AIRCASTLE INVESTMENT LIMITED
SUBSCRIPTION AGREEMENT
This Subscription Agreement (this "Subscription Agreement"), dated as
of April 28, 2006, is made by and between Aircastle Investment Limited, a
Bermuda exempted company (the "Company") and Xxxxxxxxx Family Trust (the
"Subscriber"). Where the context permits, references to the Company shall
include any successor to the Company.
1. Subscription for Shares. The Subscriber has agreed to subscribe for
two hundred thousand (200,000) common shares, par value US$0.01 each in the
capital of the Company (such shares, the "Shares") for an aggregate subscription
price of US$1,000,000, subject to all of the terms and conditions of this
Subscription Agreement. The Subscriber agrees to take the Shares subject to the
Company's Memorandum of Association and the Bye-laws.
2. Restrictions. All Shares shall be credited as fully paid at the
time of payment in full of the amount specified in Section 1 hereof. There will
be no restrictions on sale, assignment, mortgage, hypothecation, transfer,
charge, pledge, encumbrance, gift, transfer in trust (voting or other) or other
disposition of, or creation of a security interest in or lien on, any of the
Shares or any agreement or commitment to do any of the foregoing (each a
"Transfer") with respect to the Shares, whether voluntary or involuntary, by
operation of law or otherwise, except as set forth specifically in this
Subscription Agreement, including Section 13 hereof, which provides that no
shares of Shares shall be sold, assigned, transferred, pledged, hypothecated or
otherwise disposed of prior to the end of the Lock-Up Period except as otherwise
expressly permitted under this Subscription Agreement.
3. Adjustments. In the event of a "Change in Capitalization" of the
Company, the Company shall make such equitable changes or adjustments as it
deems necessary or appropriate to the number and kind of securities or other
property (including cash) issued or issuable in respect of the Shares. For
purposes of this Share Agreement, "Change in Capitalization" means any (i)
merger, amalgamation, consolidation, reclassification, recapitalization,
spin-off, spin-out, repurchase or other reorganization or corporate transaction
or event, (ii) dividend (whether in the form of cash, shares or other property),
share split or reverse share split, consolidation or subdivision, (iii)
combination or exchange of shares, (iv) other change in corporate structure or
(v) declaration of a special dividend (including a cash dividend) or other
distribution.
4. Legend on Certificates. The Subscriber agrees that any certificate
issued for Shares (or, if applicable, any book entry statement issued for
Shares) prior to the lapse of any outstanding restrictions relating thereto
shall bear the following legend (in addition to any other legend or legends
required under applicable federal and state
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securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS UPON TRANSFER AND RIGHTS OF REPURCHASE (THE "RESTRICTIONS") AS
SET FORTH IN A SUBSCRIPTION AGREEMENT ENTERED INTO BETWEEN THE REGISTERED
OWNER AND AIRCASTLE INVESTMENT LIMITED, A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE COMPANY. ANY ATTEMPT TO DISPOSE OF THESE SHARES IN
CONTRAVENTION OF THE RESTRICTIONS, INCLUDING BY WAY OF SALE, ASSIGNMENT,
TRANSFER, PLEDGE, HYPOTHECATION OR OTHERWISE, SHALL BE NULL AND VOID AND
WITHOUT EFFECT.
5. Certain Changes. The Company may adjust any of the terms of the
Shares; provided that no action under this Section shall adversely affect the
Subscriber's rights hereunder.
6. Notices. All notices and other communications under this
Subscription Agreement shall be in writing and shall be given by facsimile or
first class mail, certified or registered with return receipt requested, and
shall be deemed to have been duly given three days after mailing or 24 hours
after transmission by facsimile to the respective parties, as follows: (i) if to
the Company, c/o Aircastle Advisor LLC, 000 Xxxxx Xxxxxxxx Xxxxx, 0xx Xxxxx,
Xxxxxxxx, XX 00000, Attn: General Counsel and (ii) if to the Subscriber, using
the contact information on file with the Company. Either party hereto may change
such party's address for notices by notice duly given pursuant hereto.
7. Securities Laws Requirements. The Company shall not be obligated to
issue any shares in the capital of the Company to the Subscriber free of the
restrictive legend described in Section 4 hereof or of any other restrictive
legend, if such transfer, in the opinion of counsel for the Company, would
violate the Securities Act of 1933, as amended (the "Securities Act") (or any
other federal or state statutes having similar requirements which may be in
effect at that time).
8. No Obligation to Register. The Company shall be under no obligation
to register the Shares pursuant to the Securities Act or any other federal or
state securities laws.
9. Protections Against Violations of Agreement. No purported Transfer
of any Shares by any holder thereof in violation of the provisions of this
Subscription Agreement will be valid, except with the prior written consent of
the Board (such consent shall be granted or withheld in the sole discretion of
the Board). Any purported Transfer of Shares or any economic benefit or interest
therein in violation of this Subscription Agreement shall be null and void ab
initio, and shall not create any obligation or liability of the Company, and any
person purportedly acquiring any Shares or any economic benefit or interest
therein transferred in violation of this Subscription Agreement shall not be
entitled to be recognized as a holder of such Shares.
10. Taxes. The Subscriber acknowledges that the tax laws and
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regulations applicable to the Shares and the disposition of the Shares are
complex and subject to change, and it is the sole responsibility of the
Subscriber to obtain the Subscriber's own advice as to the tax treatment of the
terms of this Share Agreement.
BY SIGNING THIS AGREEMENT, THE SUBSCRIBER REPRESENTS THAT SUBSCRIBER HAS
REVIEWED WITH THE SUBSCRIBER'S OWN TAX ADVISORS THE FEDERAL, STATE, LOCAL
AND FOREIGN TAX CONSEQUENCES OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT AND THAT THE SUBSCRIBER IS RELYING SOLELY ON SUCH ADVISORS AND
NOT ON ANY STATEMENTS OR REPRESENTATIONS OF THE COMPANY OR ANY OF ITS
AGENTS. THE SUBSCRIBER UNDERSTANDS AND AGREES THAT THE SUBSCRIBER (AND NOT
THE COMPANY) SHALL BE RESPONSIBLE FOR ANY TAX LIABILITY THAT MAY ARISE AS A
RESULT OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
11. Failure to Enforce Not a Waiver. The failure of the Company to
enforce at any time any provision of this Share Agreement shall in no way be
construed to be a waiver of such provision or of any other provision hereof.
12. Investment Representations and Warranties.
(a) The Subscriber understands that the Shares have not been, and
will not upon issuance be, registered under the Securities Act, and that the
certificates evidencing the Shares shall bear a legend to that effect.
(b) The Subscriber is acquiring the Shares for its own account
for investment and not with a view toward distribution in a manner which would
violate the Securities Act.
(c) By reason of the business and financial experience of its
trustees, the Subscriber has the capacity to protect its own interests in
connection with the transactions contemplated by this Subscription Agreement.
The Subscriber is able to bear the economic risk of an investment in the Shares,
and has an adequate income independent of any income produced from an investment
in the Shares and has sufficient net worth to sustain a loss of all of its
investment in the Shares without economic hardship if such a loss should occur.
(d) The Subscriber is an "accredited investor" as that term is
defined in Regulation D promulgated under the Securities Act.
(e) The Subscriber has been given access to all Company
documents, records, and other information, has received physical delivery of all
such documents, records and information which the Subscriber has requested, and
has had adequate opportunity to ask questions of, and receive answers from, the
Company's officers, employees, agents, accountants, and representatives
concerning the Company's business, operations, financial condition, assets,
liabilities, and all other matters relevant to its investment in the Shares. The
foregoing, however, does not limit or modify the
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representations or warranties of the Company in this Subscription Agreement or
the right of such Subscriber to rely upon such representations or warranties.
13. Lock-Up.
(a) The Subscriber agrees that, during the period specified in
Section 13(b) (the "Lock-Up Period"), the Subscriber will not offer, sell,
contract to sell, charge, pledge, grant any option to purchase, make any short
sale or otherwise dispose of any Shares (the "Locked-Up Shares"), except as set
forth in Section 13(d) hereof. The foregoing restriction is expressly agreed to
preclude the Subscriber from engaging in any hedging or other transaction which
is designed to or which reasonably could be expected to lead to or result in a
sale or disposition of the Locked-Up Shares even if such shares would be
disposed of by someone other than the Subscriber. Such prohibited hedging or
other transactions would include without limitation any short sale or any
purchase, sale or grant of any right (including without limitation any put or
call option) with respect to any of the Locked-Up Shares or with respect to any
security that includes, relates to, or derives any significant part of its value
from such shares.
(b) The initial Lock-Up Period will commence on the date of
purchase of the Shares and continue for 120 days after the date set forth on the
final prospectus (the "Public Offering Date") in the initial offering of equity
securities of the Company pursuant to an effective registration statement under
the Securities Act (the "Initial Public Offering"); provided, however, that if
(i) during the last 17 days of the initial Lock-Up Period, the Company releases
earnings results or announces material news or a material event or (ii) prior to
the expiration of the initial Lock-Up Period, the Company announces that it will
release earnings results during the 15-day period following the last day of the
initial Lock-Up Period, then in each case the Lock-Up Period will be
automatically extended until the expiration of the 18-day period beginning on
the date of release of the earnings results or the announcement of the material
news or material event, as applicable, unless the Initial Public Offering
underwriters each waives, in writing, such extension.
(c) The Subscriber further agrees that, prior to engaging in any
transaction or taking any other action that is subject to the terms of this
Subscription Agreement during the period from the date hereof to and including
the 34th day following the expiration of the initial Lock-Up Period, it will
give notice thereof to the Company and will not consummate such transaction or
take any such action unless it has received written confirmation from the
Company that the Lock-Up Period (as such may have been extended pursuant to the
previous paragraph) has expired.
(d) Notwithstanding the foregoing, the Subscriber may transfer
the Locked-Up Shares with the prior written consent of the Company. The
Subscriber also agrees and consents to the entry of stop transfer instructions
with the Company's transfer agent and registrar against the transfer of the
Locked-Up Shares except in compliance with the foregoing restrictions.
(e) The Subscriber understands that the Company is relying upon
the Subscriber's agreement in this Section 13 in proceeding toward consummation
of
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the Initial Public Offering. The Subscriber further understands that
Subscriber's agreement in this Section 13 is irrevocable and shall be binding
upon the Subscriber's trustees, beneficiaries, successors, and assigns.
14. Governing Law. This Share Agreement shall be governed by and
construed according to the laws of the State of New York, without reference to
any rules governing conflicts of laws.
15. Amendments; Construction. The Company may amend the terms of this
Subscription Agreement prospectively or retroactively at any time, but no such
amendment shall impair the rights of the Subscriber hereunder without the
Subscriber's consent. To the extent the terms of Section 13 above conflict with
any prior agreement between the parties related to such subject matter, the
terms of Section 13 shall supersede such conflicting terms and control. Headings
to Sections of this Subscription Agreement are intended for convenience of
reference only, are not part of this Subscription Agreement and shall have no
effect on the interpretation hereof.
16. Survival of Terms. This Subscription Agreement shall apply to and
bind the Subscriber and the Company and their respective legal representatives,
trustees, permitted assignees and transferees, beneficiaries and legal
successors.
17. Rights as a Shareholder. During the period until the restrictions
on Transfer of the Shares lapse as provided in Section 2(a) hereof, the
Subscriber shall have all the rights of a shareholder with respect to the Shares
save only the right to Transfer the Shares. Accordingly, the Subscriber shall
have the right to vote the Shares and to receive any ordinary dividends paid to
or made with respect to the Shares in accordance with the Bye-laws of the
Company.
18. Severability. Should any provision of this Subscription Agreement
be held by a court of competent jurisdiction to be unenforceable, or enforceable
only if modified, such holding shall not affect the validity of the remainder of
this Subscription Agreement, the balance of which shall continue to be binding
upon the parties hereto with any such modification (if any) to become a part
hereof and treated as though contained in this original Subscription Agreement.
19. Bye-laws. In the event of any ambiguity or conflict arising
between the terms of this Agreement and those of the Company's Memorandum of
Association and Bye-laws, the terms of this Subscription Agreement shall
prevail.
20. Counterparts. This Subscription Agreement may be executed in one
or more counterparts but taken together all such counterparts shall constitute
one and the same instrument.
21. Due authority. Each party hereto warrants and represents to the
other that it has the full authority, power and capacity to enter into this
Subscription Agreement and that all necessary actions have been taken to enable
it lawfully to enter into this Subscription Agreement
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22. Acceptance. The Subscriber hereby acknowledges receipt of a copy
of this Subscription Agreement. The Subscriber has read and understands the
terms and provisions of this Subscription Agreement, and accepts the Shares
subject to all the terms and conditions of this Subscription Agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Subscription Agreement on the day and year first above written.
AIRCASTLE INVESTMENT LIMITED
By
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Name
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Title
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SIGNED ON BEHALF OF THE XXXXXXXXX FAMILY
TRUST ACTING BY:
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Trustee
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Trustee
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