth in Rule 10A-3(b)(1) under the Exchange Act or any successor, (ii) shall not be, and shall not have been during the previous two years, an officer, director or employee of, or consultant or advisor to, an Elixir Company, and (iii) shall otherwise not have a relationship that would interfere with the exercise of independent judgment in carrying out the purpose of this Charter and the responsibilities of a member of the Conflicts Committee. Until , 2009, at least one member of the Committee shall be a “Company Nominee”, as that term is defined in that certain Securities Purchase and Product Participation Agreement dated June , 2007 between the Company and Elixir (the “Participation Agreement”), subject to the presence on the Board of at least one Company Nominee that meets the above qualifications. At least one member of the Committee shall be an “Elixir Nominee”, as that term is defined in the Participation Agreement, provided such person meets the above qualifications.
Each Committee member shall be subject to annual reconfirmation and may be removed by the Board of Directors of the Company.
3. RESPONSIBILITIES AND DUTIES
A. The Committee shall have the power to veto any Material Transaction that has been approved by the Board of Directors of any VendingData Company; it being understood and agreed that the agreements and transactions set forth in the Participation Agreement, the other Transaction Documents and the October 2006 Agreements (as such terms are defined in the Participation Agreement) have already been approved by the Board of Directors of the Company.
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B. The Committee shall exercise its veto power with a view to ensuring that all Material Transactions approved by a Board are fair to all stockholders of the Company. In discharging its responsibilities, the Committee shall be entitled to all rights and presumptions afforded directors under the General Corporation Law of Nevada (the “Law”), including Section 78.138 of the Law or any successor rule. .
C. In discharging its responsibilities, the Committee shall have full access to any relevant records of the Company and may also request that any officer or other employee of the Company, the Company’s outside counsel or any other person, meet with any members of, or consultants to, the Committee. The Committee shall also have the authority to, as it deems appropriate in its reasonable discretion, to select, retain and/or replace outside advisors to the Committee to provide independent advice to the Committee.
4. COMMITTEE MEETINGS
The Committee will meet periodically as necessary to act upon any matter within its jurisdiction. At all Committee meetings a majority of the total number of members shall constitute a quorum. All meetings shall be held subject to and in accordance with applicable sections of the Law (including without limitation notice, quorum and votes/actions of the committee) and the bylaws of the Company. Minutes shall be kept of each meeting of the Committee.
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