VTSI Virtra Inc

 

As filed with the Securities and Exchange Commission on December 16, 2024

 

Registration No. 333-●

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-3

REGISTRATION STATEMENT

UNDER THE SECURITIES ACT OF 1933

 

VIRTRA, INC.

(Exact Name of Registrant as Specified in Its Charter)

 

Nevada		93-1207631
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification Number)

 

295 E. Corporate Place

Chandler, AZ 85225

(480) 968-1488

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

John F. Givens II

Chief Executive Officer

VirTra, Inc.

295 E. Corporate Place

Chandler, AZ 85225

(480) 968-1488

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

Copy to:

 

Fay Matsukage, Esq.

Doida Crow Legal LLC

7979 E. Tufts Ave. Suite 1750

Denver, CO 80237

(720) 306-1001

 

Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.

 

If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐

 

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒

 

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

 

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

 

If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐

 

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer	☐	Accelerated filer	☐
Non-accelerated filer	☐ (Do not check if a smaller reporting company)	Smaller reporting company	☒
Emerging growth company ☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐

 

The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to such Section 8(a), may determine.

 

 

 

The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.

 

Subject to Completion, Dated December 16, 2024

 

PROSPECTUS

 

$50,000,000

 

VIRTRA, INC.

 

Common Stock, Preferred Stock, Warrants, Rights,

 

Debt Securities and Units

 

We may offer and sell, from time to time in one or more offerings the following securities:

 

●	shares of common stock, par value $0.0001 per share;
●	shares of preferred stock, par value $0.0001 per share;
●	warrants to purchase shares of our common stock, preferred stock and/or debt securities;
●	rights to purchase shares of our common stock, preferred stock, warrants and/or debt securities;
●	debt securities consisting of senior notes, subordinated notes or debentures;
●	units consisting of a combination of the foregoing securities; or
●	any combination of these securities.

 

We may offer and sell up to $50,000,000 in the aggregate of the securities identified above from time to time in one or more offerings. The securities may be distributed at a fixed price or prices, which may be changed, market prices prevailing at the time of sale, prices related to the prevailing market prices, or negotiated prices. This prospectus provides a general description of the securities that we may offer. However, this prospectus may not be used to offer or sell our securities unless accompanied by a prospectus supplement relating to the offered securities. Each time that we offer securities under this prospectus, we will provide the specific terms of the securities offered, including the public offering price, in a related prospectus supplement. Such prospectus supplement may add to, update or change information contained in this prospectus. To the extent there is a conflict between the information contained in this prospectus, on the one hand, and the information contained in any prospectus supplement, on the other hand, you should rely on the information in the prospectus supplement. You should read this prospectus and any applicable prospectus supplement together with additional information described under the headings “Where You Can Find More Information” and “Information Incorporated by Reference” before making your investment decision.

 

These securities may be sold directly by us, through dealers or agents designated from time to time, to or through underwriters or through a combination of these methods. See “Plan of Distribution” in this prospectus for additional information on methods of sale. We may also describe the plan of distribution for any particular offering of our securities in a prospectus supplement. If any agents, underwriters or dealers are involved in the sale of any securities in respect of which this prospectus is being delivered, we will disclose their names and the nature of our arrangements with them in that prospectus supplement. The net proceeds we expect to receive from any such sale will also be included in the prospectus supplement.

 

Our common stock is quoted on the Nasdaq Capital Market under the ticker symbol “VTSI.” The closing price of our common stock on December 13, 2024 was $6.92 per share.

 

As of November 13, 2024, the aggregate market value of our outstanding common equity held by non-affiliates, or public float, was $78,462,899 based on 11,251,425 shares of common stock outstanding, of which 9,603,782 shares are held by non-affiliates, and a per share price of $8.17 based on the last sale price of our common stock on the Nasdaq Capital Market on November 13, 2024 (within 60 days prior to the date of filing). Therefore, as of November 13, 2024, the aggregate market value of our common equity held by non-affiliates was more than $75,000,000, as calculated in accordance with General Instruction I.B.1 of Form S-3.

 

An investment in our securities involves a high degree of risk. See the sections entitled “Risk Factors” included in our most recent Annual Report on Form 10-K and in any subsequent Quarterly Report on Form 10-Q, which are incorporated by reference into this prospectus, as well as in any prospectus supplement related to a specific offering we make pursuant to this prospectus. You should carefully read this entire prospectus together with any related prospectus supplement and the information incorporated by reference into both before you make your investment decision.

 

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.

 

This prospectus may not be used to sell securities unless accompanied by a prospectus supplement.

 

The date of this prospectus is         , 2024

 

 

TABLE OF CONTENTS

 

		PAGE
ABOUT THIS PROSPECTUS		2
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS		3
PROSPECTUS SUMMARY		4
THE OFFERING		4
THE COMPANY		4
RISK FACTORS		7
USE OF PROCEEDS		7
RATIO OF EARNINGS TO FIXED CHARGES		7
DESCRIPTIONS OF SECURITIES		7
DESCRIPTION OF CAPITAL STOCK		8
DESCRIPTION OF DEBT SECURITIES		11
DESCRIPTION OF WARRANTS		13
DESCRIPTION OF RIGHTS		14
DESCRIPTION OF UNITS		15
FORMS OF SECURITIES		15
PLAN OF DISTRIBUTION		17
LEGAL OPINIONS		18
EXPERTS		18
LIMITATION ON LIABILITY AND DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES		18
WHERE YOU CAN FIND MORE INFORMATION		19
INFORMATION INCORPORATED BY REFERENCE		19

 

 

ABOUT THIS PROSPECTUS

 

This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the “SEC”) using a “shelf” registration process. Under this shelf registration process, we may offer from time to time securities having a maximum aggregate offering price of $50,000,000. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will prepare and file with the SEC a prospectus supplement that describes the specific amounts, prices and terms of the securities offered. The prospectus supplement also may add, update or change information contained in this prospectus or the documents incorporated herein by reference. You should read carefully both this prospectus and any prospectus supplement together with additional information described below under “Risk Factors,” “Where You Can Find More Information” and “Information Incorporated by Reference.”

 

This prospectus does not contain all the information provided in the registration statement we filed with the SEC. For further information about us or our securities offered hereby, you should refer to that registration statement, which you can obtain from the SEC or directly from us as described below under “Where You Can Find More Information.”

 

You should rely only on the information contained or incorporated by reference in this prospectus or any prospectus supplement. Neither we, our affiliates nor any underwriters have authorized anyone to provide any information other than that contained or incorporated by reference in this prospectus or in any free writing prospectus prepared by or on behalf of us or to which we have referred you. If anyone provides you with different or inconsistent information, you should not rely on it. We and our affiliates take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. This prospectus is not an offer to sell securities, and it is not soliciting an offer to buy securities, in any jurisdiction where the offer or sale is not permitted. We and/or our affiliates, are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information contained in or incorporated by reference in this prospectus or any prospectus supplement or in any such free writing prospectus is accurate as of any date other than their respective dates. You should assume that the information appearing in this prospectus or any prospectus supplement, as well as information we have previously filed with the SEC and incorporated by reference, is accurate as of the date of those documents only. Our business, financial condition, results of operations and prospects may have changed since those dates.

 

We may sell securities through underwriters or dealers, through agents, directly to purchasers or through any combination of these methods. We and our agents reserve the sole right to accept or reject in whole or in part any proposed purchase of securities. The prospectus supplement, which we will prepare and file with the SEC each time we offer securities, will set forth the names of any underwriters, agents or others involved in the sale of securities, and any applicable fee, commission or discount arrangements with them. See “Plan of Distribution.”

 

In this prospectus, references to “VirTra”, “we,” “us,” “our”, “the registrant” and “our company” refer, collectively, to VirTra, Inc., a Nevada corporation, the issuer of the securities offered hereby, and its consolidated subsidiaries.

 

We have filed or incorporated by reference exhibits to the registration statement of which this prospectus forms a part. You should read the exhibits carefully for provisions that may be important to you.

 

 

SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS

 

Statements in this prospectus and in the documents incorporated by reference in this prospectus contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. Any statements contained herein, other than statements of historical fact, including statements regarding the progress and timing of our product development programs; our future opportunities; our business strategy, future operations, anticipated financial position, future revenues and projected costs; our management’s prospects, plans and objectives; and any other statements about our management’s future expectations, beliefs, goals, plans or prospects constitute forward-looking statements. Examples of such statements are those that include words such as “may,” “assume(s),” “forecast(s),” “position(s),” “predict(s),” “strategy,” “will,” “expect(s),” “estimate(s),” “anticipate(s),” “believe(s),” “project(s),” “intend(s),” “plan(s),” “budget(s),” “potential,” “continue” and variations thereof. However, the words cited as examples in the preceding sentence are not intended to be exhaustive and any statements contained in this prospectus regarding matters that are not historical facts may also constitute forward-looking statements.

 

Because these statements implicate risks and uncertainties, as well as certain assumptions, actual results may differ materially from those expressed or implied by such forward-looking statements. Factors that could cause actual results to differ materially include, but are not limited to, those risks identified under “Risk Factors” in our most recent annual report on Form 10-K and our quarterly reports on Form 10-Q and from time to time in our other filings with the SEC. The information in this prospectus or any prospectus supplement speaks only as of the date of that document and the information incorporated herein by reference speaks only as of the date of the document incorporated by reference. Except as required by law, we undertake no obligation to update any forward-looking statement, whether as a result of new information, future events or otherwise. Forward-looking statements include our plans and objectives for future operations, including plans and objectives relating to our products and our future economic performance. Assumptions relating to the foregoing involve judgments with respect to, among other things, future economic, competitive and market conditions as well as future business decisions, including any acquisitions, mergers, dispositions, joint ventures, investments and any other business development transactions we may enter into in the future. The amounts of time and money required to successfully complete development and commercialization of our technologies as well as any evolution of or shift in our business plans, or to execute any future strategic options are difficult or impossible to predict accurately and may involve factors that are beyond our control. Although we believe that the assumptions underlying the forward-looking statements contained herein are reasonable, any of those assumptions could prove inaccurate and, therefore, we cannot assure you that the results contemplated in any of the forward-looking statements contained herein will be realized.

 

Based on the significant uncertainties inherent in the forward-looking statements described herein, the inclusion of any such statement should not be regarded as a representation by us or any other person that our objectives or plans will be achieved. Accordingly, you should not place undue reliance on these forward-looking statements.

 

 

PROSPECTUS SUMMARY

 

This prospectus summary highlights certain information about our company and other information contained elsewhere in this prospectus or in documents incorporated by reference. This summary does not contain all of the information that you should consider before making an investment decision. You should carefully read the entire prospectus, any prospectus supplement, including the section entitled “Risk Factors” and the documents incorporated by reference into this prospectus, before making an investment decision.

 

THE OFFERING

 

This prospectus is part of a registration statement that we filed with the SEC utilizing a shelf registration process. Under this shelf registration process, we may sell any combination of:

 

	●	common stock;
	●	preferred stock;
	●	debt securities, in one or more series;
	●	warrants to purchase any of the securities listed above;
	●	rights to purchase any of the securities listed above; and/or
	●	units consisting of one or more of the foregoing.

 

in one or more offerings up to a total dollar amount of $50,000,000. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that specific offering and include a discussion of any risk factors or other special considerations that apply to those securities. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with the additional information described under the heading “Risk Factors” and “Where You Can Find More Information.”

 

THE COMPANY

 

Business Overview

 

VirTra is a global provider of judgmental use of force training simulators, and firearms training simulators for the law enforcement, military, educational and commercial markets. The Company’s patented technologies, software, and scenarios provide intense training for de-escalation, judgmental use-of-force, marksmanship and related training that mimics real-world situations. VirTra’s mission is to save and improve lives worldwide through practical and highly effective virtual reality and simulator technology.

 

The VirTra firearms training simulator allows marksmanship and realistic scenario-based training to take place daily without the need for a shooting range, protective equipment, role players, safety officers, or a scenario-based training site. We have developed a higher standard in simulation training including capabilities such as: multi-screen, video-based scenarios, unique scenario authoring ability, superior training scenarios, the patented Threat-Fire® shoot-back system, powerful gas-powered simulated recoil weapons, and more. The simulator also allows students to receive immediate feedback from the instructor without the potential for sustaining injuries by the instructor or the students. The instructor can teach and re-mediate critical issues, while placing realistic stress on the students due to the realism and safe training environment created by the VirTra simulator.

 

 

Business Strategy

 

We have two main customer groups, namely, law enforcement and military. These are very different markets and require different sales and marketing programs as well as personnel. Our focus is to expand the market share and scope of our training simulators sales to these identified customer groups by pursuing the following key growth strategies:

 

	●	Build Our Core Business. Our goal is to profitably grow our market share by continuing to develop, produce and market the most effective simulators possible. Through disciplined growth in our business, we have achieved a solid balance sheet by increasing our working capital and limiting our bank debt. We plan to add staff to our experienced management team as needed to meet the expected increase in demand for our products and services as we increase our marketing and sales activities.
	●	Increase Total Addressable Market. We plan to increase the size of our total addressable market. This effort will focus on new marketing and new product and/or service offerings for the purpose of widening the number of types of customers who might consider our products or services uniquely compelling.
	●	Broaden Product Offerings. Since its formation in 1993, our company has had a proud tradition of innovation in the field of simulation and virtual reality. We plan to release revolutionary new products and services as well as continue incremental improvements to existing product lines. In some cases, the company may enter a new market segment via the introduction of a new type of product or service.
	●	Partners and Acquisitions. We try to spend our time and funds wisely and not tackle tasks that can be done more efficiently with partners. For example, international distribution is often best accomplished through a local distributor or agent. We are also open to the potential of acquiring additional businesses or of being acquired ourselves, based on what is expected to be optimal for our long-term future and our stockholders.

 

Product Offerings

 

Our simulator products include the following:

 

●

V-300™ Simulator – a 300° wrap-around screen with video capability is the higher standard for simulation training

 

	○	The V-300™ is the higher standard for immersive decision-making simulation and tactical firearms training. Five screens and a 300-degree immersive training environment ensures that time in the simulator translates into real world survival skills.
	○	A key feature of the V-300™ shows how quickly judgment decisions must be made, and, sometimes, if they are not made immediately and accurately, it can lead to the possible loss of lives. This feature, among others, supports our value proposition to our customers is that best practices is being prepared enough for the surprises that could be around every corner and the ability to safely neutralize any life-threatening encounters.

 

●

V-180™ Simulator – a 180° three-screen with video scenarios and marksmanship capabilities

 

○

The V-180™ is the higher standard for immersive decision-making simulation and tactical firearms training. Three screens and a 180-degree immersive training environment ensure that time in the simulator translates into real world survival skills.

 

●

V-100™ Simulator & V-100™ MIL – a single-screen based simulator systems

 

	○	The V-100™ is a single-screen firearms training simulator and has a portable version. Firearms training mode supports up to 4 individual firing lanes at one time. With hundreds of scenarios and skill drills, this training solution provides fast set-up and training on the go and in almost any location.
	○	The V-100™ MIL is sold to various military commands throughout the world and can support any local language. The system is extremely compact and can even share space with a standard classroom or fits into almost any existing facility. If a portable firearms simulator is needed, this model offers the most compact single-screen simulator on the market today – everything organized into one standard case. Military Engagement Skills mode supplies realistic scenario training taken from real world events.
	○	The V-ST PRO™ is a robust, highly realistic single-screen firearms shooting and skills training simulator that can scale by connecting up to 5 V-ST PROs. Its flexibility supports a combination of marksmanship and use of force training capable of displaying 1 to 30 lanes of marksmanship featuring real world, accurate ballistics.

 

 

	●	Virtual Interactive Coursework Training Academy (V-VICTA)™ enables law enforcement agencies, to effectively teach, train, test and sustain departmental training requirements through nationally accredited coursework and training scenarios using our simulators.
	●	Subscription Training Equipment Partnership (STEP)™ is a program that allows agencies to utilize VirTra’s simulator products, accessories, and V-VICTA interactive coursework on a subscription basis.
	●	V-Author® proprietary software allows users to create, edit, and train with content specific to the agency’s objectives and environments. V-Author is an easy-to-use application capable of almost unlimited custom scenarios, skill drills, targeting exercises, and firearms courses of fire. It also allows panoramic photos of any local location so users can train in their actual reality.
	●	Simulated Recoil Kits - a wide range of highly realistic and reliable simulated recoil kits/weapons made in the USA. VirTra’s True-Fire® recoil kits do not allow for faulty extra shots. Recoil kits use either CO2 or HPA greatly reducing the need for costly ammunition.
	●	Return Fire Device – the patented Threat-Fire® device applies real-world stress on the trainees during simulation training. Stress inoculation is a key component of training exercises. VirTra holds a patent for electronic simulation in simulation making the pairing of the device and the simulators a sourced item.
	●	VirTra has installed a volumetric video capture studio in order to create training scenarios that could work in either screen-based simulators or in headset-based simulators. Volumetric video realism far exceeds that of computer-generated avatars which likely gives VirTra a strategic advantage for highly desired de-escalation training, especially when simulating human interaction is required.
	●	TASER©, OC spray and low-light training devices that interact with VirTra’s simulators for training.
	●	V-XR is an extended reality headset-based training solution. It comes ready to use out of the box with two headsets, a trainer tablet, charging stations, a router, a casting device, and cables in a portable hard case, with a 3-year manufacturer’s warranty.

 

Corporate Information

 

We are a corporation organized and existing under the laws of the State of Nevada. The original business started in 1993 as Ferris Productions, Inc. In September 2001, Ferris Productions, Inc. merged with GameCom, Inc. to ultimately become VirTra Systems, Inc., a Texas corporation. Effective as of October 1, 2016, we completed a conversion from a Texas corporation to a Nevada corporation pursuant to a Redomestication Plan of Conversion (the “Plan of Conversion”). As part of the Plan of Conversion, we changed our name from VirTra Systems, Inc. to VirTra, Inc. and revised our capitalization.

 

On March 29, 2018, our shares of Common Stock began trading on the Nasdaq Capital Market under the symbol, “VTSI.”

 

Our principal office is located at 295 E. Corporate Place, Chandler, AZ 85225 and our phone number is (480) 968-1488. Our corporate website address is www.virtra.com. We have an additional office located at 12301 Challenger Parkway, Orlando, FL 32826. The information contained on, or accessible through, our website is not incorporated in, and shall not be part of, this prospectus.

 

 

RISK FACTORS

 

Investing in our securities involves substantial risks. Before purchasing any of the securities, you should carefully consider and evaluate all of the information included and incorporated by reference or deemed to be incorporated by reference in this prospectus or the applicable prospectus supplement, including the risk factors incorporated by reference herein from our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, as updated by annual, quarterly and other reports and documents we file with the SEC after the date of this prospectus and that are incorporated by reference herein or in the applicable prospectus supplement. The risks and uncertainties that we have described are not the only ones facing our company. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect us. The occurrence of any of these risks could materially and adversely impact our business, cash flows, condition (financial or otherwise), liquidity, prospects and/or results of operations. Please also refer to the sections below entitled “Special Note on Forward-Looking Statements” and “Where You Can Find More Information.”

 

USE OF PROCEEDS

 

Unless otherwise indicated in a prospectus supplement, the net proceeds from the sale of the securities will be used for general corporate purposes, including, but not limited to, working capital, acquisitions, and other business opportunities.

 

RATIO OF EARNINGS TO FIXED CHARGES

 

Any time debt securities are offered pursuant to this prospectus, we will provide a table setting forth our ratio of earnings to fixed charges on a historical basis in the applicable prospectus supplement, if required.

 

DESCRIPTION OF SECURITIES

 

We may sell from time to time, in one or more offerings:

 

	●	shares of our common stock;
	●	shares of our preferred stock;
	●	debt securities consisting of senior notes, subordinated notes or debentures;
	●	warrants to purchase shares of our common stock, shares of our preferred stock and/or debt securities;
	●	rights to purchase shares of our common stock, preferred stock, warrants and/or debt securities;
	●	units consisting of a combination of the foregoing securities.

 

The descriptions of the securities contained in this prospectus, together with any applicable prospectus supplement, summarize all the material terms and provisions of the various types of securities that we may offer. We will describe in the applicable prospectus supplement relating to a particular offering the specific terms of the securities offered by that prospectus supplement. We will indicate in the applicable prospectus supplement if the terms of the securities differ from the terms we have summarized below. We will also include in the prospectus supplement information, where applicable, material United States federal income tax considerations relating to the securities.

 

 

DESCRIPTION OF CAPITAL STOCK

 

The following descriptions of common and preferred stock, together with the additional information we include in any applicable prospectus supplement, summarizes the material terms and provisions of the common stock and preferred stock that we may offer under this prospectus but is not intended to be complete. For the full terms of our common and preferred stock, please refer to our articles of incorporation, as amended from time to time, and our bylaws, as amended from time to time. The Nevada Revised Statutes (“NRS”) may also affect the terms of these securities. While the terms we have summarized below will apply generally to any future common or preferred stock that we may offer, we will describe the specific terms of any series of these securities in more detail in the applicable prospectus supplement. If we so indicate in a prospectus supplement, the terms of any common or preferred stock we offer under that prospectus supplement may differ from the terms of our outstanding capital stock that we describe below.

 

As of December 13, 2024, our authorized capital stock consists of 62,500,000 shares of capital stock with a par value of $0.0001 per share, consisting of 50,000,000 shares of Common Stock, par value of $0.0001 per share, 2,500,000 shares of Class A Common Stock, par 11,251,425 shares of Common Stock issued and outstanding, held by 38 holders of record. No shares of Class A Common Stock, Class B Common Stock, or Preferred Stock were issued or outstanding as of December 13, 2024. The authorized and unissued shares of both Common and Preferred Stock are available for issuance without further action by our stockholders, unless such action is required by applicable law or the rules of any stock exchange on which our securities may be listed. Unless approval of our stockholders is so required, our board of directors will not seek stockholder approval for the issuance and sale of either our common stock or preferred stock.

 

The Board may from time to time authorize by resolution the issuance of any or all shares of the Common Stock, Class A Common Stock, Class B Common Stock, and the Preferred Stock authorized in accordance with the terms and conditions set forth in the articles of incorporation for such purposes, in such amounts, to such persons, corporations, or entities, for such consideration and in the case of the Preferred Stock, in one or more series, all as the Board in its discretion may determine and without any vote or other action by the stockholders, except as otherwise required by law.

 

Common Stock

 

Holders of our Common Stock are entitled to one vote for each share on all matters submitted to a stockholder vote, holders of our Class A Common Stock are entitled to 10 votes for each share on all matters submitted to a stockholder vote voting together with the Common Stock together as a single class and Holders of our Class B Common Stock are not entitled to vote on any matter, except that the holders of Class B Common Stock shall be entitled to vote separately as a class with respect to amendments to the Articles of Incorporation that increase or decrease the aggregate number of authorized shares of such class, increase or decrease the par value of the shares of such class, or alter or change the powers, preferences, or special rights of the shares of such class so as to affect them adversely. Holders of Common Stock and Class A Common Stock do not have cumulative voting rights. Therefore, holders of a majority of the votes of holders of the Common Stock and Class A Common Stock voting for the election of directors can elect all of the directors. Holders of our Common Stock and Class A Common Stock representing a one-third of the voting power of our capital stock issued, outstanding and entitled to vote, represented in person or by proxy, are necessary to constitute a quorum at any meeting of stockholders.

 

Holders of our Common Stock, Class A Common Stock and Class B Common Stock are entitled to share in all dividends that our Board of Directors, in its discretion, declares from legally available funds. In the event of a liquidation, dissolution or winding up, each outstanding share entitles its holder to participate pro rata in all assets that remain after payment of liabilities and after providing for each class of stock, if any, having preference over the Common Stock, Class A Common Stock and Class B Common Stock. Our Common Stock, Class A Common Stock and Class B Common Stock have no pre-emptive rights, no conversion rights and there are no redemption provisions applicable to our capital stock.

 

 

Preferred Stock

 

The Board of Directors is authorized at any time, and from time to time, to provide the for the issuance of shares of Preferred Stock in one or more series, and to determine the designations, preferences, limitations and relative or other rights of the Preferred Stock or any series thereof. For each series, the Board of directors shall determine, by resolution or resolutions adopted prior to the issuance of any shares thereof, the designations, preferences, limitations and relative or other rights thereof. The issuance of preferred stock may have the effect of delaying, deferring or preventing a change in control of our company without further action by stockholders and could adversely affect the rights and powers, including voting rights, of the holders of common stock.

 

Options to Purchase Common Stock and Restricted Stock Unit Grants

 

As of December 13, 2024, no options to purchase shares of our common stock have been granted under the VirTra, Inc. 2017 Equity Incentive Plan (“Plan”). The Plan was adopted on October 6, 2017. As of December 13, 2024, there are 2,678,733 shares of common stock reserved for issuance pursuant to the Plan. As of December 13, 2024, there are no outstanding options to purchase shares of our common stock issuable upon the exercise of non-qualified stock options granted to key employees, officers or directors.

 

As of December 13, 2024, there are outstanding grants of 5,000 performance-based restricted stock units pursuant to the Company’s 2017 Equity Incentive Plan to the Company’s officers.

 

Anti-Takeover Effects of Various Provisions of Nevada Law and our Articles of Incorporation

 

Provisions of the NRS and our Articles of Incorporation and Bylaws could make it more difficult to acquire us by means of a tender offer, a proxy contest or otherwise, or to remove incumbent officers and directors. These provisions, summarized below, would be expected to discourage certain types of coercive takeover practices and takeover bids our board of directors may consider inadequate and to encourage persons seeking to acquire control of us to first negotiate with us. We believe that the benefits of increased protection of our ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us will outweigh the disadvantages of discouraging takeover or acquisition proposals because, among other things, negotiation of these proposals could result in an improvement of their terms.

 

Effects of authorized but unissued common stock and blank check preferred stock. One of the effects of the existence of authorized but unissued common stock and undesignated preferred stock may be to enable our board of directors to make more difficult or to discourage an attempt to obtain control of our company by means of a merger, tender offer, proxy contest or otherwise, and thereby to protect the continuity of management. If, in the due exercise of its fiduciary obligations, the board of directors were to determine that a takeover proposal was not in our best interest, such shares could be issued by the board of directors without stockholder approval in one or more transactions that might prevent or render more difficult or costly the completion of the takeover transaction by diluting the voting or other rights of the proposed acquirer or insurgent stockholder group, by putting a substantial voting bloc in institutional or other hands that might undertake to support the position of the incumbent board of directors, by effecting an acquisition that might complicate or preclude the takeover, or otherwise.

 

In addition, our articles of incorporation grants our board of directors broad power to establish the rights and preferences of authorized and unissued shares of preferred stock. The issuance of shares of preferred stock could decrease the amount of earnings and assets available for distribution to holders of shares of common stock. The issuance also may adversely affect the rights and powers, including voting rights, of those holders and may have the effect of delaying, deterring or preventing a change in control of our company.

 

Prohibition on Cumulative Voting. Our Articles of Incorporation prohibit cumulative voting in the election of directors.

 

Removal of Directors. Our Bylaws provide that a director may only be removed from office for cause by a vote of the majority of shares entitled to vote at a meeting of the shareholders held for the purpose of removing a director.

 

 

Authorized but Unissued Shares. Our authorized but unissued shares of Common Stock and Preferred Stock are available for future issuance without shareholder approval. The existence of authorized but unissued shares of Common Stock and Preferred Stock could render more difficult or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise.

 

Interested Stockholder Statute. We are subject to Nevada’s Combination with Interested Stockholders Statute NRS Sections 78.411 through 78.444) which prohibits an “interested stockholder” from entering into a “combination” with us, unless certain conditions are met. An “interested stockholder” is a person who, together with affiliates and associates, beneficially owns (or within the prior two years, did beneficially own) 10% or more of our capital stock entitled to vote. We have, however, elected in our Articles of Incorporation to not be governed by the provisions of NRS Sections 78.411 through 78.444.

 

Limitations on Liability and Indemnification of Officers and Directors. NRS limits or eliminates the personal liability of directors to corporations and their stockholders for monetary damages for breaches of directors’ fiduciary duties as directors. Our Articles of Incorporation include provisions that require us to indemnify, to the fullest extent allowable under the NRS, our directors or officers against monetary damages for actions taken as a director or officer of our company, or for serving at our request as a director or officer or another position at another corporation or enterprise, as the case may be. Our Articles of Incorporation also provide that we must indemnify and advance reasonable expenses to our directors and officers, subject to our receipt of an undertaking from the indemnified party as may be required under the NRS. We are also expressly authorized to carry directors’ and officers’ insurance to protect our company, our directors, officers and certain employees for some liabilities.

 

The limitation of liability and indemnification provisions under the NRS and in our Articles of Incorporation and Bylaws may discourage stockholders from bringing a lawsuit against directors for breach of their fiduciary duties. These provisions may also have the effect of reducing the likelihood of derivative litigation against directors and officers, even though such an action, if successful, might otherwise benefit us and our stockholders. However, these provisions do not limit or eliminate our rights, or those of any stockholder, to seek non-monetary relief such as injunction or rescission in the event of a breach of a director’s fiduciary duties. Moreover, the provisions do not alter the liability of directors under the federal securities laws.

 

Transfer Agent

 

The transfer agent for our Common Stock is Continental Stock & Transfer & Trust Company located at 17 Battery Place, New York, NY 10004 and its telephone number is (212) 509-4000.

 

 

DESCRIPTION OF DEBT SECURITIES

 

The debt securities will be our direct unsecured general obligations. The debt securities will be either senior debt securities or subordinated debt securities. The debt securities will be issued under one or more separate indentures the forms of which are filed as exhibits to the registration statement of which this prospectus forms a part. Senior debt securities will be issued under a senior indenture. Subordinated debt securities will be issued under a subordinated indenture. Each of the senior indenture and the subordinated indenture is referred to as an indenture.

 

The applicable prospectus supplement and/or other offering materials will describe the material terms of the debt securities offered through that prospectus supplement as well as any general terms described in this section that will not apply to those debt securities. To the extent the applicable prospectus supplement or other offering materials relating to an offering of debt securities are inconsistent with this prospectus, the terms of that prospectus supplement or other offering materials will supersede the information in this prospectus.

 

The prospectus supplement relating to any series of debt securities that we may offer will contain the specific terms of the debt securities. These terms may include the following:

 

	●	the title and principal aggregate amount of the debt securities;
	●	whether the debt securities will be senior, subordinated or junior subordinated;
	●	whether the debt securities will be secured or unsecured;
	●	whether the debt securities are convertible or exchangeable into other securities;
	●	the percentage or percentages of principal amount at which such debt securities will be issued;
	●	the interest rate(s) or the method for determining the interest rate(s);
	●	the dates on which interest will accrue or the method for determining dates on which interest will accrue and dates on which interest will be payable;
	●	the person to whom any interest on the debt securities will be payable;
	●	the places where payments on the debt securities will be payable;
	●	the maturity date;
	●	redemption or early repayment provisions;
	●	authorized denominations;
	●	form;
	●	amount of discount or premium, if any, with which such debt securities will be issued;
	●	whether such debt securities will be issued in whole or in part in the form of one or more global securities;
	●	the identity of the depositary for global securities;
	●	whether a temporary security is to be issued with respect to such series and whether any interest payable prior to the issuance of definitive securities of the series will be credited to the account of the persons entitled thereto;
	●	the terms upon which the beneficial interests in a temporary global security may be exchanged in whole or in part for beneficial interests in a definitive global security or for individual definitive securities;
	●	any covenants applicable to the particular debt securities being issued;
	●	any defaults and events of default applicable to the particular debt securities being issued;
	●	the guarantors of each series, if any, and the extent of the guarantees (including provisions relating to seniority, subordination, security and release of the guarantees), if any;
	●	any applicable subordination provisions for any subordinated debt securities;
	●	any restriction or condition on the transferability of the debt securities;

 

 

	●	the currency, currencies, or currency units in which the purchase price for, the principal of and any premium and any interest on, such debt securities will be payable;
	●	the time period within which, the manner in which and the terms and conditions upon which we or the purchaser of the debt securities can select the payment currency;
	●	the securities exchange(s) on which the securities will be listed, if any;
	●	whether any underwriter(s) will act as market maker(s) for the securities;
	●	the extent to which a secondary market for the securities is expected to develop;
	●	our obligations or right to redeem, purchase or repay debt securities under a sinking fund, amortization or analogous provision;
	●	provisions relating to covenant defeasance and legal defeasance;
	●	provisions relating to satisfaction and discharge of the indenture;
	●	provisions relating to the modification of the indenture both with and without consent of holders of debt securities issued under the indenture;
	●	the law that will govern the indenture and debt securities; and
	●	additional terms not inconsistent with the provisions of the indenture.

 

General

 

We may sell the debt securities, including original issue discount securities, at par or at a substantial discount below their stated principal amount. Unless we inform you otherwise in a prospectus supplement, we may issue additional debt securities of a particular series without the consent of the holders of the debt securities of such series outstanding at the time of issuance. Any such additional debt securities, together with all other outstanding debt securities of that series, will constitute a single series of securities under the applicable indenture. In addition, we will describe in the applicable prospectus supplement material U.S. federal income tax considerations and any other special considerations for any debt securities we sell which are denominated in a currency or currency unit other than U.S. dollars. Unless we inform you otherwise in the applicable prospectus supplement, the debt securities will not be listed on any securities exchange.

 

We expect most debt securities to be issued in fully registered form without coupons and in denominations of $1,000 and integral multiples thereof. Subject to the limitations provided in the indenture and in the prospectus supplement, debt securities that are issued in registered form may be transferred or exchanged at the corporate office of the trustee or the principal corporate trust office of the trustee, without the payment of any service charge, other than any tax or other governmental charge payable in connection therewith.

 

If specified in the applicable prospectus supplement, certain of our subsidiaries will guarantee the debt securities. The particular terms of any guarantee will be described in the related prospectus supplement.

 

Governing Law

 

The Indentures and the debt securities will be construed in accordance with and governed by the laws of the State of New York.

 

 

DESCRIPTION OF WARRANTS

 

We may issue warrants to purchase our debt or equity securities. Warrants may be issued independently or together with any other securities and may be attached to, or separate from, such securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a warrant agent. The terms of any warrants to be issued and a description of the material provisions of the applicable warrant agreement will be set forth in the applicable prospectus supplement.

 

The applicable prospectus supplement will describe the following terms of any warrants in respect of which this prospectus is being delivered:

 

	●	the title of such warrants;
	●	the aggregate number of such warrants;
	●	the price or prices at which such warrants will be issued;
	●	the currency or currencies in which the price of such warrants will be payable;
	●	the securities purchasable upon exercise of such warrants;
	●	the price at which and the currency or currencies in which the securities purchasable upon exercise of such warrants may be purchased;
	●	the date on which the right to exercise such warrants shall commence and the date on which such right shall expire;
	●	if applicable, the minimum or maximum amount of such warrants which may be exercised at any one time;
	●	if applicable, the designation and terms of the securities with which such warrants are issued and the number of such warrants issued with each such security;
	●	if applicable, the date on and after which such warrants and the related securities will be separately transferable;
	●	information with respect to book-entry procedures, if any;
	●	if applicable, a discussion of any material United States federal income tax considerations; and
	●	any other terms of such warrants, including terms, procedures and limitations relating to the exchange and exercise of such warrants.

 

 

DESCRIPTION OF RIGHTS

 

We may issue rights to purchase debt securities, preferred stock, common stock or warrants. These rights may be issued independently or together with any other security offered hereby and may or may not be transferable by the shareholder receiving the rights in such offering. The applicable prospectus supplement may add, update or change the terms and conditions of the rights as described in this prospectus.

 

The applicable prospectus supplement will describe the specific terms of any offering of rights for which this prospectus is being delivered, including the following:

 

	●	the price, if any, per right;
	●	the exercise price payable for debt securities, preferred stock, common stock, or warrants upon the exercise of the rights;
	●	the number of rights issued or to be issued to each shareholder;
	●	the number and terms of debt securities, preferred stock, common stock, or warrants which may be purchased per right;
	●	the extent to which the rights are transferable;
	●	any other terms of the rights, including the terms, procedures and limitations relating to the exchange and exercise of the rights;
	●	the date on which the holder’s ability to exercise the rights shall commence, and the date on which the rights shall expire;
	●	the extent to which the rights may include an over-subscription privilege with respect to unsubscribed securities; and
	●	if applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in connection with the offering of such rights.

 

Holders may exercise rights as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly completed and duly executed at the corporate trust office of the rights agent or any other office indicated in the prospectus supplement, we will, as soon as practicable, forward the applicable securities purchased upon exercise of the rights. If less than all of the rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than shareholders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements with one or more underwriters or other purchasers, pursuant to which the underwriters or other purchasers may be required to purchase any securities remaining unsubscribed for after such offering, as described in the applicable prospectus supplement.

 

The description in the applicable prospectus supplement of any rights that we may offer will not necessarily be complete and will be qualified in its entirety by reference to the applicable rights certificate, which will be filed with the SEC.

 

 

DESCRIPTION OF UNITS

 

As specified in the applicable prospectus supplement, we may issue units consisting of one or more warrants, rights, debt securities, shares of preferred stock, shares of common stock or any combination of such securities. The applicable supplement will describe:

 

	●	the terms of the units and of the warrants, rights, debt securities, preferred stock and common stock comprising the units, including whether and under what circumstances the securities comprising the units may be traded separately;
	●	a description of the terms of any unit agreement governing the units; and
	●	a description of the provisions for the payment, settlement, transfer or exchange of the units.

 

FORMS OF SECURITIES

 

Each debt security, warrant, right and unit will be represented either by a certificate issued in definitive form to a particular investor or by one or more global securities representing the entire issuance of securities. Certificated securities in definitive form and global securities will be issued in registered form. Definitive securities name you or your nominee as the owner of the security, and in order to transfer or exchange these securities or to receive payments other than interest or other interim payments, you or your nominee must physically deliver the securities to the trustee, registrar, paying agent or other agent, as applicable. Global securities name a depositary or its nominee as the owner of the debt securities, warrants or units represented by these global securities. The depositary maintains a computerized system that will reflect each investor’s beneficial ownership of the securities through an account maintained by the investor with its broker/dealer, bank, trust company or other representative, as we explain more fully below.

 

Registered Global Securities

 

We may issue the registered debt securities, warrants, rights and units in the form of one or more fully registered global securities that will be deposited with a depositary or its nominee identified in the applicable prospectus supplement and registered in the name of that depositary or nominee. In those cases, one or more registered global securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal or face amount of the securities to be represented by registered global securities. Unless and until it is exchanged in whole for securities in definitive registered form, a registered global security may not be transferred except as a whole by and among the depositary for the registered global security, the nominees of the depositary or any successors of the depositary or those nominees.

 

If not described below, any specific terms of the depositary arrangement with respect to any securities to be represented by a registered global security will be described in the prospectus supplement relating to those securities. We anticipate that the following provisions will apply to all depositary arrangements.

 

Ownership of beneficial interests in a registered global security will be limited to persons, called participants, that have accounts with the depositary or persons that may hold interests through participants. Upon the issuance of a registered global security, the depositary will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective principal or face amounts of the securities beneficially owned by the participants. Any dealers, underwriters or agents participating in the distribution of the securities will designate the accounts to be credited. Ownership of beneficial interests in a registered global security will be shown on, and the transfer of ownership interests will be effected only through, records maintained by the depositary, with respect to interests of participants, and on the records of participants, with respect to interests of persons holding through participants. The laws of some states may require that some purchasers of securities take physical delivery of these securities in definitive form. These laws may impair your ability to own, transfer or pledge beneficial interests in registered global securities.

 

 

So long as the depositary, or its nominee, is the registered owner of a registered global security, that depositary or its nominee, as the case may be, will be considered the sole owner or holder of the securities represented by the registered global security for all purposes under the applicable indenture, warrant agreement or unit agreement. Except as described below, owners of beneficial interests in a registered global security will not be entitled to have the securities represented by the registered global security registered in their names, will not receive or be entitled to receive physical delivery of the securities in definitive form and will not be considered the owners or holders of the securities under the applicable indenture, warrant agreement, rights agreement or unit agreement. Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for that registered global security and, if that person is not a participant, on the procedures of the participant through which the person owns its interest, to exercise any rights of a holder under the applicable indenture, warrant agreement, rights agreement or unit agreement. We understand that under existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a registered global security desires to give or take any action that a holder is entitled to give or take under the applicable indenture, warrant agreement, rights agreement or unit agreement, the depositary for the registered global security would authorize the participants holding the relevant beneficial interests to give or take that action, and the participants would authorize beneficial owners owning through them to give or take that action or would otherwise act upon the instructions of beneficial owners holding through them.

 

Principal, premium, if any, and interest payments on debt securities, and any payments to holders with respect to warrants, rights or units, represented by a registered global security registered in the name of a depositary or its nominee will be made to the depositary or its nominee, as the case may be, as the registered owner of the registered global security. None of VirTra, the trustees, the warrant agents, the rights agents, the unit agents or any other agent of VirTra, agent of the trustees or agent of the warrant agents, rights agents or unit agents will have any responsibility or liability for any aspect of the records relating to payments made on account of beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating to those beneficial ownership interests.

 

We expect that the depositary for any of the securities represented by a registered global security, upon receipt of any payment of principal, premium, interest or other distribution of underlying securities or other property to holders on that registered global security, will immediately credit participants’ accounts in amounts proportionate to their respective beneficial interests in that registered global security as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests in a registered global security held through participants will be governed by standing customer instructions and customary practices, as is now the case with the securities held for the accounts of customers in bearer form or registered in “street name,” and will be the responsibility of those participants.

 

If the depositary for any of these securities represented by a registered global security is at any time unwilling or unable to continue as depositary or ceases to be a clearing agency registered under the Exchange Act, and a successor depositary registered as a clearing agency under the Exchange Act is not appointed by us within 90 days, we will issue securities in definitive form in exchange for the registered global security that had been held by the depositary. Any securities issued in definitive form in exchange for a registered global security will be registered in the name or names that the depositary gives to the relevant trustee, warrant agent, unit agent or other relevant agent of ours or theirs. It is expected that the depositary’s instructions will be based upon directions received by the depositary from participants with respect to ownership of beneficial interests in the registered global security that had been held by the depositary.

 

 

PLAN OF DISTRIBUTION

 

VirTra may sell the securities in one or more of the following ways (or in any combination) from time to time:

 

	●	through underwriters or dealers;
	●	directly to a limited number of purchasers or to a single purchaser;
	●	through agents;
	●	through a combination of any such methods; or
	●	through any other methods described in a prospectus supplement.

 

The prospectus supplement will state the terms of the offering of the securities, including:

 

	●	the name or names of any underwriters, dealers or agents;
	●	the purchase price of such securities and the proceeds to be received by VirTra, if any;
	●	any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation;
	●	any public offering price;
	●	any discounts or concessions allowed or reallowed or paid to dealers; and
	●	any securities exchanges on which the securities may be listed.

 

Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.

 

If we use underwriters in the sale, the securities may be acquired by the underwriters for their own account or as selling agent and may be resold from time to time in one or more transactions, including:

 

	●	negotiated transactions,
	●	at a fixed public offering price or prices, which may be changed,
	●	at market prices prevailing at the time of sale,
	●	at prices related to prevailing market prices or
	●	at negotiated prices.

 

Unless otherwise stated in a prospectus supplement, the obligations of the underwriters to purchase any securities will be conditioned on customary closing conditions and the underwriters will be obligated to purchase all of such series of securities, if any are purchased.

 

We may sell the securities through agents from time to time. The prospectus supplement will name any agent involved in the offer or sale of the securities and any commissions we pay to them. Generally, any agent will be acting on a best efforts basis for the period of its appointment.

 

We may authorize underwriters, dealers or agents to solicit offers by certain purchasers to purchase the securities from VirTra at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. The contracts will be subject only to those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth any commissions we pay for solicitation of these contracts.

 

Underwriters and agents may be entitled under agreements entered into with VirTra to indemnification by VirTra against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments which the underwriters or agents may be required to make. Underwriters and agents may be customers of, engage in transactions with, or perform services for VirTra and its affiliates in the ordinary course of business.

 

Each series of securities will be a new issue of securities and will have no established trading market other than the common stock, which is quoted on the Nasdaq Capital Market. Any underwriters to whom securities are sold for public offering and sale may make a market in the securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. The securities, other than the common stock, may or may not be listed on a national securities exchange.

 

 

LEGAL OPINIONS

 

The validity of the securities in respect of which this prospectus is being delivered will be passed on for us by Doida Crow Legal LLC, Denver, Colorado 80237.

 

EXPERTS

 

The financial statements incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2023 have been so incorporated in reliance on the report of Haynie & Company, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.

 

LIMITATION ON LIABILITY AND DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES

 

Our directors and officers are indemnified by our bylaws against amounts actually and necessarily incurred by them in connection with the defense of any action, suit or proceeding in which they are a party by reason of being or having been directors or officers of the company. Our articles of incorporation provide that none of our directors or officers shall be personally liable for damages for breach of any fiduciary duty as a director or officer involving any act or omission of any such director or officer. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to such directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities, other than the payment by us of expenses incurred or paid by such director, officer or controlling person in the successful defense of any action, lawsuit or proceeding, is asserted by such director, officer or controlling person in connection with the securities being registered, we will, unless in the opinion of counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

 

WHERE YOU CAN FIND MORE INFORMATION

 

This prospectus and any subsequent prospectus supplements do not contain all of the information in the registration statement. We have omitted from this prospectus some parts of the registration statement as permitted by the rules and regulations of the SEC. Statements in this prospectus concerning any document we have filed as an exhibit to the registration statement or that we otherwise filed with the SEC are not intended to be comprehensive and are qualified in their entirety by reference to these filings. In addition, we file annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC also maintains a website that contains reports, proxy and information statements and other information that we file electronically with the SEC, including us. The SEC’s website can be found at http://www.sec.gov. In addition, we make available on or through our website copies of these reports as soon as reasonably practicable after we electronically file or furnished them to the SEC. Our website can be found at http://www.virtra.com. The content contained in, or that can be accessed through, our website is not a part of this prospectus.

 

INFORMATION INCORPORATED BY REFERENCE

 

The SEC allows us to “incorporate by reference” in this prospectus certain information we have filed and will file with the SEC, which means that we may disclose important information in this prospectus by referring you to the document that contains the information. The information incorporated by reference is considered to be an integral part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below:

 

	●	our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on April 1, 2024;
	●	our Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2024 June 30, 2024, and September 30, 2024, filed with the SEC on May 14, 2024, August 12, 2024, and November 12, 2024, respectively;
	●	the description of our common stock which is included in our Form 8-A12B filed with the SEC on March 9, 2018, including any amendment or report filed for the purpose of updating that description; and
	●	all documents filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act on or after the date of this prospectus and before we stop offering the securities covered by this prospectus and any accompanying prospectus supplement.

 

Notwithstanding the foregoing, information and documents that we elect to furnish, but not file, or have furnished, but not filed, with the SEC in accordance with SEC rules and regulations is not incorporated into this prospectus and does not constitute a part hereof.

 

You may access these filings on our website at www.virtra.com. The information on our website is not incorporated by reference and is not considered part of this prospectus. Also, upon written or oral request, at no cost we will provide to each person, including any beneficial owner, to whom a prospectus is delivered, a copy of any or all of the information that has been incorporated by reference in the prospectus but not delivered with the prospectus. Inquiries should be directed to:

 

VirTra, Inc.

295 E. Corporate Place

Chandler, AZ 85225

(480) 968-1488

 

 

 

 

$50,000,000

 

VIRTRA, INC.

 

Common Stock, Preferred Stock, Warrants, Rights

 

Debt Securities and Units

 

 

 

PROSPECTUS

 

 

 

        , 2024

 

 

PART II

 

INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 14. Other Expenses of Issuance and Distribution.

 

Set forth below is an estimate (except in the case of the SEC registration fee) of the amount of fees and expenses to be incurred in connection with the issuance and distribution of the offered securities registered hereby, other than underwriting discounts and commission, if any, incurred in connection with the sale of the offered securities. All such amounts will be borne by VirTra, Inc., a Nevada corporation (the “Company”).

 

		AMOUNT
SEC Registration Fee		$	7,655.00
FINRA Filing Fees				(1)
Legal Fees and Expenses				(1)
Accounting Fees and Expenses				(1)
Trustees’ Fees and Expenses				(1)
Warrant Agent Fees and Expenses				(1)
Printing Expenses				(1)
Miscellaneous Expenses				(1)
Total		$	7,655.00	(1)

 

(1)	These fees will be calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time.

 

Item 15. Indemnification of Directors and Officers.

 

Nevada Revised Statutes (“NRS”) 78.138(7) provides that, subject to limited statutory exceptions and unless the articles of incorporation or an amendment thereto (in each case filed on or after October 1, 2003) provide for greater individual liability, a director or officer is not individually liable to a corporation or its stockholders or creditors for any damages as a result of any act or failure to act in his or her capacity as a director or officer unless it is proven that: (i) the act or failure to act constituted a breach of his or her fiduciary duties as a director or officer and (ii) the breach of those duties involved intentional misconduct, fraud or a knowing violation of law.

 

NRS 78.7502(1) provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation), by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with the action, suit or proceeding if the person (i) is not liable pursuant to NRS 78.138 or (ii) acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the conduct was unlawful. NRS 78.7502(2) provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses, including amounts paid in settlement and attorneys’ fees actually and reasonably incurred by the person in connection with the defense or settlement of the action or suit if the person (a) is not liable pursuant to NRS 78.138 or (ii) acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation. To the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any such action, suit or proceeding, or in defense of any claim, issue or matter therein, the corporation shall indemnify him or her against expenses, including attorneys’ fees, actually and reasonably incurred by him or her in connection with the defense. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, does not, of itself, create a presumption that the person is liable pursuant to NRS 78.138 or did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation, or that, with respect to any criminal action or proceeding, he or she had reasonable cause to believe that the conduct was unlawful. Indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper.

 

 

NRS 78.751(1) provides that any discretionary indemnification pursuant to NRS 78.7502 (unless ordered by a court or advanced pursuant to NRS 78.751(2)), may be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances. The determination must be made (i) by the stockholders; (ii) by the board of directors by majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding; (iii) if a majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding so orders, by independent legal counsel in a written opinion; or (iv) if a quorum consisting of directors who were not parties to the action, suit or proceeding cannot be obtained, by independent legal counsel in a written opinion. NRS 78.751(2) provides that the corporation’s articles of incorporation or bylaws, or an agreement made by the corporation, may provide that the expenses of officers and directors incurred in defending a civil or criminal action, suit or proceeding must be paid by the corporation as they are incurred and in advance of the final disposition of the action, suit or proceeding, upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined by a court of competent jurisdiction that the director or officer is not entitled to be indemnified by the corporation.

 

Under the NRS, the indemnification pursuant to NRS 78.7502 and advancement of expenses authorized in or ordered by a court pursuant to NRS 78.751:

 

	●	Does not exclude any other rights to which a person seeking indemnification or advancement of expenses may be entitled under the articles of incorporation or any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, for either an action in the person’s official capacity or an action in another capacity while holding office, except that indemnification, unless ordered by a court pursuant to NRS 78.7502 or for the advancement of expenses made pursuant to NRS 78.751(2), may not be made to or on behalf of any director or officer if a final adjudication establishes that the director’s or officer’s acts or omissions involved intentional misconduct, fraud or a knowing violation of the law and was material to the cause of action; and
	●	Continues for a person who has ceased to be a director, officer, employee or agent and inures to the benefit of the heirs, executors and administrators of such a person.

 

A right to indemnification or to advancement of expenses arising under a provision of the articles of incorporation or any bylaw is not eliminated or impaired by an amendment to such provision after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought, unless the provision in effect at the time of such act or omission explicitly authorizes such elimination or impairment after such action or omission has occurred.

 

The Articles of Incorporation of the Company provide that to the fullest extent permitted under the NRS and other applicable law, the Company shall indemnify directors and officers of the Company in their respective capacities as such and in any and all other capacities in which any of them serves at the request of the Company. The Articles of Incorporation of the Company further provide that the liability of its directors shall be limited to acts or omissions that involve intentional misconduct, knowing violation of the law, conduct violating NRS 78.138(7), or any transaction from which the director will personally benefit. The Articles of Incorporation state that if the NRS are amended to further eliminate or limit or authorize corporate action to further eliminate or limit the liability of directors, the liability of directors of the Company shall be eliminated or limited to the fullest extent permitted by the NRS.

 

The By-Laws of the Company provide that the Company shall, to the fullest extent permitted by the NRS and other applicable law, indemnify, hold harmless and defend any person who: (i) was or is a director or officer of the Company or was or is a director or officer of a direct or indirect wholly-owned subsidiary of the Company, and (ii) was or is a party or is threatened to be made a party to, or was or is otherwise directly involved in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Company) by reason of the fact that such person was or is a director or officer of the Company or any direct or indirect wholly-owned subsidiary, or was or is serving at the request of the Company as a director, officer, employee, partner, member or agent of another entity, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful.

 

 

The By-Laws further provide that the Company shall indemnify, hold harmless and defend any person who: (i) was or is a director or officer of the Company or was or is a director or officer of a direct or indirect wholly-owned subsidiary, and (ii) was or is a party or is threatened to be made a party to, or was or is otherwise directly involved in, any threatened, pending or completed action or suit by or in the right of the Company to procure a judgment in its favor by reason of the fact that such person was or is a director or officer of the Company or any direct or indirect wholly-owned subsidiary, or was or is serving at the request of the Company as a director, officer, employee, partner, member or agent of another entity, and whether the basis of such action, suit or proceeding is alleged action in an official capacity or in any other capacity, against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company. However, no indemnification shall be made in respect of any matter as to which such person shall have been adjudged to be liable to the Company unless and only to the extent that the court determines that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses.

 

To the extent that a director, officer, employee or agent has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to above, he or she must be indemnified by the Company against expenses, including attorneys’ fees, actually and reasonably incurred by such person in connection with the defense. The By-Laws further provide that any indemnification under the foregoing provisions must be made by the Company only upon a determination that indemnification is proper in the circumstances, which such determination shall be made by the (i) stockholders; (ii) by a majority vote of a quorum of the Board of Directors consisting of directors who were not parties to the act, suit or proceeding; (iii) if a majority vote of a quorum consisting of directors who were not parties to the act, suit or proceeding so orders, by independent legal counsel in a written opinion; or (iv) if a quorum consisting of directors who were not parties to the act, suit or proceeding cannot be obtained, by independent legal counsel in a written opinion. The By-Laws also provide that expenses shall be paid in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the involved director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Company.

 

Further, the Company has entered into employment agreements with its Chief Executive Officer and Chief Operating Officer, both of whom are directors, that require the Company to indemnify these individuals for certain expenses (including attorneys’ fees), judgments, fines and settlement amounts reasonably incurred by such person in any action or proceeding, including any action by or in our right, on account of any services undertaken by such person on behalf of the Company or that person’s status as an officer or a member of the Board of Directors to the maximum extent allowed under applicable Nevada law. The Company maintains standard policies of insurance under which coverage is provided (a) to its directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act, and (b) to the Company with respect to payments which may be made by the Company to such officers and directors pursuant to the above indemnification provision or otherwise as a matter of law.

 

 

Item 16. Exhibits.

 

The following is a list of all exhibits filed as a part of this registration statement on Form S-3, including those incorporated herein by reference.

 

Exhibit No.		Exhibit Description
1.1*		Form of Underwriting Agreement
3.1		Articles of Incorporation of VirTra, Inc. filed September 22, 2016 (incorporated by reference to Exhibit 2.1 to the registrant’s Offering Circular on Form 1-A (File No. 024-10739) filed with the Commission on September 11, 2017).
3.2		Certificate of Change of VirTra, Inc. filed on October 7, 2016 (incorporated by reference to Exhibit 2.2 to the registrant’s Offering Circular on Form 1-A (File No. 024-10739) filed with the Commission on September 11, 2017).
3.3		Certificate of Change of VirTra, Inc. filed on February 12, 2018 (incorporated by reference to Exhibit 2.3 to the registrant’s Post-Qualification Offering Circular Amendment No. 1 to Form 1-A (File No. 024-10739) filed with the Commission on February 21, 2018).
3.4		Bylaws of VirTra, Inc. (incorporated by reference to Exhibit 2.3 to the registrant’s Offering Circular on Form 1-A (File No. 024-10739) filed with the Commission on September 11, 2017).
4.1		Form of Senior Indenture (incorporated by reference to Exhibit 4.1 to the registrant’s Registration Statement on Form S-3 (File No. 333-238624) filed with the Commission on May 22, 2020).
4.2*		Form of Senior Note
4.3		Form of Subordinated Indenture (incorporated by reference to Exhibit 4.3 to the registrant’s Registration Statement on Form S-3 (File No. 333-238624) filed with the Commission on May 22, 2020).
4.4*		Form of Subordinated Note
4.5*		Form of Warrant Agreement
4.6*		Form of Rights Agreement
4.7*		Form of Unit Agreement
5.1		Opinion of Doida Crow Legal LLC
10.1†		2017 Equity Incentive Plan (incorporated by reference to Exhibit 6.5 to the registrant’s Offering Circular on Form 1-A (File No. 024-10739) filed with the Commission on September 11, 2017).
10.2†		Form of Stock Option Agreement for 2017 Equity Incentive Plan (incorporated by reference to Exhibit 6.6 to the registrant’s Offering Circular on Form 1-A (File No. 024-10739) filed with the Commission on September 11, 2017).
10.3†		Form of Notice of Grant of Stock Option for 2017 Equity Incentive Plan (incorporated by reference to Exhibit 6.7 to the registrant’s Offering Circular on Form 1-A (File No. 024-10739) filed with the Commission on September 11, 2017).
10.4		Promissory Note dated August 25, 2021 (incorporated by reference to Exhibit 10.1 to the registrant’s current report on form 8-K (File No. 001-38420) filed with the Commission on August 30, 2021).
10.5		Deed of Trust dated August 25, 2021 (incorporated by reference to Exhibit 10.2 to the registrant’s current report on form 8-K (File No. 001-38420) filed with the Commission on August 30, 2021).
10.6		Assignment and Assumption of Leases dated August 25, 2021 (incorporated by reference to Exhibit 10.3 to the registrant’s current report on form 8-K (File No. 001-38420) filed with the Commission on August 30, 2021).
10.7†		Restricted Stock Unit Agreement – Alanna Boudreau
10.8†		Employment Agreement with John F. Givens II dated September 6, 2024
23.1		Consent of Independent Registered Public Accounting Firm.
23.2		Consent of Doida Crow Legal LLC (included in Exhibit 5.1)
24.1		Power of Attorney (included in signature page)
25.1**		Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of Trustee under the Senior Indenture
25.2**		Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of Trustee under the Subordinated Indenture
107		Filing Fee Table

 

†	Management contract, compensation plan or arrangement.
*	To be filed by amendment to this registration statement or as an exhibit to a report filed pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act.
**	To be filed separately pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended, and the appropriate rules and regulations thereunder.

 

 

Item 17. Undertakings.

 

(a) The undersigned registrant hereby undertakes:

 

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

 

(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 193, as amended (the “Securities Act”);

 

(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

 

(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

 

provided, however, that paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (“Exchange Act”) that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part of the registration statement.

 

(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(5) That, for the purpose of determining liability under the Securities Act to any purchaser:

 

(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and

 

(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.

 

 

(6) That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities:

 

The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

 

(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

 

(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;

 

(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and

 

(iv) Any other communications that is an offer in the offering made by the undersigned registrant to the purchaser.

 

(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(h) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

(j) The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act (the “Act”) in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Act.

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Chandler, Arizona on December 16, 2024.

 

	VirTra, Inc.
	By:	/s/ John F. Givens II
		John F. Givens II,
		Chief Executive Officer

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints John F. Givens II and Alanna Boudreau, and each of them, as attorneys-in-fact and agents, with full power of substitution and resubstitution, for him/her and in his/her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to sign any and all additional registration statements relating to the Registration Statement and filed pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents or his substitute or their substitutes, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or his substitute or their substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in their respective capacities on December 16, 2024.

 

Name		Title
/s/ John F. Givens II		Chief Executive Officer and Director (Principal Executive Officer
John F. Givens II
/s/ Alanna Boudreau		Chief Financial Officer (Principal Financial Officer)
Alanna Boudreau
/s/ Jeffrey D. Brown		Director
Jeffrey D. Brown
/s/ Gregg C.E. Johnson		Director
Gregg C.E. Johnson
/s/ Michael T. Ayers		Director
Michael T. Ayers
/s/ Maria R. Gervais		Director

 

 

EXHIBIT INDEX

 

Exhibit No.		Exhibit Description
1.1*		Form of Underwriting Agreement
3.1		Articles of Incorporation of VirTra, Inc. filed September 22, 2016 (incorporated by reference to Exhibit 2.1 to the registrant’s Offering Circular on Form 1-A (File No. 024-10739) filed with the Commission on September 11, 2017).
3.2		Certificate of Change of VirTra, Inc. filed on October 7, 2016 (incorporated by reference to Exhibit 2.2 to the registrant’s Offering Circular on Form 1-A (File No. 024-10739) filed with the Commission on September 11, 2017).
3.3		Certificate of Change of VirTra, Inc. filed on February 12, 2018 (incorporated by reference to Exhibit 2.3 to the registrant’s Post-Qualification Offering Circular Amendment No. 1 to Form 1-A (File No. 024-10739) filed with the Commission on February 21, 2018).
3.4		Bylaws of VirTra, Inc. (incorporated by reference to Exhibit 2.3 to the registrant’s Offering Circular on Form 1-A (File No. 024-10739) filed with the Commission on September 11, 2017).
4.1		Form of Senior Indenture (incorporated by reference to Exhibit 4.1 to the registrant’s Registration Statement on Form S-3 (File No. 333-238624) filed with the Commission on May 22, 2020).
4.2*		Form of Senior Note
4.3		Form of Subordinated Indenture (incorporated by reference to Exhibit 4.3 to the registrant’s Registration Statement on Form S-3 (File No. 333-238624) filed with the Commission on May 22, 2020).
4.4*		Form of Subordinated Note
4.5*		Form of Warrant Agreement
4.6*		Form of Rights Agreement
4.7*		Form of Unit Agreement
5.1		Opinion of Doida Crow Legal LLC
10.1†		2017 Equity Incentive Plan (incorporated by reference to Exhibit 6.5 to the registrant’s Offering Circular on Form 1-A (File No. 024-10739) filed with the Commission on September 11, 2017).
10.2†		Form of Stock Option Agreement for 2017 Equity Incentive Plan (incorporated by reference to Exhibit 6.6 to the registrant’s Offering Circular on Form 1-A (File No. 024-10739) filed with the Commission on September 11, 2017).
10.3†		Form of Notice of Grant of Stock Option for 2017 Equity Incentive Plan (incorporated by reference to Exhibit 6.7 to the registrant’s Offering Circular on Form 1-A (File No. 024-10739) filed with the Commission on September 11, 2017).
10.4		Promissory Note dated August 25, 2021 (incorporated by reference to Exhibit 10.1 to the registrant’s current report on form 8-K (File No. 001-38420) filed with the Commission on August 30, 2021).
10.5		Deed of Trust dated August 25, 2021 (incorporated by reference to Exhibit 10.2 to the registrant’s current report on form 8-K (File No. 001-38420) filed with the Commission on August 30, 2021).
10.6		Assignment and Assumption of Leases dated August 25, 2021 (incorporated by reference to Exhibit 10.3 to the registrant’s current report on form 8-K (File No. 001-38420) filed with the Commission on August 30, 2021).
10.7†		Restricted Stock Unit Agreement – Alanna Boudreau
10.8†		Employment Agreement with John F. Givens II dated September 6, 2024
23.1		Consent of Independent Registered Public Accounting Firm.
23.2		Consent of Doida Crow Legal LLC (included in Exhibit 5.1)
24.1		Power of Attorney (included in signature page)
25.1**		Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of Trustee under the Senior Indenture
25.2**		Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of Trustee under the Subordinated Indenture
107		Filing Fee Table

 

†	Management contract, compensation plan or arrangement.
*	To be filed by amendment to this registration statement or as an exhibit to a report filed pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act.
**	To be filed separately pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended, and the appropriate rules and regulations thereunder.

 

 

 

Exhibit 5.1

 

 

8480 E. Orchard Road ● Suite 2000● Greenwood Village, Colorado 80111

Phone: 720.306.1001 ● E-Mail: info@doidacrow.com ● Web: www.doidacrow.com

 

December 16, 2024

 

VirTra, Inc.

295 E. Corporate Place

Chandler, AZ 85225

 

Re: VirTra, Inc.

 

Gentlemen:

 

We have acted as special counsel to VirTra, Inc., a Nevada corporation (the “Company”), in connection with the preparation and filing by the Company of a registration statement on Form S-3 (including the Offering Prospectus constituting part thereof (the “Prospectus”)) to which this opinion letter has been filed as an exhibit (the “Registration Statement”), relating to the offer and sale from time to time, pursuant to Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”), by the Company of (i) shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), (ii) shares of the Company’s preferred stock, par value $0.0001 per share (the “Preferred Stock”), (iii) debt securities consisting of senior notes, subordinated notes or debentures (the “Debt Securities”), (iv) warrants to purchase Common Stock, Preferred Stock and/or Debt Securities (“Warrants”), (v) rights to purchase Common Stock, Preferred Stock, Debt Securities and Warrants (“Rights”), and (vi) units consisting of a combination of Common Stock, Preferred Stock, Debt Securities, Warrants or Rights (the “Units”). The Common Stock, Preferred Stock, Debt Securities, Warrants, Rights, and Units, plus any additional Common Stock, Preferred Stock, Warrants, Rights and Units that may be registered pursuant to any subsequent registration statement that the Company may hereafter file with the Commission pursuant to Rule 462(b) under the Securities Act in connection with the offering by the Company contemplated by the Registration Statement are collectively referred to herein as the “Securities.” The Securities being registered for sale by the Company are for a maximum aggregate offering price of $50,000,000. Such Securities may be offered and sold from time to time pursuant to Rule 415 under the Securities Act, at which time it is contemplated that the Offering Prospectus included in the Registration Statement will be supplemented in the future by one or more supplements (each, a “Prospectus Supplement”).

 

In rendering our opinions set forth below, we have reviewed such corporate documents and records of the Company, such certificates of public officials and such other matters as we have deemed necessary or appropriate for purposes of this opinion letter. As to facts material to the opinions expressed herein, we have relied upon oral and written statements and representations of officers and other representatives of the Company. We also have assumed (a) the authenticity of all documents submitted to us as originals; (b) the conformity to the originals of all documents submitted to us as copies; (c) the genuineness of all signatures; (d) the legal capacity of natural persons; and (e) the truth, accuracy and completeness of the information, factual matters, representations and warranties contained in all of such documents.

 

 

VirTra, Inc.

December 16, 2024

Page 2

 

Based upon such examination, and subject to the further assumptions, qualifications and limitations contained herein, it is our opinion that:

 

1. The Common Stock to be sold by the Company (including any Common Stock duly issued upon (i) the exercise of duly issued Warrants or Rights and receipt by the Company of any additional consideration payable upon such conversion, exchange or exercise, or (ii) the exchange or conversion of Debt Securities or Preferred Stock which are exchangeable or convertible into Common Stock), upon issuance and delivery of certificates (or book-entry notation if uncertificated) for such Common Stock against payment therefor of such lawful consideration as the Company’s Board of Directors (the “Board”) (or a duly authorized committee thereof) may determine, will be validly issued, fully paid and non-assessable.

 

2. The Preferred Stock to be sold by the Company (including any Preferred Stock duly issued upon (i) the exercise of duly issued Warrants or Rights and receipt by the Company of any additional consideration payable upon such conversion, exchange or exercise, or (ii) the exchange or conversion of Debt Securities that are exchangeable for or convertible into Preferred Stock), upon issuance and delivery of certificates (or book-entry notation if uncertificated) for such Preferred Stock against payment therefor of such lawful consideration as the Company’s Board (or a duly authorized committee thereof) may determine, will be validly issued, fully paid and non-assessable.

 

3. The Debt Securities (including any Debt Securities duly issued upon the exercise of Warrants or Rights and receipt by the Company of any additional consideration payable upon such exercise) upon due execution and delivery of an indenture relating thereto on behalf of the Company and the trustee named therein, and upon authentication by such trustee and due execution and delivery on behalf of the Company in accordance with the indenture and any supplemental indenture relating thereto, upon issuance and delivery of certificates (or book-entry notation if uncertificated) for such Debt Securities against payment therefor of such lawful consideration as the Board (or a duly authorized committee thereof) may determine, will be validly issued and will constitute valid and legally binding obligations of the Company.

 

4. The Warrants, upon due execution and delivery of a warrant agreement relating thereto on behalf of the Company and the warrant agent named therein and due authentication of the Warrants by such warrant agent, and upon their issuance and delivery of certificates (or book-entry notation if uncertificated) for such Warrants against payment therefor of such lawful consideration as the Board (or a duly authorized committee thereof) may determine, will be validly issued and will constitute valid and legally binding obligations of the Company.

 

5. The Rights, upon due execution and delivery of a rights agreement relating thereto on behalf of the Company and the rights agent named therein and due authentication of the Rights by such rights agent, and upon their issuance and delivery of certificates (or book-entry notation if uncertificated) for such Rights against payment therefor of such lawful consideration as the Board (or a duly authorized committee thereof) may determine, will be validly issued and will constitute valid and legally binding obligations of the Company.

 

6. The Units, upon due execution and delivery of a unit agreement relating thereto on behalf of the Company, and upon their issuance and delivery of certificates (or book-entry notation if uncertificated) for such Units against payment therefor of such lawful consideration as the Board (or a duly authorized committee thereof) may determine, to the extent that such Units constitute Common Stock or Preferred Stock, will be validly issued, fully paid and non-assessable, and to the extent such Units constitute Debt Securities and Warrants, will be validly issued and will constitute valid and legally binding obligations of the Company.

 

 

VirTra, Inc.

December 16, 2024

Page 3

 

In rendering the foregoing opinions, we have assumed that: (i) the Registration Statement, and any amendments thereto, shall have become effective under the Securities Act and will remain effective at the time of issuance of any Securities thereunder); (ii) a Prospectus Supplement describing each class or series of Securities offered pursuant to the Registration Statement, to the extent required by applicable law and relevant rules and regulations of the Securities and Exchange Commission (the “Commission”), will be timely filed with the Commission; (iii) the definitive terms of each class or series of Securities shall have been established in accordance with resolutions duly adopted by the Board (or an authorized committee thereof) (each, a “Board Action”), the Company’s Articles of Incorporation, as amended, (the “Articles”) and applicable law; (iv) the Company will issue and deliver the Securities in the manner contemplated by the Registration Statement, the Prospectuses, the applicable Prospectus Supplement and any applicable underwriting agreement; (v) the total number of shares of Common Stock issuable (including upon conversion, exchange or exercise of any other Security) will not exceed the total number of shares of Common Stock, that the Company is then authorized to issue under its Articles; (vi) the Board Action authorizing the Company to issue, offer and sell the Securities will have been adopted by the Board (or an authorized committee thereof) and will be in full force and effect at all times at which the Securities are offered or sold by the Company; and (vii) all Securities will be issued in compliance with applicable federal and state securities laws.

 

With respect to any Securities consisting of Debt Securities, we have further assumed that: (i) such Debt Securities shall have been issued pursuant to an indenture (individually, and as supplemented from time to time, an “Indenture”) between the Company and a trustee to be identified in the applicable Prospectus Supplement (the “Trustee”); (ii) such Indenture shall have been duly authorized, executed and delivered on behalf of the Company; (iii) all terms of such Debt Securities not provided for in such Indenture shall have been established in accordance with the provisions of the Indenture and reflected in appropriate documentation approved by us and, if applicable, executed and delivered by the Company and the Trustee; (iv) such Debt Securities shall have been duly executed, authenticated, issued and delivered in accordance with the provisions of such Indenture; (v) such Debt Securities, as executed and delivered, do not violate any law applicable to the Company or result in a default under or breach of any agreement or instrument binding upon the Company; and (vi) such Debt Securities, as executed and delivered, comply with all requirements and restrictions, if any, applicable to the Company, whether imposed by any court or governmental or regulatory body having jurisdiction over the Company.

 

With respect to any Securities consisting of Warrants, we have further assumed that (i) such Warrants shall have been issued pursuant to a warrant agreement (individually, a “Warrant Agreement”) between the Company and a warrant agent to be identified in the applicable Prospectus Supplement (the “Warrant Agent”); (ii) such Warrant Agreement shall have been duly authorized, executed and delivered on behalf of the Company; (iii) all terms of such Warrants shall have been established in accordance with the provisions of such Warrant Agreement(s); (iv) such Warrants shall have been duly executed, issued and delivered in accordance with the provisions of such Warrant Agreement(s); (v) such Warrants and the related Warrant Agreement(s), as executed and delivered, do not violate any law applicable to the Company or result in a default under or breach of any agreement or instrument binding upon the Company; and (vi) such Warrants and the related Warrant Agreement(s), as executed and delivered, comply with all requirements and restrictions, if any, applicable to the Company, in any case whether imposed by any court or governmental or regulatory body having jurisdiction over the Company.

 

 

VirTra, Inc.

December 16, 2024

Page 4

 

With respect to any Securities consisting of Rights, we have further assumed that (i) such Rights shall have been issued pursuant to a rights agreement (individually, a “Rights Agreement”) between the Company and a rights agent to be identified in the applicable Prospectus Supplement (the “Rights Agent”); (ii) such Rights Agreement shall have been duly authorized, executed and delivered on behalf of the Company; (iii) all terms of such Rights shall have been established in accordance with the provisions of such Rights Agreement(s); (iv) such Rights shall have been duly executed, issued and delivered in accordance with the provisions of such Rights Agreement(s); (v) such Rights and the related Rights Agreement(s), as executed and delivered, do not violate any law applicable to the Company or result in a default under or breach of any agreement or instrument binding upon the Company; and (vi) such Rights and the related Rights Agreement(s), as executed and delivered, comply with all requirements and restrictions, if any, applicable to the Company, in any case whether imposed by any court or governmental or regulatory body having jurisdiction over the Company.

 

To the extent that the obligations of the Company under an Indenture may be dependent on such matters, we further have assumed for purposes of this opinion letter that the Trustee under each Indenture (i) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; (ii) is duly qualified to engage in activities contemplated by such Indenture; (iii) has duly authorized, executed and delivered such Indenture and such Indenture constitutes the legally valid and binding obligation of such Trustee enforceable against such Trustee in accordance with its terms; (iv) is in compliance, with respect to acting as a trustee under such Indenture, with all applicable laws and regulations; and (v) has the requisite organizational and legal power and authority to perform its obligations under such Indenture.

 

To the extent that the obligations of the Company under any Warrant or Warrant Agreement may be dependent on such matters, we further have assumed for purposes of this opinion letter that the Warrant Agent under each Warrant Agreement (i) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; (ii) is duly qualified to engage in the activities contemplated by such Warrant Agreement; (iii) has duly authorized, executed and delivered such Warrant Agreement and such Warrant Agreement constitutes the legally valid and binding obligation of such Warrant Agent enforceable against such Warrant Agent in accordance with its terms; (iv) is in compliance, with respect to acting as a Warrant Agent under such Warrant Agreement, with all applicable laws and regulations; and (v) has the requisite organizational and legal power and authority to perform its obligations under such Warrant Agreement.

 

To the extent that the obligations of the Company under any Rights or Rights Agreement may be dependent on such matters, we further have assumed for purposes of this opinion letter that the Rights Agent under each Rights Agreement (i) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; (ii) is duly qualified to engage in the activities contemplated by such Rights Agreement; (iii) has duly authorized, executed and delivered such Rights Agreement and such Rights Agreement constitutes the legally valid and binding obligation of such Rights Agent enforceable against such Rights Agent in accordance with its terms; (iv) is in compliance, with respect to acting as a Rights Agent under such Rights Agreement, with all applicable laws and regulations; and (v) has the requisite organizational and legal power and authority to perform its obligations under such Rights Agreement.

 

We express no opinion with respect to the enforceability of: (i) provisions relating to choice of law, choice of venue, jurisdiction or waivers of jury trial, or (ii) any waiver of any usury defense, or to the extent enforceability of any provisions may be limited by bankruptcy, insolvency, reorganization, moratorium, or other similar laws relating to or affecting creditors’ rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding at law or in equity). This opinion letter is rendered as of the date hereof, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or any subsequent changes in applicable law that may come to our attention, and we have assumed that no change in the facts stated or assumed herein or in applicable law after the date hereof will affect adversely our ability to render an opinion letter after the date hereof (i) containing the same legal conclusions set forth herein and (ii) subject only to such (or fewer) assumptions, limitations and qualifications as are contained herein.

 

We express no opinion herein as to the law of any state or jurisdiction other than the laws of the State of Nevada, applicable statutory provisions of the Private Corporations Chapter of the Nevada Revised Statutes, Nev. Rev. Stat. 78, including interpretations thereof in published decisions of the Nevada courts and applicable provisions of the Nevada Constitution, and the federal laws of the United States of America. We are not rendering any opinion as to compliance with any federal or state antifraud law, rule, or regulation relating to securities, or to the sale or issuance thereof.

 

We hereby consent to the filing of this opinion letter with the Commission as Exhibit 5.1 to the Registration Statement and to the reference to our firm therein and in the Prospectuses and any Prospectus Supplement under the caption “Legal Matters.” In giving such consent, we do not thereby admit that this firm is within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

 

Very truly yours,

 

/s/ Doida Crow Legal LLC

 

Doida Crow Legal LLC

 

 

 

Exhibit 10.7

 

Restricted Stock Unit Agreement

 

This Restricted Stock Unit Agreement (this “Agreement”) is made and entered into as of December 1, 2022 (the “Grant Date”) by and between VIRTRA, INC., a Nevada corporation (the “Company”) and ALANNA BOUDREAU (the “Grantee”).

 

WHEREAS, the Company has adopted the 2017 Equity Incentive (the “Plan”) pursuant to which awards of Restricted Stock Units may be granted; and

 

WHEREAS, the Committee has determined that it is in the best interests of the Company and its shareholders to grant the award of Restricted Stock Units provided for herein.

 

NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:

 

1. Grant of Restricted Stock Units.

 

1.1 Pursuant to Section 9 of the Plan, the Company hereby issues to the Grantee on the Grant Date an Award consisting of, in the aggregate, 15,000 Restricted Stock Units (the “Restricted Stock Units”). Each Restricted Stock Unit represents the right to receive one share of Common Stock, subject to the terms and conditions set forth in this Agreement and the Plan. Capitalized terms that are used but not defined herein have the meaning ascribed to them in the Plan.

 

1.2 The Restricted Stock Units shall be credited to a separate account maintained for the Grantee on the books and records of the Company (the “Account”). All amounts credited to the Account shall continue for all purposes to be part of the general assets of the Company.

 

2. Consideration. The grant of the Restricted Stock Units is made in consideration of the services to be rendered by the Grantee to the Company.

 

3. Vesting.

 

3.1 Except as otherwise provided herein, provided that the Grantee remains in Continuous Service¹ through the applicable vesting date, and further provided that any additional conditions and performance goals set forth in Schedule I have been satisfied, the Restricted Stock Units will vest in accordance with the schedule (the period during which restrictions apply, the “Restricted Period”) set forth in Schedule I. Once vested, the Restricted Stock Units become “Vested Units.”

 

 

¹ “Continuous Service” means that the Grantee’s service with the Company or an Affiliate, whether as an Employee, Consultant or Director, is not interrupted or terminated. The Grantee’s Continuous Service shall not be deemed to have terminated merely because of a change in the capacity in which the Grantee renders service to the Company or an Affiliate as an Employee, Consultant or Director or a change in the entity for which the Grantee renders such service, provided that there is no interruption or termination of the Grantee’s Continuous Service; provided further that if any Award is subject to Section 409A of the Code, this sentence shall only be given effect to the extent consistent with Section 409A of the Code. For example, a change in status from an Employee of the Company to a Director of an Affiliate will not constitute an interruption of Continuous Service. Any approved leave of absence, including sick leave, military leave or any other personal or family leave of absence, shall not be deemed an interruption of Continuous Service. A Company transaction, such as a sale or spin-off of a division or subsidiary that employs a Grantee, shall not be deemed to result in a termination of Continuous Service for purposes of affected Awards.

 

 

3.2 The vesting schedule notwithstanding, if the Grantee’s Continuous Service terminates for Cause (as defined in Grantee’s Employment Agreement with the Company) or as a result of death or disability, at any time before all of his or her Restricted Stock Units have vested, the Grantee’s unvested Restricted Stock Units shall be automatically forfeited upon such termination of Continuous Service and neither the Company nor any Affiliate shall have any further obligations to the Grantee under this Agreement. Any Restricted Stock Units that have been earned as a result of the Company’s filing performance, but not vested because of death or disability occurring prior to the Vesting Date, shall still be deemed to be vested and inure to the benefit of the Grantee or the Grantee’s estate, as the case may be.

 

3.3 The vesting schedule notwithstanding, upon the occurrence of a Change in Control, 100% of the unvested Restricted Stock Units shall vest as of the date of the Change in Control.

 

3.4 The vesting schedule notwithstanding, the Compensation Committee of the Company’s Board of Directors shall have the discretion to declare the vesting of any number of Restricted Stock Units should the Company experience unusual circumstances affecting the timely filing of its periodic reports with the Securities and Exchange Commission that are not deemed to be within the Grantee’s control.

 

4. Restrictions. Subject to any exceptions set forth in this Agreement or the Plan, during the Restricted Period and until such time as the Restricted Stock Units are settled in accordance with Section 6, the Restricted Stock Units or the rights relating thereto may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Grantee. Any attempt to assign, alienate, pledge, attach, sell or otherwise transfer or encumber the Restricted Stock Units or the rights relating thereto shall be wholly ineffective and, if any such attempt is made, the Restricted Stock Units will be forfeited by the Grantee and all of the Grantee’s rights to such units shall immediately terminate without any payment or consideration by the Company.

 

5. Rights as Shareholder; Dividend Equivalents.

 

5.1 The Grantee shall not have any rights of a shareholder with respect to the shares of Common Stock underlying the Restricted Stock Units unless and until the Restricted Stock Units vest and are settled by the issuance of such shares of Common Stock.

 

5.2 Upon and following the settlement of the Restricted Stock Units, the Grantee shall be the record owner of the shares of Common Stock underlying the Restricted Stock Units unless and until such shares are sold or otherwise disposed of, and as record owner shall be entitled to all rights of a shareholder of the Company (including voting rights).

 

5.3 The Grantee shall not be entitled to any Dividend Equivalents with respect to the Restricted Stock Units to reflect any dividends payable on shares of Common Stock.

 

 

6. Settlement of Restricted Stock Units.

 

6.1 Subject to Section 9 hereof, promptly following the vesting date, and in any event no later than March 15 of the calendar year following the calendar year in which such vesting occurs, the Company shall (a) issue and deliver to the Grantee the number of shares of Common Stock equal to the number of Vested Units; and (b) enter the Grantee’s name on the books of the Company as the shareholder of record with respect to the shares of Common Stock delivered to the Grantee.

 

6.2 Notwithstanding Section 6.1, in accordance with Section 9.6 of the Plan, the Committee may, but is not required to, prescribe rules pursuant to which the Grantee may elect to defer settlement of the Restricted Stock Units. Any deferral election must be made in compliance with such rules and procedures as the Committee deems advisable.

 

If the Grantee is deemed a “specified employee” within the meaning of Section 409A of the Code, as determined by the Committee, at a time when the Grantee becomes eligible for settlement of the RSUs upon his or her “separation from service” within the meaning of Section 409A of the Code, then to the extent necessary to prevent any accelerated or additional tax under Section 409A of the Code, such settlement will be delayed until the earlier of: (a) the date that is six months following the Grantee’s separation from service and (b) the Grantee’s death.

 

6.3 To the extent that the Grantee does not vest in any Restricted Stock Units, all interest in such Restricted Stock Units shall be forfeited. The Grantee has no right or interest in any Restricted Stock Units that are forfeited.

 

7. No Right to Continued Service. Neither the Plan nor this Agreement shall confer upon the Grantee any right to be retained in any position, as an Employee, Consultant or Director of the Company. Further, nothing in the Plan or this Agreement shall be construed to limit the discretion of the Company to terminate the Grantee’s Continuous Service at any time, with or without Cause.

 

8. Adjustments. If any change is made to the outstanding Common Stock or the capital structure of the Company, if required, the Restricted Stock Units shall be adjusted or terminated in any manner as contemplated by Section 4.4 of the Plan.

 

9. Tax Liability and Withholding.

 

9.1 The Grantee shall be required to pay to the Company, and the Company shall have the right to deduct from any compensation paid to the Grantee pursuant to the Plan, the amount of any required withholding taxes in respect of the Restricted Stock Units and to take all such other action as the Committee deems necessary to satisfy all obligations for the payment of such withholding taxes. The Committee may permit the Grantee to satisfy any federal, state or local tax withholding obligation by any of the following means, or by a combination of such means:

 

(a) tendering a cash payment.

 

(b) authorizing the Company to withhold shares of Common Stock from the shares of Common Stock otherwise issuable or deliverable to the Grantee as a result of the vesting of the Restricted Stock Units; provided, however, that no shares of Common Stock shall be withheld with a value exceeding the maximum amount of tax required to be withheld by law.

 

(c) delivering to the Company previously owned and unencumbered shares of Common Stock.

 

 

9.2 Notwithstanding any action the Company takes with respect to any or all income tax, social insurance, payroll tax, or other tax-related withholding (“Tax-Related Items”), the ultimate liability for all Tax-Related Items is and remains the Grantee’s responsibility and the Company (a) makes no representation or undertakings regarding the treatment of any Tax-Related Items in connection with the grant, vesting or settlement of the Restricted Stock Units or the subsequent sale of any shares; and (b) does not commit to structure the Restricted Stock Units to reduce or eliminate the Grantee’s liability for Tax-Related Items.

 

10. Compliance with Law. The issuance and transfer of shares of Common Stock shall be subject to compliance by the Company and the Grantee with all applicable requirements of federal and state securities laws and with all applicable requirements of any stock exchange on which the Company’s shares of Common Stock may be listed. No shares of Common Stock shall be issued or transferred unless and until any then applicable requirements of state and federal laws and regulatory agencies have been fully complied with to the satisfaction of the Company and its counsel.

 

11. Notices. Any notice required to be delivered to the Company under this Agreement shall be in writing and addressed to the co-Chief Executive Officer of the Company at the Company’s principal corporate offices. Any notice required to be delivered to the Grantee under this Agreement shall be in writing and addressed to the Grantee at the Grantee’s address as shown in the records of the Company. Either party may designate another address in writing (or by such other method approved by the Company) from time to time.

 

12. Governing Law. This Agreement will be construed and interpreted in accordance with the laws of the State of Nevada without regard to conflict of law principles.

 

13. Interpretation. Any dispute regarding the interpretation of this Agreement shall be submitted by the Grantee or the Company to the Committee for review. The resolution of such dispute by the Committee shall be final and binding on the Grantee and the Company.

 

14. Restricted Stock Units Subject to Plan. This Agreement is subject to the Plan as approved by the Company’s shareholders. The terms and provisions of the Plan as it may be amended from time to time are hereby incorporated herein by reference. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms and provisions of the Plan will govern and prevail.

 

15. Successors and Assigns. The Company may assign any of its rights under this Agreement. This Agreement will be binding upon and inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer set forth herein, this Agreement will be binding upon the Grantee and the Grantee’s beneficiaries, executors, administrators and the person(s) to whom the Restricted Stock Units may be transferred by will or the laws of descent or distribution.

 

 

16. Severability. The invalidity or unenforceability of any provision of the Plan or this Agreement shall not affect the validity or enforceability of any other provision of the Plan or this Agreement, and each provision of the Plan and this Agreement shall be severable and enforceable to the extent permitted by law.

 

17. Discretionary Nature of Plan. The Plan is discretionary and may be amended, cancelled or terminated by the Company at any time, in its discretion. The grant of the Restricted Stock Units in this Agreement does not create any contractual right or other right to receive any Restricted Stock Units or other Awards in the future. Future Awards, if any, will be at the sole discretion of the Company. Any amendment, modification, or termination of the Plan shall not constitute a change or impairment of the terms and conditions of the Grantee’s employment with the Company.

 

18. Amendment. The Committee has the right to amend, alter, suspend, discontinue or cancel the Restricted Stock Units, prospectively or retroactively; provided, that, no such amendment shall adversely affect the Grantee’s material rights under this Agreement without the Grantee’s consent.

 

19. Section 409A. This Agreement is intended to comply with Section 409A of the Code or an exemption thereunder and shall be construed and interpreted in a manner that is consistent with the requirements for avoiding additional taxes or penalties under Section 409A of the Code. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A of the Code and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Grantee on account of non-compliance with Section 409A of the Code.

 

20. No Impact on Other Benefits. The value of the Grantee’s Restricted Stock Units is not part of his or her normal or expected compensation for purposes of calculating any severance, retirement, welfare, insurance or similar employee benefit.

 

21. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. Counterpart signature pages to this Agreement transmitted by facsimile transmission, by electronic mail in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original signature.

 

22. Acceptance. The Grantee hereby acknowledges receipt of a copy of the Plan and this Agreement. The Grantee has read and understands the terms and provisions thereof, and accepts the Restricted Stock Units subject to all of the terms and conditions of the Plan and this Agreement. The Grantee acknowledges that there may be adverse tax consequences upon the vesting or settlement of the Restricted Stock Units or disposition of the underlying shares and that the Grantee has been advised to consult a tax advisor prior to such vesting, settlement or disposition.

 

[signature page follows]

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

 

	“Company”
	VIRTRA, INC.
	By:	/s/ John F. Givens II
	Name:	John F. Givens II
	Title:	Co-Chief Executive Officer
	“Grantee”
	/s/ Alanna Boudreau
	Name:	Alanna Boudreau

 

 

SCHEDULE I

 

Vesting Date: December 1 2023

 

5,000 RSUs shall vest if VirTra, Inc. shall timely file with the Securities and Exchange Commission all required annual, quarterly and current reports during the twelve months ended November 2023

 

Vesting Date: December 1, 2024

 

5,000 RSUs shall vest if VirTra, Inc. shall timely file with the Securities and Exchange Commission all required annual, quarterly and current reports during the twelve months ended November 2024

 

Vesting Date: December 1, 2025

 

5,000 RSUs shall vest if VirTra, Inc. shall timely file with the Securities and Exchange Commission all required annual, quarterly and current reports during the twelve months ended November 2025

 

 

Exhibit 10.8

 

EMPLOYMENT AGREEMENT

 

THIS AGREEMENT (the “Agreement”) is made and entered into as of September 6, 2024, (the “Effective Date”) by and between VIRTRA, INC., a Nevada corporation (the “Company”), and JOHN F. GIVENS II (the “Executive”).

 

WHEREAS the Company desires to employ the Executive upon the terms and conditions specified in this Agreement and the Executive desires to serve in the employ of the Company upon such terms and conditions; and

 

WHEREAS the Company and the Executive desire to set forth in a written agreement the terms and conditions of Executive’s employment with the Company;

 

NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained, acknowledged by the parties as valuable and sufficient, it is agreed as follows:

 

Employment. Subject to the terms and conditions of this Agreement, the Company agrees to employ the Executive as its Chief Executive Officer during the Employment Period (as defined in Section 2) and Executive agrees to perform such acts and duties and furnish such services to the Company. During the Employment Period, the Company shall continue to take such actions as necessary to cause the Executive’s nomination as a member of the Board of Directors of the Company (the “Board”). The Executive hereby accepts such employment and agrees to devote his full time and best efforts to the duties provided herein, provided, that the Executive may engage in other business activities which (i) involve no conflict of interest with the interests of the Company and (ii) do not materially interfere with the performance by the Executive of his duties under this Agreement. For the avoidance of doubt, and notwithstanding anything to the contrary herein, the Executive is free to pursue opportunities with any one or combination of all of Scuba Select LLC, Givens Group Solutions LLC, The Givens Group LLC, and Vialytix LLC; and any such activities shall be deemed to be consistent with all of the Executive’s obligations under this Agreement. The Executive shall report to the Board; however, the Board must first obtain Executive’s approval before changing the Executive’s duties and responsibilities to the Company. In the event that the Executive does not consent to the proposed change(s) and the Board insists that such change(s) be implemented, then the Board shall have the right to terminate the Executive with a termination payment tendered pursuant to Section 11 as if the Company had terminated the Executive for a reason other than for Cause.

 

2. Employment Period. The initial employment term shall be for a term commencing on the date hereof and, subject to termination under Section 10, expiring June 30, 2027. Notwithstanding the previous sentence, this Agreement and the employment of the Executive shall be automatically extended for successive one-year periods upon the terms and conditions set forth herein, commencing on the first anniversary of the date of this Agreement, and on each anniversary date thereafter. For purposes of this Agreement, any reference to the “term” of this Agreement shall include the original term and any extension thereof.

 

3. Compensation. For services rendered to the Company during the term of this Agreement, the Company shall compensate the Executive with an initial base salary of $360,498.97 per annum, which shall be effective beginning July 1, 2024. Such base salary shall be reviewed on an annual basis by the Board or appropriate compensation committee that may be formed by the Board in the future (the “Compensation Committee”) and shall be subject to being increased (at a minimum adjusted for cost of living), but not decreased at the discretion of the Board or Compensation Committee, if any.

 

 

4. Incentive Compensation. The Board of the Company shall determine on an annual basis, based on the performance of the Company and such other metrics as the Board may use from time to time, if and what amount of cash bonus that Executive is entitled to during the Employment Period (“Incentive Compensation”). The Executive’s Incentive Compensation shall be determined after a financial audit is performed by a certified PCAOB auditor and the audit report is delivered to the Board. In the event a certified audit is not performed on the Company, then the Board shall determine the Executive’s Incentive Compensation based on the Company’s unaudited financial statements and the Executive shall have the right to review such unaudited financial statements. Any bonus due to Executive will be paid within ninety (90) days from the end of the Company’s fiscal year.

 

5. Stock Options and Other Equity Compensation.

 

(a) Outstanding Options and Restricted Stock Unit Grants. Any currently outstanding options to purchase Common Stock of the Company and any restricted stock unit grants held by Executive shall remain in full force and effect in accordance with the terms in which they were issued.

 

(b) Future Options and Restricted Stock Plans. As further compensation, Employee shall be allowed to participate in any equity compensation plan that may be adopted in the future by the Board, or Compensation Committee if any, for the Company’s executives and/or employees. The amount of such grant and the terms of vesting shall be as determined by the Board, or Compensation Committee if any. Any stock options granted to Executive shall be “Incentive Stock Options” within the meaning of the Internal Revenue Code of 1986, as amended (the “Code”), subject to the limitations of the Code. Any stock options which are not allowed to be incentive stock options under the Code shall be non-qualified stock options. Notwithstanding anything to the contrary in any stock option agreement or other agreement between the Company and the Executive:

 

(i) the Executive shall have the right during the 90-day period following the date of termination of his employment pursuant to this Agreement for any reason (other than termination for Cause) to exercise any options to purchase shares of the Company’s common stock theretofore granted to the Executive, to the extent that such options were exercisable on the date of such termination, and

 

(ii) all such options shall immediately vest and become exercisable upon a Change of Control (as hereinafter defined).

 

6. Executive Benefits. During the Employment Period, the Company shall provide or cause to be provided to the Executive such employee benefits as are provided to other executive officers of the Company, such as family medical, dental, vision, disability and life insurance, and participation in pension and retirement plans, incentive compensation plans, stock option plans, Company-sponsored welfare benefit plans for disability and life insurance and other benefit plans. During the Employment Period, the Company may provide or cause to be provided to the Executive such additional benefits as the Company may deem appropriate from time to time.

 

7. Expenses. The Company shall pay or reimburse the Executive for reasonable and necessary expenses incurred by the Executive in connection with his duties on behalf of the Company in accordance with the general policies of the Company.

 

8. Vacation. The Executive shall be entitled to vacation days, as from time to time amended by the Board.

 

 

9. Place of Performance. In connection with his employment by the Company, the Executive shall not be required, except with his consent, to relocate his principal residence. Required travel on the Company’s business during any given month shall not, without the express approval of the Executive, exceed 25% of the Executive’s working days, determined by averaging the number of working days each month over the most recent six (6) month period.

 

10. Termination.

 

(a) Voluntary Termination. The Executive may, upon sixty (60) days’ prior notice, terminate his employment with the Company at any time for any reason or for Good Reason. “Good Reason” shall mean (i) the Company’s failure to elect or reelect, or to appoint or reappoint, Executive to the office of Chief Executive Officer of the Company; (ii) failure by the Company to obtain the assumption of this Agreement by any successor or assign of the Company; (iii) material breach of this Agreement by the Company, which breach is not cured within five (5) days after written notice thereof is delivered to the Company; or (iv) the occurrence of a Change of Control (as defined in Section 11). The Executive’s death or termination by reason of Disability during the term of the Agreement shall constitute a voluntary termination of employment for purposes of Section 11. The provisions of Section 13 hereof shall survive any such voluntary termination.

 

(b) Termination for Cause. The Executive’s employment hereunder may be terminated for Cause and such termination shall be effective upon the Board’s issuance of a notice of such termination. “Cause” shall mean (i) the Executive’s willful, repeated or negligent failure to perform his duties hereunder and the continuation of such failure following twenty (20) days written notice to such effect, (ii) the conviction or plea bargain of the Executive of any felony involving dishonesty, fraud, theft, embezzlement or the like; (iii) the Executive’s commission of any act of fraud or theft involving the Company or its business; or (iv) the Executive’s violation of any of the material terms, covenants, representations or warranties contained in this Agreement and failure to correct such violation within twenty (20) days after receiving written notice by the Company. Notwithstanding the foregoing, “Cause” shall only be deemed to exist if it is so determined by a resolution duly adopted by the Board and at a duly noticed meeting at which the Executive and his counsel are first given the opportunity to address the Board with respect to such determination.

 

(c) Effect of Termination. Subject to Section 11 and any benefit continuation requirements of applicable laws, in the event the Executive’s employment hereunder is voluntarily terminated for any reason whatsoever, except as described in Section 11, all compensation, and benefits obligations of the Company to Executive shall cease as of the effective date of such termination.

 

11. Termination Payments and Benefits. If the Executive’s employment hereunder is terminated by the Company for any reason other than for Cause (as defined herein) or if Executive voluntarily terminates his own employment for Good Reason, as defined in Section 10(a) but not including a Change of Control, then the Company shall, subject to subsection 1l(a) hereof, be obligated to pay to the Executive an amount equal to the product of (i) the greater of (A) the Executive’s annual base salary in effect on the day preceding the date of such termination or (B) the Executive’s annual base salary during the twelve full calendar months preceding the date of such termination, times (ii) three (3) (such amount hereinafter referred to as the “Termination Payment Amount”).

 

(a) Condition Precedent to Company’s Payment Obligation (Release of Claims). The Company’s obligation to pay the Termination Payment Amount or any portion thereof shall be conditioned upon the Executive executing and delivering to the Company a mutual release agreement to be negotiated by each party’s counsel (the “Release Agreement”). The Company shall be deemed for all purposes to have executed and delivered the Release Agreement to the Executive immediately upon the Company’s receipt of the Release Agreement duly executed by the Executive. In addition, the Company shall have no obligation to make any payment of the Termination Payment Amount if the Executive shall be in default of his obligations under Section 13 hereof.

 

 

If the Company does not provide Executive with the Release Agreement within ten (10) days of the first scheduled termination payment date, as described in Section 11(b), then the Company shall be obligated to pay the first scheduled termination payment, even if the Release Agreement is not received from the Executive. Subsequent termination payments, as described in Section 11(b), shall not be tendered by the Company to Executive unless the Release Agreement is received by the next scheduled termination payment date; unless of course, the Company again fails to provide the Executive with the Release Agreement within ten (10) days from such termination payment date. The Company shall not circumvent payments of the Termination Payment Amount by providing Executive with the Release Agreement less than ten (10) days from the scheduled termination payment date, pursuant to Section 11(b).

 

(b) Method of Payment. The Termination Payment Amount shall be payable in eighteen (18) equal monthly payments commencing on the first day of the month following the month in which the termination shall occur. The Company’s obligation to pay the Termination Payment Amount shall be the same as a normal trade payable of the Company.

 

(c) Benefits. Upon termination of this Agreement for any reason, the Company shall be obligated to provide the Executive with medical insurance and other employee benefits only to the extent required by applicable law, and the Company shall have no obligation to provide any benefits to the Executive which the Executive would have been entitled to receive if his employment had not been terminated.

 

(d) Change of Control.

 

(i) For purposes of this Agreement, a “Change of Control” of the Company shall be deemed to occur if:

 

(A) after the date of this Agreement, any person or entity, or any group of persons or entities becomes the “beneficial owner” (as defined in the Securities Exchange Act of 1934, as amended from time to time), directly or indirectly, of thirty-five percent (35%) or more of combined voting power of the Company’s then outstanding securities; or

 

(B) the occurrence during the term of this Agreement of a change in the Board with the result that the Incumbent Members do not constitute a majority of the Board. “Incumbent Members” shall mean the members of the Board on the date immediately preceding the commencement of this Agreement, provided that any person becoming a Director during the term of this Agreement whose appointment, election or nomination for election was supported by a majority of the Directors who, on the date of such election or nomination for election, comprised the Incumbent Members shall be considered one of the Incumbent Members. Executive shall have the right to waive a Change of Control based on a majority change of the Incumbent Members of the Board.

 

 

(ii) Severance Compensation Upon a Change of Control and Termination of Employment. If a Change of Control of the Company shall have occurred while the Executive is an employee of the Company, and within thirty-six (36) months from the date of such Change in Control (I) the Company shall terminate the Executive’s employment for any reason (except for the death or Disability of the Executive or for Cause) or (II) the Executive shall elect to terminate his employment for any reason, then:

 

(A) the Company shall (subject to (B) below) pay the Executive any earned and accrued but unpaid base salary through the date of termination plus an amount of severance pay equal to the product of (i) the greater of (A) the Executive’s annual base salary in effect on the day preceding the date on which the Change of Control occurred or (B) the Executive’s annual base salary during the twelve (12) full calendar months preceding the date on which the Change of Control occurred, times (ii) four (4) (such amount hereinafter referred to as the “Change of Control Termination Payment Amount”). The Change of Control Termination Payment Amount payable under this subsection 11(d) shall be payable in a lump sum on the fourteenth day following the date of termination hereunder, unless on or before such fourteenth day the Company shall have delivered to the Executive a standby letter of credit issued by a financial institution with its principal office located in the continental United States having combined capital and surplus of at least $100,000,000, which letter of credit shall (i) have a term of no less than twenty (20) months from its date of issuance; (ii) be irrevocable; (iii) be to the benefit of the Executive or his assignee; (iv) permit draws thereunder in an amount up to the full amount of the unpaid Change of Control Termination Payment Amount upon the receipt by the issuing bank of a notice from the Executive of the Company’s failure to pay any amount of the Change of Control Termination Payment Amount when due, together with a draft in the amount to be paid under the letter of credit; and (v) permit multiple draws, up to the full amount of the unpaid Change of Control Termination Payment Amount outstanding from time to time, in which event the Change of Control Termination Payment Amount payable under this subsection 11(d) shall be payable in eighteen (18) monthly payments commencing on the first day of the month following the month in which such letter of credit shall be issued; and

 

(B) in the event that the payment, calculated as provided in (A) above, together with all other payments and the value of any benefit received or to be received by the Executive in connection with termination contingent upon a Change in Control of the Company (whether payable pursuant to the terms of this Agreement or any other agreement, plan or arrangement with the Company), (i) constitutes a “parachute payment” within the meaning of Section 280G (b) (2) of the Internal Revenue Code of 1986, as amended (“Code”) and (ii) such payment, together with all other payments or benefits which constitute “parachute payments” within the meaning of Section 280G (b) (2) would result in all or a portion of such payment being subject to excise tax under Section 4999 or the Code, then the Change of Control Termination Payment Amount shall be such lesser amount which would not result in any portion of the severance pay determined hereunder being subject to excise tax under Section 4999 of the Code.

 

(e) Disability Defined. “Disability” shall mean the Executive’s incapacity due to physical or mental illness to substantially perform the essential functions of the position on a full-time basis for six (6) consecutive months and, within thirty (30) days after a notice of termination is thereafter given by the Company, the Executive shall not have returned to the full-time performance of the Executive’s duties; provided, however, if the Executive shall not agree with a determination to terminate him because of Disability, the question of Executive’s disability shall be subject to the certification of a qualified medical doctor agreed to by the Company and the Executive or, in the event of the Executive’s incapacity to designate a doctor, the Executive’s legal representative. In the absence of agreement between the Company and the Executive, each party shall nominate a qualified medical doctor and the two doctors shall select a third doctor, who shall make the determination as to Disability.

 

 

(f) No Obligation to Mitigate. The Executive is under no obligation to mitigate damages, or the amount of any payment provided for hereunder by seeking other employment or otherwise, and neither the obtaining of other employment of any other similar factor shall reduce the amount of severance payment payable hereunder.

 

12. Post-Termination Assistance. The Executive agrees that after his employment with the Company has terminated he will provide to the Company, upon reasonable notice from the Company, such information and assistance in the nature of testifying and the preparation therefor as may reasonably be requested by the Company in connection with any litigation, administrative or agency proceeding, or other legal proceeding in which it or any of its affiliates is or may become a party; provided, however, that the Company agrees to reimburse the Executive for any reasonable, related expenses, including travel expenses, and shall pay the Executive a daily per diem comparable to his salary under this Agreement at time of termination (determined for this purpose on a per diem basis by dividing such salary by 200).

 

13. Confidential Information; Covenant Not To Compete.

 

(a) Confidential Information. The Executive agrees that during his employment with Company and thereafter, the Executive shall not at any time, directly or indirectly, use or disclose to any person, except the Company and its directors, officers or employees, the Company’s customer lists, records, statistics, manufacturing or installation processes, trade secrets or any other information relating to the business, or the plans of the business or affairs of the Company acquired by Executive in the course of his employment in any capacity whatsoever, except for information which (i) is publicly available other than by reason of the breach of this Section 13(a) by the Executive, or (ii) is disclosed by the Executive in connection with the performance of his duties and an officer and/or director of the Company.

 

(b) Covenant Not to Compete.

 

(i) For a period of either (X) two (2) years from the date of the termination of his employment with the Company for any reason other than a voluntary termination by the Executive for Good Reason, as defined in Section 10(a), or (Y) twelve (12) months from the date of voluntary termination by the Executive for Good Reason, as defined in Section 10(a), the Executive shall not, directly or indirectly, for the Executive’s own benefit or for, with or through any other individual, firm, corporation, partnership or other entity, whether acting in an individual, fiduciary or other capacity (collectively a “Person”), own, manage, operate, control, advise, invest in (except as a four percent (4%) or less shareholder of a publicly held company), loan money to, or participate or assist in the ownership, management, operation or control of or be associated as a director, officer, employee, partner, consultant, advisor, creditor, agent, independent contractor or otherwise with, or acquiesce in the use of the Executive’s name by, any Person, within any state in the United States of America or similar political subdivision of any other country in which the Company conducts business in at the time of termination of the Executive, that is in direct competition with the Company, and shall not solicit any employee or customer of the Company in connection with the business of any other Person. The foregoing restrictions on solicitation shall not preclude solicitations through the use of general advertising (such as web postings or advertisements in publications) or search firms, employment agencies or similar entities not specifically directed at the Company. For the avoidance of doubt, the parties acknowledge that notwithstanding anything to the contrary herein Scuba Select LLC, Givens Group Solutions LLC, The Givens Group LLC, and Vialytix LLC are not competitors of the Company. Executive represents that Scuba Select LLC, Givens Group Solutions LLC, The Givens Group LLC, and Vialytix shall adhere to the terms of this 13 (b) (i) Covenant Not to Compete.

 

 

(ii) Condition on Covenant Not to Compete. If the Executive’s employment with the Company is terminated for any reason other than by the Company for Cause and (X) the Executive is not in default of his obligations under Section 13 hereof and (Y) the Executive has not unreasonably refused to return an executed Release Agreement to the Company; then the Executive shall have the right to be released from the Covenant Not to Compete if the Company fails to render to the Executive two (2) consecutive termination payments, as provided herein. Before the Executive can be released from the Covenant Not to Compete, the Executive must provide written notice to the Company, in the manner described in Section 19, providing ten (10) days for the Company to render the past due termination payments to the Executive. If after ten (10) days the Company still has not paid the required termination payments to the Executive, then the Executive shall be released from the Covenant Not to Compete. Further, if the Executive is released from the Covenant Not to Compete, the Company shall not be relieved from its obligation to pay to the Executive the full Termination Payment Amount or Change of Control Termination Payment Amount, as provided herein.

 

(c) Acknowledgment of Restrictions. The Company and the Executive acknowledge the restrictions contained in subsections 13(a) and 13(b) above to be reasonable for the purpose of preserving the Company’s proprietary rights and interests and that the consideration therefor is comprised of the payments made hereunder and the mutual promises contained herein. If a court makes a final judicial determination that any such restrictions are unreasonable or otherwise unenforceable against the Executive, the Executive and the Company hereby authorize such court to amend this Agreement so as to produce the broadest, legally enforceable agreement and for this purpose the restrictions on time period, geographical area and scope of activities set forth in said subsection 13(a) above are divisible; if the court refuses to do so, the Executive and the Company hereby agree to modify the provision or provisions held to be unenforceable to preserve each party’s anticipated benefits thereunder.

 

(d) Specific Performance; Repayment of Termination Payment Amount. The Executive hereby acknowledges that the services to be rendered to Company and the information disclosed and to be disclosed are of a unique, special and extraordinary character which would be difficult or impossible for Company to replace or protect, and by reason thereof, the Executive hereby agrees that in the event he violates any of the provisions of subsections 13(a) or 13(b) hereof, the Company shall, in addition to any other rights and remedies available to it, at law or otherwise, be entitled to an injunction or restraining order to be issued by any court of competent jurisdiction in any state enjoining and restraining the Executive from committing any violation of said subsection 13(a) or 13(b).

 

The Executive agrees that, if he breaches subsection 13(a) or 13(b), he shall have forfeited all right to receive any amount of the Termination Payment Amount and he shall promptly repay to the Company the entire Termination Payment Amount theretofore paid to him. For the avoidance of doubt, notwithstanding anything to the contrary herein, the Executive is free to pursue opportunities with any one or all of the following: Scuba Select LLC, Givens Group Solutions LLC, The Givens Group LLC, and Vialytix LLC and any such activities shall be deemed to be consistent with all of the Executive’s obligations under this Agreement.

 

14. Assignment of Inventions.

 

(a) General Assignment. The Executive agrees to assign and hereby does assign to the Company all right, title and interest in and to any inventions, designs, patents, and copyrights made during employment by Company which relate, directly or indirectly, to the business of the Company. For the avoidance of doubt, notwithstanding anything to the contrary herein, the foregoing sentence shall not apply to any inventions, designs, patents, and copyrights howsoever produced or created for any one or all of the following: Scuba Select LLC, Givens Group Solutions LLC, The Givens Group LLC, and Vialytix LLC and any such activities shall be deemed to be consistent with all of the Executive’s obligations under this Agreement.

 

 

(b) Further Assurances. The Executive shall acknowledge and deliver promptly to the Company without charge to the Company but at its expense such written instruments and do such other acts, as may be necessary in the opinion of the Company to obtain, maintain, extend, reissue and enforce United States and/or foreign letters patent and copyrights relating to the inventions, designs and copyrights and to vest the entire right and title thereto in the Company or its nominee. The Executive acknowledges and agrees that any copyright developed or conceived of by the Executive during the term of the Executive’s employment which is related to the business of the Company shall be a “work for hire” under the copyright law of the United States and other applicable jurisdictions.

 

15. Indemnification: Litigation.

 

(a) The Company shall indemnify the Executive to the fullest extent permitted by the laws of the state of the Company’s incorporation in effect at the relevant time, or certificate of incorporation and by-laws of the Company, whichever affords the greater protection to the Executive. The Executive shall be entitled to (i) advancement of expenses to the fullest extent permitted by law and (ii) the benefits of any insurance policies the Company may elect to maintain generally for the benefit of its officers and directors against all costs, charges and expenses, in either case incurred in connection with any action, suit or proceeding to which he may be made a party by reason of being a director or officer of the Company.

 

(b) In the event of any litigation or other proceeding between the Company and the Executive with respect to the subject matter of this Agreement, the party which prevails in such litigation or other proceeding shall reimburse the other for all costs and expenses related to the litigation or proceeding (including attorney’s fees and expenses) incurred by the prevailing party.

 

16. Entire Agreement. This Agreement supersedes any and all other agreements (except agreements, if any, relating to restricted stock units granted to the Executive by the Company), either oral or in writing, between the parties hereto with respect to the subject matter hereof and contains the entire agreement of the parties with respect to the subject matter hereof. Except as aforesaid, no other agreement, statement, promise or representation pertaining to the subject matter hereof that is not contained herein shall be valid or binding on either party, and the Company and the Executive expressly agree that this Agreement supersedes in all respects each and all of the following agreements to which they are or may be parties, whenever the same were entered into: (i) any Confidentiality and Proprietary Information Agreement; (ii) any Restrictive Competition Agreement; and (iii) any Site Access Agreement and Confidential Information Agreement (including any agreement similarly named in each of the foregoing cases).

 

17. Withholding of Taxes. The Company may withhold from any amounts payable under this Agreement all federal, state, city or other applicable taxes and withholdings as may be required pursuant to any law or government regulation or ruling.

 

18. Successors and Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the Company and successor (and such successor shall thereafter be deemed the “Company” for the purposes of this Agreement), but will not otherwise be assignable, transferable, or delegable by the Company.

 

 

(a) This Agreement will inure to the benefit of and be enforceable by the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributes and legatees.

 

(b) This Agreement is personal in nature and neither of the parties hereto shall, without the consent of the other, assign, transfer or delegate this Agreement or any rights or obligations hereunder except as expressly provided in Section 18(a) and 18(b).

 

19. Notices. All communications hereunder, including without limitation notices, consents, requests or approvals, required or permitted to be given hereunder, shall be in writing and be deemed to have been duly given when hand delivered or dispatched by electronic facsimile transmission (with transmission and receipt confirmed), or five business days after having been mailed by United States registered or certified mail, return receipt requested, postage prepaid, or two business days· after having been sent by a nationally recognized overnight courier service, addressed to the Company (to the attention of the Board of Directors of the Company) at its principal executive office and to the Executive at his principal residence at shown in the records of the Company, or to such other address as any party may have furnished to the other in writing and in accordance herewith, except that notices of changes of address shall be effective only upon receipt.

 

20. Governing Law; Jurisdiction. The validity, interpretation, construction, and performance of this Agreement will be governed by and construed in accordance with the substantive laws of the State of Arizona (including the Arizona Revised Uniform Arbitration Act A.R.S. Section 12- 3001 et seq. if the parties agree to settle any dispute by binding arbitration). The sole venue to be used for any dispute arising out of this agreement will be the Superior Court of the State of Arizona in and for the County of Maricopa, with no party having the right to remove such action to federal court.

 

21. Validity. If any provision of this Agreement or the application of any provision hereof to any person or circumstances is held invalid, unenforceable or otherwise illegal, the remainder of this Agreement and the application of such provision to any other person or circumstances will not be affected, and the provision so held to be invalid, unenforceable or otherwise illegal will be reformed to the extent (and only to the extent) necessary to make it enforceable, valid or legal.

 

22. Survival of Provisions. Notwithstanding any other provision of this Agreement, the parties’ respective rights and obligations under Sections 5(b), 10, 11, 12, 13, 14 and 15 shall survive any termination or expiration of this Agreement or the termination of the Executive’s employment for any reason whatsoever.

 

23. Miscellaneous. No provision of this Agreement may be modified, waived, or discharged unless such waiver, modification or discharge is agreed to in writing signed by the Executive and the Company. No waiver by either party hereto at any time of any breach by the other party hereto or compliance with any condition or provision of this Agreement to be performed by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. Unless otherwise noted, references to “Sections” are to sections of this Agreement. The captions used in this Agreement are designed for convenient reference only and are not to be used for the purpose of interpreting any provision of this Agreement.

 

24. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together will constitute one and the same agreement.

 

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement, effective as of the Effective Date, by their signatures below:

 

	Company: VirTra Inc.
	Signature:	/s/ Gregg C.E. Johnson
	Title:	Chair, Compensation Committee of the Board of Directors
	Executive: John F. Givens II
	Signature:	/s/ John F. Givens II

 

 

Exhibit 23.1

 

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in this Registration Statement on Form S-3 of VirTra, Inc. of our report dated April 1, 2024, relating to our audits of the December 31, 2023 and 2022, financial statements of VirTra, Inc.

 

We also consent to the reference to our firm under the caption “Experts” in such Registration Statement.

 

 

Haynie & Company

Salt Lake City, Utah

December 16 , 2024

 

 

 

 

Exhibit 107

 

Calculation of Filing Fee Table

 

Form S-3

(Form Type)

 

VirTra, Inc.

(Exact Name of Registrant as Specified in its Charter)

 

Table 1: Newly Registered Securities

 

		Security Type		Fee Calculation or Carry Forward Rule				Amount Registered				Maximum Aggregate Offering Price				Fee Rate				Amount of Registration Fee				Carry Forward Form Type		Carry Forward File Number		Carry Forward Initial Effective Date		Filing Fee Previously Paid in Connection with Unsold Securities to be Carried Forward
Newly Registered Securities
Fees to be Paid		Unallocated (Universal) Shelf			457(o)			$	50,000,000	(1)		$	50,000,000				0.00015310			$	7,655.00
		Carry Forward Securities
Carry Forward Securities		Unallocated (Universal) Shelf			415(a)(6)			$	50,000,000			$	50,000,000				.0000927			$	4,635.00			S-3		333-261145		11/24/2021		$	4,635.00
		Total Offering Amounts										$	100,000,000							$	7,655.00
		Total Fees Previously Paid																			-
		Total Fee Offsets																		$	4,635.00
		Net Fee Due																		$	3,020.00

 

(1)

An indeterminate amount of the securities of the identified class is being registered as may from time to time be offered under this registration statement at indeterminate prices, along with an indeterminate number of securities that may be issued upon exercise, settlement, exchange or conversion of securities offered or sold under this registration statement, as shall have an aggregate initial offering price up to $50,000,000. Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”) this registration statement also covers any additional securities that may be offered or issued in connection with any stock split, stock dividend or pursuant to anti-dilution provisions of any securities. Separate consideration may or may not be received for securities that are issuable upon conversion, exercise or exchange of other securities. In addition, the total amount to be registered and the proposed maximum offering price are estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act.

 

Table 2: Fee Offset Claims and Sources

 

Form or Filing Type

File Number

Initial Filing Date

Filing Date

Fee Offset Claimed

Security Type Associated with Fee Offset Claimed

Security Title Associated with Fee Offset claimed

Unsold Securities Associated with Fee Offset Claimed

Unsold Aggregate Offering Amount Associated with Fee Offset Claimed

Fee Paid with Fee Offset Source

Fee Offset Claims

S-3

333-261145

11/17/2021

$

4,635.00

Unallocated (Universal) Shelf

Unallocated (Universal) Shelf

$

50,000,000

$

50,000,000

Fee Offset Sources

S-3

333-261145

11/17/2021

$

4,635.00

 

---