UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post-Effective Amendment No. 5
to
Form SB-2
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
GLOBAL AIRCRAFT SOLUTIONS, INC.
Trading Symbol - GACF.OB (OTCBB Market)
Nevada 4581 84-1108499
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(State or jurisdiction (Primary SIC Number) (IRS Employer
of incorporation) Identification No.)
P.O. Box 23009, Tucson, AZ 85734
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(Address and telephone number of principal executive offices)
520-294-3481
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(Telephone)
Approximate date of proposed sale to the public: As soon as practicable after
the Registration Statement becomes effective.
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434, check
the following box. [ ]
If any of the securities being registered on the Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act, check
the following box. [X]
The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act or until this registration statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a), may
determine.
EXPLANATORY NOTE
This Post-Effective Amendment No. 5 to the Registration Statement declared
effective on February 8, 2006 further amends our Post Effective Amendment No. 4
filed on January 25, 2008 solely to include the signature of Patricia Graham as
Chief Financial Officer and Chief Accounting Officer of the Company and to
reflect the current date of such signatures. Except for this current amendment
to the signature page, the Post Effective Amendment No. 3 filed on November 13,
2007 and the Post Effective Amendment No. 4 filed on January 25, 2008 remain
unchanged.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Global's By-Laws allow for the indemnification of Company Officers and Directors
in regard to their carrying out the duties of their offices. The Board of
Directors will make determination regarding the indemnification of the director,
officer or employee as is proper under the circumstances if he/she has met the
applicable standard of conduct set forth in subsections (a) and (b) of Section
145 of the Nevada General Corporation Law.
Section 78.751 of the Nevada Business Corporation Act provides that each
corporation shall have the following powers:
"1. A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
except an action by or in the right of the corporation, by reason of any fact
that he is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses, including attorneys fees, judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with the action, suit or proceeding if he acted in good faith and in
a manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a pleas of nolo contendere or its equivalent, does not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and that, with respect to any criminal action or
proceeding, he had a reasonable cause to believe that his conduct was unlawful.
2. A corporation may indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by or
in the right of the corporation to procure a judgment in its favor by reason of
the fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including amounts paid in
settlement and attorneys fees actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit if he acted in
good faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of the corporation. Indemnification may not be made for
any claim, issue or matter as to which such a person has been adjudged by a
court of competent jurisdiction, after exhaustion of all appeals therefrom, to
be liable to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in which the action or
suit was brought or other court of competent jurisdiction, determines upon
application that in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such expenses as the court deems
proper.
3. To the extent that a director, officer, employee or agent of a corporation
has been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in sections 1 and 2, or in defense of any claim, issue or
matter therein, he must be indemnified by the corporation against expenses,
including attorneys fees, actually and reasonably incurred by him in connection
with the defense.
4. Any indemnification under sections 1 and 2, unless ordered by a court or
advanced pursuant to section 5, must be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances. The
determination must be made:
(A) By the stockholders;
(B) By the board of directors by majority vote of a quorum consisting
of directors who were not parties to the act, suit or proceeding;
(C) If a majority vote of a quorum consisting of directors who were
not parties to the act, suit or proceeding so orders, by independent legal
counsel, in a written opinion; or
(D) If a quorum consisting of directors who were not parties to the
act, suit or proceeding cannot be obtained, by independent legal counsel in a
written opinion.
5. The certificate of articles of incorporation, the bylaws or an agreement made
by the corporation may provide that the expenses of officers and directors
incurred in defending a civil or criminal action, suit or proceeding must be
paid by the corporation as they are incurred and in advance of the final
disposition of the action, suit or proceeding, upon receipt of an undertaking by
or on behalf of the director or officer to repay the amount if it is ultimately
determined by a court of competent jurisdiction that he is not entitled to be
indemnified by the corporation. The provisions of this section do not affect any
rights to advancement of expenses to which corporate personnel other than
director or officers may be entitled under any contract or otherwise by law.
6. The indemnification and advancement of expenses authorized in or ordered by a
court pursuant to this section:
(a) Does not include any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under the
certificate or articles of incorporation or any bylaw, agreement, vote
of stockholders or disinterested directors or otherwise, for either an
action in his official capacity or an action in another capacity while
holding his office, except that indemnification, unless ordered by a
court pursuant to section 2 or for the advancement of expenses made
pursuant to section 5, may not be made to or on behalf of any director
or officer if a final adjudication establishes that his acts or
omission involved intentional misconduct, fraud or a knowing violation
of the law and was material to the cause of action.
(b) Continues for a person who has ceased to be a director, officer
employee or agent and inures to the benefit of the heirs, executors
and administrators of such a person.
(c) The Company's Articles of Incorporation provides that "the Corporation
shall indemnify its officers, directors, employee and agents to the
fullest extent permitted by the General Corporation Law of Nevada, as
amended from time to time."
As to indemnification for liabilities arising under the Securities Act of 1933
for directors, officers or persons controlling the company, we have been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy and unenforceable. See section entitled
"Disclosure of Commission Position on Indemnification for Securities Act
Liabilities".
OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated costs of the offering are denoted below. Please note all amounts
are estimates other than the Commission's registration fee.
SEC Registration Fee - $2,998.26
State of New York Registration Fee - $2,250.00
Accounting Fees: - $2,500.00
Global will pay all expenses of the offering listed above. No portion of these
expenses will be borne by the selling shareholders.
RECENT SALES OF UNREGISTERED SECURITIES
The following represents unregistered sales of securities within the last 3
years:
On May 31, 2004, the shareholders authorized the issuance of 9,600,000 shares of
common stock and 16,200,000 shares of common stock issueable upon the exercise
of warrants pursuant to a private placement to accredited investors, Barron
Partners and JG Capital. The Company relied upon Section 4(2) of Securities Act
of 1933, as amended (the "Act"). The Company issued the 9,600,000 shares of
common stock and 16,200,000 shares of common stock issueable upon the exercise
of warrants pursuant to an exemption from registration under Regulation D, Rule
506. Barron Partners received a warrant for 7,200,000 shares of common stock at
an exercise price of $.68 and a warrant to receive 7,200,000 shares of common
stock at an exercise price of $1.36. JG Capital received a warrant for 720,000
shares of common stock at an exercise price of $.34; 540,000 shares of common
stock at an exercise price of $.68; and 540,000 shares of common stock at an
exercise price of $1.36 On June 15, 2004, the shareholders authorized the
issuance of 1,000,000 shares of common stock pursuant to a private placement to
accredited investor, Ralph Garcia. The Company relied upon Section 4(2) of
Securities Act of 1933, as amended (the "Act"). The Company issued the 1,000,000
shares of common stock pursuant to an exemption from registration under
Regulation D, Rule 506. On August 15, 2004, the shareholders authorized the
issuance of 2,115,386 shares of common stock and 2,432,694 shares of common
stock issueable upon the exercise of warrants pursuant to a private placement to
accredited investors, Alpha Capital, Stonestreet, Whalehaven , Greenwich, JG
Capital, Heza Holdings and Grusko. The Company relied upon Section 4(2) of
Securities Act of 1933, as amended (the "Act"). The Company issued the 2,115,386
shares of common stock and 2,432,694 shares of common stock issueable upon the
exercise of warrants pursuant to an exemption from registration under Regulation
D, Rule 506. Alpha received a warrant for 625,000 shares of common stock at an
exercise price of $1.00 and 625,000 shares of common stock at an exercise price
of $1.36; Stonestreet received a warrant for 192,308 shares of common stock at
an exercise price of $1.00 and 192,308 shares of common stock at an exercise
price of $1.36; Whalehaven received a warrant for 144,231 shares of common stock
at an exercise price of $1.00 and 144,231 shares of common stock at an exercise
price of $1.36; Greenwich received a warrant for 96,154 shares of common stock
at an exercise price of $1.00 and 96,154 shares of common stock at an exercise
price of $1.36; JG Capital received a warrant for 95,192 shares of common stock
at an exercise price of $.52, 47,597 shares of common stock at an exercise price
of $1.00, and 47,597 shares of common stock at an exercise price of $1.36; Heza
Holdings received a warrant for 31,731 shares of common stock at an exercise
price of $.52, 15,865 shares of common stock at an exercise price of $1.00, and
15,865 shares of common stock at an exercise price of $1.36; and Grushko
received a warrant for 31,731 shares of common stock at an exercise price of
$.52, 15,865 shares of common stock at an exercise price of $1.00, and 15,865
shares of common stock at an exercise price of $1.36. On July 27, 2005,
7,200,000 shares of common stock were issued to selling shareholder Barron
Partners upon the exercise of $.68 warrants and the stock issueable upon
exercise of such warrants was issued pursuant to a private placement under Rule
506 of Regulation D of SEC Act of 1933 on May 31, 2004
The Company relied upon Section 4(2) of the Securities Act of1933, as amended
(the "Act"). Each prospective investor was given a private placement memorandum
designed to disclose all material aspects of an investment in the Company,
including the business, management, offering details, risk factors and financial
statements. Each investor also completed a subscription confirmation letter and
private placement subscription agreement whereby the investors certified that
they were purchasing the shares for their own accounts, with investment intent
and that each investor was either "accredited", or were "sophisticated"
purchasers, having prior investment experience or education, and having adequate
and reasonable opportunity and access to any corporate information necessary to
make an informed investment decision. This offering was not accompanied by
general advertisement or general solicitation and the shares were issued with a
Rule 144 restrictive legend.
On December 20, 2007, the Company entered into and closed on three
non-convertible secured debenture financing agreements with two accredited
institutional investors ("Holders") in the total amount of $10 million. As an
inducement for Holder Victory Park Master Fund, Ltd. ("Victory Park") to
purchase a Debenture, Global issued Victory Park a 5-year warrant exercisable
into 1,500,000 shares of Global common stock ("Common Stock") at an exercise
price of $0.45 per share ("Warrant"). However, if Victory Park should choose to
exercise the Warrant on a cashless basis then it would receive a reduced number
of Common Stock shares based upon the cashless exercise formula contained
therein.
The Warrant also contains a contingent obligation which shall be determined
pursuant to a one-time value test on December 20, 2008 ("Test Date"). In the
event that the difference between the Common Stock VWAP (for the 20 trading days
prior to such Test Date) and the exercise price multiplied by the number of
Warrant shares is not at least equal to $750,000 ("Target Value"), then Global
will be obligated to issue an additional warrant to Victory Park. If Global is
obligated to issue an additional warrant (such warrant will contain identical
terms and provisions as the Warrant set forth above), that warrant shall be
exercisable into that number of Common Stock shares that would cause the
additional warrant and the Warrant combined to equal the Target Value, but in no
event shall the additional warrant be exercisable into more than 500,000 warrant
shares.
The issuance of the Debentures, Warrant and Warrant Shares to Victory Park are
exempt from registration under the Securities Act of 1933, as amended, pursuant
to Rule 506 promulgated thereunder. Each investor also completed a private
placement subscription agreement whereby the investors certified that they were
purchasing the shares for their own accounts, with investment intent and that
each investor was either "accredited", or were "sophisticated" purchasers,
having prior investment experience or education, and having adequate and
reasonable opportunity and access to any corporate information necessary to make
an informed investment decision. This offering was not accompanied by general
advertisement or general solicitation.
Under the Securities Act of 1933, all sales of an issuers' securities or by a
shareholder, must either be made (i) pursuant to an effective registration
statement filed with the SEC, or (ii) pursuant to an exemption from the
registration requirements under the 1933 Act.
Rule 144 under the 1933 Act sets forth conditions which if satisfied, permit
persons holding control securities (affiliated shareholders, i.e., officers,
directors or holders of at least ten percent of the outstanding shares) or
restricted securities (non-affiliated shareholders) to sell such securities
publicly without registration. Rule 144 sets forth a holding period for
restricted securities to establish that the holder did not purchase such
securities with a view to distribute. Under Rule 144, several provisions must be
met with respect to the sales of control securities at any time and sales of
restricted securities held between one and two years. The following is a summary
of the provisions of Rule 144: (a) Rule 144 is available only if the issuer is
current in its filings under the Securities an Exchange Act of 1934. Such
filings include, but are not limited to, the issuer's quarterly reports and
annual reports; (b) Rule 144 allows resale of restricted and control securities
after a one year hold period, subjected to certain volume limitations, and
resales by non-affiliates holders without limitations after two years; ( c ) The
sales of securities made under Rule 144 during any three-month period are
limited to the greater of: (i) 1% of the outstanding common stock of the issuer;
or (ii) the average weekly reported trading volume in the outstanding common
stock reported on all securities exchanges during the four calendar weeks
preceding the filing of the required notice of the sale under Rule 144 with the
SEC.
EXHIBITS
(previously filed)
3.1.............Amended and Restated Articles of Incorporation
3.2.............By Laws
4.1.............Stock Purchase Agreement (Barron Partners)
4.2.............2002 Compensatory Stock Option Plan
4.3.............2003 Employee Stock Compensation Plan
4.4.............Common Stock Purchase Warrant Issued May 31, 2004
4.5.............Common Stock Purchase Warrant Issued May 31, 2004
4.6.............Common Stock Purchase Warrant Issued May 31, 2004
4.7.............Form of Subscription Agreement (Alpha, Whalehaven,
Stonestreet, Greenwich)
4.8.............Form of Stock Purchase Agreement (Acquisition of World Jet
Corporation)
4.9.............Loan Agreement American Capital Ventures
4.10............World Jet Factoring Agreement
5.1.............Opinion re: Legality
10.1............Property Lease
10.2............Employment Agreement Dated July 21, 2003 by and between Ian
Herman and Global
10.3............Employment Agreement Dated July 21, 2003 by and between
John B. Sawyer and Global
11.1............Statement re: computation of per share earnings
13.1............2004 Annual report (See also 10KSB & 10QSB Filings)
21.1............Subsidiaries of the registrant
23.1............Consent of experts and counsel (Included in Exhibit 5.1)
99.1............Court Order canceling 8.1 million shares of common stock &
returning the stock to Global
99.2............Lawsuit filed by Global against Corwin Foster, Jane Doe
Foster and Seajay Holdings
99.3............Sale of Assets Agreement between HAT Hamilton Aviation
99.4............Lease/Purchase Agreement between HAT and Hamilton Aviation
99.5............Service Agreement between HAT and Hamilton Aviation
99.6............Settlement Agreement among HAT, Hamilton Aviation and the
Bankruptcy Estate
99.7............Bankruptcy Court Order re: Settlement Agreement
99.8............Lawsuit filed by HAT against Aero Micronesia
UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions or otherwise, the registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to:
(i) Include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) Reflect in the prospectus any facts or events which, individually
or together, represent a fundamental change in the information in
the registration statement; and notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.
(iii) Include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
(2) To deem, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the registered securities which remain unsold at the end of the
offering.
(4) For determining liability of the undersigned registrant under the
Securities Act to any purchaser in the initial distribution of the
securities, to undertake that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities to
the purchaser, if the securities are offered or sold to such purchaser
by means of any of the following communications, the undersigned
registrant will be a seller to the purchaser and will be considered to
offer or sell such securities to such purchaser:
(i) any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant
to Rule 424;
(ii) any free writing prospectus relating to the offering prepared by
or on behalf of the undersigned registrant or used or referred to
by the undersigned registrant;
(iii) the portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv) any other communication that is an offer in the offering made by
the undersigned registrant to the purchaser.
Each prospectus filed pursuant to Rule 424(b) as part of a registration
statement relating to an offering, other than registration statements relying on
Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be
deemed to be part of and included in the registration statement as of the date
it is first used after effectiveness. Provided, however, that no statement made
in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such
first use, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such date of first use.
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe it meets all of
the requirements for filing Form SB-2A and authorized this registration
statement to be signed on its behalf by the undersigned, in the city of Tucson,
state of Arizona, on February 1, 2008.
Registrant /s/ John B. Sawyer
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John B. Sawyer, President/Director
Principal Executive Officer
Date: February 1, 2008
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In accordance with the requirements of the Securities Act of 1933, this
registration statement was signed by the following persons in the capacities and
on the dates stated:
/s/ Ian Herman February 1, 2008
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Ian Herman, Chairman/CEO/Director Date
/s/ John B. Sawyer February 1, 2008
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John B. Sawyer, President/Director Date
Principal Executive Officer
/s/ Patricia Graham February 1, 2008
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Patricia Graham, Chief Financial Officer/ Date
Chief Accounting Officer
/s/ Gordon D. Hamilton February 1, 2008
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Gordon D. Hamilton, Director Date
/s/ Lawrence Mulcahy February 1, 2008
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Lawrence Mulcahy, Director Date