Contract
Exhibit
4.4
THIS
WARRANT AND ANY SHARES OF COMMON STOCK ISSUED UPON EXERCISE HEREOF HAVE NOT
BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE AFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL THAT
SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
WARRANT
TO PURCHASE
____________
SHARES
OF
COMMON STOCK
(SUBJECT
TO ADJUSTMENT)
(Void
after ______, 2011)
No:
I6W-__
This
certifies that for value, _______________________________, or registered assigns
(the “Holder”),
is
entitled, subject to the terms set forth below, at any time from and after
______ _, 2006 (the “Original Issuance
Date”)
and
before 5:00 p.m., Eastern Time, on ________, 2011 (the “Expiration
Date”),
to
purchase from FBO
Air, Inc.,
a
Nevada corporation (the “Company”),
__________________________ (______) shares (subject to adjustment as described
herein), of common stock, par value $0.001 per share, of the Company (the
“Common
Stock”),
upon
surrender hereof, at the principal office of the Company referred to below,
with
a duly executed subscription form in the form attached hereto as Exhibit A
and
simultaneous payment therefor in lawful, immediately available money of the
United States or otherwise as hereinafter provided, at an initial exercise
price
per share of $1.00
(the
“Purchase
Price”)
The
Purchase Price is subject to further adjustment as provided below, and the
term
“Common
Stock”
shall
include, unless the context otherwise requires, the stock and other securities
and property at the time receivable upon the exercise of this Warrant. The
term
“Warrant,”
as
used herein, shall mean this Warrant and any other Warrants delivered in
substitution or exchange therefor as provided herein. The term “Warrants”
as
used
herein, shall mean the Warrant and any other Warrants issued in the Offering
(as
such term is defined in the succeeding paragraph).
This
Warrant was issued in connection with the Company’s private placement offering
(the “Offering”)
of its
units (the “Units”),
as
described in greater detail in the Company’s Confidential Information
Memorandum, dated July 24, 2006, as
amended or supplemented from time to time
(the
“Memorandum”).
In
the Offering, the Company sold its securities to “accredited investors” pursuant
to Subscription Agreements (the “Subscription
Agreements”).
E-1
1. Exercise.
This
Warrant may be exercised at any time or from time to time from and after the
Original Issuance Date and before 5:00 p.m., Eastern Time, on the Expiration
Date, on any Business
Day (as
hereinafter defined), for the full number of shares of the Common Stock called
for hereby, by surrendering it at the principal office of the Company (currently
000 Xxxxxx Xxxx, Xxxxxx-Xxxxx/Xxxxxxxx International Airport, Avoca,
Pennsylvania 18641) with the subscription form duly executed, together with
payment in an amount equal to (a) the number of shares of the Common Stock
called for on the face of this Warrant, as adjusted in accordance with Section
4
of this Warrant (without giving effect to any further adjustment herein),
multiplied (b) by the Purchase Price. Payment of the Purchase Price shall
be made by payment in immediately available funds. This Warrant may be exercised
for less than the full number of shares of the Common Stock at the time called
for hereby, except that the number of shares of the Common Stock receivable
upon
the exercise of this Warrant as a whole, and the sum payable upon the exercise
of this Warrant as a whole, shall be proportionately reduced. Upon a partial
exercise of this Warrant in accordance with the terms hereof, this Warrant
shall
be surrendered, and a new Warrant of the same tenor and for the purchase of
the
number of such shares not purchased upon such exercise shall be issued by the
Company to Holder without any charge therefor. A 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, and the person entitled to receive
the
shares of the Common Stock issuable upon such exercise shall be treated for
all
purposes as the holder of such shares of record as of the close of business
on
such date. Within three (3) Business Days after such 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 full shares of the Common Stock
issuable upon such exercise, together with cash, in lieu of any fraction of
a
share, equal to such fraction of the then Market Price during the five (5)
consecutive Trading Days preceding the date of exercise of one (1) full share
of
the Common Stock.
For
purposes of this Warrant, “Business
Day”
shall
mean any day other than Saturday, Sunday or any day on which state chartered
banks are not obligated to open in Avoca, Pennsylvania or such other place
in
which the Company’s headquarters office may then be located.
For
purposes of this Warrant, (i) “Market
Price”
is
defined as the Closing Price per share of the Common Stock on the principal
Trading Market on which the Common Stock is included for trading; provided,
that if
there is no trading in the Common Stock on a particular Trading Day on the
relevant principal Trading Market, the Market Price for that day shall be the
Market Price on the last preceding Trading Day on which there was trading in
the
Common Stock on the principal Trading Market, (ii) “Closing
Price”
means
on any particular date (a) the last reported closing price per share of the
Common Stock on such date on the Trading Market (as reported by Bloomberg L.P.
at 4:15 p.m. (New York time) as the last reported closing price for regular
session trading on such day), or (b) if there is no such price on such
date, then the closing price on the Trading Market on the date nearest preceding
such date (as reported by Bloomberg L.P. at 4:15 p.m. (New York time) as
the closing price for regular session trading on such day), or (c) if the
Common Stock is not then listed or quoted on the Trading Market and if prices
for the Common Stock are then reported in the “pink sheets” published by the
Pink Sheets LLC (or a similar organization or agency succeeding to its functions
of reporting prices), the most recent price per share of the Common Stock so
reported, or (d) if the shares of Common Stock are not then publicly traded
the fair market value of a share of Common Stock as determined in good faith
by
the Board of Directors of the Company; (iii) “Trading
Day”
means
(a) a day on which the Common Stock is traded on a Trading Market, or
(b) if the Common Stock is not quoted on a Trading Market, a day on which
the Common Stock is quoted in the over-the-counter market as reported by the
Pink Sheets LLC (or any similar organization or agency succeeding to its
functions of reporting price); provided, that in the event that the Common
Stock
is not listed or quoted as set forth in (a), and (b) hereof, then Trading
Day shall mean a Business Day; and (iv) “Trading
Market”
means
the following markets or exchanges on which the Common Stock is listed or quoted
for trading on the date in question: the OTC Bulletin Board, the American Stock
Exchange, the New York Stock Exchange, the Nasdaq National Market or the Nasdaq
SmallCap Market.
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2. Shares
Fully Paid; Payment of Taxes.
All
shares of the Common Stock issued upon the exercise of this Warrant shall be
validly issued, fully paid and non-assessable, and the Company shall pay all
taxes and other governmental charges (other than income taxes to the Holder)
that may be imposed in respect of the issue or delivery thereof.
3. Transfer
and Exchange.
This
Warrant and all rights hereunder are transferable, in whole or in part, on
the
books of the Company maintained for such purpose at its principal office
referred to above by Holder in person or by duly authorized attorney, upon
surrender of this Warrant together with a completed and executed assignment
form
in the form attached as Exhibit B,
payment
of any necessary transfer tax or other governmental charge imposed upon such
transfer and an opinion of counsel reasonably acceptable to the Company stating
that such transfer is exempt from the registration requirements of the
Securities Act of 1933, as amended (the “1933
Act”).
Upon
any partial transfer, the Company will issue and deliver to Holder a new Warrant
or Warrants with respect to the shares of the Common Stock not so transferred.
Each taker and holder of this Warrant, by taking or holding the same, consents
and agrees that this Warrant when endorsed in blank shall be deemed negotiable
and that, when this Warrant shall have been so endorsed, the holder hereof
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, or to the transfer hereof on the books of the
Company, any notice to the contrary notwithstanding; but until such transfer
on
such books, the Company may treat the registered Holder hereof as the owner
for
all purposes.
This
Warrant is exchangeable at such office for Warrants for the same aggregate
number of shares of the Common Stock, each new Warrant to represent the right
to
purchase such number of shares as the Holder shall designate at the time of
such
exchange.
4. Anti-Dilution
Provisions.
A. Adjustment
for Dividends in Other Stock and Property Reclassifications.
In case
at any time or from time to time the holders of the Common Stock (or any shares
of stock or other securities at the time receivable upon the exercise of this
Warrant) shall have received, or, on or after the record date fixed for the
determination of eligible stockholders, shall have become entitled to receive,
without payment therefor,
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(1) other
or
additional stock or other securities or property (other than cash) by way of
dividend,
(2) any
cash
or other property paid or payable out of any source other than retained earnings
(determined in accordance with generally accepted accounting principles),
or
(3) other
or
additional stock or other securities or property (including cash) by way of
stock-split, spin-off, reclassification, combination of shares or similar
corporate rearrangement (other than (x) additional shares of the Common Stock
or
any other stock or securities into which such Common Stock shall have been
changed, (y) any other stock or securities convertible into or exchangeable
for
such Common Stock or such other stock or securities or (z) any stock purchase
rights, issued as a stock dividend or stock-split, adjustments in respect of
which shall be covered by the terms of Section 4.C,
Section
4.D
or Section
4.E,
then
and in each such case, the Holder, upon the exercise hereof as provided in
Section 1,
shall
be entitled to receive the amount of stock and other securities and property
(including cash in the cases referred to in clauses (2) and (3) above) which
such Holder would hold on the date of such exercise if, on the Original Issuance
Date, the Holder had been the holder of record of the number of shares of the
Common Stock called for on the face of this Warrant, as adjusted in accordance
with the first paragraph of this Warrant, and had thereafter, during the period
from the Original Issuance Date to and including the date of such exercise,
retained such shares and/or all other or additional stock and other securities
and property (including cash in the cases referred to in clause (2) and (3)
above) receivable by it as aforesaid during such period, giving effect to all
adjustments called for during such period by Section
4.A
and
Section
4.B.
B. Adjustment
for Reorganization, Consolidation and Merger.
In case
of any reorganization of the Company (or any other corporation the stock or
other securities of which are at the time receivable on the exercise of this
Warrant) after the Original Issuance Date, or in case, after such date, the
Company (or any such other corporation) shall consolidate with or merge into
another corporation or entity or convey all or substantially all its assets
to
another corporation or entity, then and in each such case the Holder, upon
the
exercise hereof as provided in Section
1
at any
time after the consummation of such reorganization, consolidation, merger or
conveyance, shall be entitled to receive, in lieu of the stock or other
securities and property receivable upon the exercise of this Warrant prior
to
such consummation, the stock or other securities or property to which such
Holder would have been entitled upon such consummation if Holder had exercised
this Warrant immediately prior thereto, all subject to further adjustment as
provided in Section
4.A, Section
4.B, Section
4.C,
Section
4.D and
Section
4.E;
in each
such case, the terms of this Warrant shall be applicable to the shares of stock
or other securities or property receivable upon the exercise of this Warrant
after such consummation.
C. Sale
of Shares below Purchase Price.
(1) Subject
to the exceptions set forth in Section
4.C(5),
if the
Company issues or sells, or is deemed by the express provisions of this
Section
4.C
to have
issued or sold, Additional
Shares of Common Stock
(as
hereinafter defined), other than as a dividend or other distribution on any
class of stock as provided in Section
4.D
and
other than upon a subdivision or combination of shares of the Common Stock
as
provided in Section
4.E,
for an
Effective Price (as hereinafter defined) less than the then existing Purchase
Price, then and in each such case:
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(A) the
then
existing Purchase Price shall be reduced, as of the opening of business on
the
date of such issue or sale, such that it is equal to the lowest Effective Price
at which any Additional Shares of Common Stock are issued; and
(2) For
the
purpose of making any adjustment required under this Section
4.C,
the
consideration received by the Company for any issue or sale of securities shall
(i) to the extent it consists of cash be computed at the amount of cash received
by the Company, (ii) to the extent it consists of property other than cash,
be
computed at the fair value of that property as determined in good faith by
the
Board, (iii) if Additional Shares of Common Stock, Convertible Securities (as
hereinafter defined) or rights or options to purchase either Additional Shares
of Common Stock or Convertible Securities are issued or sold together with
other
stock or securities or other assets of the Company for a consideration which
covers both, be computed as the portion of the consideration so received that
may be reasonably determined in good faith by the Board to be allocable to
such
Additional Shares of Common Stock, Convertible Securities or rights or options,
and (iv) be computed after reduction for all expenses payable by the Company
in
connection with such issue or sale.
(3) For
the
purpose of the adjustment required under this Section
4.C,
if the
Company issues or sells any rights or options for the purchase of, or stock
or
other securities convertible into or exchangeable for, Additional Shares of
Common Stock (such convertible or exchangeable stock or securities being
hereinafter referred to as “Convertible
Securities”)
and if
the Effective Price of such Additional Shares of Common Stock is less than
the
Purchase Price then in effect, then the Company shall be deemed to have issued
at the time of the issuance of such rights or options or Convertible Securities
the maximum number of Additional Shares of Common Stock issuable upon exercise,
conversion or exchange thereof and to have received as consideration for the
issuance of such shares an amount equal to the total amount of the
consideration, if any, received by the Company for the issuance of such rights
or options or Convertible Securities, plus, in the case of such rights or
options, the minimum amounts of consideration, if any, payable to the Company
upon the exercise of such rights or options, plus, in the case of Convertible
Securities, the minimum amounts of consideration, if any, payable to the Company
(other than by cancellation of liabilities or obligations evidenced by such
Convertible Securities) upon the conversion or exchange thereof. No further
adjustment of the Purchase Price, adjusted upon the issuance of such rights,
options or Convertible Securities, shall be made as a result of the actual
issuance of Additional Shares of Common Stock on the exercise of any such rights
or options or the conversion or exchange of any such Convertible Securities.
If
any such rights or options or the conversion or exchange privilege represented
by any such Convertible Securities shall expire without having been exercised,
the Purchase Price adjusted upon the issuance of such rights, options or
Convertible Securities shall be readjusted to the Purchase Price which would
have been in effect had an adjustment been made on the basis that the only
Additional Shares of Common Stock so issued were the Additional Shares of Common
Stock, if any, actually issued or sold on the exercise of such rights or options
or rights of conversion or exchange of such Convertible Securities, and such
Additional Shares of Common Stock, if any, were issued or sold for the
consideration actually received by the Company upon such exercise, plus the
consideration, if any, actually received by the Company for the granting of
all
such rights or options, whether or not exercised, plus the consideration
received for issuing or selling the Convertible Securities actually converted
or
exchanged, plus the consideration, if any, actually received by the Company
(other than by cancellation of liabilities or obligations evidenced by such
Convertible Securities) on the conversion or exchange of such Convertible
Securities.
E-5
(4) For
the
purpose of the adjustment required under this Section 4.C,
if the
Company issues or sells, or is deemed by the express provisions of this
subsection to have issued or sold, any rights or options for the purchase of
Convertible Securities and if the Effective Price of the Additional Shares
of
Common Stock underlying such Convertible Securities is less than the Purchase
Price then in effect, then in each such case the Company shall be deemed to
have
issued at the time of the issuance of such rights or options the maximum number
of Additional Shares of Common Stock issuable upon conversion or exchange of
the
total amount of Convertible Securities covered by such rights or options and
to
have received as consideration for the issuance of such Additional Shares of
Common Stock an amount equal to the amount of consideration, if any, received
by
the Company for the issuance of such rights or options, plus the minimum amounts
of consideration, if any, payable to the Company upon the exercise of such
rights or options and plus the minimum amount of consideration, if any, payable
to the Company (other than by cancellation of liabilities or obligations
evidenced by such Convertible Securities) upon the conversion or exchange of
such Convertible Securities. No further adjustment of the Purchase Price,
adjusted upon the issuance of such rights or options, shall be made as a result
of the actual issuance of the Convertible Securities upon the exercise of such
rights or options or upon the actual issuance of Additional Shares of Common
Stock upon the conversion or exchange of such Convertible Securities. The
provisions of paragraph (3) above for the readjustment of the Purchase
Price upon the expiration of rights or options or the rights of conversion
or
exchange of Convertible Securities shall apply mutatis mutandis
to the
rights, options and Convertible Securities referred to in this paragraph
(4).
(5) “Additional
Shares of Common Stock”
shall
mean all shares of Common Stock issued by the Company on or after the Original
Issuance Date, whether or not subsequently reacquired or retired by the Company,
other than (i) shares of the Common Stock issuable upon exercise of the
Warrants, (ii) shares of the Common Stock issuable upon conversion of the
Series A Preferred Stock, $.001 par value (the “Series A Preferred Stock”),
(iii) shares of the Common Stock issuable upon exercise of warrants and options
to purchase shares of the Common Stock issued and outstanding as of the Original
Issuance Date, (iv) shares of the Common Stock issued to non-affiliated third
parties in connection with any bona fide mergers, acquisitions and business
combinations, (v) shares of the Common Stock or options issued to employees,
officers, directors, consultants, vendors or agents of the Company (except
that,
if to consultants, vendors or agents, only up to a maximum of 2,500,000 shares
of the Common Stock in any 12-month period) pursuant to any stock or option
plan
duly adopted by, or any employment agreement approved by, a majority of the
non-employee members of the Board of Directors of the Company or a majority
of
the members of a committee of non-employee directors established for such
purpose, and in the case of a plan also approved by the Company’s stockholders,
(vi) shares of the Common Stock issued as dividend payments in lieu of cash
payments on the Series A Preferred Stock, and (vii) shares of the Common Stock
issued in connection with public offerings of the Company's securities. The
“Effective
Price”
of
Additional Shares of Common Stock shall mean the quotient determined by dividing
the total number of Additional Shares of Common Stock issued or sold, or deemed
to have been issued or sold by the Company under this Section 4.C,
into
the aggregate consideration received, or deemed to have been received, by the
Company for such issue under this Section 4.C,
for
such Additional Shares of Common Stock. “Other
Securities”
with
respect to an issue or sale of Additional Shares of Common Stock shall mean
Convertible Securities; “the
number of shares of Common Stock underlying Other
Securities”
on
a
particular date shall mean the number of shares of the Common Stock issuable
upon the exercise, conversion or exchange, as the case may be, of such Other
Securities at the close of business on such date.
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(6) Other
than a reduction pursuant to its applicable anti-dilution provisions, any
reduction in the conversion price of any Convertible Security, whether
outstanding on the Original Issuance Date or thereafter, or the subscription
price of any option, warrant or right to purchase the Common Stock or any
Convertible Security (whether such option, warrant or right is outstanding
on
the Original Issuance Date or thereafter), to an Effective Price less than
the
Fair Market Value or the then Purchase Price shall be deemed to be an issuance
of such Convertible Security and the issuance of all such options, warrants
or subscription rights, and the provisions of Sections
4.C.(3), (4) and (5)
shall
apply thereto mutatis
mutandis.
(7) In
case
any shares of stock or other securities, other than the Common Stock, shall
at
the time be receivable upon the exercise of this Warrant, and in case any
additional shares of such stock or any additional such securities (or any stock
or other securities convertible into or exchangeable for any such stock or
securities) shall be issued or sold for a consideration per share such as to
dilute the purchase rights evidenced by this Warrant, then and in each such
case
the Purchase Price shall forthwith be adjusted, substantially in the manner
provided for above in this Section
4.C,
so as
to protect the Holder of this Warrant against the effect of such
dilution.
(8) In
case
the Company shall take a record of the holders of shares of its stock of any
class for the purpose of entitling them (a) to receive a dividend or a
distribution payable in shares of the Common Stock or in Convertible Securities,
or (b) to subscribe for, purchase or otherwise acquire shares of the Common
Stock or Convertible Securities, then such record date shall be deemed to be
the
date of the issue or sale of the Additional Shares of Common Stock issued or
sold or deemed to have been issued or sold upon the declaration of such dividend
or the making of such other distribution, or the date of the granting of such
rights of subscription, purchase or other acquisition, as the case may
be.
(9) No
adjustment in the Purchase Price shall be required unless such adjustment would
require an increase or decrease of at least one cent ($0.01) in such price;
provided,
however,
that
any adjustments which by reason of this Section
4
are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment required to be made hereunder. All calculations under
this
Section 4
shall be
made to the nearest cent or to the nearest one-hundredth of a share, as the
case
may be.
D. Adjustment
for Certain Dividends and Distributions.
If the
Company at any time or from time to time makes, or fixes a record date for
the
determination of holders of the Common Stock entitled to receive, a dividend
or
other distribution payable in additional shares of the Common Stock, then and
in
each such event:
E-7
(1) the
Purchase Price then in effect shall be decreased as of the time of such issuance
or, in the event such record date is fixed, as of the close of business on
such
record date, by multiplying the Purchase Price then in effect by a fraction
(A) the numerator of which is the total number of shares of the Common
Stock issued and outstanding immediately prior to the time of such issuance
or
the close of business on such record date, and (B) the denominator of which
shall be the total number of shares of the Common Stock issued and outstanding
immediately prior to the time of such issuance or the close of business on
such
record date as the case may be, plus the number of shares of the Common Stock
issuable in payment of such dividend or distribution; provided,
however,
that if
such record date is fixed and such dividend is not fully paid or if such
distribution is not fully made on the date fixed therefor, the Purchase Price
shall be recomputed accordingly as of the close of business on such record date,
and thereafter the Purchase Price shall be adjusted pursuant to this
Section 4.D
as of
the time of actual payment of such dividends or distributions; and
(2) the
number of shares of the Common Stock theretofore receivable upon the exercise
of
this Warrant shall be increased, as of the time of such issuance or, in the
event such record date is fixed, as of the close of business on such record
date, in inverse proportion to the decrease in the Purchase Price.
E. Stock
Split and Reverse Stock Split.
If the
Company at any time or from time to time effects a stock split or subdivision
of
the outstanding shares of the Common Stock, the Purchase Price then in effect
immediately before that stock split or subdivision shall be proportionately
decreased and the number of shares of the Common Stock theretofore receivable
upon the exercise of this Warrant shall be proportionately increased. If the
Company at any time or from time to time effects a reverse stock split or
combines the outstanding shares of the Common Stock into a smaller number of
shares, the Purchase Price then in effect immediately before that reverse stock
split or combination shall be proportionately increased and the number of shares
of the Common Stock theretofore receivable upon the exercise of this Warrant
shall be proportionately decreased. Each adjustment under this Section
4.E
shall
become effective at the close of business on the date the stock split,
subdivision, reverse stock split or combination becomes effective.
F. Certificate
as to Adjustments.
Upon
the occurrence of each adjustment or readjustment of the Conversion Price
pursuant to this Section
4,
the
Company at its expense shall promptly compute such adjustment or readjustment
in
accordance with the terms hereof and furnish to each holder of a Warrant a
certificate setting forth such adjustment or readjustment and showing in detail
the facts upon which such adjustment or readjustment is based. The Company
shall, upon the written request at any time of any holder of a Warrant, furnish
or cause to be furnished to such holder a like certificate setting forth (i)
such adjustments and readjustments, (ii) Purchase Price at the time in effect,
and (iii) the number of shares of the Common Stock and the amount, if any,
of
other property which at the time would be received upon the exercise of the
Warrant.
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G. Corresponding
Share Adjustment.
Any time
an adjustment is made to the Purchase Price pursuant to Section
4
of this
Warrant, a corresponding proportionate change shall be made to the number of
shares of the Common Stock issuable upon such exercise.
5. Notices
of Record Date.
In
case:
A. 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 the Warrants) 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
B. of
any
capital reorganization of the Company, any reclassification of the capital
stock
of the Company, any consolidation or merger of the Company with or into another
corporation, or any conveyance of all or substantially all of the assets of
the
Company to another corporation, or
C. of
any
voluntary dissolution, liquidation or winding-up of the Company,
then,
and
in each such case, the Company will mail or cause to be mailed to each holder
of
a Warrant at the time outstanding a notice specifying, as the case may be,
(a)
the date on which a record is to be taken for the purpose of such dividend,
distribution or right, and stating the amount and character of such dividend,
distribution or right, or (b) the date on which such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation
or
winding-up is expected to take place, and the time, if any is to be fixed,
as of
which the holders of record of the Common Stock (or such stock or securities
at
the time receivable upon the exercise of the Warrants) shall be entitled to
exchange their shares of the 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 mailed at least ten (10) days prior to the
date
therein specified.
6. Loss
or Mutilation.
Upon
receipt by the Company of evidence satisfactory to it (in the exercise of
reasonable discretion) of the ownership of and the loss, theft, destruction
or
mutilation of any Warrant and (in the case of loss, theft or destruction) of
indemnity satisfactory to it (in the exercise of reasonable discretion), and
(in
the case of mutilation) upon surrender and cancellation thereof, the Company
will execute and deliver in lieu thereof a new Warrant of like
tenor.
7. Reservation
of Common Stock.
The
Company shall at all times reserve and keep available for issue upon the
exercise of Warrants such number of its authorized but unissued shares of the
Common Stock as will be sufficient to permit the exercise in full of all
outstanding Warrants. All of the shares of the Common Stock issuable upon the
exercise of the rights represented by this Warrant will, upon issuance and
receipt of the Purchase Price therefor, be fully paid and nonassessable, and
free from all preemptive rights, rights of first refusal or first offer, taxes,
liens and charges of whatever nature, with respect to the issuance thereof.
8. Registration
Rights.
The
Holder of this Warrant is entitled to have the shares of the Common Stock
issuable upon exercise of this Warrant registered for resale under the 1933
Act
pursuant to, and in accordance with, the Subscription Agreement by and between
the Holder and the Company.
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9. Notices.
All
notices and other communications from the Company to the Holder of this Warrant
shall be mailed by first class, registered or certified mail, postage prepaid,
to the address furnished to the Company in writing by the Holder. All notices
to
the Company shall be sent in the same manner to FBO Air, Inc., 000 Xxxxxx Xxxx,
Xxxxxx-Xxxxx/Xxxxxxxx International Airport, Xxxxx, Xxxxxxxxxxxx 00000,
Attention: President. Either the Company or the Holder may change the address
by
notice to the other sent in the manner provided in this Section
9.
10. Change;
Modifications; Waiver.
No
terms of this Warrant may be amended, waived or modified except by the express
written consent of the Company and the holders of not less than 50.1% of the
then outstanding Warrants.
11. Headings.
The
headings in this Warrant are for purposes of convenience in reference only,
and
shall not be deemed to constitute a part hereof.
12. Governing
Law, Etc.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York without regard to the conflicts of laws principles
thereof. The parties hereto hereby irrevocably agree that any suit or proceeding
arising directly and/or indirectly pursuant to or under this Agreement shall
be
brought solely in a federal or state court located in the City, County and
State
of New York. By its execution hereof, the parties hereby covenant and
irrevocably submit to the in personam
jurisdiction of the federal and state courts located in the City, County and
State of New York and agree that any process in any such action may be served
upon any of them personally, or by certified mail or registered mail upon them
or their agent, return receipt requested, with the same full force and effect
as
if personally served upon them in New York City. The parties hereto waive any
claim that any such jurisdiction is not a convenient forum for any such suit
or
proceeding and any defense or lack of in personam
jurisdiction with respect thereto. In the event of any such action or
proceeding, the party prevailing therein shall be entitled to payment from
the
other party hereto of all of its reasonable legal fees and
expenses.
13. Redemption
of Warrants.
A. At
any
time on not less than ten (10) days’ prior written notice (the “Redemption
Notice”)
to all
of the Holders, all issued and outstanding Warrants issued in the Offering
may
be redeemed, in whole but not in part, at the option of the Company, at a
redemption price of $0.01 per Warrant (the “Redemption
Price”),
provided that: (i) the Market Price (as defined below) for a share of the
Common Stock equals or exceeds 250% of the then current Purchase Price for
a
period of 20 consecutive Trading Days (as defined below) ending on the
2nd
Trading
Day prior to the date of the Redemption Notice (the “Marking
Date”);
(ii)
if a registration statement covering the Warrant Shares filed under the 1933
Act
is declared effective by the Commission and remains effective on and through
the
date fixed for redemption of the Warrants (the “Redemption
Date”),
and
(iii) the average daily trading volume of the Common Stock for the 20
consecutive Trading Days on the Trading Market is no less than 20,000 shares
of
the Common Stock for each such Trading Day through the Marking Date.
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B. The
Redemption Notice shall specify (i) the Redemption Price, (ii) the Redemption
Date, (iii) the place where the Warrant certificates shall be delivered and
the
redemption price paid, and (iv) that the right to exercise this Warrant shall
terminate at 5:00 p.m. (New York time) on the Business Day immediately
preceding the Redemption Date.
C. Any
right
to exercise a Warrant shall terminate at 5:00 p.m. (New York time) on the
Business Day immediately preceding the Redemption Date. On and after the
Redemption Date, the holder of this Warrant shall have no further rights except
to receive, upon surrender of this Warrant, the Redemption Price.
D. From
and
after the Redemption Date, the Company shall, at the place specified in the
Redemption Notice, upon presentation and surrender to the Company by or on
behalf of the holder thereof the warrant certificates evidencing this Warrant
being redeemed, deliver, or cause to be delivered to or upon the written order
of such holder, a sum in cash equal to the Redemption Price of this Warrant.
From and after the Redemption Date, this Warrant shall expire and become void
and all rights hereunder and under the warrant certificates, except the right
to
receive payment of the Redemption Price, shall cease.
14. Counterparts.
This
Agreement may be signed in counterparts.
| FBO AIR, INC. | ||
| |
|
|
| Dated: ___________ | By: | _________________________ |
| Name: | ||
| Title | ||
E-11
EXHIBIT
A
SUBSCRIPTION
FORM
(To
be
executed only upon exercise of Warrant)
The
undersigned registered owner of this Warrant irrevocably exercises this Warrant
and purchases _______ of the number of shares of the Common Stock of FBO Air,
Inc. purchasable with this Warrant, and herewith makes payment therefor, all
at
the price and on the terms and conditions specified in this
Warrant.
Dated:_____________
| _______________________ | ||
| (Signature of Registered Owner) | ||
| _______________________ | ||
| (Street Address) | ||
| _______________________ | ||
| (City / State / Zip Code) | ||
E-12
EXHIBIT
B
FORM
OF ASSIGNMENT
FOR
VALUE RECEIVED
the
undersigned registered owner of this Warrant hereby sells, assigns and transfers
unto the Assignee named below all of the rights of the undersigned under the
within Warrant, with respect to the number of shares of the Common Stock set
forth below:
|
Name
of Assignee
|
Address
|
Number
of Shares
|
and
does
hereby irrevocably constitute and appoint __________________________ Attorney
to
make such transfer on the books of FBO Air, Inc., maintained for the purpose,
with full power of substitution in the premises.
Dated:_____________
| _______________________ | ||
| (Signature) | ||
| _______________________ | ||
| (Witness) |
The
undersigned Assignee of the Warrant hereby makes to FBO Air, Inc., as of the
date hereof, with respect to the Assignee, all of the representations and
warranties made by the Holder, and the undersigned Assignee agrees to be bound
by all the terms and conditions of the Warrant and the FBO Air, Inc.
Subscription Agreement by and between FBO Air, Inc. and the Holder.
Dated:_____________
| (Signature) | _______________________ |
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