Exhibit 4.2
THIS WARRANT AND ANY SHARES OF COMMON STOCK ISSUED UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE
OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE AFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL THAT
SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
FBO AIR, INC.
WARRANT TO PURCHASE
1,000,000 SHARES
OF COMMON STOCK
(SUBJECT TO ADJUSTMENT)
(Void after September 22, 2010)
No: BLW-1__
This certifies that for value, AIRPORT CAPITAL, LLC, or registered assigns
(the "Holder"), is entitled, subject to the terms set forth below, at any time
from and after September 23, 2005 (the "Original Issuance Date") and before 5:00
p.m., Eastern Time, on September 22, 2010 (the "Expiration Date"), to purchase
from FBO Air, Inc., a Nevada corporation (the "Company"), One Million
(1,000,000) shares (subject to adjustment as described herein), of common stock,
par value $0.001 per share, of the Company (the "Common Stock"), upon surrender
hereof, at the principal office of the Company referred to below, with a duly
executed subscription form in the form attached hereto as Exhibit A and
simultaneous payment therefor in lawful, immediately available money of the
United States or otherwise as hereinafter provided, at an initial exercise price
per share of $0.60 (the "Purchase Price") The Purchase Price is subject to
further adjustment as provided below, and the term "Common Stock" shall include,
unless the context otherwise requires, the stock and other securities and
property at the time receivable upon the exercise of this Warrant. The term
"Warrants," as used herein, shall mean this Warrant and any other Warrants
delivered in substitution or exchange therefor as provided herein.
This Warrant was issued in connection with the Term Loan Agreement dated
as of September 23, 2005 (the "Term Loan Agreement") by and among the Company,
Airborne, Inc., a New York corporation, and Airport Capital, LLC.
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1. Exercise. This Warrant may be exercised at any time or from time to
time from and after the Original Issuance Date and before 5:00 p.m., Eastern
Time, on the Expiration Date, on any Business Day (as hereinafter defined), for
the full number of shares of Common Stock called for hereby, by surrendering it
at the principal office of the Company (currently ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
Barre/Scranton International Airport, Avoca, Pennsylvania 18641) with the
subscription form duly executed, together with payment in an amount equal to (a)
the number of shares of Common Stock called for on the face of this Warrant, as
adjusted in accordance with Section 4 of this Warrant (without giving effect to
any further adjustment herein), multiplied (b) by the Purchase Price. Payment of
the Purchase Price shall be made by payment in immediately available funds. This
Warrant may be exercised for less than the full number of shares of Common Stock
at the time called for hereby, except that the number of shares of Common Stock
receivable upon the exercise of this Warrant as a whole, and the sum payable
upon the exercise of this Warrant as a whole, shall be proportionately reduced.
Upon a partial exercise of this Warrant in accordance with the terms hereof,
this Warrant shall be surrendered, and a new Warrant of the same tenor and for
the purchase of the number of such shares not purchased upon such exercise shall
be issued by the Company to Holder without any charge therefor. A Warrant shall
be deemed to have been exercised immediately prior to the close of business on
the date of its surrender for exercise as provided above, and the person
entitled to receive the shares of Common Stock issuable upon such exercise shall
be treated for all purposes as the holder of such shares of record as of the
close of business on such date. Within three (3) Business Days after such date,
the Company shall issue and deliver to the person or persons entitled to receive
the same a certificate or certificates for the number of full shares of Common
Stock issuable upon such exercise, together with cash, in lieu of any fraction
of a share, equal to such fraction of the then Market Price during the five (5)
consecutive Trading Days preceding the date of exercise of one (1) full share of
Common Stock.
For purposes of this Warrant, "Business Day" shall mean any day other than
Saturday, Sunday or any day on which state chartered banks are not obligated to
open in Avoca, Pennysylvania, or such other place in which the Company's
headquarters office may then be located.
For purposes of this Warrant, (i) "Market Price" is defined as the Closing
Price per share of Common Stock on the principal Trading Market on which the
Common Stock is included for trading; provided, that if there is no trading in
the Common Stock on a particular Trading Day on the relevant principal Trading
Market, the Market Price for that day shall be the Market Price on the last
preceding Trading Day on which there was trading in the Common Stock on the
principal Trading Market, (ii) "Closing Price" means on any particular date (a)
the last reported closing price per share of the Common Stock on such date on
the Trading Market (as reported by Bloomberg L.P. at 4:15 p.m. (New York time)
as the last reported closing price for regular session trading on such day), or
(b) if there is no such price on such date, then the closing price on the
Trading Market on the date nearest preceding such date (as reported by Bloomberg
L.P. at 4:15 p.m. (New York time) as the closing price for regular session
trading on such day), or (c) if the Common Stock is not then listed or quoted on
the Trading Market and if prices for the Common Stock are then reported in the
"pink sheets" published by the Pink Sheets LLC (or a similar organization or
agency succeeding to its functions of reporting prices), the most recent price
per share of the Common Stock so reported, or (d) if the shares of Common Stock
are not then publicly traded the fair market value of a share of Common Stock as
determined in good faith by the Board of Directors of the Company; (iii)
"Trading Day" means (a) a day on which the Common Stock is traded on a Trading
Market, or (b) if the Common Stock is not quoted on a Trading Market, a day on
which the Common Stock is quoted in the over-the-counter market as reported by
the Pink Sheets LLC (or any similar organization or agency succeeding to its
functions of reporting price); provided, that in the event that the Common Stock
is not listed or quoted as set forth in (a), and (b) hereof, then Trading Day
shall mean a Business Day; and (iv) "Trading Market" means the following markets
or exchanges on which the Common Stock is listed or quoted for trading on the
date in question: the OTC Bulletin Board, the American Stock Exchange, the New
York Stock Exchange, the Nasdaq National Market or the Nasdaq SmallCap Market.
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2. Shares Fully Paid; Payment of Taxes. All shares of Common Stock issued
upon the exercise of this Warrant shall be validly issued, fully paid and
non-assessable, and the Company shall pay all taxes and other governmental
charges (other than income taxes to the holder) that may be imposed in respect
of the issue or delivery thereof.
3. Transfer and Exchange. This Warrant and all rights hereunder are
transferable, in whole or in part, on the books of the Company maintained for
such purpose at its principal office referred to above by Holder in person or by
duly authorized attorney, upon surrender of this Warrant together with a
completed and executed assignment form in the form attached as Exhibit B,
payment of any necessary transfer tax or other governmental charge imposed upon
such transfer and an opinion of counsel reasonably acceptable to the Company
stating that such transfer is exempt from the registration requirements of the
Securities Act of 1933, as amended (the "1933 Act"). Upon any partial transfer,
the Company will issue and deliver to Holder a new Warrant or Warrants with
respect to the shares of Common Stock not so transferred. Each taker and holder
of this Warrant, by taking or holding the same, consents and agrees that this
Warrant when endorsed in blank shall be deemed negotiable and that, when this
Warrant shall have been so endorsed, the holder hereof may be treated by the
Company and all other persons dealing with this Warrant as the absolute owner
hereof for any purpose and as the person entitled to exercise the rights
represented hereby, or to the transfer hereof on the books of the Company, any
notice to the contrary notwithstanding; but until such transfer on such books,
the Company may treat the registered Holder hereof as the owner for all
purposes.
This Warrant is exchangeable at such office for Warrants for the
same aggregate number of shares of Common Stock, each new Warrant to represent
the right to purchase such number of shares as the Holder shall designate at the
time of such exchange.
4. Anti-Dilution Provisions.
A. Adjustment for Dividends in Other Stock and Property
Reclassifications. In case at any time or from time to time the holders of the
Common Stock (or any shares of stock or other securities at the time receivable
upon the exercise of this Warrant) shall have received, or, on or after the
record date fixed for the determination of eligible stockholders, shall have
become entitled to receive, without payment therefor,
(1) other or additional stock or other securities or property
(other than cash) by way of dividend,
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(2) any cash or other property paid or payable out of any
source other than retained earnings (determined in accordance with generally
accepted accounting principles), or
(3) other or additional stock or other securities or property
(including cash) by way of stock-split, spin-off, reclassification, combination
of shares or similar corporate rearrangement (other than (x) additional shares
of Common Stock or any other stock or securities into which such Common Stock
shall have been changed, (y) any other stock or securities convertible into or
exchangeable for such Common Stock or such other stock or securities or (z) any
stock purchase rights, issued as a stock dividend or stock-split, adjustments in
respect of which shall be covered by the terms of Section 4.C, Section 4.D or
Section 4.E, then and in each such case, the Holder, upon the exercise hereof as
provided in Section 1, shall be entitled to receive the amount of stock and
other securities and property (including cash in the cases referred to in
clauses (2) and (3) above) which such Holder would hold on the date of such
exercise if, on the Original Issuance Date, the Holder had been the holder of
record of the number of shares of Common Stock called for on the face of this
Warrant, as adjusted in accordance with the first paragraph of this Warrant, and
had thereafter, during the period from the Original Issuance Date to and
including the date of such exercise, retained such shares and/or all other or
additional stock and other securities and property (including cash in the cases
referred to in clause (2) and (3) above) receivable by it as aforesaid during
such period, giving effect to all adjustments called for during such period by
Section 4.A and Section 4.B.
B. Adjustment for Reorganization, Consolidation and Merger. In case
of any reorganization of the Company (or any other corporation the stock or
other securities of which are at the time receivable on the exercise of this
Warrant) after the Original Issuance Date, or in case, after such date, the
Company (or any such other corporation) shall consolidate with or merge into
another corporation or entity or convey all or substantially all its assets to
another corporation or entity, then and in each such case the Holder, upon the
exercise hereof as provided in Section 1 at any time after the consummation of
such reorganization, consolidation, merger or conveyance, shall be entitled to
receive, in lieu of the stock or other securities and property receivable upon
the exercise of this Warrant prior to such consummation, the stock or other
securities or property to which such Holder would have been entitled upon such
consummation if Holder had exercised this Warrant immediately prior thereto, all
subject to further adjustment as provided in Sections 4.A, Section 4.B, Section
4.C, Section 4.D and Section 4.E; in each such case, the terms of this Warrant
shall be applicable to the shares of stock or other securities or property
receivable upon the exercise of this Warrant after such consummation.
C. Sale of Shares below Purchase Price.
(1) Subject to the exceptions set forth in Section 4.C(5), if
the Company issues or sells, or is deemed by the express provisions of this
Section 4.C to have issued or sold, Additional Shares of Common Stock (as
hereinafter defined), other than as a dividend or other distribution on any
class of stock as provided in Section 4.D and other than upon a subdivision or
combination of shares of Common Stock as provided in Section 4.E, for an
Effective Price (as hereinafter defined) less than the then existing Purchase
Price, then, in each such case, the then existing Purchase Price shall be
reduced, as of the opening of business on the date of such issue or sale, such
that it is equal to the lowest Effective Price at which any Additional Shares of
Common Stock are issued.
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(2) For the purpose of making any adjustment required under
this Section 4.C, the consideration received by the Company for any issue or
sale of securities shall (i) to the extent it consists of cash be computed at
the amount of cash received by the Company, (ii) to the extent it consists of
property other than cash, be computed at the fair value of that property as
determined in good faith by the Board, (iii) if Additional Shares of Common
Stock, Convertible Securities (as hereinafter defined) or rights or options to
purchase either Additional Shares of Common Stock or Convertible Securities are
issued or sold together with other stock or securities or other assets of the
Company for a consideration which covers both, be computed as the portion of the
consideration so received that may be reasonably determined in good faith by the
Board to be allocable to such Additional Shares of Common Stock, Convertible
Securities or rights or options, and (iv) be computed after reduction for all
expenses payable by the Company in connection with such issue or sale.
(3) For the purpose of the adjustment required under this
Section 4.C, if the Company issues or sells any rights or options for the
purchase of, or stock or other securities convertible into or exchangeable for,
Additional Shares of Common Stock (such convertible or exchangeable stock or
securities being hereinafter referred to as "Convertible Securities") and if the
Effective Price of such Additional Shares of Common Stock is less than the
Purchase Price then in effect, then the Company shall be deemed to have issued
at the time of the issuance of such rights or options or Convertible Securities
the maximum number of Additional Shares of Common Stock issuable upon exercise,
conversion or exchange thereof and to have received as consideration for the
issuance of such shares an amount equal to the total amount of the
consideration, if any, received by the Company for the issuance of such rights
or options or Convertible Securities, plus, in the case of such rights or
options, the minimum amounts of consideration, if any, payable to the Company
upon the exercise of such rights or options, plus, in the case of Convertible
Securities, the minimum amounts of consideration, if any, payable to the Company
(other than by cancellation of liabilities or obligations evidenced by such
Convertible Securities) upon the conversion or exchange thereof. No further
adjustment of the Purchase Price, adjusted upon the issuance of such rights,
options or Convertible Securities, shall be made as a result of the actual
issuance of Additional Shares of Common Stock on the exercise of any such rights
or options or the conversion or exchange of any such Convertible Securities. If
any such rights or options or the conversion or exchange privilege represented
by any such Convertible Securities shall expire without having been exercised,
the Purchase Price adjusted upon the issuance of such rights, options or
Convertible Securities shall be readjusted to the Purchase Price which would
have been in effect had an adjustment been made on the basis that the only
Additional Shares of Common Stock so issued were the Additional Shares of Common
Stock, if any, actually issued or sold on the exercise of such rights or options
or rights of conversion or exchange of such Convertible Securities, and such
Additional Shares of Common Stock, if any, were issued or sold for the
consideration actually received by the Company upon such exercise, plus the
consideration, if any, actually received by the Company for the granting of all
such rights or options, whether or not exercised, plus the consideration
received for issuing or selling the Convertible Securities actually converted or
exchanged, plus the consideration, if any, actually received by the Company
(other than by cancellation of liabilities or obligations evidenced by such
Convertible Securities) on the conversion or exchange of such Convertible
Securities.
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(4) For the purpose of the adjustment required under this
Section 4.C, if the Company issues or sells, or is deemed by the express
provisions of this subsection to have issued or sold, any rights or options for
the purchase of Convertible Securities and if the Effective Price of the
Additional Shares of Common Stock underlying such Convertible Securities is less
than the Purchase Price then in effect, then in each such case the Company shall
be deemed to have issued at the time of the issuance of such rights or options
the maximum number of Additional Shares of Common Stock issuable upon conversion
or exchange of the total amount of Convertible Securities covered by such rights
or options and to have received as consideration for the issuance of such
Additional Shares of Common Stock an amount equal to the amount of
consideration, if any, received by the Company for the issuance of such rights
or options, plus the minimum amounts of consideration, if any, payable to the
Company upon the exercise of such rights or options and plus the minimum amount
of consideration, if any, payable to the Company (other than by cancellation of
liabilities or obligations evidenced by such Convertible Securities) upon the
conversion or exchange of such Convertible Securities. No further adjustment of
the Purchase Price, adjusted upon the issuance of such rights or options, shall
be made as a result of the actual issuance of the Convertible Securities upon
the exercise of such rights or options or upon the actual issuance of Additional
Shares of Common Stock upon the conversion or exchange of such Convertible
Securities. The provisions of paragraph (3) above for the readjustment of the
Purchase Price upon the expiration of rights or options or the rights of
conversion or exchange of Convertible Securities shall apply mutatis mutandis to
the rights, options and Convertible Securities referred to in this paragraph
(4).
(5) "Additional Shares of Common Stock" shall mean all shares
of Common Stock issued by the Company on or after the Original Issuance Date,
whether or not subsequently reacquired or retired by the Company, other than (i)
shares of Common Stock issuable upon exercise of the Warrants, (ii) shares of
Common Stock issuable upon conversion of the A Preferred, (iii) shares of Common
Stock issuable upon exercise of warrants and options to purchase Common Stock
issued and outstanding as of the Original Issuance Date, (iv) shares of Common
Stock issued to non-affiliated third parties in connection with any bona fide
mergers, acquisitions and business combinations, (v) shares of Common Stock or
options issued to employees, officers, directors, consultants, vendors or agents
of the Company (except that, if to consultants, vendors or agents, only up to a
maximum of 3,000,000 shares of Common Stock in any 12-month period) pursuant to
any stock or option plan duly adopted by, or any employment agreement approved
by, a majority of the non-employee members of the Board of Directors of the
Company or a majority of the members of a committee of non-employee directors
established for such purpose, and in the case of a plan also approved by the
Company's stockholders, (vi) shares of Common Stock issued as dividend payments
in lieu of cash payments on the A Preferred, and (vii) shares of Common Stock
issued in connection with public offerings of the Company's securities. The
"Effective Price" of Additional Shares of Common Stock shall mean the quotient
determined by dividing the total number of Additional Shares of Common Stock
issued or sold, or deemed to have been issued or sold by the Company under this
Section 4.C, into the aggregate consideration received, or deemed to have been
received, by the Company for such issue under this Section 4.C, for such
Additional Shares of Common Stock. "Other Securities" with respect to an issue
or sale of Additional Shares of Common Stock shall mean Convertible Securities;
"the number of shares of Common Stock underlying Other Securities" on a
particular date shall mean the number of shares of Common Stock issuable upon
the exercise, conversion or exchange, as the case may be, of such Other
Securities at the close of business on such date.
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(6) Other than a reduction pursuant to its applicable
anti-dilution provisions, any reduction in the conversion price of any
Convertible Security, whether outstanding on the Original Issuance Date or
thereafter, or the subscription price of any option, warrant or right to
purchase Common Stock or any Convertible Security (whether such option, warrant
or right is outstanding on the Original Issuance Date or thereafter), to an
Effective Price less than the Fair Market Value or the then Purchase Price shall
be deemed to be an issuance of such Convertible Security and the issuance of all
such options, warrants or subscription rights, and the provisions of Sections
4.C.(3), (4) and (5) shall apply thereto mutatis mutandis. A reduction in the
conversion price of the A Preferred, whether due to its applicable anti-dilution
provisions or otherwise, shall be exempt from this Section 4.C.
(7) In case any shares of stock or other securities, other
than Common Stock, shall at the time be receivable upon the exercise of this
Warrant, and in case any additional shares of such stock or any additional such
securities (or any stock or other securities convertible into or exchangeable
for any such stock or securities) shall be issued or sold for a consideration
per share such as to dilute the purchase rights evidenced by this Warrant, then
and in each such case the Purchase Price shall forthwith be adjusted,
substantially in the manner provided for above in this Section 4.C, so as to
protect the Holder of this Warrant against the effect of such dilution.
(8) In case the Company shall take a record of the holders of
shares of its stock of any class for the purpose of entitling them (a) to
receive a dividend or a distribution payable in Common Stock or in Convertible
Securities, or (b) to subscribe for, purchase or otherwise acquire Common Stock
or Convertible Securities, then such record date shall be deemed to be the date
of the issue or sale of the Additional Shares of Common Stock issued or sold or
deemed to have been issued or sold upon the declaration of such dividend or the
making of such other distribution, or the date of the granting of such rights of
subscription, purchase or other acquisition, as the case may be.
(9) No adjustment in the Purchase Price shall be required
unless such adjustment would require an increase or decrease of at least one
cent ($0.01) in such price; provided, however, that any adjustments which by
reason of this Section 4 are not required to be made shall be carried forward
and taken into account in any subsequent adjustment required to be made
hereunder. All calculations under this Section 4 shall be made to the nearest
cent or to the nearest one-hundredth of a share, as the case may be.
D. Adjustment for Certain Dividends and Distributions. If the
Company at any time or from time to time makes, or fixes a record date for the
determination of holders of Common Stock entitled to receive, a dividend or
other distribution payable in additional shares of Common Stock, then and in
each such event:
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(1) the Purchase Price then in effect shall be decreased as of
the time of such issuance or, in the event such record date is fixed, as of the
close of business on such record date, by multiplying the Purchase Price then in
effect by a fraction (A) the numerator of which is the total number of shares of
Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date, and (B) the denominator
of which shall be the total number of shares of Common Stock issued and
outstanding immediately prior to the time of such issuance or the close of
business on such record date as the case may be, plus the number of shares of
Common Stock issuable in payment of such dividend or distribution; provided,
however, that if such record date is fixed and such dividend is not fully paid
or if such distribution is not fully made on the date fixed therefor, the
Purchase Price shall be recomputed accordingly as of the close of business on
such record date, and thereafter the Purchase Price shall be adjusted pursuant
to this Section 4.D as of the time of actual payment of such dividends or
distributions; and
(2) the number of shares of Common Stock theretofore
receivable upon the exercise of this Warrant shall be increased, as of the time
of such issuance or, in the event such record date is fixed, as of the close of
business on such record date, in inverse proportion to the decrease in the
Purchase Price.
E. Stock Split and Reverse Stock Split. If the Company at any time
or from time to time effects a stock split or subdivision of the outstanding
Common Stock, the Purchase Price then in effect immediately before that stock
split or subdivision shall be proportionately decreased and the number of shares
of Common Stock theretofore receivable upon the exercise of this Warrant shall
be proportionately increased. If the Company at any time or from time to time
effects a reverse stock split or combines the outstanding shares of Common Stock
into a smaller number of shares, the Purchase Price then in effect immediately
before that reverse stock split or combination shall be proportionately
increased and the number of shares of Common Stock theretofore receivable upon
the exercise of this Warrant shall be proportionately decreased. Each adjustment
under this Section 4.E shall become effective at the close of business on the
date the stock split, subdivision, reverse stock split or combination becomes
effective.
F. Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Conversion Price pursuant to this Section 4,
the Company at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder of a
Warrant a certificate setting forth such adjustment or readjustment and showing
in detail the facts upon which such adjustment or readjustment is based. The
Company shall, upon the written request at any time of any holder of a Warrant,
furnish or cause to be furnished to such holder a like certificate setting forth
(i) such adjustments and readjustments, (ii) Purchase Price at the time in
effect, and (iii) the number of shares of Common Stock and the amount, if any,
of other property which at the time would be received upon the exercise of the
Warrant.
G. Corresponding Share Adjustment. Any time an adjustment is made to
the Purchase Price pursuant to Section 4 of this Warrant, a corresponding
proportionate change shall be made to the number of shares of Common Stock
issuable upon such exercise.
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5. Notices of Record Date. In case:
A. the Company shall take a record of the holders of its Common
Stock (or other stock or securities at the time receivable upon the exercise of
the Warrants) for the purpose of entitling them to receive any dividend or other
distribution, or any right to subscribe for or purchase any shares of stock of
any class or any other securities, or to receive any other right, or
B. of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation, or any conveyance of all
or substantially all of the assets of the Company to another corporation, or
C. of any voluntary dissolution, liquidation or winding-up of the
Company,
then, and in each such case, the Company will mail or cause to be mailed to each
holder of a Warrant at the time outstanding a notice specifying, as the case may
be, (a) the date on which a record is to be taken for the purpose of such
dividend, distribution or right, and stating the amount and character of such
dividend, distribution or right, or (b) the date on which such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding-up is expected to take place, and the time, if any is to be fixed, as of
which the holders of record of Common Stock (or such stock or securities at the
time receivable upon the exercise of the Warrants) shall be entitled to exchange
their shares of Common Stock (or such other stock or securities) for securities
or other property deliverable upon such reorganization, reclassification,
consolidation, merger, conveyance, dissolution, liquidation or winding-up. Such
notice shall be mailed at least ten (10) days prior to the date therein
specified.
6. Loss or Mutilation. Upon receipt by the Company of evidence
satisfactory to it (in the exercise of reasonable discretion) of the ownership
of and the loss, theft, destruction or mutilation of any Warrant and (in the
case of loss, theft or destruction) of indemnity satisfactory to it (in the
exercise of reasonable discretion), and (in the case of mutilation) upon
surrender and cancellation thereof, the Company will execute and deliver in lieu
thereof a new Warrant of like tenor.
7. Reservation of Common Stock. The Company shall at all times reserve and
keep available for issue upon the exercise of Warrants such number of its
authorized but unissued shares of Common Stock as will be sufficient to permit
the exercise in full of all outstanding Warrants. All of the shares of Common
Stock issuable upon the exercise of the rights represented by this Warrant will,
upon issuance and receipt of the Purchase Price therefor, be fully paid and
nonassessable, and free from all preemptive rights, rights of first refusal or
first offer, taxes, liens and charges of whatever nature, with respect to the
issuance thereof.
8. Registration under the 1933 Act.
A. The Holder, by acceptance of this Warrant, acknowledges that
neither the Warrant nor the shares of the Common Stock issuable upon exercise
thereof have been registered under the 1933 Act and, accordingly, represents and
warrants to the Company that it is acquiring the Warrant for investment and not
with a view to, or in connection with, any distribution thereof. The Holder
further represents and warrants that, if a registration statement under the 1933
Act is not effective with respect to the underlying shares at the time of
exercise, the Holder will acquire the shares of the Common Stock for investment
and not with a view to, or in connection with, any distribution thereof.
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B. If, at any time during the period ending with the second
anniversary of the issuance of the shares of Common Stock upon exercise of this
Warrant, the Company shall file pursuant to the 1933 Act a registration
statement relating to an offering for its own account or the account of others
of any of its equity securities (other than on Form S-4 or its then equivalent
relating to an acquisition or merger transaction or Form S-8 or its then
equivalent relating to equity securities to be issued in connection with a stock
option or other employee benefit plan), the Company shall send to the Holder
written notice of its intention to file at least twenty (20) days prior to the
intended filing date and, if within ten (10) days after the delivery of such
notice, the Holder requests inclusion of all or part of the shares in the
registration statement, then the shares or such portion thereon as to which a
request is made shall be so included. If the offer is underwritten, Holder
agrees to include the Shares in such underwritten offering and, if not
underwritten, to advise the Company (or its successor) as to his, her or its
proposed distribution method. The Holder also agrees that, if the Company, based
on the recommendation of the underwriter, requests the Holder to delay its
offering of the shares, the Holder will comply for a period not to exceed 120
days. The Company shall then use its best efforts to get such registration
statement effective.
9. Notices. All notices and other communications from the Company to the
Holder of this Warrant shall be mailed by first class, registered or certified
mail, postage prepaid, to the address furnished to the Company in writing by the
Holder. All notices to the Company shall be sent in the same manner to FBO Air,
Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ Barre/Scranton International Airport, ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President. Either the Company or the Holder may
change the address by notice to the other sent in the manner provided in this
Section 9.
10. Change; Modifications; Waiver. No terms of this Warrant may be
amended, waived or modified except by the express written consent of the Company
and the holders of not less than 50.1% of the then outstanding Warrants.
11. Headings. The headings in this Warrant are for purposes of convenience
in reference only, and shall not be deemed to constitute a part hereof.
12. Governing Law, Etc. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York without regard to
the conflicts of laws principles thereof. The parties hereto hereby irrevocably
agree that any suit or proceeding arising directly and/or indirectly pursuant to
or under this Agreement, shall be brought solely in a federal or state court
located in the City, County and State of New York. By its execution hereof, the
parties hereby covenant and irrevocably submit to the in personam jurisdiction
of the federal and state courts located in the City, County and State of New
York and agree that any process in any such action may be served upon any of
them personally, or by certified mail or registered mail upon them or their
agent, return receipt requested, with the same full force and effect as if
personally served upon them in New York City. The parties hereto waive any claim
that any such jurisdiction is not a convenient forum for any such suit or
proceeding and any defense or lack of in personam jurisdiction with respect
thereto. In the event of any such action or proceeding, the party prevailing
therein shall be entitled to payment from the other party hereto of all of its
reasonable legal fees and expenses.
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13. Redemption of Warrants.
A. At any time on not less than ten (10) days' prior written notice
(the "Redemption Notice") to all of the holders of all issued and outstanding
Warrants, such Warrants may be redeemed, in whole but not in part, at the option
of the Company, at a redemption price of $0.01 per Warrant (the "Redemption
Price"), provided that: (i) the Market Price (as defined below) for a share of
Common Stock equals or exceeds two hundred fifty (250%) percent of the then
current Purchase Price for a period of twenty (20) consecutive Trading Days (as
defined below) ending on the 2nd Trading Day prior to the date of the Redemption
Notice (the "Marking Date"); (ii) if a registration statement covering the
Warrant Shares filed under the 1933 Act is declared effective by the Commission
and remains effective on and through the date fixed for redemption of the
Warrants (the "Redemption Date"), and (iii) the average daily trading volume of
the Common Stock for the twenty (20) consecutive Trading Days on the Trading
Market is no less than 200,000 shares of Common Stock for each such Trading Day
through the Marking Date.
B. The Redemption Notice shall specify (i) the Redemption Price,
(ii) the Redemption Date, (iii) the place where the Warrant certificates shall
be delivered and the redemption price paid, and (iv) that the right to exercise
this Warrant shall terminate at 5:00 p.m. (New York time) on the Business Day
immediately preceding the Redemption Date.
[Balance of page intentionally left blank]
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C. Any right to exercise a Warrant shall terminate at 5:00 p.m. (New
York time) on the Business Day immediately preceding the Redemption Date. On and
after the Redemption Date, the holder of this Warrant shall have no further
rights except to receive, upon surrender of this Warrant, the Redemption Price.
D. From and after the Redemption Date, the Company shall, at the
place specified in the Redemption Notice, upon presentation and surrender to the
Company by or on behalf of the holder thereof the warrant certificates
evidencing this Warrant being redeemed, deliver, or cause to be delivered to or
upon the written order of such holder, a sum in cash equal to the Redemption
Price of this Warrant. From and after the Redemption Date, this Warrant shall
expire and become void and all rights hereunder and under the warrant
certificates, except the right to receive payment of the Redemption Price, shall
cease.
Dated: September 23, 2005
FBO AIR, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
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EXHIBIT A
SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
The undersigned registered owner of this Warrant irrevocably exercises
this Warrant and purchases _______ of the number of shares of Common Stock of
FBO, Air, Inc., purchasable with this Warrant, and herewith makes payment
therefor, all at the price and on the terms and conditions specified in this
Warrant.
Dated: _________________________
_____________________________________
(Signature of Registered Owner
_____________________________________
(Street Address)
_____________________________________
(City / State / Zip Code)
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EXHIBIT B
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned registered owner of this Warrant hereby
sells, assigns and transfers unto the Assignee named below all of the rights of
the undersigned under the within Warrant, with respect to the number of shares
of Common Stock set forth below:
Name of Assignee Address Number of Shares
---------------- ------- ----------------
and does hereby irrevocably constitute and appoint __________________________
Attorney to make such transfer on the books of FBO, Air, Inc., maintained for
the purpose, with full power of substitution in the premises.
Dated: _______________________________
_____________________________________
(Signature)
_____________________________________
(Witness)
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