EXHIBIT 10.10
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO OR FOR SALE IN
CONNECTION WITH THE DISTRIBUTION HEREOF. THIS WARRANT AND THE
SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS,
AND MAY NOT BE PLEDGED, SOLD, OFFERED FOR SALE, TRANSFERRED, OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF REGISTRATION UNDER OR EXEMPTION
FROM SUCH ACT AND ALL APPLICABLE STATE SECURITIES LAWS.
AVERY COMMUNICATIONS, INC.
STOCK PURCHASE WARRANT
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THIS IS TO CERTIFY THAT The Franklin Holding Corporation (Delaware), a
Delaware corporation (the "Holder"), is entitled to purchase 666,666 shares (the
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"Shares") of common stock, $.01 par value per share ("Common Stock"), of Avery
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Communications Inc., a Delaware corporation (the "Company"), at a price of $1.50
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per share (the "Exercise Price"), at any time or from time to time after the
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date hereof until 5:00 p.m., Chicago, Illinois time, on May 31, 2002.
To exercise this Warrant, the holder hereof shall deliver to the Company (a) a
notice of exercise duly executed by the holder hereof specifying the number of
Shares to be purchased, (b) an amount equal to the aggregate Exercise Price for
all Shares to be purchased (the "Aggregate Exercise Price") and (c) this
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Warrant. Payment of the Aggregate Exercise Price shall be made (i) by certified
or official bank check payable to the order of the Company and drawn on a member
of the New York Clearing House, (ii) by wire transfer of immediately available
funds to an account specified by the Company or (iii) by converting an
unexercised portion of this Warrant representing the entitlement to purchase a
number of shares of Common Stock determined by dividing (x) the Aggregate
Exercise Price by (y) the excess of (I) the current market price on the date of
exercise of one share of Common Stock over (II) the Exercise Price. The current
market price per share of Common Stock on any date is the average of the Quoted
Prices of the Common Stock for the five consecutive trading days commencing ten
trading days before the date in question. The "Quoted Price" of the Common Stock
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on any date is the last reported sales price of the Common Stock as reported by
NASDAQ, National Market System, or if the Common Stock is listed on a securities
exchange, the last reported sales price of the Common Stock on such exchange
which shall be for consolidated trading if applicable to such exchange. In the
absence of any such quotations, the Board of Directors of the Company shall
determine the current market price on the basis of such factors as it in
reasonable good faith considers appropriate, which determination shall be
binding on the Company and the holder hereof and, if applicable, its assignee or
transferee. Such notice of exercise will be substantially in the form of the
Subscription Form appearing at the end of this Warrant. Upon receipt of such
notice, the Company will, as promptly as practicable execute, or cause to be
executed, and deliver to the Holder a certificate or certificates representing
the aggregate number of full shares of Common Stock issuable upon such exercise,
as provided in this Warrant. The stock certificate or certificates so delivered
will be in such denominations as may be specified in such notice and will be
registered in the name of the Holder. This Warrant will be deemed to have been
exercised, such certificate or certificates will be deemed to have been issued,
and the Holder will be deemed to have become a holder of record of such shares
for all purposes, as of the date that such notice, together with payment of the
such Exercise Price, and the Warrant, is received by the Company. If the Warrant
has been exercised in part, the Company will, at the time of delivery of such
certificate or certificates, deliver to the Holder a new Warrant evidencing the
rights of the Holder to purchase a number of Shares with respect to which the
Warrant has not been exercised, which new Warrant will, in all other respects,
be identical with this Warrant, or, at the request of the Holder, appropriate
notation may be made on this Warrant and this Warrant returned to the Holder.
Payment of the Exercise Price will be made, at the option of the
Holder, by a certified or official bank check or federal funds wire transfer.
The number of Shares and the Exercise Price shall be adjusted
proportionately to reflect any stock dividend with respect to or stock-split of
the Common Stock
Subject to the provisions of the Securities Act of 1933, this Warrant
and all rights hereunder are freely transferable. Until the transfer hereof on
the books of the Company, the Company may treat the registered holder as the
owner hereof for all purposes.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
as of the ____ day of May, 1997.
AVERY COMMUNICATIONS, INC.,
a Delaware corporation
ATTEST:
________________________________ By:_____________________________
David N. Curioni, Thomas M. Lyons,
Assistant Secretary President
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FORM OF NOTICE OF EXERCISE
(To be executed only upon partial or full exercise
of the within Warrant)
The undersigned registered holder of the within Warrant irrevocably exercises
the within Warrant for and purchases ________________ shares of Common Stock of
Avery Communications, Inc., a Delaware corporation, and herewith makes payment
therefor in the amount of $_________ all at the price and on the terms and
conditions specified in the within Warrant and in the manner elected below, and
requests that a certificate for such shares hereby purchased be issued in the
name of and delivered to (a) the undersigned or (b)__________________________,
whose address is ___________________________________________, and, if such
shares shall not include all the Shares issuable as provided in the within
Warrant, that a new Warrant of like tenor for the number of remaining Shares be
issued in the name of and delivered to (a) the undersigned or (b)______________,
whose address is ___________________________________________.
Check one:
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|__| The undersigned elects to pay the Exercise Price in cash.
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|__| The undersigned elects to pay the Exercise Price by conversion on the
date this Notice of Exercise is given.
Dated:______________________________.
[ ]
By:_____________________________________
(Signature of Registered Holder)
NOTICE: The signature on this Notice of Exercise must correspond with the
name as written upon the face of the within Warrant in every
particular, without alteration or enlargement or any change
whatever.