EXHIBIT 10.7
THE WARRANT EVIDENCED OR CONSTITUTED HEREBY, AND ALL SHARES OF COMMON STOCK
ISSUABLE HEREUNDER, HAVE BEEN AND WILL BE ISSUED WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), AND MAY NOT BE SOLD, OFFERED FOR
SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED WITHOUT REGISTRATION UNDER THE ACT
UNLESS EITHER (I) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL, IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT
REGISTRATION IS NOT REQUIRED IN CONNECTION WITH SUCH DISPOSITION OR (II) THE
SALE OF SUCH SECURITIES IS MADE PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE ACT.
WARRANT TO PURCHASE 1,750,000 SHARES OF COMMON STOCK,
PAR VALUE $0.001 PER SHARE,
OF
VISIJET, INC.
NO. W-2
THIS CERTIFIES THAT, for value received, PCL ASSOCIATES, LLC, or its
permitted registered assigns (the "HOLDER"), is entitled, subject to the terms
and conditions of this Warrant, at any time or from time to time after the
relevant effective date described herein, and before 5:00 p.m. Pacific Time on
the Expiration Date (as hereinafter defined), to purchase from VisiJet, Inc., a
California corporation (the "COMPANY"), One Million Seven Hundred and Fifty
Thousand (1,750,000) shares of Common Stock at a price per share equal to the
Purchase Price (as hereinafter defined). Both the number of shares of Common
Stock purchasable upon exercise of this Warrant and the Purchase Price are
subject to adjustment and change as provided herein. This Warrant is issued
pursuant to that certain Common Stock and Warrant Purchase Agreement, dated as
of November 27, 2002 (the "PURCHASE AGREEMENT"), between the Company and the
Holder. Unless otherwise provided for herein, all capitalized terms in this
Warrant shall have the meanings set forth in the Purchase Agreement. The shares
issuable upon the exercise hereof shall be considered "Registrable Shares", as
such term is defined in Registration Rights Agreement (as hereinafter defined).
1. CERTAIN DEFINITIONS. As used in this Warrant, the following terms
shall have the following respective meanings:
"AMENDMENT" means an amendment, if required, to the Company's
Certificate of Incorporation increasing the number of authorized shares of
Common Stock by at least such number of shares as shall be sufficient to permit
exercise in full of this Warrant.
"COMMON STOCK" means the common stock, par value $0.001 per share, of
the Company and any other securities at any time receivable or issuable upon
exercise of this Warrant.
"EXPIRATION DATE" shall mean the fifth anniversary of the Merger
Effective Time.
"FAIR MARKET VALUE" of a share of Common Stock as of a particular date
means the average of the closing prices of sales of Common Stock on all United
Sates securities exchanges on which the Common Stock may at the time be listed,
or, if there have been no sales on any such exchange on any day, the average of
the highest bid and lowest asked prices on all such exchanges at the end of such
day, or, if on any day the Common Stock is not so listed, the average of the
representative bid and asked prices quoted by the Nasdaq Stock Market, Inc.
("Nasdaq") as of 4:00 P.M., New York time, on such day, or, if on any day such
security is not quoted by the Nasdaq, the average of the representative bid and
asked prices quoted on such other electronic communications network (an "ECN")
on which the Common Stock shall then be quoted as of 4:00 P.M., New York time,
on such day, or, if on any day such security is not quoted by any ECN, the
average of the highest bid and lowest asked prices on such day in the domestic
over-the-counter market as reported by the National Quotation Bureau,
Incorporated, or any similar or successor organization, in each such case
averaged over a period of 21 days consisting of the day as of which "Fair Market
Value" is being determined and the 20 consecutive business days prior to such
day; provided, that if there is no active public market, the Fair Market Value
shall be the value thereof, as agreed upon by the Company and the Holder;
PROVIDED, FURTHER, HOWEVER, that if the Company and the Holder cannot agree on
such value, such value shall be determined by an independent valuation firm
experienced in valuing businesses such as the Company and jointly selected in
good faith by the Company and the Holder. Fees and expenses of the valuation
firm shall be paid for by the Company.
"INITIAL EFFECTIVE DATE" shall mean the date of the Merger Effective
Time.
"MERGER EFFECTIVE TIME" means the Effective Time, as defined in the
Second Amended and Restated Agreement and Plan of Merger, dated as of December
20, 2002, among Ponte Nossa Acquisition Corp., a Delaware corporation, VisiJet
Acquisition Corporation, a California corporation, and the Company.
"PURCHASE PRICE" means $1.00 per share; provided, that, the "Purchase
Price" shall automatically increase by $0.50 on the second anniversary of the
Merger Effective Time and each anniversary thereof.
"REGISTERED HOLDER" means any Holder in whose name this Warrant is
registered upon the books and records maintained by the Company.
"STOCKHOLDER VOTE" means the approval by the Company's stockholders of
the Amendment.
"SUBSEQUENT EFFECTIVE DATE" shall mean initially the first anniversary
of the Merger Effective Time, provided, however, that the Holder, by written
notice to the Company on or prior to the Subsequent Effective Date, may on two
occasions delay the Subsequent Effective Date from the date determined pursuant
to this definition to the date six months following the theretofore scheduled
Subsequent Effective Date. For purposes of this Warrant, the Subsequent
Effective Date shall be such earlier date or, if such notice or notices should
be delivered, such later date, as applicable.
2
"WARRANT" means this Warrant and any warrant delivered in substitution
or exchange therefor as provided
herein.
2. EXERCISE OF WARRANT.
2.1 PAYMENT. Subject to compliance with the terms and
conditions of this Warrant and applicable securities laws, this Warrant may be
exercised, with respect to 750,000 shares of Common Stock only, in whole or in
part at any time or from time to time, commencing on the later of the Initial
Effective Date and the Stockholder Vote and with respect to the remaining
1,000,000 shares of Common Stock, in whole or in part at any time or from time
to time, commencing on the Subsequent Effective Date and terminating on or
before the Expiration Date by the delivery (including, without limitation,
delivery by facsimile) of the form of Notice of Exercise attached hereto as
EXHIBIT 1 (the "NOTICE OF EXERCISE"), duly executed by the Holder, at the
principal office of the Company, and as soon as practicable after such date (the
"EXERCISE DATE"), surrendering
(a) this Warrant at the principal office of the
Company, and
(b) payment, (i) in cash (by check) or by wire
transfer, (ii) by cancellation by the Holder of indebtedness of the Company to
the Holder; or (iii) by a combination of (i) and (ii), of an amount equal to the
product obtained by multiplying the number of shares of Common Stock being
purchased upon such exercise by the then effective Purchase Price (the "EXERCISE
AMOUNT").
2.2 NET ISSUE EXERCISE. In lieu of the payment methods set
forth in Section 2.1(b) above, the Holder may elect to exchange all or some of
the Warrant for a number of shares (rounded down to the nearest whole share) of
Common Stock equal to the value of the amount of the Warrant being exchanged on
the date of exchange. If the Holder elects to exchange this Warrant as provided
in this Section 2.2, the Holder shall tender to the Company the Warrant with
written notice of the Holder's election to exchange some or all of the Warrant,
and the Company shall issue to the Holder the number of shares (rounded down to
the nearest whole share) of the Common Stock computed as of the date of
surrender of this Warrant to the Company using the following formula:
X = Y (A-B)
-------
A
Where:
X = the number of shares of Common Stock to be issued to the
Holder;
Y = the number of shares of Common Stock purchasable under
the portion of the Warrant being exchanged (as adjusted
to the date of such calculation);
A = the Fair Market Value of one share of the Company's
Common Stock on the date the net issue election is made
pursuant to Section 2.2; and
B = Purchase Price in effect under this Warrant on the
date the net issue election is made pursuant to Section
2.2.
3
All references herein to an "exercise" of the Warrant shall include an
exchange pursuant to this Section 2.2.
2.3 REDEMPTION OPTION. If the Amendment has not become
effective within six months of the date hereof, in lieu of the exercising this
Warrant pursuant to Section 2.1 or 2.2, the Holder may require the Company to
redeem all or some of the Warrant for an amount equal to the value of the amount
of the Warrant being redeemed. If the Holder elects to require redemption of
this Warrant as provided in this Section 2.3, the Holder shall tender to the
Company the Warrant with written notice of the Holder's election, and the
Company shall purchase from the Holder such portion of the Warrant as is
specified by the Holder for the price computed as of the date of surrender of
this Warrant to the Company using the following formula:
X = Y (A-B)
-------
Where:
X = Aggregate Purchase Price;
Y = the number of shares of Common Stock purchasable under
the portion of the Warrant being redeemed (as adjusted
to the date of such calculation);
A = the Fair Market Value of one share of the Company's
Common Stock on the date the election is made pursuant
to Section 2.3; and
B = Purchase Price in effect under this Warrant on the
date the election is made pursuant to Section 2.3.
All references herein to an "exercise" of the Warrant shall include a
redemption pursuant to this Section 2.3.
2.4 STOCK CERTIFICATES; FRACTIONAL SHARES. On or before the
third (3rd) business day following the Exercise Date, the Company shall issue
and deliver to the person or persons entitled to receive the same a certificate
or certificates for the number of whole shares of Common Stock issuable upon
such exercise, rounded down to the nearest whole share. No fractional shares or
scrip representing fractional shares shall be issued upon an exercise of this
Warrant.
2.5 PARTIAL EXERCISE; DATE OF EXERCISE. In case of any partial
exercise of this Warrant, the Company shall cancel this Warrant upon surrender
hereof and shall execute and deliver a new Warrant of like tenor and date for
the balance of the shares of Common Stock purchasable hereunder. This Warrant
shall be deemed to have been exercised immediately prior to the close of
business on the date of its surrender for exercise as provided above. The person
entitled to receive the shares of Common Stock issuable upon exercise of this
Warrant shall be treated for all purposes as the holder of record of such shares
as of the close of business on the date the Holder is deemed to have exercised
this Warrant.
3. VALID ISSUANCE: TAXES. All shares of Common Stock issued upon the
exercise of this Warrant shall be validly issued, fully paid and non-assessable,
free and clear of all liens, security interests, charges and other encumbrances
4
or restrictions on sale and free and clear of all preemptive rights, except
encumbrances or restrictions arising under federal or state securities laws, and
the Company shall pay all transfer or stamp taxes and other similar governmental
charges that may be imposed in respect of the issue or delivery thereof. The
Company shall not be required to pay any tax or other charge imposed in
connection with any transfer involved in the issuance of any certificate for
shares of Common Stock in any name other than that of the Registered Holder of
this Warrant, and in such case the Company shall not be required to issue or
deliver any stock certificate or security until such tax or other charge has
been paid, or it has been established to the Company's reasonable satisfaction
that no tax or other charge is due.
4. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES. The number of
shares of Common Stock issuable upon exercise of this Warrant (or any shares of
stock or other securities or property receivable or issuable upon exercise of
this Warrant) and the Purchase Price are subject to adjustment upon occurrence
of the following events:
4.1 ADJUSTMENT FOR STOCK SPLITS, STOCK SUBDIVISIONS OR
COMBINATIONS OF SHARES. The Purchase Price of this Warrant shall be
proportionally decreased and the number of shares of Common Stock issuable upon
exercise of this Warrant (or any shares of stock or other securities at the time
issuable upon exercise of this Warrant) shall be proportionally increased to
reflect any stock split or subdivision of the Company's Common Stock. The
Purchase Price of this Warrant shall be proportionally increased and the number
of shares of Common Stock issuable upon exercise of this Warrant (or any shares
of stock or other securities at the time issuable upon exercise of this Warrant)
shall be proportionally decreased to reflect any combination of the Company's
Common Stock.
4.2 ADJUSTMENT FOR DIVIDENDS OR DISTRIBUTIONS OF STOCK OR
OTHER SECURITIES OR PROPERTY. In case the Company shall make or issue, or shall
fix a record date for the determination of eligible holders entitled to receive,
a dividend or other distribution with respect to the Common Stock (or any shares
of stock or other securities at the time issuable upon exercise of the Warrant)
payable in (a) securities of the Company or (b) assets (excluding cash dividends
paid or payable solely out of retained earnings), then, in each such case, the
Holder of this Warrant on exercise hereof at any time after the consummation,
effective date or record date of such dividend or other distribution, shall
receive, in addition to the shares of Common Stock (or such other stock or
securities) issuable on such exercise prior to such date, and without the
payment of additional consideration therefor, the securities or such other
assets of the Company to which such Holder would have been entitled upon such
date if such Holder had exercised this Warrant on the date hereof and had
thereafter, during the period from the date hereof to and including the date of
such exercise, retained such shares and/or all other additional stock available
by it as aforesaid during such period giving effect to all adjustments called
for by this Section 4.
4.3 RECLASSIFICATION. If the Company, by reclassification of
securities or otherwise, shall change any of the securities as to which purchase
rights under this Warrant exist into the same or a different number of
securities of any other class or classes, this Warrant shall thereafter
represent the right to acquire such number and kind of securities as would have
been issuable as the result of such change with respect to the securities that
were subject to the purchase rights under this Warrant immediately prior to such
reclassification or other change and the Purchase Price therefore shall be
appropriately adjusted, all subject to further adjustment as provided in this
Section 4.
5
4.4 ADJUSTMENT FOR CAPITAL REORGANIZATION, MERGER OR
CONSOLIDATION. In case of any capital reorganization of the capital stock of the
Company (other than a combination, reclassification, exchange or subdivision of
shares otherwise provided for in this Section 4), or any merger or consolidation
of the Company with or into another corporation, or the sale of all or
substantially all the assets of the Company then, and in each such case, and as
a part of such reorganization, merger, consolidation, sale or transfer, lawful
provision shall be made so that the Holder of this Warrant shall thereafter be
entitled to receive upon exercise of this Warrant, upon payment of the Purchase
Price then in effect, the number of shares of stock or other securities or
property of the successor corporation resulting from such reorganization,
merger, consolidation, sale or transfer that a holder of the shares deliverable
upon exercise of this Warrant would have been entitled to receive in such
reorganization, consolidation, merger, sale or transfer if this Warrant had been
exercised immediately before such reorganization, merger, consolidation, sale or
transfer, all subject to further adjustment as provided in this Section 4. The
foregoing provisions of this Section 4.4 shall similarly apply to successive
reorganizations, consolidations, mergers, sales and transfers and to the stock
or securities of any other corporation that are at the time receivable upon the
exercise of this Warrant. If the per-share consideration payable to the Holder
hereof for shares in connection with any such transaction is in a form other
than cash or marketable securities, then the value of such consideration shall
be determined in good faith by the Company's Board of Directors. In all events,
appropriate adjustment (as determined in good faith by the Company's Board of
Directors) shall be made in the application of the provisions of this Warrant
with respect to the rights and interests of the Holder after the transaction, to
the end that the provisions of this Warrant shall be applicable after that
event, as near as reasonably may be, in relation to any shares or other property
deliverable after that event upon exercise of this Warrant.
4.5 COMPANY TO PREVENT DILUTION The Company shall not by any
action, including, without limitation, amending its articles of incorporation or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issuance 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
Warrant, 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 may be necessary or
appropriate to protect the rights of the Holder against impairment. Without
limiting the generality of the foregoing, Company will take all such action as
may be necessary or appropriate in order that Company may upon the exercise of
this Warrant validly and legally issue fully paid and nonassessable shares of
Common Stock that are not subject to preemptive rights, including taking such
action as is necessary for the Purchase Price to be not less than the par value
of the shares of Common Stock issuable upon exercise of this Warrant.
4.6 CONVERSION OF COMMON STOCK. In case all or any portion of
the authorized and outstanding shares of Common Stock of the Company are
redeemed or converted or reclassified into other securities or property pursuant
to the Company's Certificate of Incorporation or otherwise, or the Common Stock
otherwise ceases to exist, then, in such case, the Holder of this Warrant, upon
exercise hereof at any time after the date on which the Common Stock is so
redeemed or converted, reclassified or ceases to exist (the "TERMINATION DATE"),
shall receive, in lieu of the number of shares of Common Stock that would have
been issuable upon such exercise immediately prior to the Termination Date, the
securities or property that would have been received if this Warrant had been
exercised in full and the Common Stock received thereupon had been
simultaneously converted immediately prior to the Termination Date, all subject
to further adjustment as provided in this Warrant. Additionally, the Purchase
Price shall be immediately adjusted to equal the quotient obtained by dividing
6
(x) the aggregate Purchase Price of the maximum number of shares of Common Stock
for which this Warrant was exercisable immediately prior to the Termination Date
by (y) the number of shares of Common Stock of the Company for which this
Warrant is exercisable immediately after the Termination Date, all subject to
further adjustment as provided herein.
5. CERTIFICATE AS TO ADJUSTMENTS. In each case of any adjustment in the
Purchase Price, or number or type of shares issuable upon exercise of this
Warrant, the Chief Financial Officer of the Company shall compute such
adjustment in accordance with the terms of this Warrant and prepare a
certificate setting forth such adjustment and showing in detail the facts upon
which such adjustment is based, including a statement of the adjusted Purchase
Price. The Company shall promptly send (by facsimile and by either first class
mail, postage prepaid or overnight delivery) a copy of each such certificate to
the Holder.
6. LOSS OR MUTILATION. Upon receipt of evidence reasonably satisfactory
to the Company of the ownership of and the loss, theft, destruction or
mutilation of this Warrant, and of indemnity reasonably satisfactory to it, and
(in the case of mutilation) upon surrender and cancellation of this Warrant, the
Company will execute and deliver in lieu thereof a new Warrant of like tenor as
the lost, stolen, destroyed or mutilated Warrant.
7. RESERVATION OF COMMON STOCK. The Company covenants that it will take
all necessary and desirable actions within its control (including, without
limitation, calling special meetings of the Company's stockholders and Board of
Directors) to cause the Stockholders to approve the Amendment. The Company
hereby covenants that at all times after the Stockholder Vote, there shall be
reserved for issuance and delivery upon exercise of this Warrant such number of
shares of Common Stock or other shares of capital stock of the Company as are
from time to time issuable upon exercise of this Warrant and, from time to time,
will take all steps necessary to amend its Certificate of Incorporation to
provide sufficient reserves of shares of Common Stock issuable upon exercise of
this Warrant. All such shares shall be duly authorized, and when issued upon
such exercise, shall be validly issued, fully paid and non-assessable, free and
clear of all liens, security interests, charges and other encumbrances or
restrictions on sale and free and clear of all preemptive rights, except
encumbrances or restrictions arising under federal or state securities laws.
Issuance of this Warrant shall constitute full authority to the Company's
officers who are charged with the duty of executing stock certificates to
execute and issue the necessary certificates for shares of Common Stock upon the
exercise of this Warrant.
8. TRANSFER AND EXCHANGE. Subject to the terms and conditions of this
Warrant and compliance with all applicable securities laws, this Warrant and all
rights hereunder (and any shares of Common Stock acquired on exercise of the
Warrant) may be transferred, in whole or in part, only (a) to one or more of its
affiliates if such affiliate is an "accredited investor" under Regulation D
under the Securities Act and agrees to be bound by the terms and obligations of
this Warrant and the Agreement, (b) in a sale effectuated pursuant to Rule 144
promulgated under the Securities Act, (c) in an offering registered under
Section 5 of the Securities Act, or (d) in a private transaction otherwise
exempt from registration under the Securities Act. Any such transfer shall be
made on the books of the Company maintained for such purpose at the principal
office of the Company referred to above, by the Registered Holder hereof in
person, or by duly authorized attorney, upon surrender of this Warrant properly
endorsed and upon payment of any necessary transfer tax or other governmental
charge imposed upon such transfer. Upon any permitted partial transfer of the
7
Warrant, the Company will issue and deliver to the Registered Holder a new
Warrant or Warrants with respect to the shares of Common Stock not so
transferred. Each taker and holder of this Warrant, by taking or holding the
same, consents and agrees that when this Warrant shall have been so endorsed,
the person in possession of this Warrant may be treated by the Company, and all
other persons dealing with this Warrant, as the absolute owner hereof for any
purpose and as the person entitled to exercise the rights represented hereby,
any notice to the contrary notwithstanding; PROVIDED, HOWEVER, that until a
transfer of this Warrant is duly registered on the books of the Company, the
Company may treat the Registered Holder hereof as the owner for all purposes.
Upon any full or partial transfer of the Warrant or the shares of Common Stock
acquired on exercise of the Warrant pursuant to clause (b) or clause (c) of the
first sentence of this Section 9.1, all restrictions applicable to the transfer
of the Warrant or such Common Stock, or portion thereof, so transferred shall
cease.
9. SECURITIES LAW RESTRICTIONS ON TRANSFER. The Holder, by acceptance
hereof, agrees that, absent an effective registration statement filed with the
SEC under the Securities Act covering the disposition or sale of this Warrant or
the Common Stock issued or issuable upon exercise hereof, and registration or
qualification under applicable state securities laws, such Holder will not sell,
transfer, pledge, or hypothecate any or any portion of this Warrant or Common
Stock, as the case may be, unless either (i) the Company has received an opinion
of counsel, in form and substance reasonably satisfactory to the Company, to the
effect that such registration is not required in connection with such
disposition or (ii) the sale of such securities is made pursuant to Rule 144.
10. COMPLIANCE WITH SECURITIES LAWS. By acceptance of this Warrant, the
Holder hereby represents, warrants and covenants that any shares of Common Stock
purchased upon exercise of this Warrant or acquired upon conversion thereof
shall be acquired not with a view to, or for sale in connection with, any
distribution thereof; that the Holder has had such opportunity as such Holder
has deemed adequate to obtain from representatives of the Company such
information as is necessary to permit the Holder to evaluate the merits and
risks of its investment in the Company; that the Holder is able to bear the
economic risk of holding such shares as may be acquired pursuant to the exercise
of this Warrant for an indefinite period; that the Holder understands that the
shares of Common Stock acquired pursuant to the exercise of this Warrant will
not be registered under the Securities Act (unless otherwise required pursuant
to the Registration Rights Agreement) and will be "restricted securities" within
the meaning of Rule 144 under the Securities Act and that the exemption from
registration under Rule 144 will not be available for at least one year from the
date of exercise of this Warrant, subject to any special treatment by the SEC
for exercise of this Warrant pursuant to Section 2.2, and even then will not be
available unless a public market then exists for the Common Stock, adequate
information concerning the Company is then available to the public, and other
terms and conditions of Rule 144 are complied with; and that all stock
certificates representing shares of Common Stock issued to the Holder upon
exercise of this Warrant may have affixed thereto a legend substantially in the
following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR WITH ANY
STATE SECURITIES COMMISSION, AND MAY NOT BE TRANSFERRED OR DISPOSED OF
BY THE HOLDER IN THE ABSENCE OF A REGISTRATION STATEMENT WHICH IS
EFFECTIVE UNDER THE ACT AND APPLICABLE STATE LAWS AND RULES, OR,
8
UNLESS, IMMEDIATELY PRIOR TO THE TIME SET FOR TRANSFER, SUCH TRANSFER
MAY BE EFFECTED WITHOUT VIOLATION OF THE ACT AND OTHER APPLICABLE STATE
LAWS AND RULES.
In addition, the Holder agrees that the Company may place stop transfer orders
with its transfer agents with respect to such certificates. Notwithstanding the
foregoing, it is agreed that, as long as (A) the resale or transfer (including
without limitation a pledge) of Warrant Shares is registered pursuant to an
effective registration statement and the Holder represents in writing to the
Company that such Warrant Shares have been or are being sold pursuant to such
registration statement, (B) such Warrant Shares have been publicly sold pursuant
to Rule 144 and the Holder has delivered to the Company customary Rule 144
broker's and seller's representation letters, or (C) such Warrant Shares can be
publicly sold pursuant to Rule 144(k) under the Securities Act or another
exemption from the registration requirements of such Act, such Warrant Shares,
as the case may be, shall be issued without any legend or other restrictive
language and, with respect to Warrant Shares upon which such legend is stamped,
the Company shall issue new certificates without such legend to the holder
promptly upon request.
11. NO RIGHTS OR LIABILITIES AS STOCKHOLDERS. This Warrant shall not
entitle the Holder to any voting rights or other rights as a stockholder of the
Company. In the absence of affirmative action by such Holder to purchase Common
Stock by exercise of this Warrant, no provisions of this Warrant, and no
enumeration herein of the rights or privileges of the Holder hereof shall cause
such Holder hereof to be a stockholder of the Company for any purpose.
12. NOTICES. All notices and other communications from the Company to
the Holder shall be given in accordance with the Agreement.
13. HEADINGS. The headings in this Warrant are for purposes of
convenience in reference only, and shall not be deemed to constitute a part
hereof.
14. LAW GOVERNING. This Warrant shall be construed and enforced in
accordance with, and governed by, the laws of the State of Delaware, without
giving effect to principles of conflicts of laws.
15. NO IMPAIRMENT. The Company will not, by amendment of its
Certificate of Incorporation or bylaws, or through reorganization,
consolidation, merger, dissolution, issue or sale of securities, sale of assets
or any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all times in good
faith assist in the carrying out of all such terms and in the taking of all such
action as may be necessary or appropriate in order to protect the rights of the
Registered Holder of this Warrant against impairment. Without limiting the
generality of the foregoing, the Company (a) will not increase the par value of
any shares of stock issuable upon the exercise of this Warrant above the amount
payable therefor upon such exercise, and (b) will take all such action as may be
necessary or appropriate in order that the Company may validly and legally issue
fully paid and non-assessable shares of Common Stock upon exercise of this
Warrant.
9
16. NOTICES OF RECORD DATE. In case:
16.1 the Company shall take a record of the holders of its
Common Stock (or other stock or securities at the time receivable upon the
exercise of this Warrant), for the purpose of entitling them to receive any
dividend or other distribution, or any right to subscribe for or purchase any
shares of stock of any class or any other securities or to receive any other
right; or
16.2 of any consolidation or merger of the Company with or
into another corporation, any capital reorganization of the Company, any
reclassification of the capital stock of the Company, or any conveyance of all
or substantially all of the assets of the Company to another corporation in
which holders of the Company's stock are to receive stock, securities or
property of another corporation; or
16.3 of any voluntary dissolution, liquidation or winding-up
of the Company; or
16.4 of any redemption or conversion of all outstanding Common
Stock;
then, and in each such case, the Company will mail or
cause to be mailed to the Registered Holder of this
Warrant a notice specifying, as the case may be, (i) the
date on which a record is to be taken for the purpose of
such dividend, distribution or right, or (ii) the date on
which such reorganization, reclassification,
consolidation, merger, conveyance, dissolution,
liquidation, winding-up, redemption or conversion is to
take place, and the time, if any is to be fixed, as of
which the holders of record of Common Stock (or such stock
or securities as at the time are receivable upon the
exercise of this Warrant) shall be entitled to exchange
their shares of Common Stock (or such other stock or
securities), for securities or other property deliverable
upon such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or
winding-up. Such notice shall be delivered at least twenty
(20) days prior to the date therein specified.
17. SEVERABILITY. If any term, provision, covenant or restriction of
this Warrant is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be effected, impaired or invalidated.
18. COUNTERPARTS. For the convenience of the parties, any number of
counterparts of this Warrant may be executed by the parties hereto and each such
executed counterpart shall be, and shall be deemed to be, an original
instrument.
19. NO INCONSISTENT AGREEMENTS. The Company will not on or after the
date of this Warrant enter into any agreement with respect to its securities
which is inconsistent with the rights granted to the Holder of this Warrant or
otherwise conflicts with the provisions hereof. The rights granted to the Holder
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to holders of the Company's securities under any other
agreements, except rights that have been waived.
10
20. SATURDAYS, SUNDAYS AND HOLIDAYS. If the Expiration Date falls on a
Saturday, Sunday or legal holiday, the Expiration Date shall automatically be
extended until 5:00 p.m. the next business day.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
11
IN WITNESS WHEREOF, the parties hereto have executed this Warrant as of the 11th
day of February, 2003.
_______________________________________ VISIJET, INC.
PCL ASSOCIATES, LLC
By: /S/ XXXXX XXXXXXX
By:____________________________________ -------------------
Name: XXXXX XXXXXXX
Name:__________________________________ ---------------
Title: President
Title:_________________________________
SIGNATURE PAGE TO WARRANT
EXHIBIT 1
---------
NOTICE OF EXERCISE
------------------
(TO BE EXECUTED UPON EXERCISE OF WARRANT)
VISIJET, INC. WARRANT NO. 2
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant for, and to purchase thereunder, the
securities of VisiJet, Inc., as provided for therein, and (check the applicable
box):
|_| Tenders herewith payment of the exercise price in full in the form
of cash or a certified or official bank check in same-day funds in the amount of
$____________ for _________ shares of such securities.
|_| Elects the Net Issue Exercise option pursuant to Section 2.2 of the
Warrant, and accordingly requests delivery of a net of ______________ shares of
such securities, according to the following calculation:
X = Y (A-B) ( ) = (____) [(_____) - (_____)]
------- (_____)
A
Where:
X = the number of shares of Common Stock to be issued to the
Holder;
Y = the number of shares of Common Stock purchasable under
the portion of the Warrant being exchanged (as adjusted to
the date of such calculation);
A = the Fair Market Value of one share of the Company's
Common Stock on the date the net issue election is made
pursuant to Section 2.2; and
B = Purchase Price in effect under this Warrant on the date
the net issue election is made pursuant to Section 2.2.
Please issue a certificate or certificates for such securities in the
name of, and pay any cash for any fractional share to (please print name,
address and taxpayer identification number):
Name:____________________________________________________
Address:_________________________________________________
Taxpayer Identification Number:__________________________
Signature:_______________________________________________
Note: The above signature should correspond exactly with the name on
the first page of this Warrant or with the name of the assignee appearing in the
assignment form below.
If said number of shares shall not be all the shares purchasable under
the within Warrant, a new Warrant is to be issued in the name of said
undersigned for the balance remaining of the shares purchasable thereunder
rounded up to the next higher whole number of shares.
EXHIBIT 2
---------
ASSIGNMENT
----------
(TO BE EXECUTED ONLY UPON ASSIGNMENT OF WARRANT) WARRANT NO. 2
For value received, the undersigned hereby sells, assigns and transfers unto
________________ the within Warrant, together with all right, title and interest
therein, and does hereby authorize _____________ to transfer said Warrant on the
books of VisiJet, Inc. with respect to the number of shares set forth below,
with full power of substitution in the premises:
----------------------------- ------------------------------- ------------------
NAME(S) OF ASSIGNEE(S) ADDRESS # OF SHARES
----------------------------- ------------------------------- ------------------
----------------------------- ------------------------------- ------------------
----------------------------- ------------------------------- ------------------
----------------------------- ------------------------------- ------------------
----------------------------- ------------------------------- ------------------
----------------------------- ------------------------------- ------------------
If said number of shares shall not be all the shares represented by the
Warrant, a new Warrant is to be issued in the name of said undersigned for the
balance remaining of the shares covered by said Warrant.
Dated:_________________________________________
Signature:_____________________________________
Notice: The signature to the foregoing Assignment must correspond to
the name as written upon the face of this security in every particular, without
alteration or any change whatsoever; signature(s) must be guaranteed by an
eligible guarantor institution (banks, stock brokers, savings and loan
associations and credit unions with membership in an approved signature
guarantee medallion program) pursuant to Securities and Exchange Commission Rule
17Ad-15.
