EXHIBIT 10
ANDCOR WARRANT NO. 3
THIS CERTIFICATE AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAW, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNTIL EITHER (i) A REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME
EFFECTIVE WITH REGARD THERETO, OR (ii) THE CORPORATION SHALL HAVE RECEIVED AN
OPINION OF COUNSEL ACCEPTABLE TO THE CORPORATION AND ITS COUNSEL THAT AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR APPLICABLE STATE
SECURITIES LAWS IS AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE OR TRANSFER.
STOCK PURCHASE WARRANT
TO PURCHASE 15,000 SHARES OF
COMMON STOCK OF
DIGITAL BIOMETRICS, INC.
THIS CERTIFIES THAT, for good and valuable consideration, Andcor
Companies, Inc., or its registered assignees, is entitled to subscribe for and
purchase from Digital Biometrics, Inc., a Delaware corporation (the "Company"),
at any time after October 1, 1998, to and including September 30, 2003, Fifteen
Thousand (15,000), fully paid and nonassessable shares of the Common Stock of
the Company at the price of $2.60 per share (the "Warrant Exercise Price"),
subject to the antidilution provisions of this Warrant. The shares which may be
acquired upon exercise of this Warrant are referred to herein as the "Warrant
Shares." As used herein, the term "Holder" means the initial holder, any party
who acquires all or a part of this Warrant as a registered transferee of the
initial holder in accordance with the terms of this Warrant, or any record
holder or holders of the Warrant Shares issued upon exercise, whether in whole
or in part, of the Warrant; the term "Common Stock" means and includes the
Company's presently authorized voting common stock, no par value per share, and
shall also include any capital stock of any class of the Company hereafter
authorized which shall not be limited to a fixed sum or percentage in respect of
the rights of the holders thereof to participate in dividends or in the
distribution of assets upon the voluntary or involuntary liquidation,
dissolution, or winding up of the Company; and the term "Convertible Securities"
means any stock or other securities convertible into, or exchangeable for,
Common Stock.
This Warrant is subject to the following provisions, terms and
conditions:
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1. Exercise; Transferability.
(a) The rights represented by this Warrant may be exercised by
the Holder hereof, in whole or in part (but not as to a fractional share of
Common Stock), prior to the expiration of this Warrant by written notice of
exercise (in the form attached hereto) delivered to the Company at the principal
office of the Company and accompanied or preceded by the surrender of this
Warrant and payment of the Warrant Exercise Price for such shares. The Holder
shall then complete and comply with a subscription agreement in the form
requested by the Company.
(b) Neither this Warrant nor the Warrant Shares may be sold,
assigned, hypothecated, or otherwise transferred other than (i) by will or
pursuant to the operation of law, or (ii) pursuant to Section 8 hereof. Further,
this Warrant may not be sold, transferred, assigned, hypothecated or divided
into two or more Warrants of smaller denominations. Other than by operation of
law, there shall be no more than 4 outstanding record holders of this Warrant at
any one time.
2. Payment of Warrant Exercise Price.
Payment of the Warrant Exercise Price may be made by cash, certified
check, cashiers check or wire transfer or a combination thereof, at the election
of Holder.
3. Exchange and Replacement. Subject to Sections 1 and 8 hereof, this
Warrant is exchangeable upon the surrender hereof by the Holder to the Company
at its principal executive office for a new Warrant(s) of like tenor and date
representing in the aggregate the right to purchase the number of Warrant Shares
purchasable hereunder, each of such new Warrant(s) to represent the right to
purchase such number of Warrant Shares (not to exceed the aggregate total number
purchasable hereunder) as shall be designated by the Holder at the time of such
surrender. Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction, or mutilation of this Warrant, and, in case of
loss, theft or destruction, of indemnity or security reasonably satisfactory to
it, and upon surrender and cancellation of this Warrant, if mutilated, the
Company will make and deliver a new Warrant of like tenor, in lieu of this
Warrant; provided, however, that if the initial Holder shall be such Holder, an
agreement of indemnity by such Holder shall be sufficient for all purposes of
this Section 3. This Warrant shall be promptly canceled by the Company upon the
surrender hereof in connection with any exchange or replacement. The Company
shall pay all expenses (other than stock transfer or income taxes) and other
charges payable in connection with the preparation, execution, and delivery of
Warrant(s) pursuant to this Section 3.
4. Issuance of the Warrant Shares.
(a) The Company agrees that the shares of Common Stock
purchased hereby shall be and are deemed to be issued to the Holder as of the
close of business on the date on which this Warrant shall have been surrendered,
the payment made for such Warrant Shares as aforesaid and the subscription
agreement is returned to the Company. Subject to the provisions of the next
section, certificates for the Warrant Shares so purchased shall be delivered to
the Holder within a reasonable time, not exceeding 15 business days after the
rights represented by this Warrant shall have been so exercised, such payment
surrendered and such agreement returned and, unless this
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Warrant has expired, a new Warrant representing the right to purchase the number
of Warrant Shares, if any, with respect to which this Warrant shall not then
have been exercised shall also be delivered to the Holder within such time.
(b) Notwithstanding the foregoing, however, the Company shall
not be required to deliver any certificate for Warrant Shares upon exercise of
this Warrant except in accordance with exemptions from the applicable securities
registration requirements or registrations under applicable securities laws.
Nothing herein, however, shall obligate the Company to effect registrations
under federal or state securities laws. If registrations are not in effect and
if exemptions are not available when the Holder seeks to exercise the Warrant,
the Warrant exercise period will be extended, if need be, to prevent the Warrant
from expiring, until such time as either registrations become effective or
exemptions are available, and the Warrant shall then remain exercisable for a
period of at least 30 calendar days from the date the Company delivers to the
Holder written notice of the availability of such registrations or exemptions.
The Holder agrees to execute such documents and make such representations,
warranties, and agreements as may be required solely to comply with the
exemptions relied upon by the Company, or the registrations made, for the
issuance of the Warrant Shares.
5. Covenants of the Company. The Company covenants and agrees that all
Warrant Shares will, upon issuance, be duly authorized and issued, fully paid,
nonassessable, and free from all taxes (except stock transfer and income taxes),
liens, and charges with respect to the issue thereof. The Company further
covenants and agrees that during the period within which the rights 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
Common Stock to provide for the exercise of the rights represented by this
Warrant.
6. Antidilution Adjustment. The provisions of this Warrant are subject
to adjustment as provided in this Section 6.
(a) The Warrant Exercise Price shall be adjusted from time to
time such that in case the Company shall hereafter:
i) pay any dividends on any class of stock of the
Company payable in Common Stock;
ii) subdivide its then outstanding shares of Common
Stock into a greater number of shares; or
iii) combine outstanding shares of Common Stock, by
reclassification or otherwise;
then, in any such event, the Warrant Exercise Price in effect immediately prior
to such event shall (until adjusted again pursuant hereto) be adjusted
immediately after such event to a price (calculated to the nearest full cent)
determined by dividing (a) the number of shares of Common Stock outstanding
immediately prior to such event, multiplied by the then existing Warrant
Exercise Price, by (b) the total number of shares of Common Stock outstanding
immediately after such event (including the maximum number of shares of Common
Stock issuable in respect of any securities
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convertible into Common Stock), and the resulting quotient shall be the adjusted
Warrant Exercise Price per share. An adjustment made pursuant to this Subsection
shall become effective immediately after the record date in the case of a
dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or reclassification.
If, as a result of an adjustment made pursuant to this Subsection, the Holder of
any Warrant thereafter surrendered for exercise shall become entitled to receive
shares of two or more classes of capital stock or shares of Common Stock and
other capital stock of the Company, the Company's Board of Directors (whose
determination shall be conclusive) shall determine the allocation of the
adjusted Warrant Exercise Price between or among shares of such classes of
capital stock or shares of Common Stock and other capital stock. All
calculations under this Subsection shall be made to the nearest cent or to the
nearest 1/100 of a share, as the case may be. In the event that at any time as a
result of an adjustment made pursuant to this Subsection, the holder of any
Warrant thereafter surrendered for exercise shall become entitled to receive any
shares of the Company other than shares of Common Stock, thereafter the Warrant
Exercise Price of such other shares so receivable upon exercise of any Warrant
shall be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to Common Stock
contained in this Section.
(b) Upon each adjustment of the Warrant Exercise Price
pursuant to Section 6(a) above, the Holder of each Warrant shall thereafter
(until another such adjustment) be entitled to purchase at the adjusted Warrant
Exercise Price the number of shares, calculated to the nearest full share,
obtained by multiplying the number of shares specified in such Warrant (as
adjusted as a result of all adjustments in the Warrant Exercise Price in effect
prior to such adjustment) by the Warrant Exercise Price in effect prior to such
adjustment and dividing the product so obtained by the adjusted Warrant Exercise
Price.
(c) In case of any capital reorganization or any
reclassification of the shares of Common Stock of the Company, or any
consolidation or merger to which the Company is a party other than a merger or
consolidation in which the Company is the continuing corporation, or in case of
any sale or conveyance to another corporation of the property of the Company as
an entirety or substantially as an entirety, or in the case of any statutory
exchange of securities with another corporation (including any exchange effected
in connection with a merger of a third corporation into the Company), there
shall be no adjustment under Subsection (a) of this Section above but the Holder
of each Warrant then outstanding shall have the right thereafter to convert such
Warrant into the kind and amount of shares of stock and other securities and
property which it would have owned or have been entitled to receive immediately
after such capital reorganization, reclassification, consolidation, merger,
statutory exchange, sale, or conveyance had such Warrant been converted
immediately prior to the effective date of such consolidation, merger, statutory
exchange, sale, or conveyance and in any such case, if necessary, appropriate
adjustment shall be made in the application of the provisions set forth in this
Section with respect to the rights and interests thereafter of any Holders of
the Warrant, to the end that the provisions set forth in this Section shall
thereafter correspondingly be made applicable, as nearly as may reasonably be,
in relation to any shares of stock and other securities and property thereafter
deliverable on the exercise of the Warrant. The provisions of this Subsection
shall similarly apply to successive consolidations, mergers, statutory
exchanges, sales or conveyances. Prior to consummating any such consolidation,
merger or sale, 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
hereof at the last address of such Holder
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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.
(d) Upon any adjustment of the Warrant Exercise Price, then,
and in each such case, the Company shall give written notice thereof, by first
class mail, postage prepaid, addressed to the Holder as shown on the books of
the Company, which notice shall state the Warrant Exercise Price resulting from
such adjustment and the increase or decrease, if any, in the number of shares of
Common Stock 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.
7. No Voting Rights. This Warrant shall not entitle the Holder to any
voting rights or other rights as a shareholder of the Company.
8. Notice of Transfer of Warrant or Resale of the Warrant Shares.
(a) Subject to the sale, assignment, hypothecation, or other
transfer restrictions set forth in Section 1 hereof, the Holder, by acceptance
hereof, agrees to give 7 days written notice to the Company before transferring
this Warrant or transferring any Warrant Shares of such Holder's intention to do
so, describing briefly the manner of any proposed transfer. Such notice may be
provided in the form of Warrant Assignment attached hereto. Promptly upon
receiving such written notice, the Company shall present copies thereof to the
Company's counsel. If in the reasonable opinion of such counsel, the proposed
transfer may be effected without registration or qualification (under any
federal or state securities laws), the Company, as promptly as practicable,
shall notify the Holder of such opinion, whereupon the Holder shall be entitled
to transfer this Warrant or to dispose of Warrant Shares received upon the
previous exercise of this Warrant, all in accordance with the terms of the
notice delivered by the Holder to the Company; provided that an appropriate
legend may be endorsed on this Warrant or the certificates for such Warrant
Shares respecting restrictions upon transfer thereof necessary or advisable in
the opinion of counsel and satisfactory to the Company to prevent further
transfer which would be in violation of Section 5 of the Securities Act of 1933,
as amended (the "1933 Act") and applicable state securities laws; and provided
further that the prospective transferee or purchaser shall execute such
documents and make such representations, warranties and agreements as may be
reasonably required solely to comply with the exemptions relied upon by the
Company for the transfer or disposition of the Warrant or Warrant Shares.
(b) If in the reasonable opinion of the counsel referred to
in this Section 8, the proposed transfer or disposition of this Warrant or such
Warrant Shares described in the written notice given pursuant to this Section 8
may not be effected without registration or qualification of this Warrant or
such Warrant Shares, the Company shall promptly give written notice thereof to
the Holder, and the Holder will limit its activities in respect to such as, in
the reasonable opinion of such counsel to the Company, are permitted by law.
9. Fractional Shares. Fractional shares shall not be issued upon the
exercise of this Warrant, but in any case where the Holder would, except for the
provisions of this Section, be entitled under the terms hereof to receive a
fractional share, the Company shall, upon the exercise of this Warrant for the
largest number of whole shares then called for, pay a sum in cash equal to the
sum of (a) the excess, if any, of the Market Price of such fractional share over
the proportional part
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of the Warrant Exercise Price represented by such fractional share, plus (b) the
proportional part of the Warrant Exercise Price represented by such fractional
share. For purposes of this Section, the term "Market Price" with respect to
shares of Common Stock of any class or series means the last reported sale price
or, if none, the average of the last reported closing bid and ask prices on any
national securities exchange or quoted on the Nasdaq, or if not listed on a
national securities exchange or quoted on Nasdaq, the average of the last
reported closing bid and ask prices as reported by Metro Data Company, Inc. from
quotations by market makers in such Common Stock on the Minneapolis-St. Paul
local over-the-counter sales.
10. Representations of the Holder.
(a) The Holder acknowledges and represents that Holder
understands that this Warrant is illiquid and highly speculative, that Holder is
able to bear the economic risk associated with this Warrant, and that Holder
believes that this Warrant is a suitable investment for Holder.
(b) The Holder acknowledges and represents that Holder has
been given access to full and complete information regarding the Company
(including the opportunity to meet with Company officers and to review such
documents as Holder may have requested in writing) and has utilized such access
to Holder's satisfaction for the purpose of obtaining information about the
Company.
(c) The Holder represents and warrants that this Warrant is
being acquired for Holder's own account and without the intention of reselling
or redistributing the same. Holder further understands and agrees that the
transferability of the Warrant is restricted as described herein.
(d) The Holder hereby represents that it is an "accredited
investor" within the meaning of Rule 501 of Regulation D under the Securities
Act.
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IN WITNESS WHEREOF, the undersigned have caused this Warrant to be
signed this 1st day of October, 1998.
ATTEST: DIGITAL BIOMETRICS, INC.
/s/ John J. Metil By /s/ James C. Granger
------------------------------- --------------------------------------
Its Secretary James C. Granger
Its Chief Executive Officer
ANDCOR COMPANIES, INC.
By /s/ Jack L. Hauser
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Its: Chief Financial Officer
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NOTICE OF WARRANT EXERCISE
(To be signed only upon exercise of Warrant)
TO: DIGITAL BIOMETRICS, INC.
The undersigned hereby irrevocably elects to exercise the attached
Warrant to purchase for cash, _____________ of the shares issuable upon the
exercise of such Warrant, and requests that certificates for such shares
(together with a new Warrant to purchase the number of shares, if any, with
respect to which this Warrant is not exercised) shall be issued in the name of,
and be delivered to,
-------------------------------------
(Print Name)
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Please insert social security or other (Address)
identifying number of registered holder
of certificate (______________)
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Date: _____________________, 199_ Signature*
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*The signature of the Notice of Exercise of Warrant must correspond to the name
as written upon the face of the Warrant in every particular without alteration
or enlargement or any change whatsoever. When signing on behalf of a
corporation, partnership, trust or other entity, PLEASE indicate your
position(s) and title(s) with such entity.
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WARRANT ASSIGNMENT
(To be signed only upon transfer of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ______________________________ the right represented by the foregoing
warrant to purchase Common Stock of DIGITAL BIOMETRICS, INC., to which the
foregoing warrant relates and appoints ________________________________ attorney
to transfer said right on the books of DIGITAL BIOMETRICS, INC., with full power
of substitution in the premises.
The manner of the proposed transfer by the undersigned is described
briefly in the space below.
Dated:_________________________
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(Signature)
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-------------------------------------
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(Address)
In Presence Of:
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