Exhibit 4.5
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION THEREFROM. THIS WARRANT AND SUCH SECURITIES
MAY BE TRANSFERRED ONLY IN COMPLIANCE WITH THE CONDITIONS SPECIFIED IN THIS
WARRANT.
May 15, 1999
AVIATION HOLDINGS GROUP, INC.
STOCK PURCHASE WARRANT
AVIATION HOLDINGS GROUP, INC., a Delaware corporation ("Aviation"), for value
received, hereby certifies that Xxxxx Xxxxxxx, an individual with a mailing
address at c/x Xxxxxxx, Xxxxxx & Xxxxxxxx, Ltd., 000 Xxxxx Xxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, XX 00000, or her registered assigns, is entitled to
purchase from Aviation, at any time or from time to time during the period
specified in Section 2 hereof, 12,000 fully paid and nonassessable shares of
common stock, par value $.0001 (the "Common Stock"), of Aviation, owned by
Aviation, at an exercise price equal to $4.00 per share (the "Exercise Price"),
subject to the terms, conditions and adjustments set forth herein. As used
herein, the term "Warrant Shares" means the shares of Common Stock issuable upon
exercise of this Warrant.
1. Manner of Exercise; Issuance of Certificates; Payment for Shares. Subject to
the provisions hereof, this Warrant may be exercised by the holder hereof, in
whole or in part, by the surrender of this Warrant, together with a completed
exercise agreement in the form attached hereto (the "Exercise Agreement"), to
Aviation during normal business hours on any business day at Aviation's
principal executive offices (or such other office or agency of Aviation as it
may designate by notice to the holder hereof), and upon payment to Aviation in
cash, by certified or official bank check or by wire transfer to an account
specified by Aviation of the Exercise Price for the Warrant Shares specified in
the Exercise Agreement. The Warrant Shares so purchased shall be deemed to be
issued to the holder hereof or such holder's designee, as the record owner of
such shares, as of the close of business on the date on which this Warrant shall
have been surrendered, the completed Exercise Agreement shall have been
delivered, and payment shall have been made for such shares as set forth above.
Certificates for the Warrant Shares so purchased, representing the aggregate
number of shares specified in the Exercise Agreement, shall be delivered to the
holder hereof within a reasonable time, not exceeding five business days, after
this Warrant shall have been so exercised. The certificates so delivered shall
be in such denominations as may be requested by the holder hereof and shall be
registered in the name of such holder or such other name as such holder may
designate and upon payment by such holder of any applicable transfer taxes. In
the event this Warrant is exercised in part, Aviation shall also deliver a new
warrant to the holder hereof, which
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warrant shall be identical to this Warrant, except that the number of Warrant
Shares shall be decreased by the number of Warrant Shares so purchased.
2.Period of Exercise. This Warrant is exercisable at any time or from time to
time before 5:00 p.m., eastern time on May 15, 2004 (the "Exercise Period").
3.Certain Agreements of Aviation. Aviation covenants as follows:
(a)Shares to be Fully Paid. All Warrant Shares shall, upon issuance in
accordance with the terms of this Warrant, be validly issued, fully paid, and
nonassessable and free from all taxes, liens, and charges with respect to the
issue thereof.
(b) Reservation of Shares. During the Exercise Period, Aviation shall at all
times have reserved for the purpose of issuance upon exercise of this Warrant, a
sufficient number of shares of Common Stock to provide for the exercise of this
Warrant.
(c) Successors and Assigns. This Warrant shall be binding upon any entity
succeeding to Aviation by merger, consolidation, or acquisition of all or
substantially all of Aviation's assets.
4.Antidilution Provisions. During the Exercise Period, the Exercise Price and
the number of Warrant Shares shall be subject to adjustment from time to time as
provided in this Section 4. Aviation shall be responsible for all rights and
obligations provided in this Section 4.
(a)Subdivision or Combination of Common Stock. If Aviation at any time
subdivides (by any stock split, stock dividend, recapitalization,
reorganization, reclassification or otherwise) the Common Stock into a greater
number of shares, then, after the record date for effecting such subdivision,
the Exercise Price in effect immediately prior to such subdivision shall be
proportionately reduced and the number of Warrant Shares shall be
proportionately increased. If Aviation at any time combines (by reverse stock
split, recapitalization, reorganization, reclassification or otherwise) the
Common Stock into a smaller number of shares, then, after the record date for
effecting such combination, the Exercise Price in effect immediately prior to
such combination shall be proportionately increased and the number of Warrant
Shares shall be proportionately decreased.
(b)Consolidation, Merger or Sale. In case Aviation after the date hereof (a)
shall consolidate with or merge into any other entity and shall not be the
continuing or surviving corporation of such consolidation or merger, (b) shall
permit any other entity to consolidate with or merge into Aviation and Aviation
shall be the continuing or surviving entity but, in connection with such
consolidation or merger, the Common Stock shall be changed into or exchanged for
stock or other securities of any other entity or cash or any other property, (c)
shall transfer all or substantially all of its properties or assets to any other
person or entity, or (d) shall effect a capital reorganization or
reclassification of the Common Stock (other than a capital reorganization or
reclassification for which adjustment in the Exercise Price is provided in
Section 4(a)), then, and in the case of each such transaction, proper provision
shall be made so that, upon the basis and the terms and in the manner provided
in this Warrant, the holder of this Warrant, upon the exercise hereof at any
time after the consummation of such transaction, shall be entitled to receive
(at the aggregate Exercise Price in effect at the time of
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such consummation for all Common Stock issuable upon such exercise immediately
prior to such consummation), in lieu of the Common Stock issuable upon such
exercise immediately prior to such consummation, the highest amount of
securities, cash or other property to which such holder would have been entitled
as a shareholder upon such consummation if such holder had exercised this
Warrant immediately prior thereto, subject to adjustments (subsequent to such
consummation) as nearly equivalent as possible to the adjustments provided for
in this Section 4. Aviation shall not effect any such consolidation, merger, or
sale of assets, or capital reorganization or reclassification unless prior to
the consummation thereof, Aviation assumes by written instrument the obligations
under this Section 4 and the obligations to deliver to the holder of this
Warrant such securities, cash or other property as, in accordance with the
foregoing provisions, the holder may be entitled to acquire.
(c)Distribution of Assets. In case Aviation shall declare or make any
distribution of its assets to holders of Common Stock as a partial liquidating
dividend, by way of return of capital or otherwise, other than a dividend
payable in shares of Common Stock or in cash out of earnings of Aviation, the
holder of this Warrant shall be entitled upon exercise of this Warrant to
receive the amount of cash, securities or other property that would have been
payable to the holder had such holder been the holder of such shares of Common
Stock on the record date for the determination of stockholders entitled to such
distribution.
(d) Notice of Adjustment. Upon the occurrence of any event that requires any
adjustment of the Exercise Price, Aviation shall give notice thereof to the
holder of this Warrant, which notice shall state theExercise Price resulting
from such adjustment and the increase or decrease, if any, in the number of
Warrant Shares, setting forth in reasonable detail the method of calculation and
the facts upon which such calculation is based.
(e)Adjustment of Exercise Price. No adjustment of the Exercise Price shall be
made in an amount less than 1% of the Exercise Price in effect at the time such
adjustment is otherwise required to be made, but any such lesser adjustment
shall be carried forward and shall be made at the time and together with the
next subsequent adjustment which, together with any adjustments so carried
forward, shall amount to not lessthan 1% of such Exercise Price. In the event
that any adjustment of the Exercise Price as required herein results in a
fraction of a cent, such Exercise Price shall be rounded up to the nearest cent.
(f) No Fractional Shares. No fractional shares of Common Stock shall be issued
upon the exercise of this Warrant, but Aviation shall pay a cash adjustment in
respect of any fractional share that would otherwise be issuable in an amount
equal to the same fraction of the Market Price of a share of Common Stock on the
date of such exercise.
(g) Other Notices. In case at any time:
(i) Aviation shall declare any dividend upon the Common Stock payable in shares
of stock of any class or make any other distribution (other than dividends or
distributions payable in cash out of retained earnings) to the holders of the
Common Stock;
(ii) Aviation shall offer for subscription pro rata to the holders of the Common
Stock any additional shares of stock of any class or other rights;
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(iii) there shall be any capital reorganization of Aviation, or reclassification
of the Common Stock, or consolidation or merger of Aviation with or into, or
sale of all or substantially all its assets to, another entity; or
(iv) there shall be a voluntary or involuntary dissolution, liquidation or
winding-up of Aviation;
then, in each such case, Aviation shall give to the holder of this Warrant
notice of (a) the date on which the books of Aviation shall close or a record
shall be taken for determining the holders of Common Stock entitled to receive
any such dividend, distribution or subscription rights, or for determining the
holders of Common Stock entitled to vote in respect of any such transaction, and
(b) the date (or, if not then known, a reasonable approximation thereof by
Aviation) when such transaction shall occur. Such notice shall also specify the
date on which the holders of Common Stock shall be entitled to receive such
dividend, distribution or subscription rights or to exchange their Common Stock
for stock or other securities or property deliverable upon consummation of such
transaction. Such notice shall be given at least 30 days prior to the record
date or the date on which Aviation's books are closed in respect thereto.
Failure to give any such notice or any defect therein shall not affect the
validity of any action referred to in clauses (i), (ii), (iii) and (iv) above.
(h)Certain Events. In case any event shall occur as to which paragraphs (a), (b)
or (c) of this Section 4 are not strictly applicable but the failure to make any
adjustment would not fairly protect the rights represented by this Warrant in
accordance with the essential intent of such provisions, Aviation shall
giveAviation notice of such event, who shall in turn give notice thereof to the
holder of this Warrant as provided in Section 4(d) and shall make an appropriate
adjustment in the Exercise Price and the number of Warrant Shares to preserve,
without dilution, the rights represented by this Warrant.
5.Issue Tax. The issuance of certificates for Warrant Shares upon the exercise
of this Warrant shall be made without charge to the holder of this Warrant or
such shares for any issuance tax or other costs in respect thereof; provided
that the holder shall pay all transfer taxes owed upon the issuance of such
shares in the name of any person or entity designed by the holder.
0.Xx Rights as a Stockholder. Prior to the exercise of this Warrant, the holder
hereof, as such, shall not be entitled to any rights of a stockholder of
Aviation, including, without limitation, the right to vote, to consent, to
exercise any preemptive right, to receive any notice of meetings of stockholders
for the election of directors of Aviation or any other matter or to receive any
notice of any proceedings of Aviation, except as may be specifically provided
for herein.
7.Transfer, Exchange, and Replacement of Warrant.
(a) Restriction on Transfer. Neither this Warrant (including any replacement
Warrant) nor any Warrant Shares may be sold, transferred or otherwise disposed
of prior to the first anniversary of the initial date of issuance of this
Warrant, without the prior written consent of Aviation except for (i) the
exercise of this Warrant in accordance with its terms, (ii) pledges to bona fide
financial institutions to secure the repayment of indebtedness and (iii) in case
of natural persons, transfers to immediate family members or a trust or trusts
for the benefit of such family members for estate planning purposes. The holder
of this Warrant and each such permitted transferee shall (i) be bound by the
transfer restrictions contained herein and (ii) execute, prior to any transfer,
such documents as Aviation may
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reasonably request to evidence and affirm their obligations hereunder. The
Warrant Shares shall be issued with a restrictive legend setting forth the above
restrictions on transfer.
(b) Replacement of Warrant. Upon receipt of evidence reasonably satisfactory to
Aviation of the loss, theft, destruction, or mutilation of this Warrant and, in
the case of any such loss, theft, or destruction, upon delivery of an indemnity
agreement reasonably satisfactory in form and amount to Aviation, or, in the
case of any such mutilation, upon surrender and cancellation of this Warrant,
Aviation, at its expense, shall execute and deliver, in lieu thereof, a new
Warrant of like tenor.
(c) Cancellation; Payment of Expenses. Upon the surrender of this Warrant in
connection with any transfer or replacement as provided in this Section 7, this
Warrant shall be promptly canceled by Aviation. Aviation shall pay all taxes and
all other expenses (other than legal expenses, if any, incurred by the holder or
transferees) and charges payable in connection with the preparation, execution,
and delivery of Warrants pursuant to this Section 7.
(d) Register. Aviation shall maintain, at its principal executive offices (or
such other office or agency of Aviation as it may designate by notice to the
holder hereof), a register for this Warrant, in which Aviation shall record the
name and address of the person in whose name this Warrant has been issued, as
well as the name and address of each transferee and each prior owner of this
Warrant.
(e) Exercise or Transfer Without Registration. If, at the time of the surrender
of this Warrant in connection with any exercise or transfer of this Warrant,
this Warrant (or, in the case of any exercise, the Warrant Shares), shall not be
registered under the Securities Act and under applicable state securities or
blue sky laws, Aviation may require, as a condition of allowing such exercise or
transfer, that the holder or transferee of this Warrant, as the case may be,
furnish to Aviation a written opinion of counsel, which opinion and counsel are
acceptable to Aviation, to the effect that such exercise or transfer may be made
without registration under the Securities Act and applicable state securities or
blue sky laws.
8.Notices. All notices, requests, and other communications required or permitted
to be given or delivered hereunder to the holder of this Warrant shall be in
writing, and shall be personally delivered, or shall be sent by certified or
registered mail or by recognized overnight mail courier, postage prepaid and
addressed, to such holder at the address shown for such holder on the books of
Aviation, or at such other address as such holder shall have furnished to
Aviation. All notices, requests and other communications required or permitted
to be given or delivered hereunder to Aviation shall be in writing, and shall be
personally delivered, or shall be sent by certified or registered mail or by
recognized overnight mail courier, postage prepaid and addressed, to Aviation
Holdings Group, Inc. 00000 Xxxxxxxxx 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000, or to
such other address as Aviation shall have furnished to the holder of this
Warrant. Any such notice, request or other communication may be sent by
facsimile, but shall in such case be subsequently confirmed by a writing
personally delivered or sent by certified or registered mail or by recognized
overnight mail courier as provided above. All notices, requests and other
communications shall be deemed to have been given either at the time of the
receipt thereof at the address specified in this Section 8 or, if mailed by
registered or certified mail or with a recognized overnight mail courier, upon
deposit with the United States Post Office or such overnight mail courier,
postage prepaid and properly addressed.
9.Governing Law. THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO ITS
OR ANY OTHER JURISDICTION'S CONFLICTS OF LAW.
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10.Miscellaneous.
(a) Amendments. This Warrant may only be amended by an instrument in writing
signed by Aviation and the holder hereof.
(b) Headings. The headings of the sections and paragraphs of this Warrant are
for reference purposes only, and shall not affect the meaning or construction of
any of the provisions hereof.
IN WITNESS WHEREOF, Aviation has caused this Warrant to be signed by its duly
authorized officer.
AVIATION HOLDINGS GROUP, INC.
By: /s/ Xxxxxx Xxxxxx
-----------------
Xxxxxx Xxxxxx
President and CEO
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FORM OF EXERCISE AGREEMENT
Dated: ________, ____.
Aviation Holdings Group, Inc.
00000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
The undersigned, pursuant to the provisions set forth in the within Warrant,
hereby agrees to purchase ________ shares of Common Stock covered by such
Warrant, and makes payment herewith in full therefor at the price per share
provided by such Warrant in cash or by certified or official bank check in the
amount of $_________. Please issue a certificate or certificates for such shares
of Common Stock in the name of and pay any cash for any fractional share to:
Name:_________________________________
Signature:____________________________
Address:______________________________
______________________________
Note: The above signature should correspond exactly with the name on the face of
the within Warrant.
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FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and
transfers all the rights of the undersigned under the within Warrant, with
respect to the number of shares of Common Stock covered thereby set forth below
to:
Name of Assignee Address No of Shares
---------------- ------- ------------
, and hereby irrevocably constitutes and appoints ______________
________________________ as agent and attorney-in-fact to transfer said Warrant
on the books of the within-named corporation, with full power of substitution in
the premises.
Dated: _____________________, ____,
Name: ____________________________
Signature: _______________________
Title of Signing Officer or Agent (if any): ________________________
Address: ________________________
________________________
Note: The above signature should correspond exactly with the name on the face of
the within Warrant.
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