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EXHIBIT 10.11
TIGERA GROUP, INC.
Warrant Agreement
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Warrant granted as of November 15, 1995 (hereinafter referred
to as the "Date of Grant"), by TIGERA GROUP, INC. (the "Corporation") to
_________________ (the "Grantee"):
1. DEFINITIONS. The following terms, as used herein,
shall have the meanings set forth below:
(a) "Cause" shall mean by reason of any of the
following: (A) the Grantee's conviction of, or plea of nolo contendere to, any
felony or to any crime or offense causing harm to the Corporation or any of its
Subsidiaries or affiliates (whether or not for personal gain) or involving acts
of moral turpitude, (B) the Grantee's repeated intoxication by alcohol or drugs
during the performance of his or her duties, (C) malfeasance in the conduct of
the Grantee's duties involving misuse or diversion of the Corporation's (or its
affiliates') funds, embezzlement or willful and material misrepresentations or
concealments on any written reports submitted to the Corporation (or its
affiliates), (D) repeated material failure by the Grantee to perform his or her
duties as a director of the Corporation, (E) material failure by the Grantee to
follow or comply with the reasonable and lawful written directives of the Board
of Directors of the Corporation or the Grantee's immediate supervisor, or (F) a
material breach by the Grantee of any written agreement between the Grantee and
the Corporation (or its affiliates).
(b) "Code" shall mean the Internal Revenue Code
of 1986, as amended.
(c) "Committee" shall mean a committee
established by the Board of Directors of the Corporation to administer this
Agreement, or in the absence of such committee, the Board of Directors of the
Corporation.
(d) "Fair Market Value" shall mean (i) If the
principal market for the Common Stock (the "Market") is a national securities
exchange or the National Association of Securities Dealers Automated Quotation
System ("NASDAQ") National Market, the last sale price or, if no reported sales
take place on the applicable date, the average of the high bid and low asked
price of Common Stock as reported for such Market on such date or, if no such
quotation is made on such date, on the next preceding day on which there were
quotations, provided that such
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quotations shall have been made within the ten (10) business days preceding the
applicable date; or, (ii) If the Market is the NASDAQ National List, the NASDAQ
Supplemental List or another market, the average of the high bid and low asked
price for Common Stock on the applicable date, or, if no such quotations shall
have been made on such date, on the next preceding day on which there were
quotations, provided that such quotations shall have been made within the ten
(10) business days preceding the applicable date; or, (iii) In the event that
neither subparagraph (i) nor (ii) shall apply, the Fair Market Value of a share
of Common Stock on any day shall be determined by the Committee.
(e) "Notice" shall have the meaning set forth in
Section 4(c) hereof.
(f) "Warrant" shall have the meaning set forth in
Section 2 hereof.
(g) "Warrant Period" shall have the meaning set
forth in Section 4(a) hereof.
(h) "Warrant Price" shall have the meaning set
forth in Section 3 hereof.
(i) "Securities Act" shall mean the Securities
Act of 1933, as amended.
(j) "Shares" shall mean shares of the Common
Stock, par value $0.01 per share, of the Corporation.
(k) "Subsidiary" shall mean any direct or
indirect majority-owned subsidiary of the Corporation.
2. THE WARRANT. The Corporation hereby grants to the
Grantee, effective on the Date of Grant, a warrant (the "Warrant") to purchase,
on the terms and conditions herein set forth, up to ______ of the Corporation's
fully paid, non-assessable Shares at the warrant exercise price set forth in
Section 3 below.
3. THE PURCHASE PRICE. The purchase price of the Shares
shall be $0.885 per share (the "Warrant Price").
4. EXERCISE OF WARRANT.
(a) Except as otherwise provided in this Warrant
Agreement, the Warrant is exercisable over a period of ten years from the Date
of Grant (the "Warrant Period") in accordance with the following schedule:
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PERCENT OF SHARES SUBJECT
DATE TO WARRANT PURCHASABLE
From the Date of Grant to the
first anniversary of the Date of Grant. 33.3%
From the first anniversary of the
Date of Grant to the second
anniversary. 66.7%
From the second anniversary of the
Date of Grant to the expiration
of the Warrant. 100%
The Warrant may be exercised from time to time during the Warrant Period as to
the total number of Shares allowable under this Section 4(a), or any lesser
amount thereof, as long as the Grantee performs services as an officer,
director, employee or consultant for the Corporation or any of its
Subsidiaries. If the Grantee ceases to perform such services for any such
entity for any reason other than (i) the Grantee's death or disability or (ii)
the Grantee's termination for cause, than this Warrant may be exercised during
the period of ninety (90) days after the date such performance ceases (unless
the Committee, in its discretion, shall specify a longer period), to the extent
that (i) the right to exercise this Warrant has accrued on such date and (ii)
the Warrant Period has not expired. If the Grantee shall die or become
disabled within the meaning of Section 22(e)(3) of the Code while still
performing such services for the Corporation or any of its Subsidiaries, this
Warrant shall be exercisable to the extent that the right to exercise this
Warrant has accrued on the date of the Grantee's death or the date he or she
first became disabled, as the case may be, and may be exercised during the
period commencing on the date of the Grantee's death or the date he or she
first becomes disabled, as the case may be, and ending on the earlier of the
first anniversary of such date and the expiration of the Warrant Period after
which period this Warrant shall expire and shall cease to be exercisable. In
the event of the death of the Grantee, this Warrant may be exercised by the
person or persons entitled to do so under the Grantee's will (a "legatee"), or,
if the Grantee shall fail to make testamentary disposition of this Warrant, or
shall die intestate, by the Grantee's legal representative (a "legal
representative"). In the event that the Grantee is terminated for Cause, this
Warrant (or any unexercisable portion thereof) shall expire on the date of such
termination and shall cease to be exercisable.
(b) If this Warrant shall extend to 100 or more
Shares, then this Warrant may not be exercised for less than 100
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Shares at any one time, and if this Warrant shall extend to less than 100
Shares, then this Warrant must be exercised for all such Shares at one time.
(c) Not less than five days nor more than thirty
days prior to the date upon which all or any portion of the Warrant is to be
exercised, the person entitled to exercise the Warrant shall deliver to the
Corporation written notice in substantially the form attached as an Exhibit
hereto (the "Notice") of his election to exercise all or a part of the Warrant,
which Notice shall specify the date for the exercise of the Warrant and the
number of Shares in respect of which the Warrant is to be exercised. The date
specified in the Notice shall be a business day of the Corporation.
(d) On the date specified in the Notice, the person
entitled to exercise the Warrant shall pay to the Corporation the Warrant Price
of the Shares in respect of which the Warrant is exercised and the amount of
any applicable Federal and/or state withholding tax or employment tax. The
Warrant Price shall be paid in full at the time of purchase, (i) in cash or by
check (ii) with shares of the Common Stock of the Corporation which have been
owned by the Grantee for at least six months prior to the exercise of the
Warrant or (iii) if and to the extent the Corporation may lawfully do so, by
delivery of a promissory note for some or all of that portion of the Warrant
Price exceeding the amount determined to be capital pursuant to Section 145 of
the Delaware General Corporation Law, the terms of which note shall be
determined by the Committee. The value of any shares of Common Stock delivered
by the Grantee in payment of the Warrant Price shall be the Fair Market Value
of such shares. If the Warrant is exercised in accordance with the provisions
of this Warrant Agreement, the Corporation shall deliver to such person
certificates representing the number of Shares in respect of which the Warrant
is being exercised which Shares or other securities shall be registered in his
or her name.
(e) This Warrant is not exercisable after the
expiration of ten years from the Date of Grant.
(f) Notwithstanding the provisions of subsection
4(a), in the event of the dissolution, liquidation, merger (but only if the
Corporation is not the surviving entity in such merger) or consolidation of the
Corporation, or the sale of all or substantially all of its assets, during the
term hereof, the Warrant shall become immediately exercisable at the election
of the Grantee as to all or any part of the Shares not theretofore issued and
sold hereunder. The Corporation shall provide the Grantee with at least 30
days' notice of the consummation of any of the events referred to in the
preceding sentence, during which period the Grantee may so exercise the
Warrant.
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5. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) The Grantee represents and warrants that he is
acquiring this Warrant and, in the event this Warrant is exercised, the Shares,
for investment, for his or her own account and not with a view to the
distribution thereof, and that he or she has no present intention of disposing
of this Warrant or the Shares or any interest therein or sharing ownership
thereof with any other person or entity.
(b) The Grantee agrees that he or she will not
offer, sell, hypothecate, transfer or otherwise dispose of any of the Shares
unless either:
(i) A registration statement covering the Shares
which are to be so offered has been filed with the Securities
and Exchange Commission pursuant to the Securities Act and
such sale, transfer or other disposition is accompanied by a
prospectus relating to a registration statement which is in
effect under the Securities Act covering the Shares which are
to be sold, transferred or otherwise disposed of and meeting
the requirements of Section 10 of the Securities Act; or
(ii) Counsel satisfactory to the Corporation renders
a reasoned opinion in writing and addressed to the
Corporation, satisfactory in form and substance to the
Corporation and its counsel, that in the opinion of such
counsel such proposed sale, offer, transfer or other
disposition of the Shares is exempt from the provisions of
Section 5 of the Securities Act in view of the circumstances
of such proposed offer, sale, transfer or other disposition.
(c) The Grantee acknowledges that (i) the Shares and
this Warrant constitute "securities" under the Securities Act and/or the
Securities Exchange Act of 1934, as amended, and/or the Rules and Regulations
promulgated under said acts; (ii) the Shares must be held indefinitely unless
subsequently registered under the Securities Act or an exemption from such
registration is available; and (iii) the Corporation is not under any
obligation with respect to the registration of the Shares.
(d) The Grantee acknowledges and agrees that the
certificate or certificates representing the Shares shall have an appropriate
legend referring to the terms of this Warrant.
(e) The Grantee acknowledges and agrees that he or
she, or his or her legatee or legal representative, as the case may be and as
defined above, may be required to make an
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appropriate representation at the time of any exercise of this Warrant in form
and substance similar to the representations contained herein, relating to the
Shares then being purchased.
(f) The Grantee acknowledges that, in the event he
ceases to perform services for the Corporation or its Subsidiaries, his or her
rights to exercise this Warrant are restricted as set forth in Section 4(a)
above.
6. SUCCESSORS AND ASSIGNS. This Warrant Agreement shall be
binding upon and shall inure to the benefit of any successor or assign of the
Corporation and, to the extent herein provided, shall be binding upon and inure
to the benefit of the Grantee's legatee or legal representative, as defined
above.
7. ADJUSTMENT OF WARRANTS.
(a) If there is any change in the outstanding
Shares by reason of a stock dividend or distribution, stock split-up,
recapitalization, combination or exchange of shares, or by reason of any
merger, consolidation, spinoff or other corporate reorganization in which the
Corporation is the surviving Corporation, the number of Shares issuable upon
exercise of this Warrant and the Warrant Price shall be equitably adjusted by
the Committee, whose determination shall be final, binding and conclusive.
(b) Fractional shares resulting from any adjustment
in warrants pursuant to this Section may be settled in cash or otherwise as the
Committee shall determine. Notice of any adjustment in this Warrant shall be
given by the Corporation to the holder of this Warrant and such adjustment
(whether or not such notice is given) shall be effective and binding for all
purposes of the Plan.
8. EXERCISE AND TRANSFERABILITY OF WARRANT. During the
lifetime of the Grantee, this Warrant is exercisable only by him or her and
shall not be assignable or transferable by him or her and no other person shall
acquire any rights therein. If the Grantee, while still providing services for
the Corporation or any of its Subsidiaries, shall die within the Warrant
Period, his or her legatee or legal representative shall have the rights
provided in Section 4(a) above.
9. GENERAL PROVISIONS. Nothing contained in this Warrant
Agreement shall confer upon the Grantee any right to continue as a director of
or to be employed by the Corporation or shall in any way affect the right and
power of the Corporation to
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dismiss or otherwise terminate its relationship with the Grantee at any time
for any reason with or without cause. This Agreement shall be governed and
construed in accordance with the laws of the State of New York applicable to
contracts entered into and to be performed wholly within such state.
If the foregoing is in accordance with the Grantee's
understanding and accepted and agreed by the Grantee, the Grantee may so
confirm by signing and returning the duplicate of this Warrant Agreement
provided for that purpose.
TIGERA GROUP, INC.
By
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Title:
The foregoing is in accordance with my understanding and is hereby confirmed
and agreed to as of the Date of Grant.
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Name
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EXHIBIT
NOTICE OF EXERCISE
DATE
The undersigned hereby gives notice to Tigera Group, Inc., a
Delaware corporation (the "Company"), of his intention to exercise his right to
purchase the number of Shares set forth below of the Common Stock of the
Company, at the exercise price and on the date set forth below, pursuant to the
Warrant (the "Warrant") granted to the undersigned on November 15, 1995, and to
pay the purchase price thereof, plus any applicable federal or state
withholding or employment taxes, by means of [the undersigned's check] which
the undersigned is delivering to the Company herewith pursuant to the terms of
the Warrant.
Print Name:
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Date of Exercise:
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Number of Shares
to be Purchased:
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Exercise Price Per Share:
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Aggregate Exercise Price:
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(Signature)
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