Exhibit 10.4
WARRANT PURCHASE AGREEMENT
WARRANT PURCHASE AGREEMENT, dated April 11, 2005, by and
between
SIRICOMM, INC., a Delaware corporation
having its principal office at 2900 Davis
Boulevard, Suite 130, Joplin, Missouri
64804 (the "Company") and Sunflower
Capital, LLC, having an office at 10801
Mastin, Suite 920, Overland Park, Kansas
(the "Purchaser").
BACKGROUND INFORMATION
This Agreement sets forth the terms and conditions upon which
Purchaser
is acquiring from the Company and the
Company is selling and delivering to the
Purchaser, Four Hundred Thirteen Thousand
Six Hundred and Five (413,605)
five-year warrants to purchase a like
number of shares of the Company's common
stock for $3.00 per share (the
"Warrants").
OPERATIVE PROVISIONS
ARTICLE 1
Purchase and Sale of Shares
1.1 Warrants to be Sold. Subject to the terms and conditions of
this
Agreement, at the Closing referred to in
Section 1.4 hereof, the Company shall
sell and deliver to the Purchaser good,
valid and marketable title to the
Warrants by delivering to the Purchaser the
Warrants registered in the name of
the Purchaser and executed by the
Company.
1.2 Purchase Price of the Shares. The purchase price to be paid by
the
Purchaser to the Company for the Warrants
shall be Fifty Three Thousand Three
Hundred and Thirty Three and No/100 Dollars
($53,333.00) (the "Purchase Price").
1.3 Payment of Purchase Price. Subject to the terms and conditions
of
this Agreement, in reliance on the
representations, warranties and agreements of
the Company contained herein, and in
consideration of the sale and delivery of
the Warrants, the Purchaser shall pay the
Purchase Price at the Closing by
delivery of a certified or cashier's check,
made payable to the Company, or by
wire transfer to a bank account designated
by the Company.
1.4 Closing. The closing of the sale and purchase of the Warrants
shall
take place at such time and place as may be
agreed to by the parties but no
later than April 15, 2005 (the "Closing").
At the Closing, the Company shall
deliver to the Purchaser the Warrants.
Simultaneously with such delivery, the
Purchaser shall deliver the Purchase Price
to the Company. Each party shall be
responsible for all fees and costs incurred
by it or on its behalf in connection
with the negotiation of this Agreement and
the Closing.
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If at the Closing the
Company shall fail to tender the Warrants, or if
any of the conditions specified hereunder
shall not have been fulfilled, the
Purchaser shall, at its option, be relieved
of its obligations under this
Agreement without thereby waiving any
rights it may have by reason of such
failure or non-fulfillment. Conversely, if
the Purchaser fails to close the
transactions herein contemplated for any
reason other than a default or breach
occasioned by the Company under the terms
hereof, or a failure of performance of
any of the conditions recited in Article 2
below, the Company may pursue any
legal rights or remedies then available to
it, expressly including the right to
require the Purchaser's specific
performance of this Agreement.
ARTICLE 2
Representations and Warranties of the Company
The Company represents, warrants and agrees as follows:
2.1 Organization and Standing of the Company. The Company is a
corporation duly organized, validly
existing and in good standing under the laws
of the State of Delaware and has all
requisite corporate power and authority to
own and operate its properties and to carry
on its business as now conducted and
as proposed to be conducted.
2.2 Authorization. When executed and delivered by the Company,
this
Agreement will constitute the valid and
binding obligation of the Company,
enforceable in accordance with its
terms.
2.3 Securities Exchange Act Reports. All reports filed by the
Company
pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as
amended, are true and correct and contain
no material misstatements or
omissions.
2.4 Consent. No consent, approval or authorization of or
registration,
qualification, designation, declaration or
filing with any governmental
authority or private person or entity on
the part of the Company is required in
connection with the execution and delivery
of this Agreement or the consummation
of any other transaction contemplated
hereby, except as shall have been duly
taken or effected prior to the Closing.
2.5 Reservation and Authorization of Warrants and Common Stock.
The
Warrants have been duly authorized and upon
payment of Purchase Price will be
validly issued, fully paid and
non-assessable. The shares of Common Stock
underlying the Warrants have been duly
authorized and, upon payment of the
exercise price will be validly issued,
fully paid and non-assessable. From and
after the Closing, the Company shall at all
times reserve and keep available for
issue upon the exercise of the Warrants
such number of its authorized but
unissued shares of Common Stock as will be
sufficient to permit the exercise in
full of the Warrants.
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2.6 Compliance with Laws. The Company is and will be at Closing
in
compliance with all applicable federal,
state and local laws and the Company is
current in all of its reports required to
be filed pursuant to Section 13 or
15(d) of the Securities Exchange Act of
1934, as amended.
2.7 Litigation. Except as otherwise disclosed in the Company's
reports
filed pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as
amended, the Company is not a party or is
not threatened to be made a party to
any action, suit, proceeding, hearing, or
investigation of, in, or before any
court or agency of any federal, state or
local jurisdiction or before any
arbitrator.
2.8 SEC Filings. The Company has furnished or made available to
the
Buyer true and correct copies of the SEC
Documents. The SEC Documents are the
only filings made by the Company since
January 1, 2003 pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange
Act or pursuant to the Securities
Act. The Company has filed all reports,
schedules, forms, statements and other
documents required to be filed by it under
Sections 13(a), 13(c), 14 and 15(d)
of the Exchange Act since January 1, 2003
and prior to the date of this
Agreement.
2.9 Available Information. The Company has not provided to the
Buyer
any information which according to
applicable law, rule or regulation, should
have been disclosed publicly prior to the
date hereof by the Company but which
has not been so disclosed. As of their
respective dates, the SEC Documents
complied, and all similar documents filed
with the SEC prior to the Closing will
comply, in all material respects with the
requirements of the Securities Act or
the Exchange Act, as the case may be, and
rules and regulations of the SEC
promulgated thereunder and other federal,
state and local laws, rules and
regulations applicable to such SEC
Documents, and no document similar to the SEC
Documents filed by the Company with the SEC
prior to the Closing will contain,
any untrue statement of a material fact or
omitted to state a material fact
required to be stated therein or necessary
in order to make the statements
therein, in light of the circumstances
under which they were made, not
misleading. The financial statements of the
Company included in the SEC
Documents, as of the dates thereof,
complied, and all similar documents filed
with the SEC prior to the Closing will
comply, as to form in all material
respects with applicable accounting
requirements and the published rules and
regulations of the SEC and other applicable
rules and regulations with respect
thereto. Such financial statements were
prepared in accordance with generally
accepted accounting principles applied on a
consistent basis during the periods
involved (except (i) as may be otherwise
indicated in such financial statements
or the notes thereto or (ii) in the case of
unaudited interim statements, to the
extent they may not include footnotes or
may be condensed or summary statements
as permitted by Form 10-Q as promulgated by
the SEC) and fairly present in all
material respects the financial position of
the Company and its consolidated
subsidiaries as of the dates thereof and
the consolidated results of operations
and cash flows for the periods then ended
(subject, in the case of unaudited
statements, to normal year-end audit
adjustments)
2.10 Taxes.
(i) All
federal, state, local and foreign tax returns and
reports required to be filed to date, and which are
properly open for examination under applicable
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statutes of limitation, with respect to the operation
of the Company have been accurately prepared and duly
filed, and all taxes shown as payable on such returns
and report have been paid when due, including,
without limitation income, withholding, payroll,
sales and use, and real and personal property taxes;
and
(ii)
The Company has not executed or filed with any taxing
authority any agreement extending the period for
assessment or collection of any tax to a date
subsequent to the date hereof; and
(iii) No
issue has been raised by any federal, state, local
or foreign taxing authority in connection with an
audit or examination of the tax returns, business or
properties of the Company that has not been settled
