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Exhibit 10.11
THIS STOCK PURCHASE WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE
EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, NOR UNDER ANY STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION UNDER SAID ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR AN OPINION SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
FT. XXXXXX, FLORIDA
GRANTED: AS OF JUNE 26, 1996
THIS AMENDED AND RESTATED STOCK PURCHASE WARRANT EXPIRES
IF NOT EXERCISED ON OR BEFORE
5:00 P.M., MIAMI TIME, SEPTEMBER 26, 1998
Stock Purchase Warrant
To Purchase 200,000 Shares of Common Stock
par value $.001 per share
of
PRO TECH COMMUNICATIONS, INC.
THIS IS TO CERTIFY that Xxxxxx Xxxxxxxx ("Xxxxxxxx") is entitled upon
the due exercise hereof at any time during the Exercise Period (as hereinafter
defined) to purchase from PRO TECH COMMUNICATIONS, INC. (the "Company"), up to
two hundred thousand (200,000) duly authorized, validly issued, fully paid and
non-assessable shares of common stock, par value $.001 per share, at a price of
One Dollar and Fifty Cents ($1.50) (the "Exercise Price") (subject to
adjustment as provided herein) for each share of such common stock so purchased
and to exercise the other rights, powers and privileges hereinafter provided,
all on the terms and conditions and pursuant to the provisions hereinafter set
forth.
ARTICLE I
DEFINITIONS
The terms defined in this Article I, whenever used in this Stock
Purchase Warrant, shall have the respective meanings hereinafter specified.
Whenever used in this Stock Purchase Warrant, any noun or pronoun shall be
deemed to include both the singular and plural and to cover all genders.
"Common Stock" means the Company's authorized common stock, par value
$.001 per share.
"Company" means Pro Tech Communications, Inc., and any successor
corporation.
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"Exercise Period" means the period commencing on September 26, 1996
(three months after the date of grant), and terminating at 5:00 p.m., Miami
time, on September 26, 1998, or such time as otherwise provided herein.
"Exercise Price" means One Dollar and Fifty Cents ($1.50) per share,
as such price may be adjusted from time to time pursuant to Article V.
"Xxxxxxxx" means Xxxxxxxx Financial Group Ltd., and any successor
corporation.
"Person" means an individual, a corporation, a joint venture, a
general or limited partnership, a trust, an unincorporated organization or a
government or any agency or political subdivision thereof.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder, all as the same shall be in effect
from time to time.
"Stock Purchase Warrant(s)" means this Amended and Restated Stock
Purchase Warrant.
"Warrant Shares" means shares of Common Stock issued upon the exercise
of this Stock Purchase Warrant.
ARTICLE II
NUMBER OF SHARES; EXERCISE OF STOCK PURCHASE WARRANT
2.1. Number of Shares. This Stock Purchase Warrant shall entitle
Xxxxxxxx to subscribe to and purchase up to two hundred thousand (200,000)
shares of Common Stock.
2.2. Right to Exercise. Subject to the provisions contained in
this Stock Purchase Warrant and upon compliance with the conditions of this
Article II, Xxxxxxxx shall have the right at any time and from time to time
during the Exercise Period to exercise this Stock Purchase Warrant in whole or
in portions.
2.3. Notice of Exercise; Issuance of Common Stock. To exercise
this Stock Purchase Warrant, Xxxxxxxx shall deliver to the Company (a) a Notice
of Exercise substantially in the form attached hereto, duly executed by
Xxxxxxxx, (b) an amount equal to the aggregate Exercise Price for the shares of
Common Stock purchased upon due exercise of this Stock Purchase Warrant, (c)
this Stock Purchase Warrant and (d) a certificate executed by Xxxxxxxx
certifying that attached thereto is a true and correct copy of the resolutions
or authorizations of the appropriate directors, owners or otherwise, approving
and authorizing the exercise of this Stock Purchase Warrant and the purchase of
the Warrant Shares.
Payment of the Exercise Price shall be made, at the option of
Xxxxxxxx, (i) by wire transfer of immediately available funds to an account in
a bank located in the United
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States designated in writing for such purpose by the Company or (ii) by
certified or official bank check payable to the order of the Company and drawn
on a member of the Chicago or New York Clearing House. Upon receipt thereof,
the Company shall, as promptly as practicable, and in any event within seven
(7) business days thereafter, cause to be issued and delivered to Xxxxxxxx, a
certificate representing the aggregate number of duly authorized, validly
issued, fully paid and non-assessable shares of Common Stock purchased pursuant
to the exercise of this Stock Purchase Warrant registered in the name of
Xxxxxxxx. The certificates representing such Warrant Shares shall bear the
following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF
WITHOUT REGISTRATION UNDER SUCH ACT OR AN OPINION OF COUNSEL,
REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT
REQUIRED.
Notwithstanding anything contained herein to the contrary,
this Stock Purchase Warrant may not be exercised if the issuance of the shares
of Common Stock upon such exercise would constitute a violation of any
applicable federal or state securities or other applicable laws or regulations.
As a condition to the exercise of this Stock Purchase Warrant, the Company may
require Xxxxxxxx to make such representations and agree to such covenants as
may be required by any applicable law or regulation.
This Stock Purchase Warrant shall be deemed to have been
exercised and such certificate shall be deemed to have been issued, and
Xxxxxxxx shall be deemed to have become the holder of record of such Warrant
Shares for all purposes as of the close of business on the date the Notice of
Exercise, together with payment and a certificate as herein provided and this
Stock Purchase Warrant, are received by the Company.
2.4. Balance of Stock Purchase Warrant Certificate. Upon exercise
of this Stock Purchase Warrant in part rather than in whole, the Company shall
execute and deliver to Xxxxxxxx a new Stock Purchase Warrant certificate of
like tenor evidencing the unexercised portion of the Stock Purchase Warrant and
otherwise in all respects identical with this Stock Purchase Warrant.
ARTICLE III
REGISTRATION
3.1. Registration; Ownership. The Company will keep a register in
which, subject to such reasonable regulations as it may prescribe, the Company
will provide for the registration of ownership of this Stock Purchase Warrant.
The Company will not at any time, except upon the dissolution, liquidation or
winding up of the Company, close such register so as to result in preventing or
delaying the exercise of this Stock Purchase Warrant.
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3.2. Replacement of Stock Purchase Warrant. Upon receipt by the
Company of evidence satisfactory to it, in the exercise of reasonable
discretion, of the ownership of and the loss, theft, destruction or mutilation
of any Stock Purchase Warrant and, in case of loss, theft or destruction, the
written agreement of Xxxxxxxx to indemnify the Company against any resulting
loss or expense or in case of mutilation upon surrender and cancellation of
such Stock Purchase Warrant, the Company will execute and deliver in lieu
thereof, a new Stock Purchase Warrant of like tenor.
ARTICLE IV
NO ASSIGNMENT OR TRANSFER
Xxxxxxxx shall not assign or transfer any of its rights under this
Stock Purchase Warrant. Any purported assignment or transfer of this Stock
Purchase Warrant in violation of this Article IV shall be void.
ARTICLE V
ADJUSTMENT OF SHARES
In the event of any increase or decrease in the number of shares of
Common Stock outstanding by reason of a stock split or reverse stock split, the
number of shares of Common Stock issuable upon the exercise of this Stock
Purchase Warrant and the Exercise Price shall be appropriately adjusted. The
number of shares of Common Stock issuable upon the exercise of this Stock
Purchase Warrant after such stock split or reverse stock split shall be equal
to an amount that Xxxxxxxx would have been entitled to, had the Stock Purchase
Warrant been exercised immediately prior to the stock split or reverse stock
split.
In the event that the Company shall at any time increase its
outstanding shares of Common Stock into a greater number of shares of Common
Stock by reason of a stock split, the Exercise Price in effect immediately
prior to such increase shall be proportionately reduced, and, conversely, in
case the outstanding shares of Common Stock shall be reduced into a smaller
number of shares of Common Stock by reason of a reverse stock split, the
Exercise Price in effect immediately prior to such reduction shall be
proportionately increased, calculated by dividing (i) the product of the total
number of shares of Common Stock outstanding prior to the stock split or
reverse stock split, multiplied by the Exercise Price, by (ii) the total number
of shares of Common Stock outstanding after the stock split or reverse stock
split.
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ARTICLE VI
REGISTRATION RIGHTS
The Company grants Xxxxxxxx the following rights to have the Warrant
Shares registered under the Securities Act:
6.1 Piggy-back Registration Rights. If, at any time during the
Exercise Period, the Company proposes to register any class of equity security
on any form for the general registration of securities under the Securities Act
(other than a registration form relating to a registration of a stock option,
stock purchase or compensation or incentive plan or of stock issued or issuable
pursuant to any such plan, or a dividend investment plan, a registration of
stock proposed to be issued in exchange for securities or assets of, or in
connection with the merger or consolidation with, another corporation or a
registration of stock proposed to be issued in exchange for other securities of
the Company), then the Company shall give prompt written notice thereof to
Xxxxxxxx and, upon the written request of Xxxxxxxx made within ten (10) days
after the receipt of such notice, the Company shall use its best efforts to
effect as part of such registration the registration under the Securities Act
of that number of the Warrant Shares which Xxxxxxxx requests the Company to
register, provided that the managing underwriter of the Company's public
offering, if any, shall be of the opinion that the inclusion in such
registration of such number of Warrant Shares will not interfere with the
successful marketing of all of the Company's securities being registered. If a
managing underwriting requests Xxxxxxxx to reduce in whole or in part the
number of Warrant Shares, if any, sought to be registered by Xxxxxxxx, Xxxxxxxx
shall comply with the request of the managing underwriter. In connection with
any registration pursuant to this Section 6.1, Xxxxxxxx shall provide the
Company with such information regarding himself and the distribution of the
Warrant Shares as the Company and the managing underwriter, if any, shall
reasonably request. The Company shall pay all costs and expenses incident to
the Company's registration of Goldbergs' Warrant Shares pursuant to this
Section 6.1, except the attorneys' fees and expenses of Xxxxxxxx. The Company
shall not be obligated to effect registration under the Securities Act pursuant
to this Section 6.1 on more than one occasion. Within five (5) business days
after the Securities and Exchange Commission (the "Commission") declares the
Company's registration statement to be effective, Xxxxxxxx shall exercise this
Stock Purchase Warrant in full and shall pay to the Company the full Exercise
Price therefor.
6.2 Demand Registration Rights. During the Exercise Period,
Xxxxxxxx shall have the following demand registration rights, subject to the
conditions contained in this Section 6.2:
(a) Registration Request. At any time during the
Exercise Period and as soon as reasonably practicable upon the written request
of Xxxxxxxx, the Company shall proceed to file with the Commission a
registration statement under the Securities Act on any appropriate form as the
Company shall select covering the Warrant Shares. The Company shall use its
best efforts to cause such registration statement to become effective as soon
as reasonably practicable following such request; provided, however, that the
Company shall not
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be required (i) to file a registration statement on more than one occasion or
(ii) to file any registration statement during any period of time (not to
exceed 180 days) when the Company is contemplating an underwritten offering of
its shares of equity securities and, in the judgment of the managing
underwriter thereof, such filing would have a material adverse effect on the
contemplated offering.
(b) Information and Costs. Xxxxxxxx shall provide the
Company with such information with respect to the Warrant Shares to be sold,
the plans for the proposed distribution thereof, and such other information as
shall in the opinion of counsel for the Company be necessary to enable the
Company to include in such registration statement (or any amendment or
supplement thereto) all material facts required to be disclosed with respect to
Xxxxxxxx. The Company shall bear the costs of such registration, including,
but not limited to, all registration and filing fees, and printing expenses.
Notwithstanding the foregoing, Xxxxxxxx shall pay the fees and disbursements of
his own counsel and any underwriting fees and selling commissions applicable to
the Warrant Shares sold by Xxxxxxxx.
(c) Financial Statements. The Company shall not be
required to furnish any audited financial statements at the request of Xxxxxxxx
other than those statements customarily prepared at the end of its fiscal year,
unless (i) Xxxxxxxx shall agree to reimburse the Company for the out-of-pocket
expenses incurred by the Company in the preparation of such other audited
financial statements or (ii) such other audited financial statements are to be
required by the Commission as a condition to ordering a registration statement
effective under the Securities Act.
(d) Joint Exercise of Demand Registration Rights. The
Company shall only be obligated to register the Warrant Shares of Xxxxxxxx
pursuant to this Section 6.2 if and only if Xxxxxx Xxxxxx and Xxxxxx Xxxxxx
also provide the Company with a written request to register the shares of
Common Stock underlying the Stock Purchase Warrants granted to each of such
persons as of June 26, 1996.
(e) The Company's Obligation to Maintain the Registration
Statement Current. The Company shall be required to maintain the registration
statement covering the Warrant Shares current until the earlier to occur of (i)
the sale of all of the Warrant Shares or (ii) twelve (12) months from the date
that the registration statement covering the Warrant Shares was declared
effective by the Commission.
(f) Exercise of Warrant Shares. Within five (5) business
days after the registration statement covering the Warrant Shares is declared
effective by the Commission, Xxxxxxxx shall exercise this Stock Purchase
Warrant in full and shall pay the full Exercise Price to the Company therefor.
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ARTICLE VII
MISCELLANEOUS
7.1. Nonwaiver. No course of dealing or any delay or failure to
exercise any right hereunder on the part of Xxxxxxxx or the Company shall
operate as a waiver of such right or otherwise prejudice the rights, powers or
remedies of Xxxxxxxx or the Company.
7.2. Notice Generally. Any notice, demand or delivery to be made
pursuant to or in connection with this Stock Purchase Warrant shall be
sufficiently given or made if sent by first class mail, postage prepaid,
addressed to (a) Xxxxxxxx at its last known address appearing on the books or
register of the Company maintained for such purpose or (b) the Company at 0000
Xxxxxxxxxx 00xx Xxxxxx, Xx. Xxxxxx, Xxxxxxx 00000. Xxxxxxxx and the Company
may each designate a different address by written notice to the other pursuant
to this Section 7.2.
7.3. Payment of Certain Expenses. Except as otherwise provided in
this Stock Purchase Warrant, the Company and Xxxxxxxx shall each pay their
respective expenses in connection with, and all taxes and other governmental
charges that may be imposed in respect of, the issue, sale and delivery of the
shares of Common Stock issuable upon the exercise of this Stock Purchase
Warrant.
7.4. Amendment. This Stock Purchase Warrant may not be modified or
amended except by written agreement duly executed by the Company and Xxxxxxxx.
7.5. Headings. The headings of the Articles and Sections of this
Stock Purchase Warrant are for the convenience of reference only and shall not,
for any purpose, be deemed a part of this Stock Purchase Warrant.
7.6 Governing Law. This Stock Purchase Warrant shall be governed
by the laws of the State of Florida without reference to the conflict of laws
principles thereof.
7.7 Replacement Warrant. This Amended and Restated Stock Purchase
Warrant supersedes the Stock Purchase Warrant to purchase 200,000 shares of
Common Stock which was previously issued to Xxxxxxxx.
Date of Grant: As of June 26, 1996
Pro Tech Communications, Inc.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Chief Executive Officer
The undersigned agrees to comply with the terms and conditions contained herein.
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
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Date
Pro Tech Communications, Inc.
0000 Xxxxxxxxxx 00xx Xxxxxx
Xx. Xxxxxx, Xxxxxxx 00000
Re: Exercise of Stock Purchase Warrant
Dear Sir:
Please be advised that pursuant to an Amended and Restated Stock
Purchase Warrant Agreement ("Agreement"), granted as of June 26, 1996, by Pro
Tech Communications, Inc. (the "Company") to the undersigned, the undersigned
hereby exercises the Stock Purchase Warrant in the amount of ______________
shares of common stock of the Company and herewith tenders its cashier's check
or certified check to the Company in the amount of
__________________________________ ($_____ ____) in payment for such shares of
common stock. Capitalized terms not otherwise defined herein are defined as
set forth in the Agreement.
The undersigned requests _______ stock certificates for such shares
issued in the name of ______________________ _________ whose address is
______________________________________ and whose social security number is
___________________ __________________.
The undersigned hereby acknowledges, warrants and represents the
following:
(1) The undersigned's acknowledgements, representations,
warranties and agreements contained in the Agreement are true, complete and
accurate as of the date of this letter.
(2) The Stock Purchase Warrant is presently exercisable and as
such, has vested and has not expired.
(3) The undersigned is presently and has been in full compliance
with all the terms, conditions and provisions of the Agreement.
Sincerely,
______________________________
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