Exhibit 10.3
NEITHER THIS DEBENTURE NOR THE UNDERLYING COMMON SHARES HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933. THE CORPORATION WILL NOT TRANSFER THIS
DEBENTURE, OR ANY COMMON SHARES ISSUED PURSUANT TO ITS CONVERSION PROVISION,
UNLESS (i) THERE IS AN EFFECTIVE REGISTRATION COVERING SUCH NOTE OR SHARES UNDER
THE SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS, (ii) IT FIRST
RECEIVES A LETTER FROM AN ATTORNEY, ACCEPTABLE TO THE BOARD OF DIRECTORS OR ITS
AGENTS, STATING THAT IN THE OPINION OF THE ATTORNEY THE PROPOSED TRANSFER IS
EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND UNDER ALL
APPLICABLE STATE SECURITIES LAWS, OR (iii) THE TRANSFER IS MADE PURSUANT TO RULE
144 UNDER THE SECURITIES ACT OF 1933.
OLD MISSION ASSESSMENT CORP.
a Florida Corporation
90 Day
8.25% CONVERTIBLE DEBENTURE
Dated: April 15, 2002
1 Section. Terms. In furtherance of its obligations under the Funding and
Operating Agreement dated April 15, 2002, Old Mission Assessment Corporation
(hereinafter the "Corporation" or "OMAC"), which term includes any successor
corporation, for value received, hereby promises to pay to Hamilton Aerospace
Technologies, Inc., a Delaware corporation (hereinafter "Holder" or "HAT"), the
principal sum of $1,500,000, plus all accrued interest from April 15, 2002, on
or before July 15, 2002, pursuant to the Payment Schedule provisions set forth
in Section 3 herein, unless this Debenture has been paid in full or converted
pursuant to Section 3 hereto. Interest on the outstanding principal amount shall
accrue at the rate of 8.25% per annum.
2 Section. Right of Suspension. HAT currently holds a FAA part 145 Certificate
Repair Station for Aircraft Maintenance. HAT is expected to obtain a lease from
the Tucson Airport Authority ("TAA") In the event that HAT does not maintain a
current FAA certificate or does not obtain and maintain its lease from the TAA,
the Corporation shall have the right to suspend its performance hereunder. In
the event that either the FAA Certificate to HAT or the TAA Lease to HAT have
been terminated or declared null and void, the Corporation may declare this
Debenture null and void, after which the Corporation shall have no further
liability or responsibility for payment hereunder.
PAGE 1 - CONVERTIBLE, CALLABLE, SUBORDINATED DEBENTURE
3 Section. Payment Schedule and Conversion Provisions. The Corporation shall
begin paying the outstanding principal and all accrued interest owed on or
before July 15, 2002. However, the Corporation, at its option, prior to the
maturity date, may elect to pay the outstanding principal and accrued interest
in shares of its common stock pursuant to the conversion method set forth in
paragraph 4 herein. All OMAC payment obligations hereunder are subject to and
conditioned upon OMAC and HAT agreeing to a mutually acceptable draw down and
Payment Schedule. HAT must submit proposed purposes and destinations for its
draw requests and such requests are subject to review and approval by OMAC,
which approval shall not be unreasonably withheld.
At the maturity of this Debenture, on July 15, 2002, the Holder of this
Debenture shall have the right, at Holder's option, to convert the principal and
accrued, but unpaid, interest, of this Debenture into shares of common stock of
the Corporation at the conversion rate of the average Closing Bid and Asked
Price of the Corporation's common stock as quoted by the Electronic Pink Sheets
over the preceding five trading days. In order to convert, the Holder must give
the Corporation written notice of the exercise of its option to convert (the
"Conversion Notice") by fax to Corwin Foster, President, OMAC, facsimile:(231)
941-8266 on July 15, 2002 and thereafter surrender this Debenture to the
Corporation at the Corporation's principal offices within five (5) business days
and the Corporation shall, within 7 business days thereinafter, deliver to the
Holder a certificate or certificates representing the number of fully paid and
non-assessable Common Shares of the Corporation into which such Debenture has
been converted.
4 Section. Corporation to Reserve Common Shares. The Corporation covenants that
it will at all times reserve and keep available, free from preemptive rights,
out of the aggregate of its authorized but unissued common shares, or its issued
common shares held in its treasury, or both, for the purpose of effecting
conversions of Debentures, the full number of common shares of then deliverable
upon the conversion of all outstanding Debentures not theretofore converted; and
if at any time the number of authorized but unissued common shares shall not be
sufficient to effect the conversion of all said outstanding Debentures, the
Corporation will take such corporate action as may in the opinion of its counsel
be necessary to increase its authorized but unissued common shares to such
number of shares as shall be sufficient for that purpose.
5 Section. Fractional Shares. Fractional Shares or script representing
fractional Shares may be issued upon the conversion of this Debenture.
6 Section. Assignment, Exchange, or Loss of Debenture.
6.1 This Debenture is not assignable or transferrable by Holder.
6.2 This Debenture is exchangeable, without expense, at the option of the
Holder, upon presentation and surrender hereof to the Corporation at its
principal office, or at the office of its stock transfer agent, if any, for
other Debentures of different denominations entitling the Holder to purchase, in
the aggregate, the same number of Shares purchasable hereunder.
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6.3 Upon receipt by the Corporation of evidence satisfactory to it of the loss,
theft, destruction, or mutilation of this Debenture, and (in the case of loss,
theft, or destruction) of reasonably satisfactory indemnification, and (in the
case of mutilation) upon surrender and cancellation of this Debenture, the
Corporation will execute and deliver a new Debenture, which shall constitute an
additional contractual obligation on the part of the Corporation, whether or not
this Debenture so lost, stolen, destroyed, or mutilated shall be at any time
enforceable by anyone.
7 Section. Rights of the Holder. The Holder shall not, by virtue hereof, be
entitled to any rights of a shareholder in the Corporation, either at law or
equity. The rights of the Holder are limited to those expressed in this
Debenture and are not enforceable against the Corporation except to the extent
set forth herein. The Holder will be deemed the owner of the Shares upon
tendering the conversion notice.
8 Section. Anti-Dilution Provisions. The number and kind of securities
purchasable upon the conversion of this Debenture shall be subject to adjustment
from time to time as follows:
8.1 In case the Corporation shall (i) pay a dividend or make a distribution on
the outstanding common shares payable in common shares, (ii) subdivide the
outstanding common shares into a greater number of shares, (iii) combine the
outstanding common shares into a lesser number of shares, or (iv) issue by
reclassification of the common shares any common shares of the Corporation, the
Holder of this Debenture shall thereafter be entitled, upon conversion, to
receive the number and kind of shares which, if this Debenture had been
converted immediately prior to the happening of such event, the Holder would
have owned upon such conversion and been entitled to receive upon such dividend,
distribution, subdivision, combination, or reclassification. Such adjustment
shall become effective on the day next following (x) the record date of such
dividend or distribution or (y) the day upon which such subdivision,
combination, or reclassification shall become effective.
8.2 In case the Corporation shall consolidate or merge into or with another
corporation, or in case the Corporation shall sell or convey to any other person
or persons all or substantially all the property of the Corporation, the Holder
of this Debenture shall thereafter be entitled, upon conversion, to receive the
kind and amount of shares, other securities, cash, and property receivable upon
such consolidation, merger, sale, or conveyance by a holder of the number of
common shares which might have been received upon conversion of this Debenture
immediately prior to such consolidation, merger, sale, or conveyance, and shall
have no other conversion rights. In any such event, effective provision shall be
made, in the certificate or articles of incorporation of the resulting or
surviving corporation, in any contracts of sale and conveyance, or otherwise so
that, so far as appropriate and as nearly as reasonably may be, the provisions
set forth herein for the protection of the rights of the Holder of this
Debenture shall thereafter be made applicable.
8.3 If at any time the Corporation is required to issue shares of its common
shares in excess of the number of common shares then authorized, both the
Corporation and the Holder shall cooperate in taking any and all steps necessary
to increase the number of authorized common shares of the Corporation to
effectuate the purposes of this.
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8.4 Irrespective of any adjustments in the number or kind of shares to be
received upon conversion of this Debenture, the form of Debentures theretofore
or thereafter issued may continue to express the number and kind of shares as
are stated in this Debenture.
9 Section. Officer's Certificate. Whenever the number or kind of securities
purchasable upon conversion of this Debenture shall be adjusted as required by
the provisions herein, the Corporation shall forthwith file with its Secretary
or Assistant Secretary at its principal office and with its stock transfer
agent, if any, an officer's certificate showing the adjusted number of kind of
securities purchasable upon conversion of this Debenture determined as herein
provided and setting forth in reasonable detail such facts as shall be necessary
to show the reason for and the manner of computing such adjustments. Each such
officer's certificate shall be made available at all reasonable times for
inspection by the Holder and the Corporation shall, forthwith after each such
adjustment, mail by certified mail a copy of such certificate to the Holder.
10 Section. Restrictions on Transfer. This Debenture and the underlying shares
have not been registered under the Securities Act of 1933. This Debenture or the
underlying shares, or any right hereunder, may not be enforced against the
Corporation by any Holder, except the original Holder herein, (i) unless there
is an effective registration covering such note or underlying right under the
Securities Act of 1933 and applicable state securities laws, (ii) unless the
Corporation receives an opinion of an attorney, licensed to practice within the
United States, that the transfer of the Debenture, or any underlying right,
complies with the requirements of the Securities Act of 1933 and any relevant
state securities law, or (iii) unless the transfer is made pursuant to Rule 144
under the Securities Act of 1933.
11 Section. Notices. All notices and other communications required or permitted
under this Debenture shall be validly given, made, or served if in writing and
delivered personally or sent by registered mail, or facsimile to the Corporation
at the following address:
Corwin Foster, President
Old Mission Assessment Corp.
445 Front Street
Traverse City, MI 49686
Facsimile: (231) 941-8266
With a copy to:
Eric P. Littman, Esquire
7695 S.W. 104th Street
Suite 210
Miami, FL 33156
Facsimile: (305)668-0003
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All notices and other communications required or permitted under this
Debenture shall be validly given, made or served if in writing and delivered
personally or sent by registered mail, to the Holder at the following address:
Ian M. Herman
3908 S. Ocean Boulevard, Suite#1
Highland Beach, Florida 33487
Fax (561) 274-8297
With a copy to:
Ronald J. Clark, President
Hamilton Aerospace Technologies, Inc.
P.O. Box 23009
Tucson, AZ 85734
Facsimile: (520) 299-3661
12 Section. Pronouns. Any masculine personal pronoun shall be considered to mean
the corresponding feminine or neuter personal pronoun, as the context requires.
13 Section. Law Governing. This Agreement shall be exclusively governed by and
construed in accordance with the laws of the State of Florida. If any action is
brought among the parties with respect to this Agreement or otherwise, by way of
a claim or counterclaim, the parties agree that in any such action, and on all
issues, the parties irrevocably waive their right to a trial by jury.
14 Section. Titles and Captions. All section titles or captions contained in
this Agreement are for convenience only and shall not be deemed part of the
context nor effect the interpretation of this Agreement.
15 Section. Computation of Time. In computing any period of time pursuant to
this Agreement, the day of the act, event or default from which the designated
period of time begins to run shall be included, unless it is a Saturday, Sunday,
or a legal holiday, in which event the period shall begin to run on the next day
which is not a Saturday, Sunday, or legal holiday, in which event the period
shall run until the end of the next day thereafter which is not a Saturday,
Sunday, or legal holiday.
16 Section. Presumption. This Agreement or any section thereof shall not be
construed against any party due to the fact that said Agreement or any section
thereof was drafted by said party.
17 Section. Further Action. The parties hereto shall execute and deliver all
documents, provide all information and take or forbear from all such action as
may be necessary or appropriate to achieve the purposes of the Agreement.
18 Section. Parties in Interest. Nothing herein shall be construed to be to the
benefit of any third party, nor is it intended that any provision shall be for
the benefit of any third party.
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19 Section. Attorney Fees. If suit or action is instituted in connection with
any controversy arising out of this Debenture, or in the enforcement of any
rights hereunder, the prevailing party shall be entitled to recover in addition
to costs such sums as the court may adjudge as reasonable attorney fees,
including attorney fees of any appeal.
IN WITNESS WHEREOF, Corwin Foster, as President of Old Mission Assessment
Corp., Inc., and Ronald J. Clark, as President of Hamilton Aerospace
Technologies, Inc., has executed this Debenture to be effective as of this 15th
day of April, 2002.
OLD MISSION ASSESSMENT CORP., INC.
a Florida Corporation
By: s/s Corwin Foster
------------------------------------
Corwin Foster, President
HAMILTON AEROSPACE TECHNOLOGIES, INC.
By: s/s Ronald J. Clark
------------------------------------
Ronald J. Clark, President
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