EXHIBIT 10.95
WARRANT
THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED
UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED
FOR SALE,
SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR
APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL IN A
FORM REASONABLY
SATISFACTORY TO THE ISSUER THAT REGISTRATION IS NOT REQUIRED UNDER
SAID ACT OR
APPLICABLE STATE SECURITIES LAWS OR UNLESS SOLD PURSUANT TO RULE
144 UNDER SAID
ACT.
U.S. HELICOPTER CORPORATION
WARRANT TO PURCHASE COMMON STOCK
Warrant No.: USHP-8-1
Number of Shares:
2,783,333
Warrant Exercise Price:
$0.01
Date of Issuance: March 31, 2008
U.S.
Helicopter Corporation, a Delaware corporation (the "Company"),
hereby certifies that, for good and valuable consideration, the
receipt and
sufficiency of which are hereby acknowledged, YA GLOBAL
INVESTMENTS, LP (the
"Holder"), the registered holder hereof or its permitted assigns,
is entitled,
subject to the terms set forth below, to purchase from the Company
upon
surrender of this Warrant, at any time or times on or after the
date hereof, but
not after 11:59 P.M. Eastern Time on the Expiration Date (as
defined herein) up
to 2,783,333 fully paid and nonassessable shares of Common Stock
(as defined
herein) of the Company (the "Warrant Shares") at the exercise price
per share
provided in Section 1(b) below or as subsequently adjusted;
provided, however,
that in no event shall the holder be entitled to exercise this
Warrant for a
number of Warrant Shares in excess of that number of Warrant Shares
which, upon
giving effect to such exercise, would cause the aggregate number of
shares of
Common Stock beneficially owned by the holder and its affiliates to
exceed 4.99%
of the outstanding shares of the Common Stock following such
exercise, except
within sixty (60) days of the Expiration Date (however, such
restriction may be
waived by Holder (but only as to itself and not to any other
holder) upon not
less than 65 days prior notice to the Company). For purposes of the
foregoing
proviso, the aggregate number of shares of Common Stock
beneficially owned by
the holder and its affiliates shall include the number of shares of
Common Stock
issuable upon exercise of this Warrant with respect to which the
determination
of such proviso is being made, but shall exclude shares of Common
Stock which
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would be issuable upon (i) exercise of the remaining, unexercised
Warrants
beneficially owned by the holder and its affiliates and (ii)
exercise or
conversion of the unexercised or unconverted portion of any other
securities of
the Company beneficially owned by the holder and its affiliates
(including,
without limitation, any convertible notes or preferred stock)
subject to a
limitation on conversion or exercise analogous to the limitation
contained
herein. Except as set forth in the preceding sentence, for purposes
of this
paragraph, beneficial ownership shall be calculated in accordance
with Section
13(d) of the Securities Exchange Act of 1934, as amended. For
purposes of this
Warrant, in determining the number of outstanding shares of Common
Stock a
holder may rely on the number of outstanding shares of Common Stock
as reflected
in (1) the Company's most recent Form 10-QSB or Form 10-KSB, as the
case may be,
(2) a more recent public announcement by the Company or (3) any
other notice by
the Company or its transfer agent setting forth the number of
shares of Common
Stock outstanding. Upon the written request of any holder, the
Company shall
promptly, but in no event later than one (1) Business Day following
the receipt
of such notice, confirm in writing to any such holder the number of
shares of
Common Stock then outstanding. In any case, the number of
outstanding shares of
Common Stock shall be determined after giving effect to the
exercise of Warrants
(as defined below) by such holder and its affiliates since the date
as of which
such number of outstanding shares of Common Stock was reported.
Notwithstanding
anything in any agreement to the contrary, the Buyer shall have no
restriction
on the conversion of any convertible debt or warrants held by it or
the sale of
any stock, including, without the limitation, any stock underlying
any
convertible debt or warrant; PROVIDED that such acts do not violate
the U.S.
Department of Transportation foreign ownership regulations.
Section
1.
(a) This Warrant is
one of the warrants issued pursuant to the
Securities Purchase Agreement ("Securities Purchase Agreement")
dated the date
hereof between the Company and Holder and other agreements entered
into between
the Company and the Holder on the date hereof, or issued in
exchange or
substitution thereafter or replacement thereof. Each Capitalized
term used, and
not otherwise defined herein, shall have the meaning ascribed
thereto in the
Securities Purchase Agreement.
(b) Definitions. The following words and terms as used in this
Warrant shall have the following meanings:
(i) "Approved Stock Plan" means a stock option plan that has
been approved by the Board of Directors of the Company prior to the
date of the
Securities Purchase Agreement, pursuant to which the Company's
securities may be
issued only to any employee, officer or director for services
provided to the
Company.
(ii) "Business Day" means any day other than Saturday, Sunday
or other day on which commercial banks in the City of New York are
authorized or
required by law to remain closed.
(iii) "Closing Bid Price" means the closing bid price of
Common Stock as quoted on the Principal Market (as reported by
Bloomberg
Financial Markets ("Bloomberg") through its "Volume at Price"
function).
(iv) "Common Stock" means (i) the Company's common stock, par
value $0.001 per share, and (ii) any capital stock into which such
Common Stock
shall have been changed or any capital stock resulting from a
reclassification
of such Common Stock.
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(v) "Excluded Securities" means, (a) shares issued or deemed
to have been issued by the Company pursuant to an Approved Stock
Plan, (b)
shares of Common Stock issued or deemed to be issued by the Company
upon the
conversion, exchange or exercise of any right, option, obligation
or security
outstanding on the date prior to date of the Securities Purchase
Agreement,
provided that the terms of such right, option, obligation or
security are not
amended or otherwise modified on or after the date of the
Securities Purchase
Agreement, and provided that the conversion price, exchange price,
exercise
price or other purchase price is not reduced, adjusted or otherwise
modified and
the number of shares of Common Stock issued or issuable is not
increased
(whether by operation of, or in accordance with, the relevant
governing
documents or otherwise) on or after the date of the Securities
Purchase
Agreement, and (c) the shares of Common Stock issued or deemed to
be issued by
the Company upon conversion of the Convertible Debentures or
exercise of the
Warrants.
(vi) "Expiration Date" means the date five (5) years from the
Issuance Date of this Warrant or, if such date falls on a Saturday,
Sunday or
other day on which banks are required or authorized to be closed in
the City of
New York or the State of New York or on which trading does not take
place on the
Principal Exchange or automated quotation system on which the
Common Stock is
traded (a "Holiday"), the next date that is not a Holiday.
(vii) "Issuance Date" means the date hereof.
(viii) "Options" means any rights, warrants or options to
subscribe for or purchase Common Stock or Convertible
Securities.
(ix) "Person" means an individual, a limited liability
company, a partnership, a joint venture, a corporation, a trust,
an
unincorporated organization and a government or any department or
agency
thereof.
(x) "Primary Market" means on any of (a) the American Stock
Exchange, (b) New York Stock Exchange, (c) the Nasdaq Global
Market, (d) the
Nasdaq Capital Market, or (e) the Nasdaq OTC Bulletin Board
("OTCBB").
(xi) "Securities Act" means the Securities Act of 1933, as
amended.
(xii) "Warrant" means this Warrant and all Warrants issued in
exchange, transfer or replacement thereof.
(xiii) "Warrant Exercise Price" shall be $0.01 per share or as
subsequently adjusted as provided in Section 8 hereof.
(c) Other Definitional Provisions.
(i) Except as otherwise specified herein, all references
herein (A) to the Company shall be deemed to include the Company's
successors
and (B) to any applicable law defined or referred to herein shall
be deemed
references to such applicable law as the same may have been or may
be amended or
supplemented from time to time.
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(ii) When used in this Warrant, the words "herein", "hereof",
and "hereunder" and words of similar import, shall refer to this
Warrant as a
whole and not to any provision of this Warrant, and the words
"Section",
"Schedule", and "Exhibit" shall refer to Sections of, and Schedules
and Exhibits
to, this Warrant unless otherwise specified.
(iii) Whenever the context so requires, the neuter gender
includes the masculine or feminine, and the singular number
includes the plural,
and vice versa.
Section 2.
Exercise of Warrant.
(a) Subject to the terms and conditions hereof, this Warrant may
be
exercised by the holder hereof then registered on the books of the
Company, pro
rata as hereinafter provided, at any time on any Business Day on or
after the
opening of business on such Business Day, commencing with the first
day after
the date hereof, and prior to 11:59 P.M. Eastern Time on the
Expiration Date (i)
by delivery of a written notice, in the form of the subscription
notice attached
as Exhibit A hereto (the "Exercise Notice"), of such holder's
election to
exercise this Warrant, which notice shall specify the number of
Warrant Shares
to be purchased, payment to the Company of an amount equal to the
Warrant
Exercise Price(s) applicable to the Warrant Shares being purchased,
multiplied
by the number of Warrant Shares (at the applicable Warrant Exercise
Price) as to
which this Warrant is being exercised (plus any applicable issue or
transfer
taxes) (the "Aggregate Exercise Price") in cash or wire transfer of
immediately
available funds and the surrender of this Warrant (or an
indemnification
undertaking with respect to this Warrant in the case of its loss,
theft or
destruction) to a common carrier for overnight delivery to the
Company as soon
as practicable following such date ("Cash Basis") or (ii) if at the
time of
exercise, the Warrant Shares are not subject to an effective
registration
statement, by delivering an Exercise Notice and in lieu of making
payment of the
Aggregate Exercise Price in cash or wire transfer, elect instead to
receive upon
such exercise the "Net Number" of shares of Common Stock determined
according to
the following formula (the "Cashless Exercise"):
Net Number = (A
x B) - (A x C)
----------------
B
For purposes of the foregoing formula:
A = the total number of Warrant Shares with respect to which
this
Warrant is then being exercised.
B = the Closing Bid Price of the Common Stock on the date of
exercise of the Warrant.
C = the Warrant Exercise Price then in effect for the
applicable
Warrant Shares at the time of such exercise.
In the
event of any exercise of the rights represented by this Warrant
in
compliance with this Section 2, the Company shall on or before the
fifth (5th)
Business Day following the date of receipt of the Exercise Notice,
the Aggregate
Exercise Price and this Warrant (or an indemnification undertaking
with respect
to this Warrant in the case of its loss, theft or destruction) and
the receipt
of the representations of the holder specified in Section 6 hereof,
if requested
by the Company (the "Exercise Delivery Documents"), and if the
Common Stock is
DTC eligible, credit such aggregate number of shares of Common
Stock to which
the holder shall be entitled to the holder's or its designee's
balance account
with The Depository Trust Company; provided, however, if the holder
who
submitted the Exercise Notice requested physical delivery of any or
all of the
Warrant Shares, or, if the Common Stock is not DTC eligible then
the Company
shall, on or before the fifth (5th) Business Day following receipt
of the
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Exercise Delivery Documents, issue and surrender to a common
carrier for
overnight delivery to the address specified in the Exercise Notice,
a
certificate, registered in the name of the holder, for the number
of shares of
Common Stock to which the holder shall be entitled pursuant to such
request.
Upon delivery of the Exercise Notice and Aggregate Exercise Price
referred to in
clause (i) or (ii) above the holder of this Warrant shall be deemed
for all
corporate purposes to have become the holder of record of the
Warrant Shares
with respect to which this Warrant has been exercised. In the case
of a dispute
as to the determination of the Warrant Exercise Price, the Closing
Bid Price or
the arithmetic calculation of the Warrant Shares, the Company shall
promptly
issue to the holder the number of Warrant Shares that is not
disputed and shall
submit the disputed determinations or arithmetic calculations to
the holder via
facsimile within one (1) Business Day of receipt of the holder's
Exercise
Notice.
(b) If the holder and the Company are unable to agree upon the
determination of the Warrant Exercise Price or arithmetic
calculation of the
Warrant Shares within one (1) day of such disputed determination or
arithmetic
calculation being submitted to the holder, then the Company shall
immediately
submit via facsimile (i) the disputed determination of the Warrant
Exercise
Price or the Closing Bid Price to an independent, reputable
investment banking
firm or (ii) the disputed arithmetic calculation of the Warrant
Shares to its
independent, outside accountant. The Company shall cause the
investment banking
firm or the accountant, as the case may be, to perform the
determinations or
calculations and notify the Company and the holder of the results
no later than
forty-eight (48) hours from the time it receives the disputed
determinations or
calculations. Such investment banking firm's or accountant's
determination or
calculation, as the case may be, shall be deemed conclusive absent
manifest
error.
(c) Unless the rights represented by this Warrant shall have
expired
or shall have been fully exercised, the Company shall, as soon as
practicable
and in no event later than five (5) Business Days after any
exercise and at its
own expense, issue a new Warrant identical in all respects to this
Warrant
exercised except it shall represent rights to purchase the number
of Warrant
Shares purchasable immediately prior to such exercise under this
Warrant
exercised, less the number of Warrant Shares with respect to which
such Warrant
is exercised.
(d) No fractional Warrant Shares are to be issued upon any pro
rata
exercise of this Warrant, but rather the number of Warrant Shares
issued upon
such exercise of this Warrant shall be rounded up or down to the
nearest whole
number.
(e) If the Company or its Transfer Agent shall fail for any
reason
or for no reason to issue to the holder within ten (10) days of
receipt of the
Exercise Delivery Documents, a certificate for the number of
Warrant Shares to
which the holder is entitled or to credit the holder's balance
account with The
Depository Trust Company for such number of Warrant Shares to which
the holder
is entitled upon the holder's exercise of this Warrant, the Company
shall, in
addition to any other remedies under this Warrant or otherwise
available to such
holder, pay as additional damages in cash to such holder on each
day the
issuance of such certificate for Warrant Shares is not timely
effected an amount
equal to 0.025% of the product of (A) the sum of the number of
Warrant Shares
not issued to the holder on a timely basis and to which the holder
is entitled,
and (B) the Closing Bid Price of the Common Stock for the trading
day
immediately preceding the last possible date which the Company
could have issued
such Common Stock to the holder without violating this Section
2.
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(f) If within ten (10) days after the Company's receipt of the
Exercise Delivery Documents, the Company fails to deliver a new
Warrant to the
holder for the number of Warrant Shares to which such holder is
entitled
pursuant to Section 2 hereof, then, in addition to any other
available remedies
under this Warrant, or otherwise available to such holder, the
Company shall pay
as additional damages in cash to such holder on each day after such
tenth (10th)
day that such delivery of such new Warrant is not timely effected
in an amount
equal to 0.25% of the product of (A) the number of Warrant Shares
represented by
the portion of this Warrant which is not being exercised and (B)
the Closing Bid
Price of the Common Stock for the trading day immediately preceding
the last
possible date which the Company could have issued such Warrant to
the holder
without violating this Section 2.
Section 3.
Covenants as to Common Stock. The Company hereby covenants and
agrees as follows:
(a) This Warrant is, and any Warrants issued in substitution for
or
replacement of this Warrant will upon issuance be, duly authorized
and validly
issued.
(b) All Warrant Shares which may be issued upon the exercise of
the
rights represented by this Warrant will, upon issuance, be validly
issued, fully
paid and nonassessable and free from all taxes, liens and charges
with respect
to the issue thereof.
(c) During the period within which the rights represented by
this
Warrant may be exercised, the Company will at all times have
authorized and
reserved at least one hundred percent (100%) of the number of
shares of Common
Stock needed to provide for the exercise of the rights then
represented by this
Warrant and the par value of said shares will at all times be less
than or equal
to the applicable Warrant Exercise Price. If at any time the
Company does not
have a sufficient number of shares of Common Stock authorized and
available,
then the Company shall call and hold a special meeting of its
stockholders
within sixty (60) days of that time for the sole purpose of
increasing the
number of authorized shares of Common Stock.
(d) If at any time after the date hereof the Company shall file
a
registration statement, the Company shall include the Warrant
Shares issuable to
the holder, pursuant to the terms of this Warrant and shall
maintain, so long as
any other shares of Common Stock shall be so listed, such listing
of all Warrant
Shares from time to time issuable upon the exercise of this
Warrant; and the
Company shall so list on each national securities exchange or
automated
quotation system, as the case may be, and shall maintain such
listing of, any
other shares of capital stock of the Company issuable upon the
exercise of this
Warrant if and so long as any shares of the same class shall be
listed on such
national securities exchange or automated quotation system.
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(e) The Company will not, by amendment of its Articles of
Incorporation or through any reorganization, transfer of assets,
consolidation,
merger, dissolution, issue or sale of securities, or any other
voluntary action,
avoid or seek to avoid the observance or performance of any of the
terms to be
observed or performed by it hereunder, but will at all times in
good faith
assist in the carrying out of all the provisions of this Warrant
and in the
taking of all such action as may reasonably be requested by the
holder of this
Warrant in order to protect the exercise privilege of the holder of
this Warrant
against dilution or other impairment, consistent with the tenor and
purpose of
this Warrant. The Company will not increase the par value of any
shares of
Common Stock receivable upon the exercise of this Warrant above the
Warrant
Exercise Price then in effect, and (ii) will take all such actions
as may be
necessary or appropriate in order that the Company may validly and
legally issue
fully paid and nonassessable shares of Common Stock upon the
exercise of this
Warrant.
(f) This Warrant will be binding upon any entity succeeding to
the
Company by merger, consolidation or acquisition of all or
substantially all of
the Company's assets.
Section 4.
Taxes. The Company shall pay any and all taxes, except any
applicable withhold
