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EXHIBIT 10.11
THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES
ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 AS AMENDED. THEY MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES
UNDER SAID ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
NO. A-2
WARRANT TO PURCHASE COMMON STOCK
Aasche Transportation Services, Inc., a Delaware corporation (the
"Company"), for value received, hereby certifies that Diane L. Asche (a
"Holder") or registered assigns, is entitled the holder thereof to purchase
100,000 fully paid non-assessable shares ("Warrant Shares") of common stock,
$0.0001 par value per share (the "Common Stock"), of the Company, subject to
the provisions set forth below, at the purchase price (the "Exercise Price") of
$3.90 per Warrant Share, subject to adjustment as set forth below. The number
of Warrant Shares which may be purchased under this Warrant, and the Exercise
Price therefor, are subject to additional adjustment from time to time as set
forth herein. Notwithstanding the foregoing, in the event the Company, for any
reason, fails to close the acquisition of the municipal waste hauling business
of Jack Gray Transport, Inc. by January 31, 1998, this Warrant shall be
canceled and deemed null and void.
1. Exercise of Warrant.
1.1. Exercise. The Holder may exercise this Warrant in
whole or in part at any time until this Warrant terminates (as provided in
Section 5 hereof) by the surrender of this Warrant and delivery of a duly
executed Exercise Notice in the form attached hereto at the principal offices
of the Company, specifying the number of Warrant Shares to be purchased and
accompanied by the payment to the Company, or for the account of the Company,
by cash, certified check, bank draft or wire transfer, of the full Exercise
Price for such Warrant Shares.
The Company agrees that the Warrant Shares purchased upon
exercise of this Warrant shall be deemed for all purposes to be issued to the
Holder exercising this Warrant as of the close of business on the date on which
this Warrant is surrendered and payment is made as aforesaid. Certificates for
the Warrant Shares so purchased shall be delivered to the Holder within a
reasonable time, not exceeding ten business days, after the issuance of the
Warrant Shares. All certificates representing Warrant Shares may bear legends
respecting restrictions under securities laws which normally appear on the
Company's certificates for shares issued in private placements. In the event
the Holder shall exercise this Warrant in part only, the Company shall deliver
to the Holder within a reasonable time, not exceeding ten business days, after
such exercise, a new Warrant (dated the date hereof) in the form of this
Warrant to purchase a number of Warrant Shares equal to the number of Warrant
Shares which may be purchased under this Warrant minus the number of Warrant
Shares purchased by the Holder upon such exercise in part of this Warrant.
1.2. No Fractional Shares. No fractional shares
or scrip representing fractional shares shall be issued upon exercise of this
Warrant. If, upon exercise of all of this Warrant, the Holder would, except
for the provisions of this Section 1.2, be entitled to receive a fractional
share of Common
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Stock, then an amount equal to such fractional share multiplied by the fair
market value (as reasonably determined by the Company's Board of Directors) of
one share of Common Stock shall be paid by the Company in cash to such Holder.
2. Transferability. Subject to the provisions of Section 8
hereof, this Warrant and all rights hereunder are transferable, in whole or in
part, upon surrender of this Warrant and a properly executed assignment at the
principal office of the Company. The Company will maintain a register
containing the names and addresses of the Holders of this Warrant. Any Holder
may change its address as shown on the warrant register by written notice to
the Company requesting such change. Until any transfer of this Warrant is made
in the warrant register, the Company may treat the Holder of this Warrant as
the absolute owner hereof for all purposes; provided, however, that if and when
this Warrant is properly assigned in blank, the Company may (but shall not be
obligated to) treat the bearer hereof as the absolute owner hereof for all
purposes, notwithstanding any notice to the contrary.
3. Shares to be Issued
3.1. Shares to be Issued; Reservation of Shares. The
Company covenants and agrees that all Warrant Shares will, upon issuance, be
validly authorized, issued and outstanding, fully paid and non-assessable, and
free from all taxes, liens and charges with respect to the issuance thereof
other than those liens and charges attaching by or through action of the
Holder. The Company further covenants and warrants that it will from time to
time take all action required to assure that the par value per share of the
Common Stock is at all times equal to or less than the Exercise Price per
Warrant Share. The Company further covenants and agrees that during the period
within which this Warrant may be exercised, the Company will at all times have
authorized and reserved sufficient shares of Common Stock to provide for the
exercise of this Warrant.
4. Adjustments to Warrant Rights.
4.1. Split and Subdivision of Common Stock. If the
Company shall split or subdivide the outstanding shares of Common Stock or pay
a dividend or make a distribution with respect to Common Stock payable in
additional shares of Common Stock or other securities or rights convertible
into or entitling the holder thereof to receive additional shares of Common
Stock, then the Exercise Price per Warrant Share shall be appropriately
decreased and the number of Warrant Shares subject to this Warrant shall be
appropriately increased in proportion to such increase in outstanding shares of
Common Stock. Such adjustments shall be made as of the record date of such
split, dividend or distribution, or if no record date is established, as of the
effective date thereof.
4.2. Combination of Common Stock. If the Company combines
the outstanding shares of Common stock into a smaller number of shares, then
the purchase price per Warrant Share shall be appropriately increased and the
number of Warrant Shares subject to this Warrant shall be appropriately
decreased in proportion to such decrease in outstanding shares of Common Stock.
Such adjustment shall be made as of the record date of such combination, or if
no record is established, as of the effective date thereof.
4.3. Reorganization. If any capital reorganization or
reclassification of the capital of the Company or consolidation or merger of
the Company with another corporation, or the sale of all or substantially all
of its assets to another corporation shall be effective, then, as a condition
of such reorganization, reclassification, consolidation, merger or sale, lawful
and adequate provision shall be
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made whereby the Holder shall thereafter have the right to purchase and receive
at any time after the consummation of such transaction until the termination of
this Warrant upon the basis and upon the terms and conditions specified herein
and in lieu of the Warrant Shares immediately theretofore issuable upon
exercise of this Warrant for the aggregate Exercise Price in effect immediately
prior to such consummation, such shares of stock, securities or assets as may
be issued or payable with respect to or in exchange for a number of outstanding
shares of Common Stock equal to the number of Warrant Shares immediately
theretofore issuable upon exercise of this Warrant had such reorganization,
reclassification, consolidation, merger or sale not taken place; and in any
case appropriate provision shall be made with respect to the rights and
interest of the Holder to the end that the provisions hereof (including,
without limitation, provisions for adjustments of the purchase price per
Warrant Share and the number of Warrant Shares issuable upon the exercise of
this Warrant) shall thereafter be applicable, as nearly as may be, to any
shares of stock, securities or assets thereafter deliverable upon the exercise
of this Warrant. The Company shall not effect any such consolidation, merger
or sale unless the successor corporation (if other than the Company) resulting
from such consolidation or merger or the corporation purchasing such assets
shall have assumed by a written instrument executed and mailed by certified
mail or delivered to the Holder at the last address of the Holder appearing on
the books of the Company, the obligation of the Company or such successor
corporation to deliver such Holder such shares of stock, securities or assets
as, in accordance with the foregoing provisions, such Holder may be entitled to
purchase.
5. Termination. This Warrant shall terminate on February 1,
2003.
6. Rights of Holder. The Holder shall not, by virtue of this
Warrant and prior to the issuance of the Warrant Shares upon due exercise
hereof, be entitled to any rights of a shareholder in the Company.
7. Investment Representation. The Holder by accepting this
Warrant represents that this Warrant is acquired for the Holder's own account
for investment purposes and not with a view to any offering or distribution and
that the Holder has no present intention of selling or otherwise disposing of
this Warrant or the shares of Common Stock obtained upon exercise thereof. The
Holder further agrees that unless a current registration statement under the
Securities Act of 1933, as amended (the "Securities Act") shall be in effect
with respect to Company's Common Stock, the Holder, by accepting this Warrant,
covenants and agrees to, at the time of exercise of any Warrant, if so
requested by the Company, deliver to the Company a written statement
reconfirming such Holder's investment representations made hereunder.
8. Sale without Registration. The Holder of this Warrant
acknowledges that neither this Warrant nor the Warrant Shares have been
registered under the Securities Act, and agrees not to sell, pledge,
distribute, offer for sale, transfer or otherwise dispose of this Warrant or
any Warrant Shares issued upon its exercise in the absence of (i) an effective
registration statement as to this Warrant or such Warrant Shares under the
Securities Act or (ii) an opinion (reasonably acceptable to the Company) of
counsel reasonably acceptable to the the Company, to the effect that such
registration is not required under the circumstances.
9. Replacement of Warrant. In case this Warrant shall be
mutilated, lost, stolen or destroyed, the Company shall issue a new Warrant of
like tenor and denomination and deliver the same (a) in exchange and
substitution for and upon surrender and cancellation of any mutilated Warrant
or (b) in lieu of any Warrant lost, stolen or destroyed, upon receipt of
evidence satisfactory to the Company of the loss, theft or destruction of such
Warrant (it being understood that a reasonably detailed affidavit with respect
to the circumstances of any loss, theft or destruction shall be satisfactory
evidence unless the
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Company has cause to believe to the contrary) and an indemnity agreement
reasonably satisfactory to the Company.
10. Notices. All notices and other communications from the
Company to the Holder shall be in writing and shall be delivered by hand, by
telecopier, by overnight courier or mailed by first class, registered or
certified mail, postage prepaid, at such address as may have been furnished to
the Company in writing by such Holder, or, until any such Holder furnishes to
the Company an address, then to, and at the address of, the last Holder of this
Warrant who has so furnished an address to the Company.
11. Miscellaneous. This Warrant and any term hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of such change, waiver, discharge
or termination is sought. This Warrant shall be construed and enforced in
accordance with and governed by the internal laws of the State of Illinois
without giving effect to conflicts of law principles. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. This Warrant is being executed as an
instrument under seal. The invalidity or unenforceability of any provision
hereof shall in no way affect the validity or enforceability of any other
provision.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
by its duly authorized officer as of this 16th day of January, 1998.
AASCHE TRANSPORTATION SERVICES, INC.
By: /s/ Leon M. Monachos
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Leon M. Monachos, Chief Financial Officer
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EXERCISE NOTICE
To: Aasche Transportation Services, Inc.
The undersigned owner of an accompanying Warrant hereby irrevocably
exercises the option to purchase ______ shares of Common Stock, $0.0001 par
value per share, of Aasche Transportation Services, Inc. in accordance with the
terms of such Warrant, directs that the shares issuable and deliverable upon
such purchase (together with any check for a fractional interest) be issued in
the name of and delivered to the undersigned, and makes payment in full
therefor at the Exercise Price provided in such Warrant.
Date:
(1)
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(Signature of Owner)
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(Street Address)
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(City) (State) (Zip Code)
Securities and/or check to be issued to:
Name:
Street Address:
City, State and Zip Code:
SSN/F.E.I.N.:
Any new Warrant to purchase Warrant Shares issuable after this partial exercise
of the within Warrant to be issued to:
Name:
Street Address:
City, State and Zip Code:
SSN/F.E.I.N.:
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(1) The signature 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.
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FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned registered holder of the
within Warrant hereby sells, assigns and transfers unto the Assignee(s) named
below (including the undersigned with respect to any Warrant Shares
constituting a part of the within Warrant not being assigned hereby) all of the
right of the undersigned under the within Warrant to purchase the number of
shares of Warrant Shares set forth below:
Name(s) of Number of
Assignee(s) SSN/F.E.I.N. Address Warrants
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and does hereby irrevocably constitute and appoint ____________________ the
undersigned's attorney to make such transfer on the books of Aasche
Transportation Services, Inc. maintained for the purposes, with full power of
substitution in the premises.
(2)
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(Signature of Owner)
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(2) The signature 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.
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