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EXHIBIT 10.6
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, ASSIGNED
OR TRANSFERRED UNLESS SUCH SALE OR TRANSFER IS IN ACCORDANCE WITH THE
REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS OR AN APPLICABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS IS
AVAILABLE WITH RESPECT THERETO.
COMMON STOCK PURCHASE WARRANT
Warrant No. 004
AIR SOUTH AIRLINES, INC.
VOID AFTER OCTOBER 24, 2005
1. Issuance. This Warrant is issued to Xxxxxxx X. Xxxxx by Air South
Airlines Inc., a Delaware corporation (hereinafter with its successors, the
"Company") and is issued pursuant to the surrender by the Holder of Warrant No.
001.
2. Purchase Price; Number of Shares. Subject to the terms and conditions
hereinafter set forth, the holder of this Warrant (the "Holder"), is entitled
upon surrender of this Warrant with the subscription form annexed hereto duly
executed, at the office of the Company, 0000 Xx. Xxxxxx Xxxxx - 0xx Xxxxx,
Xxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Secretary, or such other office as
the Company shall notify the Holder of in writing, to purchase from the Company
at a price per share (the "Purchase Price") of One ($1.00) Dollar, Seven
Hundred Twenty-five Thousand (725,000) fully paid and nonassessable shares of
Common Stock, par value $.001 per share, of the Company ("Common Stock").
Until such time as this Warrant is exercised in full or expires, the Purchase
Price and the securities issuable upon exercise of this Warrant are subject to
adjustment as hereinafter provided.
3. Vesting. This Warrant shall be exercisable: (a) from and after
October 25, 1995 as to 225,000 shares; (b) from and after June 1, 1996 as to
250,000 shares if the Board of Directors of the Company has determined that an
orderly transition to a new Chief Executive Officer has been accomplished by
such date; and (c) on the date of the closing of a sale by the Company of at
least $4,000,000 of equity securities of the Company as to 250,000 shares; this
Warrant may not be exercised after October 24, 2005.
4. Fair Market Value. "Fair Market Value" of Common Stock shall mean
either:
(a) if Common Stock is traded on a national securities exchange or
transactions in Common Stock are quoted by a nationally recognized market
quotation system, the average of the high and low prices for the Common Stock
on the trading day prior to the date on which the Company receives for exercise
this Warrant and the related duly executed subscription form; or
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(b) if Common Stock is not traded as described in subparagraph
4(a), above, a price per share determined in good faith by the Board of
Directors of the Company.
5. Payment of Purchase Price. The Purchase Price may be paid (i) in cash
or by check payable to the order of the Company, (ii) through delivery by the
Holder to the Company of certificates for shares of Common Stock issued with
such shares of Common Stock being credited against the Purchase Price in an
amount equal to the Fair Market Value thereof, or (iii) by any combination of
the foregoing. If Common is not publicly traded as described in paragraph
4(a), above, the Board shall promptly respond in writing to an inquiry by the
Holder as to the Fair Market Value of one share of the Common Stock; provided,
however, the Board shall not be required to so respond sooner than the second
Business Day (as defined below) after its next meeting.
6. Net Issue Election. The Holder may elect to receive, without the
payment by the Holder of any additional consideration, shares equal to the
value of this Warrant or any portion hereof by the surrender of this Warrant or
such portion to the Company, with the net issue election notice annexed hereto
duly executed, at the office of the Company. Thereupon, the Company shall
issue to the Holder such number of fully paid and nonassessable shares of
Common Stock as is computed using the following formula:
X = Y (A-B)
-------
A
where X = the number of shares to be issued to the Holder pursuant to
this Section 4;
Y = the number of shares covered by this Warrant in respect of
which the net issue election is made pursuant to this
paragraph 6;
A = the Fair Market Value of one share of Common Stock, as at the
time the net issue election is made pursuant to this paragraph
6; and
B = the Purchase Price in effect under this Warrant at the time
the net issue election is made pursuant to this paragraph 6.
If Common Stock is not publicly traded as described in paragraph 4(a), above,
the Board shall promptly respond in writing to an inquiry by the Holder as to
the Fair Market Value of one share of the Common Stock; provided, however, the
Board shall not be required to so respond sooner than the second Business Day
(as defined below) after its next meeting.
7. Partial Exercise. This Warrant may be exercised in part in even
increments of 100 shares, and the Holder shall be entitled to receive a new
warrant, which shall be dated as of the date of this Warrant, covering the
number of shares in respect of which this Warrant shall not have been
exercised.
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8. Issuance Date. The person or persons in whose name or names any
certificate representing shares of Common Stock is issued hereunder shall be
deemed to have become the holder of record of the shares represented thereby as
at the close of business on the date this Warrant is exercised with respect to
such shares, whether or not the transfer books of the Company shall be closed.
9. Reserved Shares, Valid Issuance. The Company covenants that it will
at all times from and after the date this Warrant becomes exercisable reserve
and keep available such number of its authorized shares of Common Stock, as
will be sufficient to permit the exercise of this Warrant in full. The Company
further covenants that such shares as may be issued pursuant to the exercise of
this Warrant will, upon issuance, be duly authorized, validly issued, fully
paid and nonassessable and free from all taxes, liens and charges with respect
to the issuance thereof.
10. Stock Splits and Dividends. If after the date hereof the Company
shall subdivide the Common Stock, by split or otherwise, or issue additional
shares of Common Stock in payment of a stock dividend, the number of shares
issuable on the exercise of this Warrant shall forthwith be proportionately
increased in the case of a subdivision or stock dividend. In the event that
the shares of Common Stock of the Company from time to time issued and
outstanding are reduced by a combination of shares, recapitalization,
reclassification or other change in the capital structure of the Company, the
number of shares of Common Stock covered by the Option granted hereunder shall
be reduced proportionately and the Purchase Price shall forthwith be
proportionately increased. All such adjustments shall be made by the Board,
whose determination upon the same shall be final and binding upon the Holder.
11. Fractional Shares. In no event shall any fractional share of Common
Stock be issued upon any exercise of this warrant. If, upon exercise of this
Warrant as an entirety, the Holder would, except as provided in this paragraph
11, be entitled to receive a fractional share of Common Stock, then the Company
shall issue the next lower number of full shares of Common Stock.
12. Certificate of Adjustment. Whenever the Purchase Price is adjusted,
as herein provided, the Company shall in due course deliver to the Holder a
notice setting forth the Purchase Price determined by the Board after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment.
13. Lost or Destroyed Warrant. In case this Warrant shall be mutilated,
lost, stolen or destroyed, the Company shall issue a new warrant of like tenor
and denomination and deliver the same (i) in exchange and substitution for and
upon surrender and cancellation of any mutilated Warrant, or (ii) in lieu of
any Warrant lost, stolen or destroyed, upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft or destruction of such Warrant
(including a reasonably detailed affidavit with respect to the circumstances of
any loss, theft or destruction) and, if required by the Company, of indemnity
reasonably satisfactory to the Company.
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14. Assignment. The right to purchase all or part of the shares of Common
Stock pursuant to this Warrant shall be assignable by the Holder only with the
prior written consent of the Company, which consent may be withheld for any
reason or no reason.
15. Compliance with Securities Laws. The shares of Common Stock issuable
pursuant to this Warrant will be "restricted securities" and will be subject to
significant restrictions on transfer. The issuance of such shares is
conditional upon the Holder entering into such investment letters and other
agreements as are deemed necessary or desirable to insure compliance with any
applicable securities laws in the reasonable judgment of counsel for this
Company.
16. Governing Law. The provisions and terms of this Warrant shall be
governed by and construed in accordance with the internal laws of the State of
Delaware but shall be enforceable by legal or equitable action only in the
courts of the State of South Carolina.
17. Business Days. If the last or appointed day for the taking of any
action required or the expiration of any right granted herein shall be a
Saturday or Sunday or a legal holiday in Columbia, South Carolina, then such
action may be taken or right may be exercised on the next succeeding day which
is not a Saturday or Sunday or such a legal holiday (a "Business Day").
Dated as of the 11th day of January, 1996
AIR SOUTH AIRLINES, INC.
By:
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Xxxxx X. Xxxxxx
President and Chief Operating Officer
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Subscription
To: Air South Airlines, Inc. Date:
The undersigned hereby subscribes for _____ shares of Common Stock of
Air South Airlines, Inc. covered by that certain Common Stock Purchase Warrant
dated January 11, 1996 (the "Warrant"). The certificate for such shares shall
be issued in the name of the undersigned. Either:
A. Payment is enclosed as follows:
/ / a check in the amount of $_______ payable to Air South Airlines,
Inc.
/ / _____ shares of Common Stock having a value of $______ per share.
B. / / The undersigned hereby elects under Section 6 of such Common Stock
Purchase Warrant to surrender the right to purchase a portion of the shares of
Common Stock purchasable pursuant to such Warrant. The certificate(s) for the
shares issuable upon such net issue election shall be issued in the name of the
undersigned.
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Signature
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Name
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Mailing Address
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THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD,
ASSIGNED OR TRANSFERRED UNLESS SUCH SALE OR TRANSFER IS IN ACCORDANCE WITH THE
REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS OR AN APPLICABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS IS
AVAILABLE WITH RESPECT THERETO.
COMMON STOCK PURCHASE WARRANT
Warrant No. 005
AIR SOUTH AIRLINES, INC.
VOID AFTER OCTOBER 24, 2005
1. Issuance. This Warrant is issued to Xxxxxxxx Xxxxxx by Air South
Airlines, Inc., a Delaware corporation (hereinafter its successors, the
"Company") pursuant to an assignment to him of Warrants for shares originally
issued to Xxxxxxx X. Xxxxx as Warrant No. 001.
2. Purchase Price, Number of Shares. Subject to the terms and conditions
hereinafter set forth, the holder of this Warrant (the "Holder"), is entitled
upon surrender of this Warrant with the subscription form annexed hereto duly
executed, at the office of the Company, 0000 Xx. Xxxxxx Xxxxx - 0xx Xxxxx,
Xxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Secretary, or such other office as
the Company shall notify the Holder of in writing, to purchase from the Company
at a price per share (the "Purchase Price") of One ($1.00) Dollar, Twenty-five
Thousand (25,000) fully paid and nonassessable shares of Common Stock, par
value $.001 per share, of the Company ("Common Stock"). Until such time as
this Warrant is exercised in full or expires, the Purchase Price and the
securities issuable upon exercise of this Warrant are subject to adjustment as
hereinafter provided.
3. Vesting. This Warrant shall be exercisable from January 11, 1996
through October 24, 2005.
4. Fair Market Value. "Fair Market Value" of Common Stock shall mean
either:
(a) if Common Stock is traded on a national securities exchange or
transactions in Common Stock are quoted by a nationally recognized market
quotation system, the average of the high and low prices for the Common Stock
on the trading day prior to the date on which the Company receives for exercise
this Warrant and the related duly executed subscription form; or
(b) if Common Stock is not traded as described in subparagraph
4(a), above, a price per share determined in good faith by the Board of
Directors of the Company.
5. Payment of Purchase Price. The Purchase Price may be paid (i) in cash
or by check payable to the order of the Company, (ii) through delivery by the
Holder to the Company of
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certificates for shares of Common Stock issued with such shares of Common Stock
being credited against the Purchase Price in an amount equal to the Fair Market
Value thereof, or (iii) by any combination of the foregoing. If Common is not
publicly traded as described in paragraph 4(a), above, the Board shall promptly
respond in writing to an inquiry by the Holder as to the Fair Market Value of
one share of the Common Stock; provided, however, the Board shall not be
required to so respond sooner than the second Business Day (as defined below)
after its next meeting.
6. Net Issue Election. The Holder may elect to receive, without the
payment by the Holder of any additional consideration, shares equal to the
value of this Warrant or any portion hereof by the surrender of this Warrant or
such portion to the Company, with the net issue election notice annexed hereto
duly executed, at the office of the Company. Thereupon, the Company shall
issue to the Holder such number of fully paid and nonassessable shares of
Common Stock as is computed using the following formula:
X = Y (A-B)
-------
A
where X = the number of shares to be issued to the Holder
pursuant to this Section 4;
Y = the number of shares covered by this Warrant in
respect of which the net issue election is made
pursuant to this paragraph 6;
A = the Fair Market Value of one share of Common Stock,
as at the time the net issue election is made
pursuant to this paragraph 6; and
B = the Purchase Price in effect under this Warrant at
the time the net issue election is made pursuant to
this paragraph 6.
If Common Stock is not publicly traded as described in paragraph 4(a), above,
the Board shall promptly respond in writing to an inquiry by the Holder as to
the Fair Market Value of one share of the Common Stock; provided, however, the
Board shall not be required to so respond sooner than the second Business Day
(as defined below) after its next meeting.
7. Partial Exercise. This Warrant may be exercised in part in even
increments of 100 shares, and the Holder shall be entitled to receive a new
warrant, which shall be dated as of the date of this Warrant, covering the
number of shares in respect of which this Warrant shall not have been
exercised.
8. Issuance Date. The person or persons in whose name or names any
certificate representing shares of Common Stock is issued hereunder shall be
deemed to have become the holder of record of the shares represented thereby as
at the close of business on the date this Warrant is exercised with respect to
such shares, whether or not the transfer books of the Company shall be closed.
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9. Reserved Shares, Valid Issuance. The Company covenants that it will
at all times from and after the date this Warrant becomes exercisable reserve
and keep available such number of its authorized shares of Common Stock, as
will be sufficient to permit the exercise of this Warrant in full. The Company
further covenants that such shares as may be issued pursuant to the exercise of
this Warrant will, upon issuance, be duly authorized, validly issued, fully
paid and nonassessable and free from all taxes, liens and charges with respect
to the issuance thereof.
10. Stock Splits and Dividends. If after the date hereof the Company
shall subdivide the Common Stock, by split or otherwise, or issue additional
shares of Common Stock in payment of a stock dividend, the number of shares
issuable on the exercise of this Warrant shall forthwith be proportionately
increased in the case of a subdivision or stock dividend. In the event that
the shares of Common Stock of the Company from time to time issued and
outstanding are reduced by a combination of shares, recapitalization,
reclassification or other change in the capital structure of the Company, the
number of shares of Common Stock covered by the Option granted hereunder shall
be reduced proportionately and the Purchase Price shall forthwith be
proportionately increased. All such adjustments shall be made by the Board,
whose determination upon the same shall be final and binding upon the Holder.
11. Fractional Shares. In no event shall any fractional share of Common
Stock be issued upon any exercise of this warrant. If, upon exercise of this
Warrant as an entirety, the Holder would, except as provided in this paragraph
11, be entitled to receive a fractional share of Common Stock, then the
Company shall issue the next lower number of full shares of Common Stock.
12. Certificate of Adjustment. Whenever the Purchase Price is adjusted,
as herein provided, the Company shall in due course deliver to the Holder a
notice setting forth the Purchase Price determined by the Board after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment.
13. Lost or Destroyed Warrant. In case this Warrant shall be mutilated,
lost, stolen or destroyed, the Company shall issue a new warrant of like tenor
and denomination and deliver the same (i) in exchange and substitution for and
upon surrender and cancellation of any mutilated Warrant, or (ii) in lieu of
any Warrant lost, stolen or destroyed, upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft or destruction of such Warrant
(including a reasonably detailed affidavit with respect to the circumstances of
any loss, theft or destruction) and, if required by the Company, of indemnity
reasonably satisfactory to the Company.
14. Assignment. The right to purchase all or part of the shares of Common
Stock pursuant to this Warrant shall be assignable by the Holder only with the
prior written consent of the Company, which consent may be withheld for any
reason or no reason.
15. Compliance with Securities Laws. The shares of Common Stock issuable
pursuant to this Warrant will be "restricted securities" and will be subject to
significant restrictions on transfer. The issuance of such shares is
conditional upon the Holder entering into such investment letters
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and other agreements as are deemed necessary or desirable to insure compliance
with any applicable securities laws in the reasonable judgment of counsel for
this Company.
16. Governing Law. The provisions and terms of this Warrant shall be
governed by and construed in accordance with the internal laws of the State
of Delaware but shall be enforceable by legal or equitable action only in the
courts of the State of South Carolina.
17. Business Days. If the last or appointed day for the taking of any
action required or the expiration of any right granted herein shall be a
Saturday or Sunday or a legal holiday in Columbia, South Carolina, then such
action may be taken or right may be exercised on the next succeeding day which
is not a Saturday or Sunday or such a legal holiday (a "Business Day").
Dated as of the 11th day of January, 1996
AIR SOUTH AIRLINES, INC.
By:
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Xxxxx X. Xxxxxx
President and Chief Operating Officer
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Subscription
To: Air South Airlines, Inc. Date:
The undersigned hereby subscribes for shares of Common Stock of Air
South Airlines, Inc. covered by that certain Common Stock Purchase Warrant
dated January 11, 1996 (the "Warrant"). The certificate for such shares shall
be issued in the name of the undersigned. Either:
A. Payment is enclosed as follows:
/ / a check in the amount of $________ payable to Air South Airlines, Inc.
/ / _______ shares of Common Stock having a value of $ _______ per share.
B. / / The undersigned hereby elects under Section 6 of such Common Stock
Purchase Warrant to surrender the right to purchase a portion of the shares of
Common Stock purchasable pursuant to such Warrant. The certificate(s) for the
shares issuable upon such net issue election shall be issued in the name of the
undersigned.
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Signature
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Name
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Mailing Address
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ASSIGNMENT
The undersigned, Xxxxxxx X. Xxxxx, being the Holder of that certain
Common Stock Purchase Warrant No. 001 of Air South, Inc. hereby assigns to
Xxxxxxxx Xxxxxx as a gift the right to purchase 25,000 shares of the Air South
Airlines, Inc. Common Stock which are exercisable from and after October 25,
1995.
January 11, 1996 /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
CONSENTED TO:
AIR SOUTH AIRLINES, INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
President and Chief Operating Officer
