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EXHIBIT 4.1
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF CAN BE
TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED, AND
APPLICABLE STATE SECURITIES LAWS. THIS WARRANT AND SUCH SECURITIES MAY NOT BE
SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT, UNLESS IN THE OPINION OF COUNSEL TO THE COMPANY, SUCH REGISTRATION
IS NOT THEN REQUIRED.
STOCK PURCHASE WARRANT
THIS WARRANT, is issued as of and effective as of the 8th day of
January 1997, by Airways Corporation, a Delaware corporation (the "Company"),
to Xxxx Xxxxxxx dba Aviation Management Systems (the "Holder").
1. ISSUANCE OF WARRANT. For good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company hereby
grants to the Holder the right to purchase up to 50,000 shares (the "Shares")
of common stock, par value, $.01 per share of the Company in accordance with
the terms of this Warrant.
2. EXERCISE PRICE. The exercise price per share for which all or
any of the Shares may be purchased pursuant to the terms of this Warrant shall
be $3.82 per share (the "Exercise Price"), subject to adjustment as set forth
herein.
3. EXERCISE OF WARRANT. Subject to Section 10, the rights
represented by this Warrant shall terminate 2 years from the effective date
hereof. The period during which the Warrant shall be exercisable shall be
referred to as the Exercise Period. Payment of the Exercise Price for Shares
purchased under this Warrant shall be made upon exercise of the Warrant and
shall be paid to the Company in cash (certified or cashier's check). The Holder
shall have the right to exercise the Warrant two times during the Exercise
Period. Any such exercise may be as to all or any increment of Shares issuable
pursuant to the Warrant. Upon exercise, the Holder shall deliver a written
notice of intent to exercise, in substantially the form of the "Notice to
Exercise" attached hereto as Exhibit A, to the Company at 0000 Xxxxxxxxx
Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000 or such address as the Company shall
designate in a written notice to the Holder.
If any law or regulation requires the Company to take any action with
respect to the Shares specified in such notice, then the date for the delivery
of such Shares against payment therefor shall be extended for the period
necessary to take such action. In the event of any failure to pay for the
number of Shares specified in such notice on the date set forth therein, the
exercise of the Warrant with respect to such number of Shares shall be treated
as if it had never been made. As soon as reasonably practical after the Holder
has validly exercised the Warrant, the Company shall cause the appropriate
number of Shares to be issued and delivered to the Holder.
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4. CHANGES IN CAPITAL STRUCTURE. If there is any change in the
capital structure of the Company through a consolidation, reorganization,
recapitalization or merger in which the Company is the surviving entity, the
number of shares issuable pursuant to the Warrant and the Exercise Price shall
be adjusted by the Board as it deems equitable, in its absolute discretion, to
prevent dilution or enlargement of the rights of the Holder. Any other
transactions (including, but not limited, the Company's issuance of its common
stock in acquisitions, the sale of the Company's stock in an initial public
offering or a private offering, the granting of options under the Company's
Stock Option Plan, or granting options outside of the Stock Option Plan) will
not result in any adjustment to the number of Shares issuable under the Warrant
or the Exercise Price.
In the event of a dissolution or liquidation of the Company, the
Warrant shall be canceled to the extent not previously exercised. In the event
of any reorganization or merger, in which the Company is not the surviving
entity, the plan or agreement respecting such reorganization or merger shall
define the rights under this Warrant.
5. RIGHTS PRIOR TO PURCHASE OF STOCK. The Holder shall have no
right as a shareholder with respect to any of the Shares covered by the
Warrant until the Holder had made full payment for the Shares being purchased
and said Shares have been issued and delivered to the Holder. No adjustment
shall be made for dividends (ordinary or extraordinary, whether in cash,
securities or other property) or distributions or other rights for which the
record date is prior to the date such Shares are fully paid for, issued and
delivered, except as provided in Section 4.
6. CERTAIN RESTRICTIONS. The Holder will acquire the Shares for
the Holder's own account, for investment only and without a view to resale or
distribution except in compliance with the Securities Act of 1933 (the "Act")
and any applicable state securities laws, and upon the acquisition of the
Shares, the Holder will enter into such written representations, warranties and
agreements as the Company may request in order to comply with the Act, any
applicable state securities laws and this Warrant. The issuance of Shares to
the Holder pursuant to the exercise of the Warrant shall be conditioned upon
the execution by the Holder of a stock purchase agreement containing such terms
and conditions at the Company in its sole discretion may require.
7. WITHHOLDING TAXES. The Holder agrees that he is an independent
contractor, and that he will pay, on the date of exercise of the Warrant, the
taxes required to be paid, if any, pursuant to any law or regulation of any
governmental authority, whether federal, state, local, domestic or foreign.
8. SHARES RESERVED. The Company shall at all times during the
Exercise Period reserve and keep available such number of Shares as will be
sufficient to satisfy the requirements of this Warrant.
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9. NONTRANSFERABILITY. The Warrant may not be transferred except
by will or the laws of descent and distribution and, during the lifetime of the
Holder, and may be exercised only by the Holder. Except as provided in the
preceding sentence, no Warrant nor any interest in the Warrant shall be subject
to assignment, transfer, pledge, hypothecation or other disposition either by
voluntary or involuntary act of the Holder or the Holder's heir or beneficiary
or by operation of law. Any attempted assignment, transfer, pledge,
hypothecation or other disposition of the Warrant contrary to the provisions
hereof, or the levy of any execution, attachment or similar process upon the
Warrant shall be null, void and without effect. Nor shall such Warrant or right
be subject to the demands or claims of any creditor of such person.
Additionally, neither the Holder nor any other person or entity shall have any
interest in any specific asset or assets or stock of the Company by reason of
the granting of the Warrant.
10. DELAY IN EXERCISE. The Board of Directors of the Company may
determine in its discretion, that listing, registration or qualification of the
Shares subject to the Warrant upon any securities exchange or under any state
or federal law, or the consent or approval of any governmental regulatory body,
is necessary or desirable as a condition of the exercise of such Warrant, and
in such event such Warrant may not be exercised in whole or in part unless and
until such listing, registration, qualification, consent or approval shall have
been effected or obtained free of any conditions not acceptable to the Board of
Directors of the Company.
IN WITNESS WHEREOF, the parties have executed this Warrant effective as
of the 8th day of January, 1997.
AIRWAYS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: PRESIDENT
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/s/ Xxxx Xxxxxxx
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XXXX XXXXXXX D.B.A. AVIATION
MANAGEMENT SYSTEMS
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EXHIBIT A
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NOTICE OF EXERCISE
To: AIRWAYS CORPORATION
I hereby purchase form AIRWAYS CORPORATION (the "Company") ______
shares of its Common Stock in accordance with the terms of the Warrant dated as
of January 8, 1997. I hereby tender payment in the amount of $_______.
I hereby request that certificates for such shares of Common Stock (or
any other securities or other property issuable upon such exercise) be issued
in the name of and delivered to the address set forth below.
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Xxxx Xxxxxxx d.b.a. Aviation Management
Systems
Address:
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Taxpayer Identification Number
or Social Security Number:
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