EXHIBIT 10.74
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED,
ASSIGNED, PLEDGED, OR HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION
THEREOF
UNDER SUCH ACT OR COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH
ACT, OR UNLESS
THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL, IN FORM AND
SUBSTANCE REASONABLY
SATISFACTORY TO THE COMPANY AND ITS COUNSEL AND FROM ATTORNEYS
REASONABLY
ACCEPTABLE TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION
IS NOT
REQUIRED.
U.S. HELICOPTER CORPORATION
WARRANT
THIS CERTIFIES THAT, for value received, BARRY J. BELMONT (the
"Holder") or its registered assigns is entitled to purchase from
U.S. HELICOPTER
CORPORATION (the "Company") at any time or from time to time during
the period
specified in Paragraph 2 hereof 3,000,000 (THREE MILLION) fully
paid and
non-assessable shares of the Company's Common Stock, $.001 par
value per share
(the "Common Stock"), at an exercise price per share equal to $0.20
per share
(the "Exercise Price").
The term "Warrant Shares," as used herein, refers to the shares
of
Common Stock purchasable hereunder. The Warrant Shares and the
Exercise Price
are subject to adjustment as provided in Paragraph 4 hereof. This
Warrant is
subject to the following terms, provisions, and conditions:
1. MANNER OF EXERCISE; ISSUANCE OF CERTIFICATES; PAYMENT FOR
SHARES.
Subject to the provisions hereof, this Warrant may be exercised by
the holder
hereof, in whole or in part, by the surrender of this Warrant,
together with a
completed exercise agreement in the form attached hereto (the
"Exercise
Agreement"), to the Company during normal business hours on any
business day at
the Company's principal executive offices (or such other office or
agency of the
Company as it may designate by notice to the holder hereof), and
upon (i)
payment to the Company in cash, by certified or official bank check
or by wire
transfer for the account of the Company of the Exercise Price for
the Warrant
Shares specified in the Exercise Agreement or (ii) delivery to the
Company of a
written notice of an election to effect a "Cashless Exercise" (as
defined in
Section 11(c) below) for the Warrant Shares specified in the
Exercise Agreement.
The Warrant Shares so purchased shall be deemed to be issued to the
holder
hereof or such holder's designee, as the record owner of such
shares, as of the
close of business on the date on which this Warrant shall have been
surrendered,
the completed Exercise Agreement shall have been delivered, and
payment shall
have been made for such shares as set forth above. Certificates for
the Warrant
Shares so purchased, representing the aggregate number of shares
specified in
the Exercise Agreement, shall be delivered to the holder hereof
promptly after
this Warrant shall have been so exercised. The certificates so
delivered shall
be in such denominations as may be requested by the holder hereof
and shall be
registered in the name of such holder or such other name as shall
be designated
by such holder. If this Warrant shall have been exercised only in
part, then,
-1-
<PAGE>
unless this Warrant has expired, the Company shall, at its expense,
at the time
of delivery of such certificates, deliver to the holder a new
Warrant in
substantially identical form and dated as of the date of such
exercise
representing the number of shares with respect to which this
Warrant shall not
then have been exercised.
2. PERIOD OF EXERCISE. This Warrant is exercisable at any time or
from
time to time on or after the date hereof and before 5:00 p.m., New
York, New
York time on the fifth anniversary of such date (the "Exercise
Period").
3. CERTAIN AGREEMENTS OF THE COMPANY. The Company hereby covenants
and
agrees as follows:
(a) SHARES TO BE FULLY PAID. All Warrant Shares will, upon
issuance in accordance with the terms of this Warrant, be
validly
issued and outstanding, fully paid, and nonassessable and free from
all
taxes, liens, and charges with respect to the issue thereof.
(b)
RESERVATION OF SHARES. During the Exercise Period, the
Company shall at all times have authorized, and reserved free
of
preemptive rights and other similar contractual rights of
stockholders,
for the purpose of issuance upon exercise of this Warrant, a
sufficient
number of shares of Common Stock to provide for the exercise of
this
Warrant.
(c) LISTING. The Company shall promptly secure the listing of
the shares of Common Stock issuable upon exercise of the Warrant
upon
each national securities exchange or automated quotation system,
if
any, upon which shares of Common Stock are then listed (subject
to
official notice of issuance upon exercise of this Warrant) and
shall
maintain, so long as any other shares of Common Stock shall be
so
listed, such listing of all shares of Common Stock from time to
time
issuable upon the exercise of this Warrant.
(d) SUCCESSORS AND ASSIGNS. This Warrant will be binding upon
any entity succeeding to the Company by merger, consolidation,
or
acquisition of all or substantially all the Company's assets.
(e) NOTICES OF RECORD DATE, ETC. In the event of:
(i) any taking by the Company of a record of the
holders of Common Stock for the purpose of determining the
holders who are entitled to receive any dividend or other
distribution,
(ii) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of
the Company, or any transfer of all or substantially all the
assets of the Company to, or consolidation or merger of, the
Company with or into any person,
(iii) any voluntary or involuntary dissolution,
liquidation or winding- up of the Company, or
-2-
<PAGE>
(iv) a sale of substantially all of the outstanding
capital stock of the Company or the issuance of new shares
representing the majority of the Company's right to vote, then
and in each such event the Company will mail to the Holder a
notice specifying the record date for voting or the date of
closing, as applicable, of any event (i) through (iv) above.
Such notice shall be delivered to the Holder at least 20 days
prior to the date of the relevant event.
4. ADJUSTMENT AND ANTIDILUTION PROVISIONS. On or after the date
of
issuance of this Warrant, the Warrant Exercise Price and number of
shares
issuable pursuant to this Warrant shall be subject to adjustment as
follows:
(a) In case the Company shall (i) declare a dividend or make a
distribution on its outstanding shares of Common Stock in shares
of
Common Stock, (ii) subdivide or reclassify its outstanding shares
of
Common Stock into a greater number of shares, or (iii) combine
or
reclassify its outstanding shares of Common Stock into a smaller
number
of shares, the Exercise Price in effect at the time of the record
date
for such dividend or distribution or of the effective date of
such
subdivision, combination or reclassification shall be adjusted so
that
it shall equal the price determined by multiplying the Exercise
Price
by a fraction, the denominator of which shall be the number of
shares
of Common Stock outstanding after giving effect to such action, and
the
numerator of which shall be the number of shares of Common
Stock
immediately prior to such action. Such adjustment shall be made
each
time any event listed above shall occur.
(b) Whenever the Exercise Price payable upon exercise of each
Warrant is adjusted pursuant to Subsection (a) above, the number
of
shares purchasable upon exercise of this Warrant shall
simultaneously
be adjusted by multiplying the number of shares initially issuable
upon
exercise of this Warrant by the Exercise Price in effect on the
date
hereof and dividing the product so obtained by the Exercise Price,
as
adjusted.
(c) 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. Anything in this Section 4 to the contrary notwithstanding,
the
Company shall be entitled, but shall not be required, to make
such
changes in the Exercise Price in addition to those required by
this
Section 4, as it shall determine, in its sole discretion, to be
advisable in order that any dividend or distribution in shares
of
Common Stock, or any subdivision, reclassification or combination
of
Common Stock, hereafter made by the Corporation shall not result in
any
Federal Income tax liability to the holders of the Common Stock
or
securities convertible into Common Stock (including warrants).
(d) Whenever the Exercise Price is adjusted, as herein
provided, the Corporation shall promptly cause a notice setting
forth
the adjusted Exercise Price and adjusted number of shares issuable
upon
exercise of each Warrant to be mailed to the Holder, at its
last
address appearing in the Company's Warrant Register. The Company
may
retain a firm of independent certified public accountants selected
by
the Board of Directors (who may be the regular accountants employed
by
the Company) to make any computation required by this Section 4,
and a
certificate signed by such firm shall be conclusive evidence of
the
correctness of such adjustment absent a showing of mathematical
or
other error.
-3-
<PAGE>
5. ISSUE TAX. The issuance of certificates for Warrant Shares upon
the
exercise of this Warrant shall be made without charge to the holder
of this
Warrant or such shares for any issuance tax or other costs in
respect thereof,
provided that the Company shall not be required to pay any tax
which may be
payable in respect of any transfer involved in the issuance and
delivery of any
certificate in a name other than the holder of this Warrant.
6. NO RIGHTS OR LIABILITIES AS A SHAREHOLDER. This Warrant shall
not
entitle the holder hereof to any voting rights or other rights as a
shareholder
of the Company. No provision of this Warrant, in the absence of
affirmative
action by the holder hereof to purchase Warrant Shares, and no mere
enumeration
herein of the rights or privileges of the holder hereof, shall give
rise to any
liability of such holder for the Exercise Price or as a shareholder
of the
Company, whether such liability is asserted by the Company or by
creditors of
the Company.
7. TRANSFER, EXCHANGE, AND REPLACEMENT OF WARRANT.
(a) RESTRICTION ON TRANSFER. This Warrant and the rights
granted to the holder hereof are transferable, in whole or in
part,
upon surrender of this Warrant, together with a properly
executed
assignment in the form attached hereto, at the office or agency of
the
Company referred to in Paragraph 7(e) below, provided, however,
that
any transfer or assignment shall be subject to the conditions set
forth
in Paragraph 7(f) hereof. Until due presentment for registration
of
transfer on the books of the Company, the Company may treat the
registered holder hereof as the owner and holder hereof for all
purposes, and the Company shall not be affected by any notice to
the
contrary.
(b) WARRANT EXCHANGEABLE FOR DIFFERENT DENOMINATIONS. This
Warrant is exchangeable, upon the surrender hereof by the holder
hereof
at the office or agency of the Company referred to in Paragraph
7(e)
below, for new Warrants of like tenor representing in the aggregate
the
right to purchase the number of shares of Common Stock which may
be
purchased hereunder, each of such new Warrants to represent the
right
to purchase such number of shares as shall be designated by the
holder
hereof at the time of such surrender.
(c) REPLACEMENT OF WARRANT. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft,
destruction,
or mutilation of this Warrant and, in the case of any such loss,
theft,
or destruction, upon delivery of an indemnity agreement
reasonably
satisfactory in form and amount to the Company, or, in the case of
any
such mutilation, upon surrender and cancellation of this Warrant,
the
Company, at its expense, will execute and deliver, in lieu thereof,
a
new Warrant of like tenor.
(d) CANCELLATION; PAYMENT OF EXPENSES. Upon the surrender of
this Warrant in connection with any transfer, exchange, or
replacement
as provided in this Paragraph 7, this Warrant shall be promptly
canceled by the Company. The Company shall pay all taxes (other
than
securities transfer taxes) and all other expenses (other than
legal
expenses, if any, incurred by the holder or transferees) and
charges
payable in connection with the preparation, execution, and delivery
of
Warrants pursuant to this Paragraph 7.
-4-
<PAGE>
(e) REGISTER. The Company shall maintain, at its principal
executive offices (or such other office or agency of the Company as
it
may designate by notice to the holder hereof), a register for
this
Warrant, in which the Company shall record the name and address of
the
person in whose name this Warrant has been issued, as well as the
name
and address of each transferee and each prior owner of this
Warrant.
(f) EXERCISE OR TRANSFER WITHOUT REGISTRATION. If, at the time
of the surrender of this Warrant in connection with any
exercise,
transfer, or exchange of this Warrant, this Warrant (or, in the
case of
any exercise, the Warrant Shares issuable hereunder), shall not
be
registered under the Securities Act of 1933, as amended (the
"Securities Act") and under applicable state securities or blue
sky
laws, the Company may require, as a condition of allowing such
exercise, transfer, or exchange, (i) that the holder or transferee
of
this Warrant, as the case may be, furnish to the Company a
written
opinion of counsel, which opinion and counsel are reasonably
acceptable
to the Company, to the effect that such exercise, transfer, or
exchange
may be made without registration under said Act and under
applicable
state securities or blue sky laws, (ii) that the holder or
transferee
execute and deliver to the Company an investment letter in form
and
substance reasonably acceptable to the Company and (iii) that
the
transferee be an "accredited investor" as defined in Rule 501(a)
of
Regulation D promulgated under the Securities Act; provided that
no
such opinion, letter or status as an "accredited investor" shall
be
required in connection with a transfer pursuant to Rule 144 under
the
Securities Act. The first holder of this Warrant, by taking and
holding
the same, represents to the Company that such holder is acquiring
this
Warrant for investment and not with a view to the distribution
thereof.
8. REGISTRATION RIGHTS. The initial holder of this Warrant (and
certain
assignees thereof) shall have registration rights as follows:
(a) PARTICIPATION IN REGISTERED OFFERINGS. If the Company
proposes or is required to register any of its shares or other
equity
securities for public sale for cash under the Securities Act
(other
than on Forms S-4 or S-8 or similar registration forms), it will
at
each such time or times give written notice to the Holder of
its
intention to do so. Upon the written request of the Holder given
within
twenty (20) days after receipt of any such notice, the Company
shall
use its best efforts to cause to be included in such registration
any
Warrant Shares held by the Holder requested to be registered;
provided,
that if the managing underwriter advises that less than all of
the
shares requested to be registered should be offered for sale so as
not
materially and adversely to affect the price or salability of
such
offering being registered by the Company, the Holder (but not
the
Company to the extent it desires to include shares for its own
account)
shall reduce the number of its Warrant Shares to be included in
the
registration statement as required by the underwriter to the
extent
requisite of all prospective sellers of the securities proposed to
be
registered (other than the Company) on a pro rata basis according
to
the amounts of securities proposed to be registered by all
prospective
sellers to permit the sale or other disposition (in accordance with
the
intended method of disposition thereof as aforesaid) by the
prospective
seller or sellers of the securities so registered. The
registration
requested pursuant to this Section 8(a) is referred to herein as
the
"Piggyback Registration".
-5-
<PAGE>
(b) OBLIGATIONS OF HOLDER. It shall be a condition precedent
to the obligation of the Company to register any Warrant Shares
pursuant to this Section 8 that the Holder shall furnish to the
Company
such information regarding the Warrant Shares held and the
intended
method of disposition thereof and other information concerning
the
Holder as the Company shall reasonably request and
