Exercise Agreement, dated as of December 17, 2018, between Airborne Wireless Network and Sabby Volatility Warrant Master Fund, Ltd
EXHIBIT 10.1
WARRANT EXERCISE AGREEMENT
THIS WARRANT EXERCISE AGREEMENT (the “Agreement”) is made as of December 17, 2018 (the “Effective Date”) by and between AIRBORNE WIRELESS NETWORK (the “Company”) and Sabby Volatility Warrant Master Fund, Ltd. (the “Warrant Holder”). Each of the Company and the Warrant Holder may be referred to herein individually as a “Party,” and collectively as the “Parties.”
WHEREAS, the Company issued certain shares of its Series A Convertible Preferred Stock (“Preferred Stock”), Series 1 Warrants to purchase shares of its Preferred Stock, which expire on May 29, 2019 (the “Series 1 Warrants”), Series 2 Warrants to purchase shares of its Preferred Stock, which expire on May 29, 2019 (the “Series 2 Warrants”) and Series 3 Warrants to purchase shares of its Preferred Stock, which expire on May 29, 2019 (the “Series 3 Warrants,” together with the Series 1 Warrants and the Series 2 Warrants, the “Warrants” and collectively with the Preferred Stock and the Warrants, the “Securities”) in a public offering; and
WHEREAS, the Company and the Warrant Holder each agree to the exercise of Warrants hereunder subject to certain conditions set forth hereunder;
NOW THERFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency thereof is mutually acknowledged, the Parties agree as follows:
1. Exercise of Warrants. On the Effective Date or the first business day immediately thereafter, the Warrant Holder shall exercise a minimum of $90,000 of its Series 3 Warrants, provided, however, that as a condition to the Warrant Holder’s obligations hereunder, the Company shall have received duly executed lock-up agreements from all other holders of Securities, substantially in the form attached hereto as Exhibit A (each, a “Lock-up Agreement”), pursuant to which each such other holder of Securities agrees not to sell or transfer its Warrants, shares of Preferred Stock or shares of common stock of the Company during the period commencing on the date hereof and ending at 11:59 p.m. on January 9, 2019. The execution and delivery of duly executed Lock-up Agreements from each holder of Securities other than the Warrant Holder is a condition precedent to the effectiveness of this Agreement, and a failure by the other holders of the Securities to deliver such lock-up agreements will render this Agreement null and void ab initio and of no legal force and effect.
2. Company Standstill. The Company agrees that, without the prior written consent of the Warrant Holder, it will not, during the period commencing on the date hereof until 11:59 p.m. Eastern Time on January 9, 2019, directly or indirectly, (a) issue, offer, sell, agree to offer or sell, solicit offers to purchase, grant any call option or purchase any put option with respect to, pledge, encumber, assign, borrow or otherwise dispose of or transfer (each a “Transfer”) any Relevant Security (as defined below) or otherwise publicly disclose the intention to do so, or (b) establish or increase any “put equivalent position” or liquidate or decrease any “call equivalent position” (in each case within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended and the rules and regulations thereunder) with respect to any Relevant Security. As used herein, the term “Relevant Security” means any Security, share of Common Stock, warrant to purchase any other security of the Company or any other entity that is convertible into, or exercisable or exchangeable for, shares of Preferred Stock, shares of Common Stock or any other equity security of the Company, except for any shares of Common Stock or Preferred Stock issued upon exercise of any options, warrants, convertible securities or other securities exercisable for, convertible into or exchangeable for shares of Common Stock or Preferred Stock that were outstanding on the date hereof.
3. Complete Agreement and Modifications. This Agreement represents the entire agreement between the Parties with respect to the subject matter set forth herein, and there are no understandings or agreements with respect thereto except as specifically stated in this Agreement. This Agreement supersedes the terms of any prior agreements between or among the Parties with respect to the subject set forth herein. The terms of this Agreement may not be modified except pursuant to a document signed by the Parties, and no right of any party may be waived except pursuant to a document signed by the Party expressly waiving that right.
4. Binding Agreement. No Party may assign this Agreement or its rights and obligations hereunder without the prior written consent of the other Parties. This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective successors and permitted assigns. By signing below, each Party acknowledges that it has read this Agreement, has had an opportunity to consult with its own independent counsel, and by signing below, voluntarily accepts the terms of this Agreement.
5. Applicable Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts executed in and to be performed in that State.
6. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.
7. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
8. Counterparts. This Agreement may be executed and delivered (including by facsimile transmission) in one or more counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.
9. Authority. By signing below, each signatory represents and warrants that such signatory has the requisite authority to enter into this Agreement.
10. Representation as to Other Parties and Report of Form 8-K. The Company shall file a Current Report on Form 8-K on or before 9:30 am ET on the trading day immediately following the date hereof disclosing all material terms of this Agreement and the material terms of any of the Lock-Up Agreements and understandings and agreements with the other parties (written or otherwise) to the Lock-Ups that were entered into in connection therewith.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the date first set forth above.
SABBY VOLATILITY WARRANT MASTER FUND, LTD.
By: /s/ Robert Grundstein
Name: Robert Grundstein
Its: COO of Investment Manager
AIRBORNE WIRELESS NETWORK
By: /s/ Michael J. Warren
Name: Michael J. Warren
Its: Chief Executive Officer
[Signature Page to Warrant Exercise Agreement]
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Exhibit A
Form of Lock-Up Agreement
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