EXHIBIT 10.26
NEITHER THIS WARRANT NOR THE SERIES A PREFERRED STOCK ISSUABLE UPON
EXERCISE HEREOF HAVE BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAW. NEITHER THIS WARRANT NOR ANY OF THE
UNDERLYING SERIES A PREFERRED STOCK MAY BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS THE SAME IS REGISTERED AND QUALIFIED IN ACCORDANCE WITH SAID
ACT AND ANY APPLICABLE STATE SECURITIES LAW, OR IN THE OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY, SUCH REGISTRATION AND QUALIFICATION ARE
NOT REQUIRED.
50,380 Shares of Series A Preferred Stock Warrant No. 1
WARRANT
to Purchase 50,380 Shares of Series A Preferred Stock of
CONNECTRIA CORPORATION
THIS CERTIFIES THAT, for value received, MOBILE DATA SOLUTIONS INC., a
Delaware corporation, or registered assigns is entitled, subject to the terms
and conditions set forth herein, to purchase from CONNECTRIA CORPORATION, a
corporation organized and existing under the laws of the State of Missouri (the
"Company"), at any time on or before 5:00 P.M. St. Louis, Missouri time on the
Final Exercise Date, Fifty Thousand Three Hundred Eighty (50,380) shares of
Series A Preferred Stock of the Company for Fifty Dollars ($50.00) per share in
lawful money of the United States of America. The number of shares of Series A
Preferred Stock which may be purchased hereunder, and the Purchase Price
therefor, are subject to adjustment as hereinafter set forth in Sections 2, 3
and 8.
Section 1. Definitions. For all purposes of this Warrant the following
terms shall have the meanings indicated:
"Board of Directors" shall mean the board of directors of the Company as
constituted from time to time.
"Company" shall mean CONNECTRIA CORPORATION, a corporation organized and
existing under the laws of the State of Missouri, and its successors and
assigns.
"Final Exercise Date" shall mean June 30, 2007.
"Initial Purchase Price" shall mean the initial Purchase Price per share of
Fifty Dollars ($50.00).
"Purchase Price" initially shall mean the Initial Purchase Price, and
thereafter shall be such Initial Purchase Price as adjusted and in effect from
time to time thereafter pursuant to the provisions of Section 8 hereof.
"Repurchase Price" shall mean Two Million Five Hundred Nineteen Thousand
Dollars ($2,519,000) if this Warrant has not been fully exercised prior to the
repurchase by the Company pursuant to Section 5 of this Warrant; provided that
if this Warrant then has been exercised in part, then the Repurchase Price shall
be a fraction of such amount, the numerator of which is the number of shares of
Series A Preferred Stock then covered by this Warrant, and the denominator of
which is the number of shares of Series A Preferred Stock originally covered by
this Warrant (in each case after making the appropriate adjustments required by
Section 8 of this Warrant).
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
regulations promulgated by the SEC thereunder.
"Series A Preferred Stock" shall mean the Series A Preferred Stock of the
Company, par value $0.01 per share.
"Transfer" shall include any disposition of this Warrant or Warrant Stock,
or of any interest in either thereof, which would constitute a sale thereof
within the meaning of the Securities Act.
"Warrant" shall mean this Warrant, evidencing the right, subject to
fulfillment of the conditions set forth herein, to purchase initially an
aggregate of 50,380 shares of Series A Preferred Stock, and all Warrants issued
in exchange, transfer or replacement thereof.
"Warrantholder" shall mean the registered holder or holders of this Warrant
and any related Warrant Stock.
"Warrant Shares" shall mean the shares of Series A Preferred Stock
purchased or purchasable by the registered holder(s) of this Warrant upon the
exercise thereof pursuant to Section 5.
All terms used in this Warrant which are not defined in Section 1 shall have the
respective meanings ascribed thereto elsewhere in this Warrant.
Section 2. Initial Number of Warrant Shares; Purchase Price. The initial
number of shares of Series A Preferred Stock which the Warrantholder shall have
the right to purchase is 50,380 shares of Series A Preferred Stock, subject to
the conditions in Section 3 and to adjustment pursuant to Section 8 hereof. The
Initial Purchase Price for each Warrant Share shall be Fifty Dollars ($50.00),
payable only in cash. The Purchase Price for the Warrant Shares shall be subject
to adjustment pursuant to Section 7 hereof.
- 2 -
Section 4. Method of Exercise; Legend.
(a) Exercise of Warrant. This Warrant is exercisable in whole or in part at
any time or from time to time on or after the date hereof, and prior to the
Final Exercise Date. In order to exercise this Warrant, the registered holder
hereof shall complete the Subscription Form attached hereto, and deliver this
Warrant and cash or a bank certified or cashier's check in an amount equal to
the then aggregate Purchase Price of the Warrant Shares being purchased, to the
Company, at ____________________________, St. Louis, Missouri (or at such other
location as the Company may designate by notice in writing to the holder of this
Warrant). Upon receipt by the Company of such Subscription Form, this Warrant
and Payment, such holder shall be deemed a holder of record of the Series A
Preferred Stock specified in said Subscription Form, and the Company shall, as
promptly as practicable, and in any event within 10 business days thereafter,
execute and deliver to such holder a certificate or certificates evidencing the
aggregate number of Series A Preferred Stock specified in said Subscription
Form. Each certificate so delivered shall be registered in the name of such
holder or, subject to Section 7 below, such other name as shall be designated by
such holder. The Company shall pay all expenses, taxes and other charges payable
in connection with the preparation, execution and delivery of certificates
pursuant to this Section, except that, in case such certificates shall be
registered in a name or names other than the name of the registered holder of
this Warrant, funds sufficient to pay all transfer taxes which shall be payable
upon the execution and delivery of such certificate or certificates shall be
paid by the registered holder hereof to the Company at the time of delivering
this Warrant to the Company as mentioned above.
(b) Transfer Restriction Legend. Each certificate for Warrant Shares
initially issued upon exercise of this Warrant, unless at the time of exercise
such Warrant Shares are registered under the Securities Act, shall bear a legend
substantially similar to the following on the face thereof:
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED PURSUANT TO
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW.
NEITHER THESE SHARES, NOR ANY PORTION THEREOF OR INTEREST THEREIN, MAY BE
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THE SAME IS REGISTERED
AND QUALIFIED IN ACCORDANCE WITH SAID ACT AND ANY APPLICABLE STATE
SECURITIES LAW, OR IN THE OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY, SUCH REGISTRATION AND QUALIFICATION ARE NOT REQUIRED."
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of a public distribution under an effective registration statement of the
securities represented thereby) shall also bear such legend unless in the
opinion of counsel specified in Section 6, the securities represented thereby
need no longer be subject to the restrictions contained in this Warrant. The
provisions of Section 7 shall be binding upon all subsequent holders of
certificates bearing the above legend, and shall also be applicable to all
subsequent holders of this Warrant.
- 3 -
(c) Character of Warrant Stock. All Series A Preferred Stock issuable upon
the exercise of this Warrant shall be duly authorized, validly issued, fully
paid and nonassessable.
Section 5. Repurchase at Option of Company. In accordance with this Section
5, the Company at its option of the Board may repurchase this Warrant in whole,
and not in part, at any time by paying to the Warrantholder the Repurchase Price
in cash. Not less than ten (10) days prior to the date on which the Company
desires to effect such repurchase, the Company shall mail a written notice of
repurchase to the Warrantholder as set forth in Section 12 of this Warrant. On
or before the date specified in such written notice, the Warrantholder shall
surrender this Warrant to the Company at the address specified in Section 4 of
this Warrant, and thereupon the Repurchase Price for this Warrant shall be
payable to the Holder hereof. From and after the date specified in the Company's
notice of repurchase (unless the Company shall default in payment of the
Repurchase Price), all rights of the Holder hereof under this Warrant, except
the right to receive the Repurchase Price, shall terminate.
Section 6. Ownership and Replacement.
(a) Ownership of this Warrant. The Company may deem and treat the person in
whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration or transfer
as provided in this Section 6.
(b) Exchange and Replacement. This Warrant is exchangeable upon the
surrender hereof by the registered holder to the Company at its office described
in Section 5, for new Warrants of like tenor and date representing in the
aggregate the right to purchase the number of Warrant Shares that may be
purchased hereunder, each of such new Warrants to represent the right to
purchase such number of shares as shall be designated by said registered holder
at the time of surrender. Subject to compliance with Section 6, this Warrant and
all rights hereunder are transferable in whole or in part upon the books of the
Company by the registered holder hereof in person or by duly authorized
attorney, and a new Warrant shall be made and delivered by the Company, of the
same tenor and date as this Warrant but registered in the name of the
transferee, upon surrender of this Warrant, duly endorsed, to said office of the
Company. Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and, in case of
loss, theft or destruction, of indemnity or security reasonably satisfactory to
the Company, and upon surrender and cancellation of this Warrant, if mutilated,
the Company will make and deliver a new Warrant of like tenor, in lieu of this
Warrant. This Warrant shall be promptly cancelled by the Company upon the
surrender hereof in connection with any exchange, transfer or replacement. The
Company shall pay all expenses, taxes (other than transfer taxes) and other
charges payable in connection with the preparation, execution and delivery of
Warrants pursuant to this Section 6.
- 4 -
Section 7. Transfer of Warrants or Warrant Shares.
(a) Warrants and Warrant Shares Not Registered. The holder of this Warrant,
by accepting this Warrant, represents and acknowledges that this Warrant and the
Warrant Shares which may be purchased upon exercise of this Warrant are not
being registered under the Securities Act on the grounds that the issuance of
this Warrant and the offering and sale of such Warrant Shares are exempt from
registration under the Securities Act pursuant to one or more exemptions
therefrom, including Section 4(2) thereof, and that the Company's reliance on
such exemption is predicated in part on the initial Warrantholder's
representations and agreements made to and with the Company in the Securities
Purchase Agreement dated on or about the date hereof.
Notwithstanding any provisions contained in this Warrant to the contrary,
this Warrant and the related Warrant Shares shall not be transferable except
upon the conditions specified in this Section 7, which conditions are intended,
among other things, to ensure compliance with the provisions of the Securities
Act and applicable state securities laws in respect of the transfer of this
Warrant or of such Warrant Shares.
(b) Notice of Intention to Transfer; Opinion of Counsel. The holder of this
Warrant, by accepting this Warrant, agrees that prior to any transfer of this
Warrant or any transfer of the related Warrant Shares, such holder will (i) give
written notice to the Company of its intention to effect such transfer, and (ii)
deliver to the Company (A) an opinion of counsel for the Company or an opinion,
in form and substance reasonably satisfactory to counsel for the Company, of
counsel skilled in securities matters (selected by such holder and reasonably
satisfactory to the Company) as to the absence of the necessity of registration
under the Securities Act, or (B) an interpretative letter from the Securities
and Exchange Commission to the effect that the proposed transfer may be made
without registration under the Securities Act, in either case accompanied by
evidence that such transfer will also be in compliance with applicable state
securities ("blue sky") laws; provided, however, that the foregoing shall not
apply with respect to any Warrant or Warrant Shares as to which there is a
registration statement in effect under the Securities Act at the time of the
proposed transfer.
By accepting this Warrant, the Warrantholder agrees to indemnify the Company and
hold it harmless from and against all damages, losses, liabilities (including
liability for rescission), costs and expenses which the Company may incur under
the Securities Act or otherwise by reason of any misrepresentation by the
Warrantholder of facts concerning it or any proposed transfer of the Warrants
and/or Warrant Shares with respect to the availability of any exemption from
registration under the Securities Act.
Section 8. Adjustment of Number of Shares and Purchase Price.
(a) Adjustments for Distributions, Divisions or Consolidation or
Combination of Shares. In the event of any increase or decrease in the number of
shares of issued Series A Preferred Stock by reason of a distribution, division
or consolidation or combination of such Shares at any time or from time to time
after the date hereof such that the holders of Series A Preferred Stock shall
have had an adjustment made, without payment therefor, in the number of
- 5 -
shares of Series A Preferred Stock owned by them or, on or after any record date
fixed for the determination of eligible holders, shall have become entitled or
required to have had an adjustment made in the number of Series A Preferred
Stock owned by them, without payment therefor, there shall be a corresponding
adjustment as to the number of shares of Series A Preferred Stock covered by
this Warrant (and to the Purchase Price for each Warrant Share under this
Warrant) with the result that the Warrantholder's proportionate interest in the
shares of Series A Preferred Stock shall be maintained as before the occurrence
of such event without change in the aggregate Purchase Price set forth in said
Warrant.
(b) Adjustments for Recapitalization, Reclassification, Reorganization or
Other Like Capital Transactions or for Merger and Consolidation. In the event
the Company (or any other corporation or other entity the securities of which
are receivable at the time upon exercise of the Warrant) shall effect a plan of
recapitalization, reclassification, reorganization or other like capital
transaction or shall merge or consolidate with or into another entity or convey
all or substantially all of its assets to another entity at any time or from
time to time on or after the date hereof, then in each such case the
Warrantholder upon the exercise of this Warrant at any time after the
consummation of such recapitalization, reclassification, reorganization or other
like capital transaction or of such merger, consolidation or conveyance shall be
entitled to receive (in lieu of the securities or other property to which such
holder would have been entitled to receive upon exercise prior to such
consummation), the securities or other property to which the Warrantholder would
have been entitled to have received upon consummation of the subject transaction
if the holder hereof had exercised this Warrant immediately prior to such
consummation without adjustment to the aggregate Purchase Price set forth in
said Warrant and all subject to further adjustment pursuant to Section 8(a)
hereof.
Section 9. Elimination of Fractional Interests. The Company shall not be
required to issue certificates representing fractions of shares of Series A
Preferred Stock upon exercise of this Warrant, nor shall it be required to issue
scrip or pay cash in lieu of fractional interests, it being the intent of the
parties that all fractional interests shall be eliminated by rounding any
fraction to the nearest whole number of shares of Series A Preferred Stock or
other securities, properties or rights receivable upon exercise of this Warrant.
Section 10. Special Agreements of the Company. The Company covenants and
agrees that:
(a) Reservation of Shares. The Company will reserve and set apart and have
at all times, free from preemptive rights, a number of shares of Series A
Preferred Stock deliverable upon the exercise of this Warrant, and it will have
at all times any other rights or privileges sufficient to enable it at any time
to fulfill all of its obligations hereunder.
(b) Avoidance of Certain Actions. The Company will not, by amendment of its
Articles of Incorporation or Bylaws or through any reorganization, transfer of
assets, consolidation, merger, issue or sale of securities or otherwise, avoid
or take any action which would have the effect of avoiding the observance or
performance of any of the terms to be observed or performed hereunder by the
Company, but will at all times in good faith assist in
- 6 -
carrying out all of the provisions of this Warrant and in taking all of such
action as may be necessary or appropriate in order to protect the rights of the
Warrantholder against impairment.
(c) Successors. This Warrant shall be binding upon any corporation or other
entity succeeding to the Company by merger or consolidation, and the Company
will not enter into any such transaction without obtaining the written agreement
of any such successor to be bound by the terms of this Warrant as if it were the
issuer hereof.
Section 11. Notifications by the Company. In case at any time:
(a) the Company shall propose to make any distribution to the holders of
Series A Preferred Stock;
(b) the Company shall make an offer for subscription pro rata to the
holders of its Series A Preferred Stock of any additional securities of the
Company;
(c) there shall be any reorganization, merger, consolidation, liquidation,
dissolution, sale of assets, equity financing or other transaction which would
result in any obligation of the Company to redeem outstanding shares of Series A
Preferred Stock, or to make a distribution to holders of Series A Preferred
Stock;
then, in any one or more of such cases, the Company shall give written notice to
Warrantholder of the date on which (i) the books of the Company shall close, or
a record shall be taken for such distribution or subscription rights, or (ii)
such reorganization, merger, consolidation, liquidation, dissolution, sale of
assets, equity financing or other transaction shall take place, as the case may
be. Such notice shall also specify the date as of which the holders of Series A
Preferred Stock shall participate in such distribution or subscription rights,
or shall be entitled to exchange their Series A Preferred Stock for securities
or other property deliverable upon any such reorganization, merger,
consolidation, liquidation, dissolution, sale of assets, equity financing or
other transaction, as the case may be. Such written notice shall be given not
less than 30 days and not more than 90 days prior to the action in question and
not less than 30 days and not more than 90 days prior to the record date or the
date on which the Company's transfer books are closed in respect thereto and
such notice may state that the record date is subject to the effectiveness of a
registration statement under the Securities Act, or to a favorable vote of the
shareholders of the Company, if either is required.
Section 12. Notices. Any notice or other document required or permitted to
be given or delivered to Warrantholder shall be delivered at, or sent by
certified or registered mail to the Warrantholder at, the most recent address of
the Warrantholder shown on the records of the Company, or to such other address
as shall have been furnished to the Company in writing by such Warrantholder.
Any notice or other document required or permitted to be given or delivered to
the Company shall be sent by certified or registered mail to the Company at its
address set forth in Section 4 (and notice shall be deemed delivered three (3)
business days after
- 7 -
deposit in the mail), or such other address as shall have been furnished to the
Warrantholder by the Company.
Section 13. No Voting Rights; Limitation of Liability. This Warrant shall
not entitle any Warrantholder to vote on any matter coming to the attention of
the Shareholders of the Company or to any of the rights of a shareholder of the
Company. No provision hereof, in the absence of affirmative action by the
Warrantholder to purchase Series A Preferred Stock hereunder, and no mere
enumeration herein of the rights or privileges of the holder hereof, shall give
rise to any liability of such holder for the Purchase Price or any rights of
such holder as a shareholder of the Company, whether such liability is asserted
by the Company or by creditors of the Company.
Section 14. Miscellaneous. This Warrant shall be governed by, and construed
and enforced in accordance with, the laws of the State of Missouri. This Warrant
and any provision hereof may be changed, waived, discharged or terminated only
by an instrument in writing signed by the party against which enforcement of the
same is sought. The headings in this Warrant are for purposes of reference only
and shall not affect the meaning or construction of any of the provisions
hereof.
[The balance of this page has been left blank intentionally]
- 8 -
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized representative, and to be dated as of June 29, 2002.
CONNECTRIA CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Authorized Officer
ACCEPTED this 29th day of June, 2002:
MOBILE DATA SOLUTIONS INC.
By /s/ Xxxxx Xxxxx
---------------------------------------
Authorized Officer
- 9 -
ASSIGNMENT
To Be Executed by the Registered Holder if It Desires to Transfer the
Within Warrant
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
--------------------------------------
(Name)
--------------------------------------
(Address)
the right to purchase ------ shares of Series A Preferred Stock, covered by the
within Warrant, as said Shares were constituted at the date of said Warrant, and
does hereby irrevocably constitute and appoint Attorney to make such transfer on
the books of the Company maintained for the purpose, with full power of
substitution.
Signature
---------------------------------
Dated
---------------------
In the presence of
NOTICE
The signature to the foregoing Assignment must correspond to the name as
written upon the face of the within Warrant in every particular, without
alteration or enlargement or any change whatsoever.
- 10 -
SUBSCRIPTION FORM
To Be Executed by the Registered Holder if It Desires to Exercise the
Within Warrant
The undersigned hereby exercises the right to purchase shares of
Series A Preferred Stock covered by the within Warrant at the date of this
subscription and herewith makes payment of the sum of $ representing the
Purchase Price in effect at this date. Certificates for such Shares shall be
issued in the name of and delivered to the undersigned, unless otherwise
specified by written instructions, signed by the undersigned and accompanying
this subscription.
Dated
---------------------
Signature
-------------------------------
Address
-------------------------------
- 11 -
