EXHIBIT D
NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS
SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER
LOAN SECURED BY SUCH SECURITIES
ADDITIONAL INVESTMENT RIGHT
To Purchase $________ principal amount of Secured Debentures of
All American Plazas, Inc.
THIS ADDITIONAL INVESTMENT RIGHT (the "AIR") certifies that, for
value received, _____________ (the "HOLDER"), is entitled, upon the terms and
subject to the limitations on exercise and the conditions hereinafter set forth,
at any time on or after the date hereof (the "INITIAL EXERCISE DATE") and on or
prior to the close of business on the earlier of the nine month anniversary of
the Initial Exercise Date (the "TERMINATION DATE") but not thereafter, to
subscribe for and purchase from All American Plazas, Inc., a Pennsylvania
corporation (the "COMPANY"), up to $_____________ principal amount of
convertible debentures (the "AIR Debenture"). The AIR Debenture shall be in the
form of the Debentures issued pursuant to the Purchase Agreement, MUTATIS
MUTANDIS.
SECTION 1. DEFINITIONS. Capitalized terms used and not otherwise
defined herein shall have the meanings set forth in that certain Securities
Purchase Agreement (the "PURCHASE AGREEMENT"), dated January __, 2006, among the
Company and the purchasers signatory thereto.
SECTION 2. EXERCISE.
a) EXERCISE OF AIR. Exercise of the purchase rights
represented by this AIR may be made at any time or times on or after the
Initial Exercise Date and on or before the Termination Date by delivery
to the Company of a duly executed facsimile copy of the Notice of
Exercise Form annexed hereto (or such other office or agency of the
Company as it may designate by notice in writing to the registered
Holder at the address of such Holder appearing on the books of the
Company) and the payment of the
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aggregate principal amount of the AIR Debentures thereby purchased by
wire transfer or cashier's check drawn on a United States bank. Upon
exercise of the AIR, the Company shall issue an AIR Debenture with a
principal amount equal to the amount paid by the Holder.
b) MECHANICS OF EXERCISE.
i. AUTHORIZATION OF AIR DEBENTURE. The
Company covenants that its issuance of this AIR shall
constitute full authority to its officers who are
charged with the duty of executing certificates to
execute and issue the necessary certificates for the AIR
Debenture upon the exercise of the purchase rights under
this AIR. The Company covenants that the AIR Debenture
which may be issued upon the exercise of the purchase
rights represented by this AIR is duly authorized,
validly issued, fully paid and nonassessable and free
from all taxes, liens and charges in respect of the
issue thereof (other than taxes in respect of any
transfer occurring contemporaneously with such issue).
The Company will take all such reasonable action as may
be necessary to assure that the AIR Debenture may be
issued as provided herein without violation of any
applicable law or regulation.
ii. DELIVERY OF CERTIFICATES UPON EXERCISE.
Certificates for the AIR Debenture purchased hereunder
shall be delivered to the Holder within 3 Trading Days
from the delivery to the Company of the Notice of
Exercise Form, surrender of this AIR and payment of the
principal amount as set forth above ("AIR DEBENTURE
DELIVERY DATE"). This AIR shall be deemed to have been
exercised on the date the payment of the principal
amount is received by the Company. The AIR Debenture
shall be deemed to have been issued, and Holder or any
other person so designated to be named therein shall be
deemed to have become a holder of record of such
security for all purposes, as of the date the AIR has
been exercised by payment to the Company of the
principal amount and all taxes required to be paid by
the Holder, if any, pursuant to Section 2(e)(vii) prior
to the issuance of such security, have been paid.
iii. DELIVERY OF NEW AIRS UPON EXERCISE. If
this AIR shall have been exercised in part, the Company
shall, at the time of delivery of the certificate or
certificates representing the AIR Debenture, deliver to
Holder a new AIR evidencing the rights of Holder to
purchase the unpurchased AIR Debenture called for by
this AIR, which new AIR shall in all other respects be
identical with this AIR.
iv. RESCISSION RIGHTS. If the Company fails
to deliver to the Holder a certificate or certificates
representing the AIR Debenture pursuant to this Section
2(e)(iv) by the AIR Debenture Delivery Date, then the
Holder will have the right to rescind such exercise.
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v. CHARGES, TAXES AND EXPENSES. Issuance of
certificates for AIR Debentures shall be made without
charge to the Holder for any issue or transfer tax or
other incidental expense in respect of the issuance of
such certificate, all of which taxes and expenses shall
be paid by the Company, and such certificates shall be
issued in the name of the Holder or in such name or
names as may be directed by the Holder; PROVIDED,
HOWEVER, that in the event certificates for AIR
Debentures are to be issued in a name other than the
name of the Holder, this AIR when surrendered for
exercise shall be accompanied by the Assignment Form
attached hereto duly executed by the Holder; and the
Company may require, as a condition thereto, the payment
of a sum sufficient to reimburse it for any transfer tax
incidental thereto.
vi. CLOSING OF BOOKS. The Company will not
close its records in any manner which prevents the
timely exercise of this AIR, pursuant to the terms
hereof or the conversion of the AIR Debentures pursuant
to the terms hereof.
SECTION 3. NOTICE AND FUNDAMENTAL TRANSACTIONS.
a) NOTICE OF CERTAIN EVENTS. If (A) the approval of any
stockholders of the Company shall be required in connection with any
reclassification of the Common Stock, any consolidation or merger to
which the Company is a party, any sale or transfer of all or
substantially all of the assets of the Company, of any compulsory share
exchange whereby the Common Stock is converted into other securities,
cash or property or (B) the Company shall authorize the voluntary or
involuntary dissolution, liquidation or winding up of the affairs of the
Company; then, in each case, the Company shall cause to be mailed to the
Holder at its last address as it shall appear upon the AIR Register of
the Company, at least 20 calendar days prior to the applicable record or
effective date hereinafter specified, a notice stating the date on which
such reclassification, consolidation, merger, sale, transfer or share
exchange is expected to become effective or close, and the date as of
which it is expected that holders of the Common Stock of record shall be
entitled to exchange their shares of the Common Stock for securities,
cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange. The Holder is
entitled to exercise this AIR during the 20-day period commencing the
date of such notice to the effective date of the event triggering such
notice.
b) ABLE ENERGY TRANSACTION. If, at any time while this AIR
is outstanding, the Company effects the Able Energy Transaction, then,
upon any subsequent exercise of this AIR the Holder shall have the right
to receive upon exercise of the AIR, the securities of Able Energy
required to be exchanged for the Debentures pursuant to Section 4.9 of
the Purchase Agreement ("ALTERNATIVE SECURITIES"). To the extent
necessary to effectuate the foregoing provisions, Able Energy shall
issue to the Holder a new additional investment right consistent with
the foregoing provisions and evidencing the Holder's right to exercise
such additional investment right ultimately into Alternate Securities.
The terms of any agreement pursuant to which the Able Energy Transaction
is effected shall include
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terms requiring Able Energy to comply with the provisions of this
paragraph (b) and insuring that this AIR (or any such replacement
security) will be similarly adjusted upon any subsequent transaction
analogous to the Able Energy Transaction.
SECTION 4. TRANSFER OF AIR.
a) TRANSFERABILITY. Subject to compliance with any
applicable securities laws and to the provisions of Section 4.1 of the
Purchase Agreement, this AIR and all rights hereunder are transferable,
in whole or in part, upon surrender of this AIR at the principal office
of the Company, together with a written assignment of this AIR
substantially in the form attached hereto duly executed by the Holder or
its agent or attorney and funds sufficient to pay any transfer taxes
payable upon the making of such transfer. Upon such surrender and, if
required, such payment, the Company shall execute and deliver a new AIR
or AIRs in the name of the assignee or assignees and in the denomination
or denominations specified in such instrument of assignment, and shall
issue to the assignor a new AIR evidencing the portion of this AIR not
so assigned, and this AIR shall promptly be cancelled. An AIR, if
properly assigned, may be exercised by a new holder for the purchase of
AIR Debentures without having a new AIR issued.
b) NEW AIRS. This AIR may be divided or combined with other
AIRs upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations in
which new AIRs are to be issued, signed by the Holder or its agent or
attorney. Subject to compliance with Section 4(a), as to any transfer
which may be involved in such division or combination, the Company shall
execute and deliver a new AIR or AIRs in exchange for the AIR or AIRs to
be divided or combined in accordance with such notice.
c) AIR REGISTER. The Company shall register this AIR, upon
records to be maintained by the Company for that purpose (the "AIR
REGISTER"), in the name of the record Holder hereof from time to time.
The Company may deem and treat the registered Holder of this AIR as the
absolute owner hereof for the purpose of any exercise hereof or any
distribution to the Holder, and for all other purposes, absent actual
notice to the contrary.
d) TRANSFER RESTRICTIONS. If, at the time of the surrender
of this AIR in connection with any transfer of this AIR, the transfer of
this AIR shall not be registered pursuant to an effective registration
statement under the Securities Act and under applicable state securities
or blue sky laws, the Company may require, as a condition of allowing
such transfer (i) that the Holder or transferee of this AIR, as the case
may be, furnish to the Company a written opinion of counsel (which
opinion shall be in form, substance and scope customary for opinions of
counsel in comparable transactions) to the effect that such transfer may
be made without registration under the Securities Act and under
applicable state securities or blue sky laws, (ii) that the holder or
transferee execute and deliver to the Company an investment letter in
form and substance acceptable to the Company and (iii) that the
transferee be an "accredited investor" as defined in Rule 501(a)(1),
(a)(2), (a)(3), (a)(7), or (a)(8) promulgated under the Securities Act
or a qualified institutional buyer as defined in Rule 144A(a) under the
Securities Act.
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SECTION 5. MISCELLANEOUS.
a) TITLE TO THE ADDITIONAL INVESTMENT RIGHT. Prior to the
Termination Date and subject to compliance with applicable laws and
Section 4 of this AIR, this AIR and all rights hereunder are
transferable, in whole or in part, at the office or agency of the
Company by the Holder in person or by duly authorized attorney, upon
surrender of this AIR together with the Assignment Form annexed hereto
properly endorsed. The transferee shall sign an investment letter in
form and substance reasonably satisfactory to the Company.
b) NO RIGHTS AS SHAREHOLDER. This AIR does not entitle the
Holder to any voting rights or other rights as a shareholder of the
Company. Upon the surrender of this AIR and the payment of the aggregate
principal, the AIR Debentures so purchased shall be and be deemed to be
issued to such Holder as the record owner of such Debentures as of the
close of business on the later of the date of such surrender or payment.
c) LOSS, THEFT, DESTRUCTION OR MUTILATION OF AIR. The
Company covenants that upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or
mutilation of this AIR or any certificate relating to the AIR
Debentures, and in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to it (which, in the case of the AIR,
shall not include the posting of any bond), and upon surrender and
cancellation of such AIR or certificate, if mutilated, the Company will
make and deliver a new AIR or certificate of like tenor and dated as of
such cancellation, in lieu of such AIR or certificate.
d) SATURDAYS, SUNDAYS, HOLIDAYS, ETC. If the last or
appointed day for the taking of any action or the expiration of any
right required or granted herein shall be a Saturday, Sunday or a legal
holiday, then such action may be taken or such right may be exercised on
the next succeeding day not a Saturday, Sunday or legal holiday.
e) AUTHORITY.
The Company further covenants that its issuance of this
AIR shall constitute full authority to its officers who are
charged with the duty of executing certificates to execute and
issue the necessary certificates for the AIR Debentures upon the
exercise of the purchase rights under this AIR. The Company will
take all such reasonable action as may be necessary to assure
that such AIR Debentures may be issued as provided herein
without violation of any applicable law or regulation.
Except and to the extent as waived or consented to by
the Holder, the Company shall not by any action, including,
without limitation, amending its certificate of incorporation or
through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this AIR or the AIR
Debentures, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such
actions as
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may be necessary or appropriate to protect the rights of Holder
as set forth in this AIR and the AIR Debenture against
impairment. Without limiting the generality of the foregoing,
the Company will (a) take all such action as may be necessary or
appropriate in order that the Company may validly and legally
issue fully paid and nonassessable AIR Debentures upon the
exercise of this AIR, and (b) use commercially reasonable
efforts to obtain all such authorizations, exemptions or
consents from any public regulatory body having jurisdiction
thereof as may be necessary to enable the Company to perform its
obligations under this AIR and the AIR Debentures.
Before taking any action which would result in an
adjustment in the AIR Debentures for which this AIR is
exercisable, the Company shall obtain all such authorizations or
exemptions thereof, or consents thereto, as may be necessary
from any public regulatory body or bodies having jurisdiction
thereof.
The Company shall take any and all actions and execute
any and all documents reasonably required by the Holder to
insure that the liens on the real and personal property of All
American, Yosemite Development Corp. and Mountainside
Development, LLC (the "BORROWERS") as granted pursuant to the
Loan Documents and the pledge granted pursuant to the Pledge
Documents are modified and extended to secure the obligations of
the Company under the AIR Debenture.
f) JURISDICTION. All questions concerning the construction,
validity, enforcement and interpretation of this AIR shall be determined
in accordance with the provisions of the Purchase Agreement.
g) RESTRICTIONS. The Holder acknowledges that the AIR
Debentures acquired upon the exercise of this AIR, if not registered,
will have restrictions upon resale imposed by state and federal
securities laws.
h) NONWAIVER AND EXPENSES. No course of dealing or any
delay or failure to exercise any right hereunder on the part of Holder
shall operate as a waiver of such right or otherwise prejudice Xxxxxx's
rights, powers or remedies, notwithstanding the fact that all rights
hereunder terminate on the Termination Date. If the Company willfully
and knowingly fails to comply with any provision of this AIR, which
results in any material damages to the Holder, the Company shall pay to
Holder such amounts as shall be sufficient to cover any costs and
expenses including, but not limited to, reasonable attorneys' fees,
including those of appellate proceedings, incurred by Holder in
collecting any amounts due pursuant hereto or in otherwise enforcing any
of its rights, powers or remedies hereunder.
i) NOTICES. Any notice, request or other document required
or permitted to be given or delivered to the Holder by the Company shall
be delivered in accordance with the notice provisions of the Purchase
Agreement.
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j) LIMITATION OF LIABILITY. No provision hereof, in the
absence of any affirmative action by Holder to exercise this AIR or
purchase AIR Debentures, and no enumeration herein of the rights or
privileges of Holder, shall give rise to any liability of Holder,
whether such liability is asserted by the Company or by creditors of the
Company.
k) REMEDIES. Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this AIR. The
Company agrees that monetary damages would not be adequate compensation
for any loss incurred by reason of a breach by it of the provisions of
this AIR and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
l) SUCCESSORS AND ASSIGNS. Subject to applicable securities
laws, this AIR and the rights and obligations evidenced hereby shall
inure to the benefit of and be binding upon the successors of the
Company and the successors and permitted assigns of Holder. The
provisions of this AIR are intended to be for the benefit of all Holders
from time to time of this AIR and shall be enforceable by any such
Holder or holder of AIR Debentures.
m) AMENDMENT. This AIR may be modified or amended or the
provisions hereof waived with the written consent of the Company and the
Holder.
n) SEVERABILITY. Wherever possible, each provision of this
AIR shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this AIR shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining
provisions of this AIR.
o) HEADINGS. The headings used in this AIR are for the
convenience of reference only and shall not, for any purpose, be deemed
a part of this AIR.
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IN WITNESS WHEREOF, the Company has caused this AIR to be executed by
its officer thereunto duly authorized.
Dated: January ___, 2006
ALL AMERICAN PLAZAS, INC.
By:_____________________________________
Name:
Title:
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NOTICE OF EXERCISE
TO: [_______________
(1) The undersigned hereby elects to purchase $________ principal amount
of AIR Debentures of [____________ pursuant to the terms of the attached AIR and
tenders herewith payment of the principal in full, together with all applicable
transfer taxes, if any.
(2) Payment shall take the form of (check applicable box) in lawful
money of the United States; or
(3) Please issue a certificate or certificates representing said AIR
Debentures in the name of the undersigned or in such other name as is specified
below:
________________________________________
The AIR Debentures shall be delivered to the following:
________________________________________
________________________________________
________________________________________
(4) ACCREDITED INVESTOR. The undersigned is an "accredited investor" as
defined in Regulation D promulgated under the Securities Act of 1933, as
amended.
[SIGNATURE OF HOLDER]
Name of Investing Entity: ______________________________________________________
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: _________________________
Name of Authorized Signatory: __________________________________________________
Title of Authorized Signatory: _________________________________________________
Date: __________________________________________________________________________
ASSIGNMENT FORM
(To assign the foregoing AIR, execute
this form and supply required information.
Do not use this form to exercise the AIR.)
FOR VALUE RECEIVED, the foregoing AIR and all rights evidenced thereby
are hereby assigned to
_______________________________________________ whose address is
________________________________________________________________.
________________________________________________________________
Dated: ______________, _______
Holder's Signature: _____________________________
Holder's Address: _____________________________
_____________________________
Signature Guaranteed: __________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the AIR, without alteration or enlargement or any change
whatsoever, and must be guaranteed by a bank or trust company. Officers of
corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing AIR.
