EXHIBIT 4.3
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF CAN BE
TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT OR 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
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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
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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
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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.
4. CHANGES IN CAPITAL STRUCTURE. If there is any change in the capital
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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 cancelled 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
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shareholder with respect to any of the Shares covered by the Warrant until the
Holder has 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
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own account, for investment only end 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 as the
Company in its sole discretion may require.
7. WITHHOLDING TAXES. The Holder agrees that he is an independent contractor,
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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
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reserve and keep available such number of Shares as will be sufficient to
satisfy the requirements of this Warrant.
9. NONTRANSFERABILITY. The Warrant may not be transferred except by will
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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
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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 X. Xxxxxxx
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Xxxx Xxxxxxx d.b.a. Aviation Management
Systems
-3-
EXHIBIT A
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NOTICE OF EXERCISE
To: AIRWAYS CORPORATION
I hereby purchase from AIRWAYS CORPORATION (the "Company")
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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 $ .
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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
