Exhibit 10.11
COMWORXX, INC.
THIS WARRANT IS NON-TRANSFERABLE.
THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE
OF THIS WARRANT ARE TRANSFERABLE ONLY IN ACCORDANCE
WITH AND SUBJECT TO THE PROVISIONS OF THAT CERTAIN
AMENDED AND RESTATED SHAREHOLDER AGREEMENT
BETWEEN COMROAD AG AND INTELLIWORXX, INC., DATED AS OF
THE DATE HEREOF, AS AMENDED FROM TIME TO TIME.
Void after 5:00 P.M., New York Time, on December 31, 2001
Warrant to Purchase
1,000,000 Shares
of Common Stock
WARRANT TO PURCHASE COMMON STOCK
This is to Certify That, FOR CONSIDERATION OF $100 AND OTHER VALUABLE
CONSIDERATION, Intelliworxx, Inc., a Florida corporation having an office at
0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx, XX 00000 (the "Holder"), is entitled to
purchase, subject to the provisions of this Warrant, from Comworxx, Inc., a
Florida corporation having an office at 0000 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxxxx,
XX 00000 (the "Company"), 1,000,000 shares (the "Warrant Shares") of the
Company's Common Stock, no par value ("Common Stock") at a price of $1.00 per
share at any time on or after January 16, 2001 until 5:00 P.M. New York Time, on
December 31, 2001. The number of shares of Common Stock to be received upon the
exercise of this Warrant and the price to be paid for a share of Common Stock
may be adjusted from time to time as hereinafter set forth. The shares of Common
Stock deliverable upon such exercise, and as adjusted from time to time, are
hereinafter sometimes referred to as "Warrant Shares" and the exercise price of
a share of Common Stock in effect at any time and as adjusted from time to time
is hereinafter sometimes referred to as the "Exercise Price."
A. EXERCISE OF WARRANT. Subject to the following conditions precedent and the
provisions of Section H hereof, this Warrant may be exercised in whole only
at any time or from time to time on or after January 16, 2001, and before
5:00 P.M. New York Time on December 31, 2001, or, if either such day is a
day on which banking institutions are authorized by law to close, then on
the next succeeding day which shall not be such a day, by presentation and
surrender hereof to the Company at any office maintained by it in Sarasota,
Florida, or at the office of its Warrant Agent, if any, with the Purchase
Form annexed hereto duly executed and accompanied by payment of
US$1,000,000.00 in immediately available funds (the "Purchase Price"). This
Warrant may be exercised in whole only. Upon receipt by the Company of this
Warrant at its office, or by the Warrant Agent of the Company at its
office, in proper form for exercise, and upon receipt by the Company of the
Purchase Price, the Holder shall be deemed to be the holder of record of
the Warrant Shares issuable upon such exercise, notwithstanding that the
stock transfer books of the Company shall then be closed or that a
certificate representing such Warrant Shares shall not then be actually
delivered to the Holder.
B. RESERVATION OF SHARES. The Company hereby agrees that at all times prior to
the expiration of this Warrant by exercise or by its terms, there shall be
reserved for issuance and/or delivery upon exercise of this Warrant such
number of shares of its Common Stock as shall be required for issuance or
delivery upon exercise of this Warrant.
C. FRACTIONAL SHARES. No fractional shares or scrip representing fractional
shares shall be issued upon the exercise of this Warrant. With respect to
any fraction of a share called for upon exercise hereof, the Company shall
issue to the Holder the next whole share.
D. REPLACEMENT OF WARRANT. Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction, or mutilation of this
Warrant, and (in the case of loss, theft or destruction) upon delivery of
an indemnity agreement in a form reasonably satisfactory to the Company, or
(in the case of mutilation) upon surrender and cancellation of this
Warrant, the Company will execute and deliver, in lieu thereof, a new
Warrant of like tenor and date; provided, in the case of mutilation, no
indemnity shall be required if this Warrant in identifiable form is
surrendered to the Company for cancellation.
E. RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be entitled
to any rights of a shareholder in the Company with respect to the Warrant
Shares, either at law or equity, and the rights of the Holder are limited
to those expressed in the Warrant and are not enforceable against the
Company except to the extent set forth herein.
F. STOCK DIVIDENDS, RECLASSIFICATION, REORGANIZATION, ANTI-DILUTION
PROVISIONS, ETC. This Warrant is subject to the following further
provisions:
1. In case, prior to the expiration of this Warrant by exercise or by its
terms, the Company shall issue any shares of its Common Stock as a
stock dividend or subdivide the number of outstanding shares of Common
Stock into a greater number of shares, then, in either of such cases,
the Exercise Price per share of the Warrant Shares purchasable
pursuant to this Warrant in effect at the time of such action shall be
proportionately reduced and the number of Warrant Shares at that time
purchasable pursuant to this Warrant shall be proportionately
increased; and conversely, in the event the Company shall contract the
number of outstanding shares of Common Stock by combining such shares
into a smaller number of shares, then, in such case, the Exercise
Price per share of the Warrant Shares purchasable pursuant to this
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Warrant in effect at the time of such action shall be proportionately
increased and the number of Warrant Shares at that time purchasable
pursuant to this Warrant shall be proportionately decreased. Any
dividend paid or distributed upon the Common Stock in stock of any
other class of securities convertible into shares of Common Stock
shall be treated as a dividend paid in Common Stock to the extent that
shares of Common Stock are issuable upon the conversion thereof.
2. In case, prior to the expiration of this Warrant by exercise or by its
terms, the Company shall be recapitalized by reclassifying its
outstanding Common Stock, no par value, into stock with a different
par value or by changing its outstanding Common Stock with par value
to stock without par, the Company or a successor corporation shall be
consolidated or merge with or convey all or substantially all of its
or of any successor corporation's property and assets to any other
corporation or corporations (any such corporation being included
within the meaning of the term successor corporation in the event of
any consolidation or merger of any such corporation with, or the sale
of all or substantially all of the property of any such corporation
to, another corporation or corporations), in exchange for stock or
securities of a successor corporation, the Holder of this Warrant
shall thereafter have the right to purchase upon the terms and
conditions and during the time specified in this Warrant, in lieu of
the Warrant Shares theretofore purchasable upon the exercise of this
Warrant, the kind and amount of shares of stock and other securities
receivable upon such recapitalization or consolidation, merger or
conveyance by a holder of the number of shares of Common Stock which
the Holder might have purchased immediately prior to such
recapitalization or consolidation, merger or conveyance.
3. Upon the occurrence of each event requiring an adjustment of the
Exercise Price and of the number of Warrant Shares purchasable at such
adjusted Exercise Price by reason of such event in accordance with the
provisions of this Section F, the Company shall compute the adjusted
Exercise Price and the adjusted number of Warrant Shares purchasable
at such adjusted Exercise Price by reason of such event in accordance
with the provisions of this Section F and shall prepare a certificate
setting forth such adjusted Exercise Price and the adjusted number of
Warrant Shares and showing in detail the facts upon which such
conclusions are based. The Company shall mail forthwith to the Holder
a copy of such certificate, and thereafter said certificate shall be
conclusive and shall be binding upon the Holder unless contested by
the Holder by written notice to the Company within thirty (30) days
after receipt of the certificate.
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4. In case:
(a) the Company shall take a record of the holders of its Common
Stock for the purpose of entitling them to receive a dividend or
any other distribution in respect of the Common Stock (including
cash), pursuant to without limitation, any spin-off, split-off or
distribution of the Company's assets; or
(b) the Company shall take a record of the holders of its Common
Stock for the purpose of entitling them to subscribe for or
purchase any shares of stock of any class or to receive any other
rights; or
(c) of any classification, reclassification or other reorganization
of the capital stock of the Company, consolidation or merger of
the Company with or into another corporation, or conveyance of
all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then, and in any such case, the Company shall mail to the Holder, at
least ten (10) days prior thereto, a notice stating the date or
expected date on which a record is to be taken for the purpose of such
dividend or distribution of rights, or the date on which such
classification, reclassification, reorganization, consolidation,
merger, conveyance, dissolution, liquidation, or winding up is to take
place, as the case may be. Such notice shall also specify the date or
expected date, if any is to be fixed, as of which holders of Common
Stock of record shall be entitled to participate in said dividend or
distribution of rights, or shall be entitled to exchange their shares
of Common stock for securities or other property deliverable upon such
classification, reclassification, reorganization, consolidation,
merger, conveyance, dissolution, liquidation, or winding up, as the
case may be. The failure to give such notice shall not affect the
validity of any such proceeding or transaction and shall not affect
the right of the Holder to participate in said dividend, distribution
of rights, or any such exchange and acquire the kind and amount of
cash, securities or other property as the Holder would have been
entitled to acquire if it was the record holder of the Warrant Shares
which could be obtained upon the exercise of the Warrant immediately
before such proceeding or transaction; provided that, the Holder
exercises the Warrant within 10 days after discovery that such action
or proceeding has taken place.
G. OFFICER'S CERTIFICATE. Whenever the Exercise Price shall be adjusted as
required by the provisions of the foregoing Section, the Company shall
forthwith file in the custody of its Secretary at its principal office and
with the Warrant Agent, if any, an officer's certificate showing the
adjusted Exercise Price determined as therein provided, setting forth in
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reasonable detail the facts requiring such adjustment, including a
statement of the number of additional shares of Common Stock, if any, the
consideration for such shares, determined as provided in Section F, and
such other facts as shall be necessary to show the reason for and the
manner of computing such adjustment. Each such officer's certificate shall
be made available at all reasonable times for inspection by the Holder and
the Company shall, forthwith after each such adjustment, mail a copy of
such certificate to the Holder.
H. NON-TRANSFERABILITY; COMPLIANCE WITH THE SECURITIES ACT OF 1933. This
Warrant is non-transferable. The Warrant Shares may be transferred only in
accordance with and subject to that certain Amended and Restated
Shareholder Agreement between ComRoad AG and Intelliworxx, Inc., dated as
of the date hereof, as amended from time to time. In addition and without
limiting the foregoing transfer restriction, any security issued upon
exercise of this Warrant may not be sold or otherwise disposed of except as
follows:
1. to a person who, in the opinion of counsel reasonably satisfactory to
the Company, is a person to whom such security may legally be
transferred without registration and without the delivery of a current
prospectus under the Securities Act of 1933, as amended (the "Act")
with respect thereto and then only against receipt of an agreement of
such person to comply with the provisions of this Section H with
respect to any resale or other disposition of such security; or
2. to any person upon delivery of a prospectus then meeting the
requirements of the Act relating to such security and the offering
thereof for such sale or disposition.
I. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the Holder as follows:
1. The Company is duly organized and, as of the date of the original
issuance hereof, validly existing and in good standing under the laws
of the State of Florida.
2. The Company shall at all times, prior to the expiration of this
Warrant by exercise or by its terms, reserve and keep available out of
its authorized shares of Common Stock, solely for the purpose of
issuing Warrant Shares upon the exercise of this Warrant, such shares
as may be issuable upon the exercise hereof.
3. Warrant Shares, when issued and paid for in accordance with the terms
of this Warrant, will be fully paid and not assessable.
4. This Warrant has been duly authorized and approved by all required
corporate actions by the Company and does not violate the certificate
of incorporation or by-laws of the Company.
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J. MISCELLANEOUS
1. Mailing of Notices, etc. All notices and other communications from the
Company to the Holder of this Warrant shall be given in person, by
first-class certified or registered mail, postage prepaid, by air
freight delivery, courier or by means of facsimile or other wire
transmission (with request for assurance of receipt in a manner
typical with respect to communications of that type) to the Holder's
address set forth above or such other address as shall be furnished in
writing by the Holder in accordance with this Section J1. All notices
and other communications from the Holder of this Warrant or in
connection herewith to the Company shall be given in any of the ways
set forth above to the Company at its principal office set forth
above. If the Company should at any time change the location of its
principal office, it shall give prompt written notice to the Holder of
this Warrant and thereafter all references in this Warrant to the
location of its principal office at the particular time shall be as so
specified in such notice.
2. Change or Waiver. Any term of this Warrant may be changed or waived
only by an instrument in writing signed by the party against which
enforcement of the change or waiver is sought.
3. Headings. The headings in this Warrant are for purposes of reference
only and shall not limit or otherwise affect the meaning of any
provision of this Warrant.
4. Attorneys' Fees. In any litigation, arbitration or court proceeding
between the Company and the Holder relating hereto, the prevailing
party shall be entitled to reasonable attorneys' fees and expenses
incurred.
5. Governing Law. THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA.
6. Accredited Investor. The Holder hereby, by the acceptance of this
Warrant, represents and warrants that it is an "Accredited Investor,"
as such term is defined in Regulation D under the Securities Act of
1933, as amended.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
by its duly authorized officer and attested by its Secretary or Assistant
Secretary.
Dated: January 16, 2001
COMWORXX, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx,
President
(Corporate Seal)
ATTEST:
/s/ Xxxxxx X. Xxxxxxxxxxxx
-----------------------------
Secretary
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PURCHASE FORM
TO BE EXECUTED
UPON EXERCISE OF WARRANT
TO: Comworxx, Inc.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
The undersigned hereby exercises, according to the terms and conditions
thereof, the right to purchase _____________ Shares of Common Stock, evidenced
by the within Warrant Certificate, and herewith makes payment of the Purchase
Price (as defined in the Warrant Certificate) in full.
Dated: , 2001
---------------------
INTELLIWORXX, INC.
By:
-------------------------------------
Name:
Title:
SIMULTANEOUSLY WITH THE EXERCISE OF THIS WARRANT, PAYMENT OF THE
PURCHASE PRICE SHALL BE MADE TO THE ORDER OF COMWORXX, INC.
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