Exhibit 4.6
WARRANT AGREEMENT
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WARRANT AGREEMENT dated as of ___________, 2001 between Aviation Sales
Company, a Delaware corporation, having its principal place of business at ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), and Continental
Stock Transfer & Trust Company, a New York corporation, having its principal
place of business at ▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Warrant Agent").
W I T N E S S E T H :
WHEREAS, the Company proposes to issue common stock purchase warrants (the
"Warrants") to purchase up to 6,006,127 shares of the Company's post-reverse
split Common Stock (as that term is defined in Section 1.05);
WHEREAS, the issuance of the Warrants and the future issuance of the shares
of Common Stock upon the future exercise of the Warrants has been registered in
two registration statements: (i) a Registration Statement on Form S-4 (File No.
333-69464), and (ii) a Registration Statement on Form S-1 (File No. 333-
70494)(collectively, the "Registration Statements"), which Registration
Statements also, among other matters, describe the terms of the reverse split of
the Company's issued and outstanding common stock which has been or will be
effected immediately prior to the issuance of the Warrants, as well as the note
exchange and rights offering which the Company is currently conducting (all such
activities as more fully described in the Registration Statements being
collectively referred to herein as the "Restructuring");
WHEREAS, the Warrants shall be exercisable at an exercise price of $5.16
per share (the "Warrant Exercise Price") and shall be evidenced by certificates
substantially in the form of Exhibit A annexed hereto (the "Warrant
Certificate"), each Warrant entitling the holder thereof to purchase one share
of Common Stock (as that term is defined in Section 1.05), subject to the
adjustment provisions of Article III hereof;
WHEREAS, the Warrants will be exercisable commencing on the date of
issuance ("First Exercise Date") until a date which is the fifth anniversary of
the date of issuance ("Last Exercise Date"), unless extended by the Company,
and, will be exercisable during any period of time fixed for that Warrant's
redemption in a Redemption Notice (hereinafter defined in Section 2.03), which
period of time will terminate on a stated Redemption Date (hereinafter defined
in Section 2.03);
WHEREAS, the Warrants issued under the Exchange Offer Registration
Statement will not trade separately from the notes registered thereunder until
December 31, 2003;
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act in connection with the
issuance, registration, transfer, exchange and replacement of the Warrant
Certificates and exercise of the Warrants; and
WHEREAS, the Company and the Warrant Agent desire to set forth in this
Agreement the terms and conditions upon which the Warrant Certificates shall be
issued, transferred, exchanged and placed and the Warrants exercised, and to
provide for the rights of the holders of the Warrants;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and the respective undertakings herein below set forth, the
Company and the Warrant Agent agree as follows:
ARTICLE I
ISSUANCE AND EXECUTION OF WARRANTS
SECTION 1.01 The Company hereby appoints the Warrant Agent to act on
behalf of the Company in accordance with the terms and conditions herein set
forth, and the Warrant Agent hereby accepts such appointment and agrees to
perform the same in accordance with such provisions.
SECTION 1.02 The Warrant Certificates for the Warrants shall be issued in
registered form only. The text of the Warrant Certificate, including the form of
assignment and subscription printed on the reverse side thereof, shall be
substantially in the form of Exhibit A annexed hereto, which text is hereby
incorporated in this Agreement by reference as though fully set forth herein and
to whose terms and conditions the Company and the Warrant Agent hereby agree.
Each Warrant Certificate shall evidence the right, subject to the provisions of
this Agreement and of such Warrant Certificate, to purchase the number of
validly issued, fully paid and non-assessable shares of Common Stock, as that
term is defined in Section 1.05 of this Agreement, stated therein, free of
preemptive rights, subject to adjustment as provided in Article III of this
Agreement.
SECTION 1.03 Upon the written order of the Company, signed by the
Chairman, President, Chief Executive Officer or any Vice President, and the
Secretary, Assistant Secretary or other duly appointed officer of the Company,
the Warrant Agent shall issue and register Warrants in the names and
denominations specified in that order, and will countersign and deliver Warrant
Certificates evidencing the same in accordance with that order. Each Warrant
Certificate shall be dated the date of its countersignature. Each Warrant
Certificate shall be executed on behalf of the Company by the manual or
facsimile signature of the Chairman, President or Chief Executive Officer of the
Company, under its corporate seal, affixed or facsimile, attested by the manual
or facsimile signature of the Secretary of the Company and shall be
countersigned manually by the Warrant Agent. The Warrant Certificates shall not
be valid for any purpose unless so countersigned. In case any officer whose
facsimile signature has been placed upon any Warrant Certificate shall have
ceased to be such before such Warrant Certificate is issued, it may be issued
with the same effect as if such officer had not ceased to be such on the date of
issuance.
SECTION 1.04 Except as otherwise expressly stated herein, all terms used
in the Warrant Certificate have the meanings provided in this Agreement.
SECTION 1.05 As used herein, the term "Common Stock" shall mean the
Company's post-reverse split common stock, par value $.001 per share and any
other shares of common stock that the Company, by its Certificate of
Incorporation, as from time to time amended, is authorized to issue which are
not limited by the Company's
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Certificate of Incorporation to a fixed sum or percentage of the book value in
respect of the rights of the holders thereof to participate in dividends or in
distribution of assets upon the voluntary or involuntary liquidation,
dissolution, or winding up of the Company.
ARTICLE II
WARRANT EXERCISE PRICE, DURATION AND EXERCISE OF WARRANTS AND CALL OF WARRANTS
SECTION 2.01
(a) Each Warrant shall entitle the person in whose name at the time
the Warrant shall be registered upon the books to be maintained by the Warrant
Agent for that purpose (the "Warrant Holder"), subject to the provisions of the
Warrant Certificates and of this Agreement, to purchase from the Company any
time on or after the First Exercise Date but at or before the Last Exercise
Date, up to the number of shares of Common Stock stated in the Warrant
Certificate, as adjusted from time to time pursuant to Article III at the
Warrant Exercise Price in effect at such date, payable in full at the time of
purchase in the manner provided in Section 2.02 of this Agreement.
(b) Each Warrant shall be exercisable in accordance with the terms
herein and in the Warrant Certificate.
SECTION 2.02
(a) The Warrant Holder may exercise a Warrant, in whole or in part,
by surrender of the Warrant Certificate, with the form of subscription thereon
duly executed by the Warrant Agent at its corporate office, together with the
Warrant Exercise Price for each share of Common Stock to be purchased in lawful
money of the United States, or by certified check, bank draft, or postal or
express money order payable in United States Dollars to the order of the
Company.
(b) Upon receipt of a Warrant Certificate with the form of
subscription thereon duly executed and accompanied by payment of the aggregate
Warrant Exercise Price for the shares of Common Stock for which the Warrant is
then being exercised, the Warrant Agent shall promptly (i) requisition from the
Company's transfer agent certificates for the total number of the shares of
Common Stock for which the Warrant is being exercised in such names and
denominations as are required for delivery to the Warrant Holder, (ii) when
appropriate, requisition from the Company the amount of cash paid in lieu of
issuance of fractional shares and (iii) after receipt, promptly deliver such
certificates and when appropriate, after receipt, promptly deliver such cash to
or in accordance with the instructions of the Warrant Holder. The Company
covenants and agrees that it has duly authorized and directed its transfer agent
(and will authorize and direct all its future transfer agents) to comply with
all such requests of the Warrant Agent.
(c) In case any Warrant Holder shall exercise such Holder's Warrant
with respect to less than all of the shares of Common Stock that may be
purchased under the Warrant, a new Warrant
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Certificate for the balance shall be countersigned and delivered to or upon the
order of the Warrant Holder.
(d) The Company covenants and agrees that it will pay when due and
payable any and all taxes which may be payable in respect to the issuance of
Warrants, or the issuance of any shares of Common Stock upon the exercise of
Warrants. However, neither the Company nor the Warrant Agent shall be required
to issue or deliver any Warrant Certificate or shares of Common Stock in a name
other than that of the Warrant Holder at the time of surrender if any tax is
payable in respect of such transfer until the person requesting the same has
paid to the Company the amount of such tax or has established to the Company's
satisfaction that such tax has been paid or shall not be due and payable. In the
event that any transfer tax is due and payable, the Warrant Agent shall be under
no obligation to issue or deliver any Warrant Certificate or shares of Common
Stock in a name other than that of the Warrant Holder until the Company has
notified the Warrant Agent that the transfer tax, if any, has been paid, or in
the alternative, that no transfer tax is due and payable by reason of an
exemption.
(e) The Warrant Agent shall account promptly to the Company with
respect to Warrants exercised and concurrently account to the Company for all
moneys received by the Warrant Agent for the purchase of shares of Common Stock
upon the exercise of Warrants.
(f) The Warrant Agent covenants and agrees that upon the exercise of
any of the Warrants, the Warrant Agent shall provide written notice to the
Company at the addresses set forth in Section 6.09 hereof, the expense of which
notice shall be borne by the Company. Each notice shall contain the name of the
exercising Warrant Holder, the number of shares of Common Stock that the Warrant
Holder has elected to purchase, the purchase price paid on a per share basis and
the cumulative number of Warrants exercised by all of the Warrant Holders as of
the date of the transaction which is the subject of the aforesaid notice. Such
notice shall be made no later than two (2) business days following the date of
the exercise of the Warrant. Nothing contained herein shall be construed so as
to prevent the Warrant Agent from providing the information required in this
Section 2.02 (f) in a consolidated or tabular form, provided that all other
provisions of this Section are complied with.
(g) The Warrant Agent covenants and agrees that it shall provide a
list of each and every Warrant Holder to the Company at such time or from time
to time as shall be required by the Company, but in no event shall such a list
be provided less frequently than once per annum at a date as shall be determined
by the Company.
SECTION 2.03
(a) The Company may, at any time, subject to the conditions set forth
herein, redeem all, but not less than all, the Warrants then outstanding upon
not less than thirty (30) days prior written notice (the "Redemption Notice") to
the holders thereof provided that the average closing price of the Common Stock
for the 20 consecutive trading days ending three (3) days prior to the date of
the Redemption Notice is at least $6.71 per share, subject to adjustment for
stock dividends, stock splits and other anti-dilution provisions as provided for
under Article III
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herein. For purposes of this Section 2.03, "closing price" at any date shall be
deemed to be: (i) the last sale price regular way as reported on the principal
national securities exchange on which the Common Stock is listed or admitted to
trading, or (ii) if the Common Stock is not listed or admitted to trading on any
national securities exchange, the average of the closing bid and asked prices
regular way for the Common Stock as reported by the Nasdaq National Market or
Nasdaq Small Cap Market of the Nasdaq Stock Market, Inc. ("NASDAQ") or (iii) if
the Common Stock is not listed or admitted for trading on any national
securities exchange, and is not reported by NASDAQ, the average of the closing
bid and asked prices in the over-the-counter market as furnished by the Bulletin
Board maintained by the NASD or, if no such quotation is available, from the
National Quotation Bureau, Inc. or if no such quotation is available, the fair
market value of the Common Stock as determined in good faith by the Board of
Directors of the Company. The Redemption Notice shall be deemed effective upon
mailing and the time of mailing is the "Effective Date of the Notice". The
Redemption Notice shall state a redemption date not less than thirty (30) days
from the Effective Date of the Notice (the "Redemption Date"). No Redemption
Notice shall be mailed unless all funds necessary to pay for redemption of all
Warrants then outstanding shall have first been set aside by the Company in
trust with the Warrant Agent for the benefit of all Warrant Holders so as to be
and continue to be available therefor. The redemption price to be paid to the
Warrant Holders will be $.001 for each share of the Common Stock of the Company
to which the Warrant Holder would then be entitled upon exercise of the Warrant
being redeemed, as adjusted from time to time as provided in the following
sentence (the "Redemption Price"). In the event the number of shares of Common
Stock issuable upon exercise of the Warrant being redeemed are adjusted pursuant
to Article III hereof, then upon each such adjustment the Redemption Price will
be adjusted by multiplying the Redemption Price in effect immediately prior to
such adjustment by a fraction, the numerator of which is the number of shares of
Common Stock issuable upon exercise of the Warrant being redeemed immediately
prior to such adjustment and the denominator of which is the number of shares of
Common Stock issuable upon exercise of such Warrant being redeemed immediately
after such adjustment. The Warrants may only be redeemed if the Company has in
effect a current registration statement or post-effective amendment covering all
of the shares of Common Stock underlying the Warrants. The Warrant Holders may
exercise their Warrants between the Effective Date of the Notice and the
Redemption Date, such exercise being effective if done in accordance with
Section 2.02(a), and if the Warrant Certificate, with the form of subscription
duly executed and the Warrant Exercise Price, as applicable for such Warrant
subject to redemption for each share of Common Stock to be purchased is actually
received by the Warrant Agent at its office located at ▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, no later than 5:00 P.M. New York time on the Redemption Date;
provided, that in the event the Warrant Certificate of such Warrant Holder has
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been lost, stolen, mutilated or destroyed, in lieu of the requirement to deliver
the Warrant Certificate under this Section 2.03(a), such Warrant Holder may
deliver an affidavit of loss attesting to such event and such affidavit of loss
shall constitute an effective delivery of the Warrant Certificate for purposes
of exercise under this Section 2.03(a).
(b) If any Warrant Holder does not wish to exercise any Warrant being
redeemed, the Warrant Holder should mail such Warrant to the Warrant Agent at
its office located at ▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, after receiving the
Redemption Notice required by this Section. If such Redemption Notice shall have
been so mailed, and if on or before the Effective Date of the Notice all funds
necessary to pay for redemption of all Warrants then outstanding shall have been
set aside by the Company in trust with the Warrant Agent for the benefit of all
Warrant Holders so as to be and continue to be available therefor, then, on and
after said Redemption Date, notwithstanding that any Warrant subject to
redemption shall not
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have been surrendered for redemption, the obligation evidenced by all Warrants
not surrendered for redemption or effectively exercised shall be deemed no
longer outstanding, and all rights with respect thereto shall forthwith cease
and terminate, except only the right of the holder of each Warrant subject to
redemption to receive the Redemption Price for each share of Common Stock to
which he would be entitled if such holder exercised the Warrant upon receiving
the Redemption Notice of the Warrant subject to redemption held by the Holder
hereof.
ARTICLE III
ADJUSTMENT OF SHARES OF COMMON STOCK
PURCHASABLE AND OF WARRANT EXERCISE PRICE
SECTION 3.01 In case the Company shall at any time after the date of this
Agreement (i) declare a dividend on the outstanding Common Stock in shares of
its capital stock, (ii) subdivide the outstanding Common Stock into a larger
number of shares, (iii) combine the outstanding Common Stock into a smaller
number of shares, or (iv) issue any shares of its capital stock by
reclassification of the Common Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is the continuing
corporation), then, in each case, the Warrant Exercise Price, and the number and
kind of shares of Common Stock or other securities of the Company receivable
upon exercise, in effect at the time of the record date for such dividend or of
the effective date of such subdivision, combination, or reclassification shall
be proportionately adjusted so that the holder of any Warrant exercised after
such time shall be entitled to receive the aggregate number and kind of shares
or other securities of the Company which if such Warrant had been exercised
immediately prior to such time, such holder would have owned upon such exercise
or been entitled to receive by virtue of such dividend, subdivision,
combination, or reclassification at the same aggregate Warrant Exercise Price.
Such adjustment shall be made successively whenever any event listed above shall
occur and shall become effective on the record date of such dividend or the date
such subdivision, combination or reclassification becomes effective, as
applicable.
SECTION 3.02 In case the Company after the date hereof shall issue
rights, options, or warrants to all holders of its Common Stock generally
entitling them to subscribe for or purchase Common Stock (or any "Convertible
Securities", as defined below) at a price per share (or having an initial
conversion price per share, if a security Convertible into Common Stock) less
than the "current market price" (as defined in Section 3.04 hereof) per share of
Common Stock on the record date established for the issuance of such rights,
options or warrants, then, in such case, the Warrant Exercise Price shall be
adjusted by multiplying the Warrant Exercise Price in effect on the record date
of such issuance by a fraction, of which the numerator shall be the number of
shares of Common Stock outstanding on such record date plus the number of shares
of Common Stock which the aggregate offering price of the total number of shares
of Common Stock so to be issued (or the aggregate initial Conversion price of
the Convertible Securities to be offered for subscription or purchase) would
purchase at such "current market price" and of which the denominator shall be
the number of shares of Common Stock outstanding on such record date plus the
number of additional shares of Common Stock to be offered for subscription or
purchase (or into which the Convertible Securities are initially Convertible).
Such adjustment shall become effective at the close of business on such record
date; provided, however, that, to the extent the shares of Common Stock (or
securities Convertible into shares of
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Common Stock) are not issued or sold by the Company, the Warrant Exercise Price
shall be readjusted after the expiration of such rights, options, or warrants
(but only with respect to Warrants exercised after such expiration), to the
Warrant Exercise Price which would then be in effect had the adjustments made
upon the issuance of such rights, options or warrants been made upon the basis
of the issuance or sale of only the number of shares of Common Stock or
securities Convertible into shares of Common Stock actually issued or sold.
In case any subscription or purchase price may be paid in a consideration part
or all of which shall be in a form other than cash, the value of such
consideration shall be as determined in good faith by the board of directors of
the Company, whose determination shall be conclusive absent manifest error.
Shares of Common Stock owned by or held for the account of the Company or any
majority-owned subsidiary shall not be deemed outstanding for the purpose of any
such computation. Any adjustment under this Section 3.02 shall be made
successively whenever such an issuance referred to above occurs.
Notwithstanding the foregoing, no adjustment in the Warrant Exercise
Price or the number of shares of Common Stock issuable upon exercise of the
Warrants shall be made upon the issuance of subscription rights, options and/or
warrants in connection with or related to the Restructuring described in the
Registration Statements, including the related rights offering contemplated
thereby.
As used in this Section 3.02, the term "Convertible Securities" shall
mean securities convertible into or exchangeable or exercisable for Common
Stock, the term "Convertible" shall mean convertible, exchangeable or
exerciseable, as applicable, and the term "Conversion" shall mean conversion,
exchange or exercise, as applicable.
SECTION 3.03 In case the Company shall distribute to all holders of Common
Stock generally (including any such distribution made to the stockholders of the
Company in connection with a consolidation or merger in which the Company is the
continuing corporation) evidences of its indebtedness or assets (other than cash
dividends payable out of earnings and dividends payable in shares of Common
Stock referred to in Section 3.01 hereof), or subscription rights, options, or
warrants or convertible or exchangeable securities containing the right to
subscribe for or purchase shares of Common Stock (excluding those referred to in
Section 3.02 hereof and the Restructuring, including the related rights
offering, described in the Registration Statements), then, in each case, the
Warrant Exercise Price shall be adjusted by multiplying the Warrant Exercise
Price in effect immediately prior to the record date for the determination of
stockholders entitled to receive such distribution by a fraction of which the
numerator shall be the "current market price" per share of Common Stock on such
record date, less the fair market value (as determined in good faith by the
board of directors of the Company, whose determination shall be conclusive
absent manifest error) of the portion of the evidences of indebtedness or assets
so to be distributed, or of such subscription rights, options, or warrants,
convertible or exchangeable securities containing the right to subscribe for or
purchase shares of Common Stock, applicable to one share of Common Stock, and of
which the denominator shall be such "current market price" per share of Common
Stock. Such adjustment shall be made successively whenever any such distribution
is made, and shall become effective on the date of such distribution retroactive
to the record date for the determination of stockholders entitled to receive
such distribution.
SECTION 3.04 For the purpose of any computation under Sections 3.02 and
3.03 hereof, the "current market price" per share of Common Stock on any date
shall be deemed to be the average of the daily closing prices for the 20
consecutive trading days ending three (3) days prior to such date. The closing
price for each day shall be the last reported sales price regular way or, in
case no such reported sale takes place on such day, the closing bid price
regular way, in either case on the principal national securities exchange on
which the Common Stock is listed
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or admitted to trading or, if the Common Stock is not listed or admitted to
trading on any national securities exchange, the highest reported bid price as
furnished by NASDAQ. If on any such date the Common Stock is not quoted on
NASDAQ, the closing price shall be deemed to be the average of the closing bid
and asked prices in the over-the-counter market as reported on the Bulletin
Board maintained by the NASD, or if no such quotation is available, as reported
by the National Quotation Bureau, or if no such quotation is available, the fair
value of the Common Stock on such date, as determined in good faith by the board
of directors of the Company, whose determination shall be conclusive absent
manifest error.
SECTION 3.05 No adjustment in the Warrant Exercise Price shall be
required if such adjustment is less than 1% of the Warrant Exercise Price then
in effect; provided, however, that any adjustments which by reason of this
Section 3.05 are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this Article III
shall be made to the nearest cent or to the nearest one-thousandth of a share,
as the case may be.
SECTION 3.06 In any case in which this Article III shall require that an
adjustment in the Warrant Exercise Price be made effective as of a record date
for a specified event, the Company may elect to defer, until the occurrence of
such event, issuing to the holder of any Warrant exercised after such record
date, the shares, if any, issuable upon such exercise over and above the shares,
if any, issuable upon such exercise on the basis of the Warrant Exercise Price
in effect prior to such adjustment; provided, however, that the Company shall
deliver to such holder a due ▇▇▇▇ or other appropriate instrument evidencing
such holder's right to receive such additional shares upon the occurrence of the
event requiring such adjustment.
SECTION 3.07 Upon each adjustment of the Warrant Exercise Price as a
result of the calculations made in Section 3.01, 3.02, or 3.03 hereof, each
Warrant outstanding prior to the making of the adjustment in the Warrant
Exercise Price shall thereafter evidence the right to purchase, at the adjusted
Warrant Exercise Price, that number of shares (calculated to the nearest
thousandth) obtained by dividing (A) the product obtained by multiplying the
number of shares purchasable upon exercise of a Warrant prior to adjustment of
the number of shares by the Warrant Exercise Price in effect prior to adjustment
of the Warrant Exercise Price by (B) the Warrant Exercise Price in effect after
such adjustment of the Warrant Exercise Price.
SECTION 3.08 In case of any capital reorganization of the Company, or of
any reclassification of the Common Stock (other than a reclassification of the
Common Stock referred to in Section 3.01 hereof), or in the case of the
consolidation of the Company with or the merger of the Company into any other
corporation or of the sale, transfer, or lease of the properties and assets of
the Company as, or substantially as, an entirety to any other corporation or
other entity, each Warrant shall after such capital reorganization,
reclassification of Common Stock, consolidation, merger, sale, transfer, or
lease, be exercisable, on the same terms and conditions specified in this
Agreement, for the number of shares of stock or other securities, assets, or
cash to which a holder of the number of shares purchasable (at the time of such
capital reorganization, reclassification of Common Stock, consolidation, merger,
sale, transfer, or lease) upon exercise of such Warrant would have been entitled
upon such capital reorganization,
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reclassification of Common Stock, consolidation, merger, sale, transfer, or
lease; and in any such case, if necessary, the provisions set forth in this
Article III with respect to the rights and interests thereafter of the holders
of the Warrants shall be appropriately adjusted so as to be applicable, as
nearly as may reasonably be, to any shares of stock, other securities, assets,
or cash thereafter deliverable on the exercise of the Warrants. The subdivision
or combination of shares of Common Stock at any time outstanding into a greater
or lesser number of shares shall not be deemed to be a reclassification of the
Common Stock for the purposes of this subsection. The Company shall not effect
any such consolidation, merger, transfer, or lease, unless prior to or
simultaneously with the consummation thereof, the successor corporation (if
other than the Company) resulting from such consolidation or merger or the
Corporation purchasing, receiving, or leasing such assets or other appropriate
corporation or entity shall expressly assume, by written instrument, the
obligation to deliver to the holder of each Warrant such shares of stock,
securities, or assets as, in accordance with the foregoing provisions, such
holders may be entitled to purchase and to perform the other obligations of the
Company under this Agreement.
SECTION 3.09 The Company may make such reductions in the Warrant Exercise
Price, in addition to those required by this Article III, as it shall, in it
sole discretion, determine to be advisable.
ARTICLE IV
OTHER PROVISIONS RELATING TO RIGHTS OF
WARRANT HOLDERS
SECTION 4.01 No Warrant Holder, as such, shall be entitled to vote or
receive dividends or be deemed the holder of shares of Common Stock for any
purposes, nor shall anything contained in any Warrant Certificate be construed
to confer upon any Warrant Holder, as such, any of the rights of a shareholder
of the Company or any right to vote, give or withhold consent to any action by
the Company, whether upon any recapitalization, issue of stock, reclassification
of stock, consolidation, merger, conveyance or otherwise, receive dividends or
subscription rights, or otherwise, until in connection with the exercise of any
Warrant, such Warrant shall have been surrendered and the purchase price or the
shares of Common Stock for which such Warrant is being exercised shall have been
received by the Warrant Agent; provided, however, that any such surrender and
payment on any date when the stock transfer books of the Company shall be closed
shall constitute the person or persons in whose name or names the certificate or
certificates for those shares of Common Stock are to be issued as the record
holder or holders thereof for all purposes at the opening of business on the
next succeeding day on which such stock transfer books are open and the Warrant
surrendered shall not be deemed to have been exercised, in whole or in part, as
the case maybe, until such next succeeding day on which stock transfer books are
open.
SECTION 4.02 The Company covenants and agrees that it shall
contemporaneously provide to all Warrant Holders of record any publication,
mailing or notice of an event which it shall provide to all of its shareholders
of record and which event shall result in the adjustment to the Warrant Exercise
Price as provided in Article III hereof. For purposes of
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this Section 4.02, the Warrant Holders of record shall be those Warrant Holders
who are of record on a date even with the date chosen by the Company for the
purpose of determining the shareholders of record who shall be entitled to
receive such publication, mailing or notice.
SECTION 4.03 If any Warrant Certificate is lost, stolen, mutilated or
destroyed, the Company and the Warrant Agent may, on such terms as to indemnity
or otherwise as they may in their discretion reasonably impose, which shall, in
the case of a mutilated Warrant Certificate, include the surrender thereof,
issue a new Warrant Certificate of like denomination and tenor as, and in
substitution for, the Warrant Certificate so lost, stolen mutilated or
destroyed.
SECTION 4.04
(a) The Company covenants and agrees that at all times it shall
reserve and keep available for the exercise of outstanding Warrants such number
of authorized shares of Common Stock and the aggregate number and kind of any
other securities which the Warrants are exercisable for, pursuant to the
provisions of Article III hereof, as are sufficient to permit the exercise in
full of such Warrants and that it will make available to the Warrant Agent from
time to time a number of duly executed certificates representing shares of
Common Stock and other securities sufficient therefor.
(b) The Company shall use its best efforts to secure the
listing, upon official notice of issuance, of the shares of Common Stock
issuable upon exercise of Warrants upon any securities exchange upon which the
Common Stock becomes listed.
(c) The Company covenants that all shares of Common Stock or other
securities of the Company issued on exercise of Warrants shall be validly
issued, fully paid, non-assessable and free of preemptive rights.
(d) The Company has filed the Registration Statements for the
registration of, among other matters, the sale of the Warrants and the shares of
Common Stock issuable upon exercise thereof under the Securities Act of 1933, as
amended (the "Act"). The Company shall use its reasonable efforts to secure the
effectiveness of the Registration Statements under the Act, and to register or
qualify such Warrants and shares of Common Stock under the laws of any states in
which the sale of the Warrants and shares of Common Stock was registered or
qualified at the time of the Restructuring and shall use its reasonable good
faith efforts to register and qualify such Warrants and shares of Common Stock
in such additional states and jurisdictions as may be appropriate. The Company
further agrees to use its reasonable efforts to maintain the effectiveness of
such Registration Statements and such state qualifications, as aforesaid, by the
filing of any and all amendments to the Registration Statements and such state
qualifications as may be required from time to time under the Act or the laws of
the various states until the expiration or termination of all the Warrants in
accordance herewith.
(e) The Company will furnish to the Warrant Agent, upon request, an
opinion of counsel satisfactory to the Warrant Agent to the effect that (i) one
or more registration statements under the Act is then in effect with respect to
the Warrants and shares of Common
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Stock issuable upon the exercise of the Warrants and that the prospectus
included therein complies as to form in all material respects, (except as to
financial statements, including schedules, and other accounting and financial
data, as to which such counsel need express no opinion), with the requirements
of the Act and the rules and regulations of the Commission thereunder; or a
registration statement under the Act with respect to said shares of Common Stock
is not required. In the event that said opinion states that such a registration
statement is in effect, the Company will from time to time furnish the Warrant
Agent with current prospectuses meeting the requirements of the Act and such
rules and regulations in sufficient quantity to permit the Warrant Agent to
deliver a prospectus ("Prospectus") to each Warrant Holder upon exercise
thereof. The Company further agrees to pay all fees, costs and expenses in
connection with the preparation and delivery to the Warrant Agent of the
foregoing opinions and Prospectuses and the above mentioned registrations and
other actions, and to immediately notify the Warrant Agent in the event that (i)
the Commission shall have issued or threatened to issue any order preventing or
suspending the use of any Prospectus; (ii) at any time any Prospectus shall
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances in which they were made, not misleading; or
(iii) for any reason it shall be necessary to amend or supplement any Prospectus
in order to comply with the Act.
SECTION 4.05 If the number of shares purchasable upon the exercise of
each Warrant is adjusted pursuant to Section 3.07 hereof, the Company shall not
be required to issue fractions of shares upon exercise of the Warrants or to
distribute share certificates which evidence fractional shares. In lieu of
fractional shares, the Company, in its sole discretion, may pay to the
registered holders of Warrant Certificates at the time such Warrants are
exercised as herein provided an amount in cash equal to the same fraction of the
current market value of a share. For purposes of this Section 4.05, the current
market value of a share issuable upon the exercise of a Warrant shall be the
closing price of a share of Common Stock, as determined pursuant to the second
and third sentences of Section 3.04, for the trading day immediately prior to
the date of such exercise.
ARTICLE V
TREATMENT OF WARRANT HOLDERS
SECTION 5.01 Prior to due presentment for registration of transfer of any
Warrant, the Company and the Warrant Agent may deem and treat the Warrant Holder
as the absolute owner of such Warrant, notwithstanding any notation of ownership
or other writing thereon, for the purpose of any exercise thereof and for all
other purposes, and neither the Company nor the Warrant Agent shall be affected
by any notice to the contrary.
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ARTICLE VI
CONCERNING THE WARRANT AGENT
AND OTHER MATTERS
SECTION 6.01 The Company will from time to time promptly pay, subject to
the provisions of Section 2.02 (d) of this Agreement, all taxes and charges that
may be imposed upon the Company or the Warrant Agent in respect of the issuance
or delivery of shares of Common Stock upon the exercise of Warrants.
SECTION 6.02
(a) The Warrant Agent may resign and be discharged from its duties
under this Agreement upon sixty (60) days notice in writing, mailed to the
Company by registered or certified mail, and to each Warrant Holder. The Company
may remove the Warrant Agent or any successor warrant agent upon sixty (60) days
notice in writing, mailed to the Warrant Agent or successor Warrant Agent, as
the case may be, by registered or certified mail, and to each Warrant Holder;
provided, however, the Company shall appoint a new Warrant Agent as hereinafter
provided and such removal shall not become effective until a successor Warrant
Agent has been appointed and has accepted such appointment. If the Warrant Agent
shall resign or shall otherwise become capable of acting, the Company shall
appoint a successor to the Warrant Agent. If the Company shall fail to make such
appointment within a period of sixty (60) days after it has been notified in
writing of such resignation or incapability by the Warrant Agent by a Warrant
Holder, who shall, with such notice, submit his Warrant Certificate for
inspection by the Company, then any Warrant Holder may apply to any court of
competent jurisdiction or the appointment of a successor to the Warrant Agent.
Any successor Warrant Agent, whether appointed by the Company or by such a court
shall be a registered transfer agent, bank or trust company, subject to the
terms and conditions of this Section 6.02, in good standing and incorporated
under the laws of any State of the United States, having its principal office in
the United States of America. After appointment, the successor Warrant Agent
shall be vested with the same powers, rights, duties and responsibilities as if
it had been originally named as Warrant Agent without further act or deed. The
former Warrant Agent shall deliver and transfer to the successor Warrant Agent
any property at the time held by it hereunder and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Failure to
give any notice provided for in this Section, however, or any defect therein,
shall not affect the legality or validity of the resignation or removal of the
Warrant Agent or the appointment of the successor Warrant Agent, as the case may
be.
(b) Any corporation into which the Warrant Agent may be merged or
with which it may be consolidated, or any corporation resulting from any merger
or consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to the corporate trust business of the Warrant Agent, shall be the
successor to the Warrant Agent hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In
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case at the time such successor to the Warrant Agent shall succeed to the agency
created by this Agreement, any of the Warrant Certificates shall have been
countersigned but not delivered, any such successor to the Warrant Agent may
adopt the countersignature of the original Warrant Agent and deliver such
Warrant Certificates so countersigned, and in case at that time any of the
Warrant Certificates shall not have been countersigned, any successor to the
Warrant Agent may countersign such Warrant Certificate in its own name or in the
name of the successor Warrant Agent; and in all such cases such Warrant
Certificates shall have the full force provided in the Warrant Certificates and
this Agreement.
In case at any time the name of the Warrant Agent shall be changed and
at such time any of the Warrant Certificates shall have been countersigned but
not delivered, the Warrant Agent may adopt the countersignature under this prior
name and deliver Warrant Certificates so countersigned; and in case at that time
any of the Warrant Certificates shall not have been countersigned, the Warrant
Agent may countersign such Warrant Certificates either in its prior name or in
its changed name; and in all such cases such Warrant Certificates shall have the
full force provided in the Warrant Certificates and in this Agreement.
SECTION 6.03 The Company agrees to pay the Warrant Agent a reasonable fee
for all services rendered by it hereunder. The Company also agrees to indemnify
the Warrant Agent for, and to hold it harmless against, any loss, liability or
expense, incurred without gross negligence, willful misconduct or bad faith on
the part of the Warrant Agent, arising out of or in connection with the
acceptance and administration of this Agreement, including the costs and
expenses of defending against any claim of liability in the premises.
SECTION 6.04 The Company covenants and agrees that it shall, at the
Company's expense, provide to the Warrant Agent copies of its current
prospectus, if any, in such quantity as to enable the Warrant Agent to deliver
one copy of such current prospectus to such Warrant Holder who shall exercise
his rights under a Warrant. Notwithstanding anything else contained in this
Section 6.04, the Company shall not be obligated to provide copies of its
current prospectus for the purpose of allowing the Warrant Agent to deliver such
copies to any Warrant Holder who delivers all of his Warrants for redemption
pursuant to Section 2.03 or who shall notify the Company of such Holder's intent
to permit redemption of all of such Holder's Warrants pursuant to Section 2.03
herein or to any person who shall hold any Warrant subject to the terms of this
Agreement after the earlier of the Redemption Date or the Last Exercise Date of
the Warrants.
SECTION 6.05 The Warrant Agent undertakes the duties and obligations
imposed by this Agreement upon the following terms and conditions, by all of
which the Company and the holders of Warrant Certificates, by their acceptance
thereof, shall be bound:
(a) Whenever in the performance of its duties under this Agreement
the Warrant Agent shall deem it necessary or desirable that any fact or matter
be proved or established by the Company prior to taking or suffering any action
hereunder, that fact or matter, unless other evidence in respect thereof be
herein specifically prescribed, may be deemed to be conclusively proved and
established by a certificate signed by the President or the Secretary of the
Company and delivered to the Warrant Agent. That certificate shall be full
authorization to
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the Warrant Agent for any action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon that certificate.
(b) The Warrant Agent shall be liable hereunder only for its own
gross negligence, willful misconduct or bad faith.
(c) The Warrant Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the Warrant
Certificates, except its countersignature thereof, or be required to verify the
same, but all such statements and recitals are and shall be deemed to have been
made by the Company only.
(d) The Warrant Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery hereof,
except the due execution hereof by the Warrant Agent, or in respect of the
validity or execution of any Warrant Certificate, except its countersignature
thereof; nor shall it be responsible for any Warrant Certificate; nor shall it
be responsible for the adjustment of the Warrant Exercise Price or the making of
any change in the number of shares of Common Stock required under the provisions
of Article III of this Agreement or responsible for the manner, method or amount
of any such change or the ascertaining of the existence of facts that would
require any such adjustment or change except with respect to the exercise of
Warrant Certificates after actual notice of any adjustment of the Warrant
Exercise Price; nor shall it by any act under this Agreement be deemed to make
any representation or warranty as to the authorization or reservation of any
shares of Common Stock to be issued pursuant to this Agreement or any Warrant
Certificate or as to whether any share of Common Stock will when issued be
validly issued, fully paid, non-assessable and free of preemptive rights.
(e) The Warrant Agent and any shareholder, director, officer or
employee of the Warrant Agent may buy, sell or deal in any of the Warrant
Certificates or other securities of the Company to retain a pecuniary interest
in any transaction in which the Company may be interested or contract with or
lend money to or otherwise act as fully and freely as though it was not the
Warrant Agent or subject to this Agreement. Nothing herein shall preclude the
Warrant Agent from acting in any other capacity for the Company or for any other
legal entity.
(f) The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
officer or assistant officer of the Company, and to apply to any such officer or
assistant officer for advice or instructions in connection with its duties, and
shall not be liable for any action taken or suffered to be taken by it in good
faith in accordance with instructions of any such officer or assistant officer.
(g) The Warrant Agent may consult with its counsel or other counsel
satisfactory to it, including counsel for the Company, and the opinion of such
counsel shall be full and complete authorization and protection in respect of
any action taken, offered, or omitted by it hereunder in good faith and in
accordance with the opinion of such counsel.
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(h) The Warrant Agent shall incur no liability to the Company or to
any holder of any Warrant for any action taken by it in reliance upon any
Warrant Certificate or certificate for Common Stock, instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter, notice, direction,
consent, certificate, statement, or other paper or document believed by it to be
genuine and to be signed, executed, and where necessary, certified or
acknowledged, by the proper person or persons.
SECTION 6.06 The Warrant Agent may, without the consent or concurrence of
the Warrant Holders, by supplemental agreement or otherwise, concur with the
Company in making any changes or corrections in this Agreement that (i) it shall
have been advised by counsel, who may be counsel for the Company, are required
to cure any ambiguity or to correct any defective or inconsistent provision or
clerical omission or mistake or manifest error herein contained, or (ii) as
provided in Section 3.09, the Company deems necessary of advisable and which
shall not be inconsistent with the provisions of the Warrant Certificates,
provided such changes or corrections do not adversely affect the privileges or
immunities of the Warrant Holders.
SECTION 6.07 All the covenants and provisions of this Agreement by or for
the benefit of the Company or the Warrant Agent shall bind and inure to the
benefit of their respective successors and assigns hereunder.
SECTION 6.08 Forthwith upon the appointment after the date thereof of any
transfer agent for the Common Stock, or of any subsequent transfer agent for the
Common Stock, the Company will file with the Warrant Agent a statement setting
forth the name and address of such transfer agent.
SECTION 6.09 Notice or demand pursuant to this Agreement to be given or
made by the Warrant Agent or by any Warrant Holder to or on the Company shall be
sufficiently given or made and effective on the third business day after posting
thereof, unless otherwise provided in this Agreement, if sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing by
the Company with the Warrant Agent) as follows:
Aviation Sales Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Chairman
With a copy to:
Akerman Senterfitt & ▇▇▇▇▇▇, PA
One ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
notice or demand pursuant to this Agreement to be given or made by the Company
or any Warrant Holder to or on the Warrant Agent shall be sufficiently given or
made and effective on the third business day after posting thereof, unless
otherwise provided in this Agreement, if sent
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by first-class mail, postage prepaid, addressed (until another address is filed
in writing by the Warrant Agent with the Company) as follows:
Continental Stock Transfer & Trust Company
▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Compliance Department
notice or demand pursuant to this Agreement to be given or made by the Company
or the Warrant Agent to or on any Warrant Holder shall be sufficiently given or
made and effective on the third business day after posting thereof, unless
otherwise provided in this Agreement, if sent by first-class mail, postage
prepaid, addressed to such Warrant Holder at his last known address as it shall
appear in the records of the Company, if such notice shall be given by the
Company, or, if such notice shall be given by the Warrant Agent, as it shall
appear on the register maintained by the Warrant Agent.
A copy of any Notice or demand given or made pursuant to this
Agreement on the Warrant Agent, Company shall be promptly forwarded by the
recipient thereof to each of the Company, Warrant Agent who shall not have
received or made such demand or Notice.
SECTION 6.10 The validity, interpretation and performance of this
Agreement and the Warrants shall be governed by the law of the State of Florida.
SECTION 6.11 Nothing in this Agreement shall be construed to give to any
person or corporation other than the parties hereto and the Warrant Holders any
right, remedy or claim under promise or agreement hereof. All covenants,
conditions, stipulations, promises and agreements contained in this Agreement
shall be for the sole and exclusive benefit of the Company and the Warrant Agent
and their successors and of the Warrant Holders, and their heirs,
representatives, successors, assigns and transferees.
SECTION 6.12 A copy of this Agreement shall be available for inspection
by any Warrant Holder during the regular business hours and at the corporate
office of the Warrant Agent in New York, New York, at which time the Warrant
Agent may require any Warrant Holder to submit his Warrant Certificate for
inspection by it.
SECTION 6.13 This Agreement shall terminate on the Last Exercise Date, or
such earlier date upon which all Warrants have been exercised or redeemed,
except that the Warrant Agent shall account to the Company pursuant to Section
2.02 (e) of this Agreement for all cash held by it. The provisions of Section
6.03 and 6.04 of this Agreement shall survive such termination.
SECTION 6.14 The Article headings in this Agreement are for convenience
only and are not part of this Agreement and shall not affect the interpretation
thereof.
[Signatures on Next Page]
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SECTION 6.15 This Agreement may be executed in any number counterparts,
each of which is so executed shall be deemed to be an original, and all such
counterparts shall together constitute but one and the same agreement.
ATTEST: AVIATION SALES COMPANY
By: ____________________________________
____________________________________ Name:
____________________________________
Title: _________________________________
ATTEST: CONTINENTAL STOCK TRANSFER &
TRUST COMPANY
By: ____________________________________
____________________________________ Name:
____________________________________
Title: _________________________________
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