PET AIRWAYS, INC. COMMON STOCK SUBSCRIPTION AGREEMENT
Exhibit
10.1
PET
AIRWAYS, INC.
SECTION
1.
1.1 Subscription. The
undersigned (the “Subscriber”), intending to be
legally bound, hereby irrevocably subscribes for and agrees to purchase ________
shares of the Common Stock (the "Common Stock") of Pet Airways,
Inc., an Illinois corporation (the "Company") in a transaction
exempt from the registration requirements of the Securities Act of 1933, as
amended (the "Securities
Act").
1.2 Purchase of Shares.
The Subscriber understands and acknowledges that the purchase price to be
remitted to the Company in exchange for the _______ Shares shall be an aggregate
of ________ dollars or ____ per Share (the "Subscription Amount"). The
Company shall deliver the Shares to the Subscriber promptly after the acceptance
of this Subscription Agreement by the Company.
1.3 Acceptance or
Rejection.
(a) The
Subscriber understands and agrees that the Company reserves the right to reject
this subscription for the Shares if, in its reasonable judgment, it deems such
action in the best interest of the Company, at any time prior to the
Closing.
(b) The
Subscriber understands and agrees that its subscription for the Shares is
irrevocable.
(c) In the
event the sale of the Shares subscribed for by the Subscriber is not consummated
by the Company for any reason (in which event this Subscription Agreement shall
be deemed to be rejected), this Subscription Agreement and any other agreement
entered into between the Subscriber and the Company relating to this
subscription shall thereafter have no force or effect and the Company shall
promptly return or cause to be returned to the Subscriber the Subscription
Amount remitted to the Company by the Subscriber, without interest thereon or
deduction therefrom, in exchange for the Shares.
SECTION
2.
2.1 Escrow.
(a) The
Subscriber hereby appoints Fox Rothschild LLP as the "Escrow Agent" for purposes of
this Agreement. The Subscriber shall deliver the Subscription Amount
to Escrow Agent by check made payable to Fox Rothschild LLP or by wire transfer
to Wachovia Bank, ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ABA #▇▇▇▇▇▇▇▇▇,
Account: Fox Rothschild LLP Iolta Account, Account # 2100012910060,
Swift Code: PNB PUS 33 (international wires only) to be held in a
non-interest bearing escrow account (the "Escrow Account") until the
Closing. The parties hereby agree that the Subscription Amount shall
be released from the Escrow Account to the Company, less any applicable
commissions and fees, simultaneously with (i) the acceptance by the Company of
the Subscriber's subscription; and (ii) the release by the Company of the
certificate representing the Shares. In the event that the Closing
has not occurred within thirty (30) days of the Subscription Amount being
deposited into escrow, then the Escrow Agent shall return the Subscription
Amount from the Escrow Account to the Subscriber, without interest.
(b) The
Escrow Agent shall not be liable for any error of judgment or for any act done
or omitted by it in good faith, or for anything it may in good faith do or
refrain from doing in connection herewith; nor for any negligence other than its
gross negligence; nor shall the Escrow Agent be answerable for the default or
misconduct of its agents, attorneys or employees, if they be selected with
reasonable care; nor will any liability be incurred by the Escrow Agent, if, in
the event of any dispute or question as to its duties or obligations hereunder,
it acts in accordance with advice of its legal counsel, including, without
limitation, its own reasoned, written legal opinion relative to the
matter. The Escrow Agent shall have no liability for the selection of
the depository bank nor for any loss of funds in the event of the failure of the
depository bank.
(c) In the
event that prior to the termination of the escrow, the Escrow Agent receives or
becomes aware of conflicting demands or claims with respect to the escrowed
funds or the rights of the Company or the Subscriber, the Escrow Agent shall
have the right to discontinue any or all further acts on its part until such
conflict is resolved to its satisfaction. In such event, the Escrow
Agent shall not pay the escrowed funds to any party, and, except as provided
herein, shall not comply with any claims, demands or instructions with respect
to the escrowed funds from the Company or the Subscriber or any representative
of the foregoing. The Escrow Agent shall not be or become liable in
any way to the Company, to the Subscriber, or any other person or entity for its
failure or refusal to comply with such conflicting claims or
demands. The Escrow Agent shall be entitled to refuse to act until:
(i) such conflicting or adverse claims or demands shall have been finally
determined by a court of competent jurisdiction; (ii) such conflicting or
adverse claims or demands shall have been settled by agreement among all of the
conflicting parties as evidenced in a writing satisfactory to the Escrow Agent;
and/or (iii) the Escrow Agent shall have received security or an indemnity
satisfactory to the Escrow Agent sufficient to indemnify and save it harmless
from and against any and all loss, liability or expense which it may incur by
reason of its acting.
(d) The
Escrow Agent shall have the further right to commence or defend any action or
proceeding for the determination of such conflict. The Company agrees
to defend and indemnify, and to otherwise pay all costs, damages, judgments and
expenses, including reasonable attorneys’ fees, suffered or incurred by the
Escrow Agent in connection with or arising out of the Escrow and this Agreement,
including but without limiting the generality of the foregoing, a suit in
inter-pleader brought by the Escrow Agent. In the event the Escrow
Agent files a suit in inter-pleader and deposits the escrowed funds with the
court in which such suit is filed, it shall thereupon be fully released and
discharged by the Company and the Subscriber from all further obligations to
perform any and all duties or obligations imposed upon it by this Agreement, but
the Company shall not be discharged from its obligations to the Escrow Agent
contained in this Agreement, which shall be deemed to survive any such deposit
of funds.
(e) Fox
Rothschild LLP represents the Company, not the Subscriber. Fox
Rothschild expects to be paid for its legal services out of the proceeds in
escrow, which creates a conflict of interest. Purchasers acknowledge
that the Escrow Agent does not represent the Subscriber and that the escrow
agent’s duties are strictly limited to the provisions of this
Agreement. The Subscriber and Company waive any conflict of interest,
lack of independence or appearance of impropriety with respect to Fox Rothschild
LLP’s service as Escrow Agent hereunder.
2.2 Closing. The closing
(the "Closing") of the
purchase and sale of the Shares, shall occur simultaneously with (i) the
acceptance by the Company of the Subscriber's subscription, as evidenced by the
Company's execution of this Subscription Agreement; and (ii) the release by the
Company of the certificate representing the Shares.
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SECTION
3.
3.1 Investor Representations and
Warranties. The Subscriber hereby acknowledges, represents and warrants
to, and agrees with, the Company and its affiliates as follows:
(a) Investment Purposes.
The Subscriber is acquiring the Shares for its own account as principal, not as
a nominee or agent, for investment purposes only, and not with a view to, or
for, resale, distribution or fractionalization thereof in whole or in part and
no other person has a direct or indirect beneficial interest in such Shares or
any portion thereof. Further, the Subscriber does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to the Shares
for which the Subscriber is subscribing or any part of the Shares.
(b) Authority. The
Subscriber has full power and authority to enter into this Agreement, the
execution and delivery of this Agreement has been duly authorized, if
applicable, and this Agreement constitutes a valid and legally binding
obligation of the Subscriber.
(c) No General
Solicitation. The Subscriber is not subscribing for the Shares as a
result of or subsequent to any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or broadcast
over television or radio, or presented at any seminar or meeting, or any
solicitation of a subscription by person previously not known to the Subscriber
in connection with investment securities generally.
(d) Investment
Experience. The Subscriber is (i) experienced in making investments of
the kind described in this Agreement, (ii) able, by reason of the business and
financial experience of its officers (if an entity) and professional advisors
(who are not affiliated with or compensated in any way by the Company or any of
its affiliates or selling agents), to protect its own interests in connection
with the transactions described in this Agreement, and (iii) able to afford the
entire loss of its investment in the Shares.
(e) Exemption from
Registration. The Subscriber acknowledges its understanding that the
offering and sale of the Shares is intended to be exempt from registration under
the Securities Act. In furtherance thereof, in addition to the other
representations and warranties of the Subscriber made herein, the Subscriber
further represents and warrants to and agrees with the Company and its
affiliates as follows:
(1) The
Subscriber realizes that the basis for the exemption may not be present if
notwithstanding such representations, the Subscriber has in mind merely
acquiring the Shares for a fixed or determinable period in the future, or for a
market rise, or for sale if the market does not rise. The Subscriber does not
have any such intention;
(2) The
Subscriber has the financial ability to bear the economic risk of its
investment, has adequate means for providing for its current needs and personal
contingencies and has no need for liquidity with respect to its investment in
the Company; and
(3) The
Subscriber has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of the prospective
investment in the Shares. The Subscriber also represents it has not been
organized for the purpose of acquiring the Shares; and
(4) The
Subscriber acknowledges that it has had access to and has reviewed all documents
and records relating to the Company, including, but not limited to, the
Company’s Form 8-K filed with the United States Securities and Exchange
Commission on August 16, 2010, including the risk factors described therein (as
such documents have been amended since the date of their filing, collectively,
the “Company SEC
Documents”), that it has deemed necessary in order to make an informed
investment decision with respect to an investment in the Shares; that it has had
the opportunity to ask representatives of the Company certain questions and
request certain additional information regarding the terms and conditions of
such investment and the finances, operations, business and prospects of the
Company and has had any and all such questions and requests answered to its
satisfaction; and that it understands the risks and other considerations
relating to such investment.
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(f) No Other Company
Representations. No representations or warranties have been made to the
Subscriber by the Company, or any officer, employee, agent, affiliate or
subsidiary of the Company, other than the representations of the Company
contained herein, and in subscribing for Shares the Subscriber is not relying
upon any representations other than those contained herein.
(g) Compliance with Laws.
Any resale of the Shares shall only be made in compliance with exemptions from
registration afforded by, or pursuant to an effective registration statement
under, the Securities Act and in compliance with applicable state
law.
(h) Legends. Each
certificate representing the Shares shall be endorsed with the following
legends, in addition to any other legend required to be placed thereon by
applicable federal or state securities laws:
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THE
SECURITIES REPRESENTED HEREBY HAVE BEEN TAKEN BY THE REGISTERED OWNER FOR
INVESTMENT, AND WITHOUT A VIEW TO RESALE OR DISTRIBUTION THEREOF, AND MAY NOT BE
SOLD, TRANSFERRED OR DISPOSED OF WITHOUT AN OPINION OF COUNSEL SATISFACTORY TO
THE ISSUER THAT SUCH TRANSFER OR DISPOSITION DOES NOT VIOLATE THE SECURITIES ACT
OF 1933, AS AMENDED, THE RULES AND REGULATIONS THEREUNDER OR OTHER APPLICABLE
SECURITIES LAWS.
(i) Accredited Investor.
The Subscriber is an "accredited investor" as that term is defined in Rule 501
of the General Rules and Regulations under the Securities Act by reason of Rule
501(a)(3).
(j) Potential Loss of
Investment. The
Subscriber understands that an investment in the Shares is a speculative
investment which involves a high degree of risk and the potential loss of its
entire investment. The Company is an early stage company with only a brief
operating history for the Subscriber to evaluate its business. The Company,
previously known as American Antiquities, Inc., only recently completed the
acquisition of Panther Air Cargo, LLC, a Florida limited partnership doing
business as Pet Airways, through a share exchange agreement. The
Company’s common stock previously traded on the OTC Bulletin Board under the
symbol "AAQS" and now trades on the OTC Bulletin Board under the symbol
"PAWS."
(k) Investment
Commitment. The Subscriber's overall commitment to investments which are
not readily marketable is not disproportionate to the Subscriber's net worth,
and an investment in the Shares will not cause such overall commitment to become
excessive.
(l) Receipt of
Information. The Subscriber has received all documents, records, books
and other information pertaining to the Subscriber's investment in the Company
that has been requested by the Subscriber.
(m) Investor
Questionnaire. The Subscriber represents and warrants to the Company that
all information that the Subscriber has provided to the Company, including,
without limitation, the information in the Investor Questionnaire attached
hereto as Exhibit
A or previously provided to the Company (the "Investor Questionnaire"), is
correct and complete as of the date hereof.
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(n) No Reliance. Other
than as set forth herein, the Subscriber is not relying upon any other
information, representation or warranty by the Company or any officer, director,
stockholder, agent or representative of the Company in determining to invest in
the Shares. The Subscriber has consulted, to the extent deemed appropriate by
the Subscriber, with the Subscriber's own advisers as to the financial, tax,
legal and related matters concerning an investment in the Shares and on that
basis believes that its investment in the Shares is suitable and appropriate for
the Subscriber.
(o) No Governmental
Review. The Subscriber is aware that no federal or state agency has (i)
made any finding or determination as to the fairness of this investment, (ii)
made any recommendation or endorsement of the Shares or the Company, or (iii)
guaranteed or insured any investment in the Shares or any investment made by the
Company.
(p) Price of Shares. The
Subscriber understands that the price of the Shares offered hereby bear no
relation to the assets, book value or net worth of the Company and were
determined arbitrarily by the Company.
(q) Financing
Risk. The Company currently does not have enough working
capital to satisfy its capital needs. The Company is dependent upon investors to
fund its ongoing operations, and cannot be certain that future financing will be
available to it on acceptable terms when it needs it. The Company can give no
assurances that it will be able to raise adequate funding to reach cash flow
break even. If the Company is unable to obtain financing to meet its
needs, the Subscriber may lose of its investment.
(r) Dilution. In
order to capitalize the Company, execute its business plan, and for other
corporate purposes, the Company has issued, and expects to issue additional
shares of Common Stock, securities exercisable or convertible into shares of
Common Stock, or debt. Such securities have been and may be issued
for a purchase price consisting of cash, services or other consideration that
may be materially different than the purchase price of the
Shares. The issuance of any such securities may result in substantial
dilution to the relative ownership interests of the Company’s existing
shareholders and substantial reduction in net book value per
share. Additional equity securities may have rights, preferences and
privileges senior to those of the holders of Common Stock, and any debt
financing may involve restrictive covenants that may limit the Company’s
operating flexibility.
(s) Former Shell
Company. Subscriber acknowledges and agrees that the Company
was, at one time, a "shell company" as defined in Rule 12b-2 under the Exchange
Act. Pursuant to Rule 144(i) under the Securities Act, securities
issued by a current or former shell company (such as the Shares) that otherwise
meet the holding period and other requirements of Rule 144 nevertheless cannot
be sold in reliance on Rule 144 until one year after the date on which such
company filed current "Form 10 information" (as defined in Rule 144(i)) with the
SEC reflecting that it ceased being a shell company, and provided
that at the time of a proposed sale pursuant to Rule 144, the issuer is subject
to the reporting requirements of section 13 or 15(d) of the Exchange Act and has
filed all reports and other materials required to be filed by section 13 or
15(d) of the Exchange Act, as applicable, during the preceding 12 months (or for
such shorter period that the issuer was required to file such reports and
materials), other than Form 8-K reports. As a result, the restrictive
legends on certificates for the Shares cannot be removed except in connection
with an actual sale meeting the foregoing requirements.
3.2 Restrictions on
Disposition. The Subscriber further acknowledges and understands that,
without in anyway limiting the acknowledgements and understandings as set forth
hereinabove, the Subscriber agrees that the Subscriber shall in no event make
any disposition of all or any portion of the Shares which the Subscriber is
acquiring hereunder unless and until:
(1) there is
then in effect a registration statement under the Securities Act covering such
proposed disposition and such disposition is made in accordance with said
registration statement; or
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(2) (i) the
Subscriber shall have notified the Company of the proposed disposition and shall
have furnished the Company with a detailed statement of the circumstances
surrounding the proposed disposition, (ii) the Subscriber shall have furnished
the Company with an opinion of the Subscriber's own counsel to the effect that
such disposition will not require registration of any such Shares under the
Securities Act and (iii) such opinion of the Subscriber's counsel shall have
been concurred in by counsel for the Company and the Company shall have advised
the Subscriber of such concurrence.
SECTION
4.
4.1 Company's Representations
and Warranties. The Company represents and warrants to the Subscriber as
follows:
(a) Organization of the
Company. The Company is a corporation duly organized and validly existing
and in good standing under the laws of the State of Illinois.
(b) Authority. (a) The
Company has the requisite corporate power and authority to enter into and
perform its obligations under this Agreement and to issue the Shares; (b) the
execution and delivery of this Agreement by the Company and the consummation by
it of the transactions contemplated hereby and thereby have been duly authorized
by all necessary corporate action and no further consent or authorization of the
Company or its Board of Directors or stockholders is required; and (c) this
Agreement has been duly executed and delivered by the Company and constitutes a
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws relating to, or affecting
generally the enforcement of creditors' rights and remedies or by other
equitable principles of general application.
(c) Exemption from Registration;
Valid Issuances. The sale and issuance of the Shares, in accordance with
the terms and on the bases of the representations and warranties of the
Subscriber set forth herein, may and shall be properly issued by the Company to
the Subscriber pursuant to any applicable federal or state law. When issued and
paid for as herein provided, the Shares shall be duly and validly issued, fully
paid, and nonassessable. Neither the sales of the Shares pursuant to, nor the
Company's performance of its obligations under, this Agreement shall (a) result
in the creation or imposition of any liens, charges, claims or other
encumbrances upon the Shares or any of the assets of the Company, or (b) entitle
the other holders of the Common Stock of the Company to preemptive or other
rights to subscribe to or acquire the Common Stock or other securities of the
Company. The Shares shall not subject the Subscriber to personal liability by
reason of the ownership thereof.
(d) No General Solicitation or
Advertising in Regard to this Transaction. Neither the Company nor any of
its affiliates nor any person acting on its or their behalf (a) has conducted or
will conduct any general solicitation (as that term is used in Rule 502(c) of
Regulation D) or general advertising with respect to any of the Shares, or (b)
made any offers or sales of any security or solicited any offers to buy any
security under any circumstances that would require registration of the Common
Stock or other securities of the Company under the Securities Act.
4.2 Obligation to Register
Shares. Subject to compliance with Rule 415, the Company shall use
commercially reasonable efforts to file a registration statement to register the
Shares under the Securities Act, and other applicable laws, by March 31,
2011. Upon receipt of declaration from the Securities and Exchange
Commission that the registration statement is effective, the Subscriber will be
free to dispose of his shares in accordance with the registration
statement.
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SECTION
5.
5.1 Commissions and Fees.
No commissions or finders fees will be paid in connection with the sale of
Common Stock under this Agreement.
5.2 Indemnity. The
Subscriber agrees to indemnify and hold harmless the Company, its officers and
directors, employees and its affiliates and their respective successors and
assigns and each other person, if any, who controls any thereof, against any
loss, liability, claim, damage and expense whatsoever (including, but not
limited to, any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation commenced or
threatened or any claim whatsoever) arising out of or based upon any false
representation or warranty or breach or failure by the Subscriber to comply with
any covenant or agreement made by the Subscriber herein or in any other document
furnished by the Subscriber to any of the foregoing in connection with this
transaction.
5.3 Modification. Neither
this Agreement nor any provisions hereof shall be modified, discharged or
terminated except by an instrument in writing signed by the party against whom
any waiver, change, discharge or termination is sought.
5.4 Notices. Any notice,
demand or other communication which any party hereto may be required, or may
elect, to give to anyone interested hereunder shall be sufficiently given if (a)
deposited, postage prepaid, in a United States mail letter box, registered or
certified mail, return receipt requested, addressed to such address as may be
given herein, or (b) delivered personally at such address.
5.5 Counterparts. This
Agreement may be executed through the use of separate signature pages or in any
number of counterparts and by facsimile, and each of such counterparts shall,
for all purposes, constitute one agreement binding on all parties,
notwithstanding that all parties are not signatories to the same counterpart.
Signatures may be facsimiles.
5.6 Binding Effect.
Except as otherwise provided herein, this Agreement shall be binding upon and
inure to the benefit of the parties and their heirs, executors, administrators,
successors, legal representatives and assigns. If the Subscriber is more than
one person, the obligation of the Subscriber shall be joint and several and the
agreements, representations, warranties and acknowledgments herein contained
shall be deemed to be made by and be binding upon each such person and its
heirs, executors, beneficiaries, administrators and successors.
5.7 Entire Agreement.
This Agreement and the documents referenced herein contain the entire agreement
of the parties and there are no representations, covenants or other agreements
except as stated or referred to herein and therein.
5.8 Assignability. This
Agreement is not transferable or assignable by the Subscriber.
5.9 Governing Law,
Arbitration. All questions concerning the construction, validity,
enforcement and interpretation of this Debenture shall be governed by and
construed and enforced in accordance with the internal laws of the State of
California, without regard to the principles of conflict of laws thereof. Each
party agrees that all legal proceedings in equity or at law concerning the
interpretation, enforcement and defense of the transactions contemplated by any
of the Transaction Documents (whether brought against a party hereto or its
respective Affiliates, directors, officers, shareholders, employees or agents)
shall be held in the City of San Francisco, California, United States of America
in arbitration before the International Chamber of Commerce and shall be
determined by three arbitrators, and otherwise held in accordance with its
rules. Each party shall choose one arbitrator and the two arbitrators shall
choose the third. The third arbitrator so chosen shall have a background in
either corporate finance, banking or law. The arbitration shall be conducted in
the English language and the arbitration award shall include the allocation of
costs and expenses among the parties. The arbitration ruling shall be final and
binding.
5.10 Pronouns. The use
herein of the masculine pronouns "him" or "his" or similar terms shall be deemed
to include the feminine and neuter genders as well and the use herein of the
singular pronoun shall be deemed to include the plural as well.
5.11 Further Assurances.
Upon request from time to time, the Subscriber shall execute and deliver all
documents, take all rightful oaths and do all other acts that may be necessary
or desirable, in the reasonable opinion of the Company or its counsel, to effect
the subscription for the Shares in accordance herewith.
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IN
WITNESS WHEREOF, the Subscriber has executed this Subscription Agreement on the
___ day of ____________, 2010.
Amount of
Investment:
$___________________
INDIVIDUAL
INVESTOR:
____________________
Name:
PARTNERSHIP,
CORPORATION, TRUST, CUSTODIAL ACCOUNT, OTHER INVESTOR
____________________
(Name of
Entity)
By:_____________________________
Name:___________________________
Title:____________________________
Address:_________________________
Taxpayer
Identification Number:______________________________________
ACCEPTANCE
OF SUBSCRIPTION
(to be
filled out only by the Company)
The
Company hereby accepts the above application for subscription for Shares on
behalf of the Company.
Dated: ___
day of ___________, 2010
PET
AIRWAYS, INC.
By:______________________________
Name:
Title:
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