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EXHIBIT 10.37
SUPERSHUTTLE INTERNATIONAL, INC.,
WARRANT AGREEMENT
THE SECURITIES REPRESENTED BY THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY
NOT BE SOLD, EXCHANGED, HYPOTHECATED OR TRANSFERRED IN ANY MANNER
EXCEPT IN COMPLIANCE WITH SECTION 9 OF THIS AGREEMENT.
THIS WARRANT AGREEMENT (the "Agreement"), dated as of June 15, 1995, is
made and entered into by and between SUPERSHUTTLE INTERNATIONAL, INC., a
Delaware corporation (the "Company"), and ULLICO, INC., a Maryland corporation
(the "Warrantholder").
For good and valuable consideration, receipt of which is hereby
acknowledged, the Company hereby issues to the Warrantholder warrants (as
hereinafter described, the "Warrants") to purchase up to an aggregate of
Fifty-six Thousand Three Hundred Fifty-six (56,356) (subject to adjustment
pursuant to Section 5 hereof) shares (the "Shares") of the Company's Common
Stock (the "Common Stock").
This Warrant is issued pursuant to that certain Preferred Stock
Purchase Agreement, dated as of June 15, 1995 (the "Purchase Agreement").
In consideration of the foregoing and for the purpose of defining the
terms and provisions of the Warrants and the respective rights and obligations
thereunder, the Company and the Warrantholder, for value received, hereby agree
as follows:
Section 1. Representations.
1.1 Investment Representation. The Warrantholder hereby represents to
the Company as follows:
1.1.1 The Warrantholder is experienced in evaluating and
investing in emerging companies such as the Company.
1.1.2 The Warrantholder is acquiring this Warrant, and the
Shares issuable upon exercise of this Warrant, for investment for its own
account and not with the view to, or for resale in connection with, any
distribution thereof. The Warrantholder understands that neither the Warrant
nor the Shares have been registered under the Securities Act by reason of a
specific exemption from the registration provisions of the Securities Act
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which depends upon, among other things, the bona fide nature of the investment
intent as expressed herein.
1.1.3 The Warrantholder acknowledges that this Warrant (and
the Shares of Common Stock issuable upon exercise hereof) must be held
indefinitely unless subsequently registered under the Securities Act or an
exemption from such registration is available. The Warrantholder is aware of the
provisions of Rule 144 promulgated under the Securities Act which permit limited
resale of shares purchased in a private placement subject to the satisfaction of
certain conditions, including, among other things the existence of a public
market for the shares, the availability of certain current public information
about the Company, the resale occurring not less than two years after a party
has purchased and paid for the security to be sold, the sale being through a
"broker's transaction" or in transactions directly with a "market maker" (as
provided by Rule 144 (f)) and the number of shares being sold during any
three-month period not exceeding specified limitations.
1.1.4 The Warrantholder understands that no public market now
exists for any of the securities issued by the Company and that it is unlikely
that a public market will exist for the Shares of Common Stock is the
foreseeable future.
1.1.5 The Warrantholder has received a copy of the Financial
Statements (as that term is defined in the Purchase Agreement), and has had an
opportunity to discuss the Company's business, management and financial affairs
with its management and has had the opportunity to review the Company's
operations and facilities. The Warrantholder understands that such discussions,
as well as any written information issued by the Company, were intended to
describe the aspects of the Company's business and prospects which it believes
to be material but were not necessarily a thorough or exhaustive description.
1.1.6 The Warrantholder (i) is represented by independent,
experienced counsel in connection with the negotiation of this transaction and
the preparation, execution and delivery of this Warrant, the Purchase Agreement
and the documents contemplated thereby, (ii) is sophisticated and knowledgeable
concerning business and financial matters generally, (iii) has substantial
experience in investments, and (iv) has the knowledge and ability to evaluate
the risks and merits of an investment in the Company. The Warrantholder has
performed extensive due diligence regarding the Company, its assets and
business, and has obtained all information, documents and materials it has
requested, has had the opportunity to interview the employees and officers of
the Company responsible for the management and operation of the Company's
business, and has satisfied itself regarding the Company's value, finances,
business and business prospects.
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1.2 Legend on Shares. Each certificate for Shares issued upon exercise
of the Warrants shall bear the following legend:
"The shares represented by this Certificate have not been
registered under the Securities Act of 1933. The shares may
not be sold, exchanged, hypothecated or transferred in any
manner unless they are registered under said Act and
applicable state law or an exemption from such registration
is available.
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 pursuant to a Registration Statement under the Act, of
the securities represented thereby) shall also bear the above legend unless, in
the opinion of the Company's counsel, the securities represented thereby need no
longer be subject to such restrictions.
Section 2. Term of Warrants; Exercise of Warrants.
Subject to the terms of this Agreement, the Warrantholder shall have
the right, at any from and after the date hereof through and including 5:00
p.m., Los Angeles time, on May 1, 2010 (the "Termination Date"), to purchase
from the Company up to the number of fully paid and nonassessable Shares to
which the Warrantholder may at the time be entitled to purchase pursuant to this
Agreement, upon surrender to the Company, at its principal office, of this
Agreement and payment to the Company of the Warrant Price (as defined in and
determined in accordance with the provisions of Sections 4 and 5 hereof), for
the number of Shares in respect of which such warrant is then exercised, but in
no event for less than 100 Shares (unless less than an aggregate of 100 Shares
are then purchasable under all outstanding Warrants held by a Warrantholder).
Payment of the aggregate Warrant Price shall be made in cash or by check.
The Warrants shall be exercisable, at the election of the
Warrantholder, either in full or from time to time in part and, in the event
that the Warrants are partially exercised, a new Warrant Agreement evidencing
the remaining portion of the Warrants shall be executed by both parties hereto.
Section 3. Reservation of Shares.
There has been reserved, and the Company shall at all times keep
reserved so long as the Warrants remain outstanding, out of its authorized
Common Stock, such number of shares of Common Stock or shall be subject to
purchase under the Warrants.
Section 4. Warrant Price.
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The price per Share (the "Warrant Price") at which Shares shall be
purchasable upon the exercise of the Warrants shall be Six Dollars ($6.00),
subject to further adjustment pursuant to Section 5 hereof.
Section 5. Adjustment of Warrant price and Number of Shares.
In case the Company shall (i) pay a dividend in Common Stock or any
other security or make a distribution in Common Stock, (ii) subdivide its
outstanding Common Stock, (iii) combine its outstanding Common Stock into a
smaller number of shares of Common Stock, or (iv) issue by reclassification of
its Common Stock other securities of the Company, the number and kind of Shares
purchasable upon exercise of the Warrants immediately prior thereto shall be
adjusted so that the Warrantholder shall be entitled to receive the kind and
number of Shares or other securities of the Company which it would have owned or
would have been entitled to receive immediately after the happening of any of
the events described above, had the Warrants been exercised immediately prior to
the happening of such event or any record date with respect thereto. Any
adjustment made pursuant to this Section 5 shall become effective immediately
after the effective date of such event retroactive to the record date, if any,
for such event.
Whenever the number of Shares purchasable upon the exercise of the
Warrants is adjusted as herein provided, the Warrant Price payable upon exercise
of the Warrants shall be adjusted by multiplying such Warrant Price immediately
prior to such adjustment by a fraction, the numerator of which shall be the
number of Shares purchasable upon the exercise of the Warrants immediately prior
to such adjustment, and the denominator of which shall be the number of Shares
so purchasable immediately thereafter.
Except as provided in this Section 5, no adjustment in respect of any
cash dividends or distributions out of earnings shall be made during the term of
the Warrants or upon, the exercise of the Warrants.
Section 6. Merger or Consolidation.
In case of any merger or consolidation of the Company with or into
another corporation (other than a consolidation or merger in which the Company
is the continuing corporation), or in the case of any sale or conveyance of the
property of the Company as an entirety or substantially as an entirety in
connection with which the Company in dissolved, the Warrantholder shall have the
right thereafter (until the Termination Date) to receive upon the exercise
hereof, for the same aggregate Warrant price hereunder immediately prior to such
event, the kind and amount of shares of stock or other securities or property
receivable upon such merger or consolidation, or upon the dissolution following
such sale or
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other transfer, by a holder of the number of shares obtainable upon exercise of
this Warrant immediately prior to such event.
Section 7. Fractional Interests.
The Company shall not be required to issue fractional Shares on the
exercise of the Warrants. If any fraction of a share would, except for the
provisions of this Section 7, be issuable on the exercise of the Warrants (or
specified portion thereof), the Company shall pay an amount in cash equal to the
then Current Market Price multiplied by such fraction. For purposes of this
Agreement, the term "Current Market Price" shall mean (i) if the Common Stock is
traded in the over-the-counter market and not in the NASDAQ National Market
System nor on any national securities exchange, the average per share closing
bid prices of the Common Stock on the fifteen (15) consecutive trading days
immediately preceding the date in question, as reported by NASDAQ or an
equivalent generally accepted reporting service, or (ii) if the Common Stock is
traded in the NASDAQ National Market System or on a national securities
exchange, the average for the fifteen (15) consecutive trading days immediately
preceding the date in question of the daily per share closing prices of the
Common Stock in the NASDAQ National Market System or on the principal stock
exchange on which it in listed, as the case may be. For purposes of clause (i)
above, if trading in the Common Stock is not reported by NASDAQ, the average
referred to in said clause shall be as reported in the "pink sheets" published
by National Quotation Bureau, Incorporated. The closing price referred to in
clause (ii) above shall be the last reported sale price or, in case no such
reported sale takes place on such day, the average of the reported closing bid
and asked prices, in either case, in the NASDAQ National Market System or on the
national securities exchange on which the Common Stock is then listed. In the
event the Common Stock is not traded in the NASDAQ National Market System or on
a national securities exchange, the Current Market Price shall be determined in
good faith by the Board of Directors of the Company.
Section 8. No Rights as Stockho1der; Notices to Warrantholder.
Nothing contained in this Agreement shall be construed as conferring
upon the Warrantholder or its transferees any rights as a stockholder of the
Company, including the right to vote, receive dividends, consent or receive
notices as a stockholder in respect of any meeting of stockholders for the
election of directors of the Company or any other matter, except the Company
shall mail to each Warrantholder a copy of its annual report and any periodic
reports provided its shareholders. If, however, at any time prior to the
expiration of the Warrants and prior to their exercise in full, any one or more
of the events described in Section 6 shall occur, then the Company shall give
notice in writing of such event to the Warrantholder, as provided in Section 13
hereof, as soon as
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reasonably practical but in any event at least 30 days prior to the date fixed
as a record date or the date of closing the transfer books for the determination
of the stockholders entitled to vote on such proposed consolidation, merger,
sale, dissolution, liquidation or winding up. Such notice shall specify such
record date or the date of closing the transfer books, as the case may be.
Failure to mail or receive such notice or any defect therein shall not affect
the validity of any action taken with respect thereto.
Section 9. Restrictions on Transfer.
The Warrantholder agrees that prior to making any disposition of the
Warrants or the Shares, if no registration statement or post-effective amendment
thereto under the Act (collectively a "Registration Statement") with respect to
such disposition is then effective, no such disposition shall be made unless the
Company has received from the Warrantholder an opinion of counsel reasonably
satisfactory to the Company that such disposition may be made without
registration under the Act.
Section 10. Exchange, Transfer, Assignment or Loss of Warrant.
Subject to Section 9 hereof, this Warrant is exchangeable, without
expense, at the option of the Warrantholder, upon presentation and surrender
hereof to the Company at its offices for other Warrants of different
denominations entitling the holder thereof to purchase in the aggregate the same
number of Shares as are purchasable hereunder. Upon surrender of this Warrant to
the Company at its principal office with the Assignment form annexed hereto duly
executed, the Company shall, without charge, execute and deliver a new Warrant
in the name of the assignee named in such instrument of assignment and this
Warrant shall be promptly cancelled. Subject to Section 9 hereof, this Warrant
may be divided or combined with other Warrants upon presentation thereof at the
office of the Company together with a written notice signed by the Warrantholder
hereof specifying the names and denominations in which new Warrants are to be
issued. Upon receipt by the Company of evidence satisfactory to it of the loss,
theft, destruction or mutilation of this Warrant, and, in the case of loss,
theft or destruction, of reasonably satisfactory indemnification, and upon
surrender and cancellation of this Warrant, if mutilated, the Company will
execute and deliver a new Warrant of like tenor and date.
Section 11. Notices.
Any notice pursuant to this Agreement by the Company or by a
Warrantholder or a holder of Shares shall be in writing and shall be deemed to
have been duly given on the day personally delivered or transmitted via
facsimile, or three days after deposited in the U.S. mail by certified mail,
return receipt requested as follows:
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If to a Warrantholder or a holder of Shares:
ULLICO, Inc.
000 Xxxxxxxxxxxxx Xxx., X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxx, Senior VP
Facsimile: (000) 000-0000
If to the Company:
SUPERSHUTTLE INTERNATIONAL, INC
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX, 00000
Attn: Xxxxx Xxxxx
Facsimile: (000) 000-0000
Any party may from time to time change the address to which notices to
it are to be delivered or mailed hereunder by notice in accordance herewith to
the other parties.
Section 12. Successors.
All the covenants and provisions of this Agreement by or for the
benefit of the Company, the Warrantholders or the holders of Shares shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 13. Applicable Law.
This Agreement shall be deemed to be a contract made under the laws of
the State of California and for all purposes shall be construed in accordance
with the laws of said State.
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Section 14. Benefits of this Agreement.
Nothing in this Agreement shall be construed to give to any person or
corporation other than the Company, the Warrantholders and the holders of Shares
any legal or equitable right, remedy or claim under this Agreement. This
Agreement shall be for the sole and exclusive benefit of the Company, the
Warrantholders and the holders of Shares.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed, all as of the day and year first above written.
SUPERSHUTTLE INTERNATIONAL, INC.
By /s/ [illegible]
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Its Chairman and CEO
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ULLICO, INC.
By
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Its
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Section 14. Benefits of this Agreement.
Nothing in this Agreement shall be construed to give to any person or
corporation other than the Company, the Warrantholders and the holders of Shares
any legal or equitable right, remedy or claim under this Agreement. This
Agreement shall be for the sole and exclusive benefit of the Company, the
Warrantholders and the holders of Shares.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed, all as of the day and year first above written.
SUPERSHUTTLE INTERNATIONAL, INC.
By
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Its
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ULLICO, INC.
By /s/ [illegible]
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Its
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ASSIGNMENT FORM
For value received, the undersigned registered owner of Warrants to
purchase Common Stock of SUPERSHUTTLE INTERNATIONAL, INC., a Delaware
corporation (the "Company"), represented by that certain Warrant Agreement dated
June , 1995 between the Company and the undersigned hereby sells, transfers
and assigns to the Assignee named below Warrants to purchase
shares of the Company's Common Stock:
Assignee:
Name
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Address
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and authorizes the Company to cancel the Warrant Agreement and to issue and
deliver a new Warrant Agreement in the name of the Assignee for the number of
Warrants so transferred hereby.
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Dated: Signature
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