UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Amendment No. 2)
Under the Securities Exchange Act of 1934
SAKER AVIATION SERVICES, INC.
(Name of Issuer)
Common Stock, par value $0.03 per share
(Title of Class of Securities)
32025R104
(CUSIP Number)
Marc Chodock
Arvice Capital Management, LLC
7883 Main St.
Hunter, NY 12442
Telephone: (518) 628-5172
Copy to:
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Robb L. Tretter
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Ropes & Gray LLP
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1211 Avenue of the Americas
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New York, New York 10036-8704
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212.596.9512
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
December 1, 2023
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ☐.
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
CUSIP No. 32025R104
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1
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Name of Reporting Persons
ACM Value Opportunities Fund I, LP
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2
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Check the Appropriate Box if a Member of a Group
(a) ☒ (b) ☐
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3
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SEC Use Only
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4
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Source of Funds
WC
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5
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Check if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e) ☐
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6
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Citizenship or Place of Organization
Delaware
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
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7
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Sole Voting Power
-0-
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8
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Shared Voting Power
120,513
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9
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Sole Dispositive Power
-0-
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10
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Shared Dispositive Power
120,513
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11
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Aggregate Amount Beneficially Owned by Each Reporting Person
120,513
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12
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Check if the Aggregate Amount in Row (11) Excludes Certain Shares ☐
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13
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Percent of Class Represented by Amount in Row (11)
12.2%
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14
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Type of Reporting Person
OO (Delaware Limited Partnership)
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CUSIP No. 32025R104
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1
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Name of Reporting Persons
ACM Value Opportunities Fund I GP, LLC
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2
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Check the Appropriate Box if a Member of a Group
(a) ☒ (b) ☐
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3
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SEC Use Only
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4
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Source of Funds
AF
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5
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Check if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e) ☐
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6
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Citizenship or Place of Organization
Delaware
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
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7
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Sole Voting Power
-0-
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8
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Shared Voting Power
120,513
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9
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Sole Dispositive Power
-0-
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10
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Shared Dispositive Power
120,513
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11
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Aggregate Amount Beneficially Owned by Each Reporting Person
120,513
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12
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Check if the Aggregate Amount in Row (11) Excludes Certain Shares ☐
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13
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Percent of Class Represented by Amount in Row (11)
12.2%
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14
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Type of Reporting Person
OO (Delaware Limited Liability Company)
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CUSIP No. 32025R104
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1
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Name of Reporting Persons
Arvice Capital Management, LLC
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2
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Check the Appropriate Box if a Member of a Group
(a) ☒ (b) ☐
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3
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SEC Use Only
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4
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Source of Funds
AF
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5
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Check if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e) ☐
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6
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Citizenship or Place of Organization
Delaware
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
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7
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Sole Voting Power
-0-
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8
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Shared Voting Power
120,513
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9
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Sole Dispositive Power
-0-
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10
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Shared Dispositive Power
120,513
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11
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Aggregate Amount Beneficially Owned by Each Reporting Person
120,513
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12
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Check if the Aggregate Amount in Row (11) Excludes Certain Shares ☐
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13
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Percent of Class Represented by Amount in Row (11)
12.2%
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14
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Type of Reporting Person
OO (Delaware Limited Liability Company)
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CUSIP No. 32025R104
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1
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Name of Reporting Persons
Marc Chodock
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2
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Check the Appropriate Box if a Member of a Group
(a) ☒ (b) ☐
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3
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SEC Use Only
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4
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Source of Funds
AF
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5
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Check if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e) ☐
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6
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Citizenship or Place of Organization
United States
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
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7
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Sole Voting Power
-0-
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8
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Shared Voting Power
120,513
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9
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Sole Dispositive Power
-0-
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10
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Shared Dispositive Power
120,513
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11
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Aggregate Amount Beneficially Owned by Each Reporting Person
120,513
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12
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Check if the Aggregate Amount in Row (11) Excludes Certain Shares ☐
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13
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Percent of Class Represented by Amount in Row (11)
12.2%
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14
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Type of Reporting Person
IN
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Item 1. Security and Issuer
This amendment (“Amendment No. 2”) amends the Schedule 13D Statement, filed February 9, 2015 (the “Statement”), as amended by Amendment No. 1 to the Statement on July 6, 2015, on behalf of (i) ACM Value Opportunities Fund I, LP, a Delaware limited partnership (the “Fund”), (ii) ACM Value Opportunities Fund I GP, LLC, a Delaware limited liability company, as general partner of the Fund (the “General Partner”), (iii) Arvice Capital Management, LLC, a Delaware limited liability company (the “Manager”), as manager of the Fund, and (iv) Marc Chodock (“Mr. Chodock”), as managing member of the Manager, with respect to the shares of Common Stock directly owned by the Fund and certain options to purchase Common Stock of the Issuer granted to Mr. Chodock for services as a director of the Issuer. The foregoing persons are hereinafter collectively referred to as the “Reporting Persons.” Except as specifically provided herein, this Amendment No. 2 does not modify any of the information previously reported on the Statement, as amended.
Preliminary Note: All Common Stock share amounts and percentage interests in this Schedule 13D (Amendment No. 2) give effect to the 1-for-30 reverse stock split effected by the Issuer on February 27, 2019.
Item 3. Source and Amount of Funds or Other Consideration
Item 3 of the Initial Schedule 13D is hereby amended by the addition of the following information:
The Common Stock of the Issuer beneficially owned by the Reporting Persons has been acquired in the open market with working capital set aside for the general purpose of investing (which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business) and pursuant to certain options to purchase Common Stock of the Issuer granted to Mr. Chodock for services as a director of the Issuer.
On October 14, 2019, the Reporting Persons exercised options to purchase 3,333 shares of Common Stock at an exercise price of $2.40 per share. Of the 3,333 shares of Common Stock, 1,454 shares were withheld by the Issuer to pay the option exercise price and to satisfy tax withholding obligations. The options were acquired by Mr. Chodock in consideration for his services as a director of the Issuer and assigned to the Fund.
On October 14, 2019, the Reporting Persons exercised options to purchase 3,333 shares of Common Stock at an exercise price of $2.25 per share. Of the 3,333 shares of Common Stock, 1,364 shares were withheld by the Issuer to pay the option exercise price and to satisfy tax withholding obligations. The options were acquired by Mr. Chodock in consideration for his services as a director of the Issuer and assigned to the Fund.
On November 27, 2023, the Reporting Persons exercised options to 3,333 shares of Common Stock at an exercise price of $2.40 per share. The options were acquired by Mr. Chodock in consideration for his services as a director of the Issuer and assigned to the Fund.
An aggregate of 3,333 shares of Common Stock to be issued when and if the Fund exercises the following stock options granted pursuant to the Issuer’s Stock Option Plan of 2005:
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(a)
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Option expiring December 5, 2024 to purchase 3,333 shares of the Common Stock at $5.60 per share, which option first became exercisable on December 5, 2020. The options were acquired by Mr. Chodock in consideration for his services as a director of the Issuer and assigned to the Fund.
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An aggregate of 13,332 shares of Common Stock to be issued when and if the Fund exercises the following stock options granted pursuant to the Issuer’s 2019 Stock Incentive Plan:
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(a)
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Option expiring December 1, 2025 to purchase 3,333 shares of the Common Stock at $2.58 per share, which option first became exercisable on December 1, 2021. The options were acquired by Mr. Chodock in consideration for his services as a director of the Issuer and assigned to the Fund.
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(b)
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Option expiring December 1, 2026 to purchase 3,333 shares of the Common Stock at $3.45 per share, which option first became exercisable on December 1, 2022. The options were acquired by Mr. Chodock in consideration for his services as a director of the Issuer and assigned to the Fund.
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(c)
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Option expiring December 1, 2027 to purchase 3,333 shares of the Common Stock at $5.40 per share, which option first becomes exercisable on December 1, 2023. The options were acquired by Mr. Chodock in consideration for his services as a director of the Issuer and assigned to the Fund.
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(d)
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Options expiring December 1, 2028 to purchase 3,333 shares of the Common Stock at $7.52 per share, which options will first become exercisable on December 1, 2024. The options were acquired by Mr. Chodock in consideration for his services as a director of the Issuer and assigned to the Fund.
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Item 4. Purpose of Transaction
Item 4 of the Initial Schedule 13D is hereby amended by the addition of the following information:
The information provided in Items 3 and 6 with respect to the stock options is incorporated by reference herein. All other securities reported herein were acquired for investment purposes or as compensation for Mr. Chodock’s services as a director of the Issuer.
Depending on market conditions and other factors, the Reporting Persons may purchase additional shares of the Issuer’s Common Stock, or may sell or otherwise dispose of all or portions of their shares of Common Stock, if such sales and purchases would be consistent with the Reporting Persons’ investment objectives. The Reporting Persons are also currently eligible to receive additional shares of Common Stock under the terms of their option agreements described in Item 6. The information provided in Item 6 with respect to the option agreements is incorporated by reference herein.
Item 5. Interest in Securities of the Issuer
See the Preliminary Note in Item 1 of this Schedule 13D (Amendment No. 2).
The table in Item 5 of the Statement showing beneficial ownership of the Issuer’s Common Stock by each of the Reporting Persons, together with the introductory paragraph to such table and the paragraph immediately following such table, as well as the information regarding ownership of the Issuer’s Common Stock by the directors and officers of the Reporting Persons, are hereby amended and restated in their entirety as follows:
On the date of this Schedule 13D (Amendment No. 2), the Reporting Persons are the beneficial owners of a total of 120,513 shares of the Issuer’s Common Stock, representing 12.2% of the Issuer’s outstanding Common Stock. Each Reporting Person’s direct ownership and beneficial ownership has been computed as a percentage of 976,330 shares outstanding or deemed outstanding as of December 1, 2023. The following table shows the number of shares of Common Stock and the percentage of the Issuer’s Common Stock directly owned and beneficially owned by each Reporting Person:
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Name
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Shares
Directly
Owned
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Percentage
Directly
Owned
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Shares
Owned
Beneficially
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Percentage
Owned
Beneficially
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The Fund
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120,513 |
1 |
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12.2 |
%
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120,513 |
2 |
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12.2 |
%
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ACM LLC
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-0- |
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-0- |
%
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120,513 |
2 |
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12.2 |
%
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Arvice
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-0- |
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-0- |
%
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120,513 |
2 |
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12.2 |
%
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Mr. Chodock
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-0- |
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-0- |
%
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120,513 |
2 |
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12.2 |
%
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1
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Includes presently exercisable, or exercisable within 60 days of December 1, 2023, stock options for 13,332 shares of Common Stock of the Issuer.
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2
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The Fund directly owns 120,513 shares of Common Stock; AMC LLC is the general partner of the Fund; Arvice is the manager of the ACM LP; and Mr. Chodock is managing member of Arvice.
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None of the Reporting Persons and, to their knowledge, none of their respective managers, officers, or partners, have effected any transactions in the Issuer’s Common Stock in the 60 days preceding the filing of this Schedule 13D (Amendment No. 2). To the best knowledge of the Reporting Persons, no one other than the Reporting Persons has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Common Stock reported herein as beneficially owned by the Reporting Persons.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer
Item 6 of the Initial Schedule 13D is hereby amended by the addition of the following information:
The Reporting Persons and the Issuer are parties to certain Stock Option Agreements under the Issuer’s Stock Option Plan of 2005 and the Issuer’s 2019 Stock Incentive Plan pursuant to which the Issuer has granted the Reporting Persons the options to purchase up to 16,665 shares of the Common Stock at exercise prices ranging from $2.58 per share to $7.52 per share. The options are subject to time vesting and become fully exercisable on the first anniversary of the date of grant and expire on the fifth anniversary of the date of grant. The foregoing description of the terms of the options is qualified in its entirety by reference to the full text of the stock option awards, forms of which are incorporated by reference into this Amendment as Exhibits 99.3 and 99.4. The options were acquired by Mr. Chodock in consideration for his services as a director of the Issuer and assigned by Mr. Chodock to the Fund.
Except as disclosed in this Item 6, there are no contracts, arrangements, understandings or relationships between the Reporting Persons named in Item 2 hereof and any person with respect to any securities of the Issuer, including but not limited to transfer or voting of any of the securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or losses or the giving or withholding of proxies.
Item 7. Material to Be Filed as Exhibits
The following document is filed as an exhibit to this Schedule 13D (Amendment No. 2).
* Filed herewith
SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Dated: December 4, 2023
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ACM VALUE OPPORTUNITIES FUND I, LP
By: /s/ Marc Chodock
Name: Marc Chodock
Title: Managing Member
ACM VALUE OPPORTUNITIES FUND I
GP, LLC
By: /s/ Marc Chodock
Name: Marc Chodock
Title: Managing Member
ARVICE CAPITAL MANAGEMENT, LLC
By: /s/ Marc Chodock
Name: Marc Chodock
Title: Managing Member
MARC CHODOCK, individually
By: /s/ Marc Chodock
Name: Marc Chodock
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Exhibit 99.4
FORM FOR INCENTIVE STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (hereinafter called this “Agreement”) made as of [_________]between Saker Aviation Services, Inc., a Nevada corporation (hereinafter called the “Corporation”), and [__________________] (hereinafter called the “Optionee”).
WHEREAS, the Corporation desires, in connection with the participation of [_______________], as a member of the Corporation’s Board of Directors, to provide the Optionee with an opportunity to acquire shares of the Corporation’s Common Stock, $0.03 par value (hereinafter called the “Common Stock”) and thereby increase his or her proprietary interest in the continued progress and success of the business of the Corporation;
NOW, THEREFORE, in consideration of the premises, the mutual covenants herein set forth and other good and valuable consideration, the Corporation and the Optionee hereby agree as follows:
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1.
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Terminology. All capitalized terms not defined herein shall have the meaning ascribed thereto by the Saker Aviation Services, Inc. Stock Option Plan of 2005 (the “Option Plan”). A copy of the Option Plan will be furnished to the Optionee upon request to the Corporation.
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2.
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Confirmation of Grant of Option.
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a.
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Pursuant to the Option Plan, the Compensation Committee hereby irrevocably grants the Optionee on [___________] (the “Date of Grant”) the right to purchase (hereinafter called the “Option”) an aggregate of up to [__________] shares of the Common Stock, subject to adjustment as provided in Section 7 hereof.
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b.
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The Option is intended to be an incentive stock option as such term is defined in Section 422 of the Code or corresponding provision of future law. The Optionee represents that he or she does not own stock representing more than ten (10%) percent of the combined voting power of all classes of stock of the Corporation.
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3.
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Exercise Price. The Exercise Price of the shares of the Common Stock covered by the Option will be $[___] per share (the “Exercise Price”), being the Fair Market Value of a share of the Common Stock on the Date of Grant, subject to adjustment as provided in Section 8 hereof.
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4.
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Exercise of Option. Subject to earlier termination or cancellation as provided in this Agreement, the Option may be exercised from time to time, in whole or in part, on or prior to [________] (the “Expiration Date”) and as to none of the shares until [________], at which date the Option becomes exercisable as to all of the shares.
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The Option may be exercised as provided in this Section 4 by notice and payment to the Corporation as provided in Section 7 hereof.
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5.
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Term and Rights as Stockholder. The Option will be exercisable only on or prior to the Expiration Date. The holder of the Option will not have any right to dividends or any other rights of a stockholder with respect to a share of the Common Stock subject to the Option until such share shall have been issued to him or her following exercise of the Option. Such issuance shall be evidenced by the appropriate entry on the books of the duly authorized transfer agent of the Corporation for the Common Stock, provided that the date of issuance shall not be earlier than the Exercise Date (as hereinafter defined in Section 7(b) hereof) with respect to such share.
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6.
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Non-transferability of Option. The Option will not be transferable otherwise than by will or by the laws of descent and distribution, and the Option may be exercised during the lifetime of the Optionee only by him or her or, in the case of the Optionee’s certified incompetency, by his or her duly authorized legal representative(s). More particularly, but without limiting the generality of the foregoing, the Option may not be assigned, transferred (except as provided in the preceding sentence and in the last sentence of this Section 6) or otherwise disposed of, or pledged or hypothecated in any way (whether by operation of law or otherwise), and shall not be subject to execution, attachment, or other process. Any assignment, transfer, pledge, hypothecation or other disposition of the Option attempted contrary to the provisions of this Agreement, or any levy of execution, attachment or other process attempted upon the Option, will be null and void and without effect. Any attempt to make any such assignment, transfer, pledge, hypothecation or other disposition of the Option or any attempt to make any such levy of execution, attachment or other process will cause the Option to terminate immediately upon the happening of any such event if the Board or its Compensation Committee should, at any time, in its sole discretion, so elect by written notice to the Optionee (or to the person then entitled to exercise the Option under the provisions of this Agreement); provided, however, that any such termination of the Option under the foregoing provisions of this Section 6 will not prejudice any rights or remedies which the Corporation or any Subsidiary may have under this Agreement or otherwise. Notwithstanding anything in this Section 6 to the contrary, upon any exercise of the Option, the Optionee may request that the shares of the Common Stock issuable upon such exercise be issued in his or her name and jointly with, or solely to, a “family member” (as such term is defined in General Instructions A to Registration Statement on Form S-8 under the Securities Act) if the right to exercise the Option was transferred to such family member by gift or domestic relations order.
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7.
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Method of Exercise of Option.
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a.
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Subject to the terms and conditions of this Agreement, the Option will be exercisable by notice and payment to the Corporation in accordance with the procedure prescribed herein. Each such notice, which may be in the form of Exhibit A hereto, shall:
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i.
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state the election to exercise the Option and the number of shares of the Common Stock in respect of which it is being exercised;
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ii.
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be signed by the person or persons entitled to exercise the Option, including the address to which share certificates are to be delivered, and, if the Option is being exercised by any person or persons other than the Optionee, be accompanied by proof, satisfactory to counsel for the Corporation, of the right of such person or persons to exercise the Option;
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iii.
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be accompanied by payment in full of the purchase price for the shares of the Common Stock covered by the notice in the form of a check, bank draft or money order payable to the Corporation, or payment shall be made in any other manner permitted by Section 7(d) of this Agreement; and
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b.
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Upon receipt of a notice in accordance with subsection (a) of this Section 7 (such date and time of receipt being herein called the “Exercise Date”), the Option will be deemed to have been exercised with respect to such particular shares of the Common Stock if, and only if, the provisions of subsection (a) of this Section 7 and the provisions of Section 11 hereof shall have been complied with. Notwithstanding anything in this Agreement to the contrary, any notice of exercise given pursuant to the provisions of this Section 7 will be void and of no effect if all the provisions of subsection (a) of this Section 7 and the provisions of Section 11 hereof shall not have been complied with. The certificate or certificates representing the shares of the Common Stock as to which the Option shall be exercised will be registered in the name of the person or persons exercising the Option (except as permitted in Section 6 hereof) and will be delivered, as soon as practicable after the Exercise Date, to the person or persons exercising the Option at the place specified in the notice of exercise of the Option, but only upon compliance of all the provisions of this Agreement.
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c.
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In the event that the Optionee shall exercise the Option for less than the total number of shares of the Common Stock subject to the Option, this Agreement shall be deemed automatically amended to reflect the reduced number of shares post-exercise, without the necessity of the Optionee surrendering this Agreement for issuance of a new agreement reflecting the reduced number of shares then still subject to the Option. To evidence such amendment, the Corporation shall deliver to the Optionee (or such other permissible person executing the Option) a notice in the form of Exhibit B hereto.
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d.
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If authorized by the Board or the Compensation Committee, the Corporation may accept, in lieu of the monetary payment authorized by subsection (a)(iii) of this Section 7, the following:
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i.
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other shares of the Common Stock that (A) in the case of shares acquired upon the prior exercise of an option have been owned by the Optionee for more than six (6) months on the date of surrender or such other period as may be required to avoid a charge to the Corporation’s earnings and (B) have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the shares as to which the Option shall be exercised; or
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ii.
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authorization by the Optionee for the Corporation to retain from the total number of shares of the Common Stock as to which the Option is exercised that number of shares of the Common Stock having a Fair Market Value on the Exercise Date equal to the Exercise Price for the total number of shares of the Common Stock as to which the Option is exercised.
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8.
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Stock Dividend and Capital Changes.
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a.
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In the event that the Corporation shall pay a stock dividend with respect to the Common Stock, the number of shares of the Common Stock subject to this Option shall be increased by the number of shares which would have been issuable to the holder if such holder had exercised the Option immediately prior to the record date for the declaration and payment of such share dividend. The Exercise Price of the shares subject to the Option shall be appropriately adjusted as provided in subsection (d) of this Section 8.
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b.
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If the Corporation shall at any time subdivide its outstanding Common Stock by recapitalization, reclassification or split-up thereof, the number of shares of the Common Stock subject to this Option immediately prior to such subdivision shall be proportionately increased and, if the Corporation shall at any time combine the outstanding Common Stock by recapitalization, reclassification or reverse split thereof, the number of shares of the Common Stock subject to this Option immediately prior to such combination shall be proportionately decreased. The adjustment to the Exercise Price pursuant to subsection (d) of this Section 8 and the adjustment to the number of shares shall become effective at the close of business on the record date for such subdivision or combination.
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c.
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In case of any reclassification or capital reorganization of the outstanding shares of the Common Stock (other than a change covered by subsection (b) of this Section 8 which solely affects the par value of such Common Shares) or in the case of any merger or consolidation of the Corporation with or into another corporation (other than a merger or consolidation in which the Corporation is the continuing corporation) or in the case of any sale or conveyance to another corporation of the property of the Corporation as an entirety or substantially as an entirety in connection with which the Corporation is dissolved, the holder of this Option shall have the right thereafter (until the expiration of the right of exercise of the Option) to receive upon the exercise hereof, for the same aggregate Exercise Price payable hereunder immediately prior to such event, the kind and amount of shares of stock or other securities or property receivable upon such reclassifications, capital reorganization, merger or consolidation, or upon the dissolution following any sale or other transfer, by a holder of the number of shares of the Common Stock obtainable upon the exercise of this Option immediately prior to such event. The provisions of this subsection (c) of this Section 8 shall similarly apply to successive reclassifications, capital reorganizations, mergers or consolidations, sales or other transfers.
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Anything in the preceding paragraph to the contrary notwithstanding, if the other corporation does not agree to assume the Option or to substitute an equivalent option in the case of a merger or consolidation or a sale of assets, then the Option shall terminate upon the consummation of the merger, consolidation or sale of assets.
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d.
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Whenever the number of shares of the Common Stock purchasable upon the exercise of the Option is adjusted, as provided in this Section 8, the Exercise Price shall be adjusted (to the nearest one tenth of a cent) by multiplying such Exercise Price immediately prior to such adjustment by a fraction, the numerator of which shall be the number of shares of the Common Stock purchasable upon the exercise of the Option immediately prior to such adjustment and the denominator of which shall be the number of shares of the Common Stock so purchasable immediately thereafter.
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e.
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Upon the occurrence of each event requiring an adjustment of the Exercise Price and the number of shares of the Common Stock obtainable upon exercise of the Option in accordance with, and as required by, the terms of this Section 8, the Corporation may employ an independent registered public accounting firm (which may be the regular accountants for the Corporation) which shall compute the adjusted Exercise Price and the adjusted number of shares of the Common Stock purchasable at such adjusted Exercise Price by reason of such event in accordance with the provisions of this Section 8. The Corporation shall mail forthwith to the Optionee a copy of the certification containing such computation which shall be conclusive and shall be binding upon the Optionee and the Corporation.
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9.
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Obligations of Optionee. The Optionee will serve the Corporation as a member of the Corporation’s Board of Directors in good faith and use his or her best efforts to promote its interests. Participation on the Board of Directors shall be at such rate of compensation as the Corporation shall from time to time in its discretion determine. If the Optionee violates the provisions of this Section 9 without the express written consent of the Corporation, the Option will thereupon terminate without prejudice to any rights or remedies which the Corporation may have against the Optionee under this Agreement or otherwise.
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10.
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Notices. Each notice relating to this Agreement will be in writing and delivered in person or by registered or certified mail or by express courier service to the proper address. All notices to the Corporation shall be addressed to it at its principal office, now at 20 South Street, Pier 6 East River, New York, NY 10004, attention of the President (the Controller if the Optionee is the President). All notices to the Optionee or other person or persons then entitled to exercise the Option shall be addressed to the Optionee or such other person or persons at the address set forth below the Optionee’s name following the Corporation’s signature. Anyone to whom a notice may be given under this Agreement may designate a new address by notice to that effect given in accordance with this Section 10.
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11.
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Approval of Counsel. The exercise of the Option and the issuance and delivery of the shares of the Common Stock issuable upon the exercise of the Option pursuant thereto shall be subject to approval by the Corporation’s counsel of all legal matters in connection therewith, including compliance with the requirements of the Securities Act, or any successor law, and the rules and regulations thereunder, and the requirements of any stock exchange upon which the Common Stock may then be listed or, if applicable, of The Nasdaq Stock Market, Inc. In furtherance thereof, such counsel may request that the Optionee or other permissible person exercising the Option deliver such investment representation or other documents as such counsel deems necessary or appropriate.
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12.
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Reservation of Shares. The Corporation shall at all times during the term of the Option reserve and keep available such number of shares of the class of stock then subject to the Option as will be sufficient to satisfy the requirements of this Agreement.
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13.
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Disputes. Any dispute or disagreement which arises under, or as a result of, or in any way relates to, the interpretation, construction or application of this Agreement or the Option Plan will be resolved by the Compensation Committee. Any such resolution made hereunder shall be final, binding and conclusive for all purposes upon all persons.
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14.
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Limitation of Action. The Optionee agrees that every right of action accruing to him or her and arising out of, or in connection with, this Agreement, against the Corporation will, irrespective of the place where an action may be brought, cease and be barred by the expiration of three (3) years from the date of the act or omission in respect of which such right of action arises.
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15.
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Benefits of Agreement. This Agreement will inure to the benefit of, and be binding upon, each successor and assign of the Corporation. All obligations imposed upon the Optionee and all rights granted to the Optionee under this Agreement will be binding upon the Optionee’s heirs, legal representatives and successors.
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IN WITNESS WHEREOF, the Corporation has caused this Agreement to be executed in its name by its authorized officer as of the day, month and year first above written.
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SAKER AVIATION SERVICES, INC.
By:____________________________
Name: Ronald J. Ricciardi
Title: President & CEO
_______________________________
Name:
Title:
_____________________________
Address of Optionee
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EXHIBIT A
ELECTION TO PURCHASE
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To:
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Saker Aviation Services, Inc.
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20 South Street, Pier 6 East River
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The undersigned hereby irrevocably exercises the foregoing Option to purchase shares of the Common Stock issuable upon the exercise of the Option and requests that a certificate for such shares be issued in the name of
(Name)
(Address)
(Taxpayer Social Security Number)
(Name)
(Address)
Dated: ____________, ____
Name of holder of Option:
(Please Print)
(Address)
(Signature)
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Note: |
The above signature must correspond with the name as written upon the face of the Option in every particular, without alteration or enlargement or any change whatever.
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EXHIBIT B
NOTICE AS TO PARTIAL EXERCISE
BY
SAKER AVIATION SERVICES, INC.
WHEREAS, you are the named Optionee in a Stock Option Agreement dated as of _________, ___ to purchase ______ shares of the Common Stock and have exercised the Option as to _________ shares;
PLEASE TAKE NOTICE that the Stock Option Agreement is, by its terms, automatically amended so it now covers only _______________ shares.
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SAKER AVIATION SERVICES, INC.
By: ____________________
____________________
(Title)
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Exhibit 99.5
DIRECTOR STOCK OPTION AGREEMENT
DIRECTOR STOCK OPTION AGREEMENT (this “Agreement”) made as of [___________] (the “Date of Grant”) by and between Saker Aviation Services, Inc., a Nevada corporation (the “Corporation”), and [__________] (the “Participant”).
WHEREAS, the Corporation desires, in connection with the participation of the Participant as a member of the Corporation’s Board of Directors, to provide the Participant with an opportunity to acquire shares of the Corporation’s Common Stock, $0.03 par value (“Common Stock”) and thereby increase his or her proprietary interest in the continued progress and success of the business of the Corporation;
NOW, THEREFORE, in consideration of the premises, the mutual covenants herein set forth and other good and valuable consideration, the Corporation and the Participant hereby agree as follows:
1. Terminology. All capitalized terms not defined herein shall have the meaning ascribed thereto by the Saker Aviation Services, Inc. 2019 Stock Incentive Plan (the “Plan”), a copy of which has been furnished to the Participant.
2. Confirmation of Grant of Option. Pursuant to the Plan, the Corporation hereby irrevocably grants to the Participant on the Date of Grant a Nonqualified Stock Option (the “Option”) to purchase an aggregate of up to [_____] shares of Common Stock, subject to adjustment as provided in Section 8 hereof.
3. Exercise Price. The exercise price of the shares of Common Stock covered by the Option will be $[___] per share (the “Exercise Price”), being the Fair Market Value of a share of Common Stock on the Date of Grant, subject to adjustment as provided in Section 8 hereof.
4. Vesting and Exercise of Option. The Option shall vest and become exercisable on the one-year anniversary of the Date of Grant. Subject to earlier termination or cancellation as provided in this Agreement, the Option may be exercised at any time after vesting, in whole or in part, on or prior to the five-year anniversary of the Date of Grant (the “Expiration Date”). The Option may be exercised as provided in this Section 4 by notice and payment to the Corporation as provided in Section 7 hereof.
5. Term and Rights as Stockholder. The Option will be exercisable only on or prior to the Expiration Date. The holder of the Option will not have any right to dividends or any other rights of a stockholder with respect to a share of Common Stock subject to the Option until such share shall have been issued to him or her following exercise of the Option. Such issuance shall be evidenced by the appropriate entry on the books of the duly authorized transfer agent of the Corporation for the Common Stock, provided that the date of issuance shall not be earlier than the Exercise Date (as defined in Section 7(b) hereof) with respect to such share.
6. Non-transferability of Option. The Option will not be transferable otherwise than by will or by the laws of descent and distribution, and the Option may be exercised during the lifetime of the Participant only by him or her or, in the case of the Participant’s certified incompetency, by his or her duly authorized legal representative(s). More particularly, but without limiting the generality of the foregoing, the Option may not be assigned, transferred (except as provided in the preceding sentence and in the last sentence of this Section 6) or otherwise disposed of, or pledged or hypothecated in any way (whether by operation of law or otherwise), and shall not be subject to execution, attachment, or other process. Any assignment, transfer, pledge, hypothecation or other disposition of the Option attempted contrary to the provisions of this Agreement, or any levy of execution, attachment or other process attempted upon the Option, will be null and void and without effect. Any attempt to make any such assignment, transfer, pledge, hypothecation or other disposition of the Option or any attempt to make any such levy of execution, attachment or other process will cause the Option to terminate immediately upon the happening of any such event if the Board should, at any time, in its sole discretion, so elect by written notice to the Participant (or to the person then entitled to exercise the Option under the provisions of this Agreement); provided, however, that any such termination of the Option under the foregoing provisions of this Section 6 will not prejudice any rights or remedies which the Corporation or any Subsidiary may have under this Agreement or otherwise. Notwithstanding anything in this Section 6 to the contrary, upon any exercise of the Option, the Participant may request that the shares of Common Stock issuable upon such exercise be issued in his or her name and jointly with, or solely to, a “family member” (as such term is defined in General Instructions A to Registration Statement on Form S-8 under the Securities Act) if the right to exercise the Option was transferred to such family member by gift or domestic relations order.
7. Method of Exercise of Option.
(a) Subject to the terms and conditions of this Agreement, the Option will be exercisable by notice and payment to the Corporation in accordance with the procedure prescribed herein. Each such notice, which may be in the form of Exhibit A hereto, shall:
(i) state the election to exercise the Option and the number of shares of Common Stock in respect of which it is being exercised;
(ii) be signed by the person or persons entitled to exercise the Option, including the address to which share certificates are to be delivered, and, if the Option is being exercised by any person or persons other than the Participant, be accompanied by proof, satisfactory to counsel for the Corporation, of the right of such person or persons to exercise the Option;
(iii) be accompanied by payment in full of the purchase price for the shares of Common Stock covered by the notice in the form of a check, bank draft or money order payable to the Corporation, or payment shall be made in any other manner permitted by Section 7(d) hereof; and
(b) Upon receipt of a notice in accordance with Section 7(a) hereof (such date and time of receipt being herein called the “Exercise Date”), the Option will be deemed to have been exercised with respect to such particular shares of Common Stock if, and only if, the provisions of Section 7(a) and Section 11 hereof shall have been complied with. Notwithstanding anything in this Agreement to the contrary, any notice of exercise given pursuant to the provisions of this Section 7 will be void and of no effect if all the provisions of Section 7(a) and Section 11 hereof shall not have been complied with. The certificate or certificates representing the shares of Common Stock as to which the Option shall be exercised will be registered in the name of the person or persons exercising the Option (except as permitted in Section 6 hereof) and will be delivered, as soon as practicable after the Exercise Date, to the person or persons exercising the Option at the place specified in the notice of exercise of the Option, but only upon compliance of all the provisions of this Agreement.
(c) In the event that the Participant shall exercise the Option for less than the total number of shares of Common Stock subject to the Option, this Agreement shall be deemed automatically amended to reflect the reduced number of shares post-exercise, without the necessity of the Participant surrendering this Agreement for issuance of a new agreement reflecting the reduced number of shares then still subject to the Option. To evidence such amendment, the Corporation shall deliver to the Participant (or such other permissible person executing the Option) a notice in the form of Exhibit B hereto.
(d) If authorized by the Board, the Corporation may accept, in lieu of the monetary payment authorized by Section 7(a)(iii) hereof, the following:
(i) other shares of Common Stock that (A) in the case of shares acquired upon the prior exercise of an option have been owned by the Participant for more than six (6) months on the date of surrender or such other period as may be required to avoid a charge to the Corporation’s earnings and (B) have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the shares as to which the Option shall be exercised; or
(ii) authorization by the Participant for the Corporation to retain from the total number of shares of Common Stock as to which the Option is exercised that number of shares of Common Stock having a Fair Market Value on the Exercise Date equal to the Exercise Price for the total number of shares of Common Stock as to which the Option is exercised.
8. Stock Dividend and Capital Changes.
(a) In the event that the Corporation shall pay a stock dividend with respect to Common Stock, the number of shares of Common Stock subject to this Option shall be increased by the number of shares which would have been issuable to the holder if such holder had exercised the Option immediately prior to the record date for the declaration and payment of such share dividend. The Exercise Price of the shares subject to the Option shall be appropriately adjusted as provided in Section 8(d) hereof.
(b) If the Corporation shall at any time subdivide its outstanding Common Stock by recapitalization, reclassification or split-up thereof, the number of shares of Common Stock subject to this Option immediately prior to such subdivision shall be proportionately increased and, if the Corporation shall at any time combine the outstanding Common Stock by recapitalization, reclassification or reverse split thereof, the number of shares of Common Stock subject to this Option immediately prior to such combination shall be proportionately decreased. The adjustment to the Exercise Price pursuant to Section 8(d) hereof and the adjustment to the number of shares shall become effective at the close of business on the record date for such subdivision or combination.
(c) In case of any reclassification or capital reorganization of the outstanding shares of Common Stock (other than a change covered by Section 8(b) hereof which solely affects the par value of such Common Shares) or in the case of any merger or consolidation of the Corporation with or into another corporation (other than a merger or consolidation in which the Corporation is the continuing corporation) or in the case of any sale or conveyance to another corporation of the property of the Corporation as an entirety or substantially as an entirety in connection with which the Corporation is dissolved, the holder of this Option shall have the right thereafter (until the expiration of the right of exercise of the Option) to receive upon the exercise hereof, for the same aggregate Exercise Price payable hereunder immediately prior to such event, the kind and amount of shares of stock or other securities or property receivable upon such reclassifications, capital reorganization, merger or consolidation, or upon the dissolution following any sale or other transfer, by a holder of the number of shares of Common Stock obtainable upon the exercise of this Option immediately prior to such event. The provisions of this Section 8(c) shall similarly apply to successive reclassifications, capital reorganizations, mergers or consolidations, sales or other transfers.
Anything in the preceding paragraph to the contrary notwithstanding, if the other corporation does not agree to assume the Option or to substitute an equivalent option in the case of a merger or consolidation or a sale of assets, then the Option shall terminate upon the consummation of the merger, consolidation or sale of assets.
(d) Whenever the number of shares of Common Stock purchasable upon the exercise of the Option is adjusted, as provided in this Section 8, the Exercise Price shall be adjusted (to the nearest one tenth of a cent) by multiplying such Exercise Price immediately prior to such adjustment by a fraction, the numerator of which shall be the number of shares of Common Stock purchasable upon the exercise of the Option immediately prior to such adjustment and the denominator of which shall be the number of shares of Common Stock so purchasable immediately thereafter.
(e) Upon the occurrence of each event requiring an adjustment of the Exercise Price and the number of shares of Common Stock obtainable upon exercise of the Option in accordance with, and as required by, the terms of this Section 8, the Corporation may employ an independent registered public accounting firm (which may be the regular accountants for the Corporation) which shall compute the adjusted Exercise Price and the adjusted number of shares of Common Stock purchasable at such adjusted Exercise Price by reason of such event in accordance with the provisions of this Section 8. The Corporation shall mail forthwith to the Participant a copy of the certification containing such computation which shall be conclusive and shall be binding upon the Participant and the Corporation.
9. Obligations of Participant. The Participant will serve the Corporation as a member of the Corporation’s Board of Directors in good faith and use his or her best efforts to promote its interests. Participation on the Board of Directors shall be at such rate of compensation as the Corporation shall from time to time in its discretion determine. If the Participant violates the provisions of this Section 9 without the express written consent of the Corporation, the Option will thereupon terminate without prejudice to any rights or remedies which the Corporation may have against the Participant under this Agreement or otherwise.
10. Notices. Each notice relating to this Agreement will be in writing and delivered in person or by registered or certified mail or by express courier service to the proper address. All notices to the Corporation shall be addressed to it at its principal office, now at 20 South Street, Pier 6 East River, New York, NY 10004, attention of the President (the Controller if the Participant is the President). All notices to the Participant or other person or persons then entitled to exercise the Option shall be addressed to the Participant or such other person or persons at the address set forth below the Participant’s name following the Corporation’s signature. Anyone to whom a notice may be given under this Agreement may designate a new address by notice to that effect given in accordance with this Section 10.
11. Approval of Counsel. The exercise of the Option and the issuance and delivery of the shares of Common Stock issuable upon the exercise of the Option pursuant thereto shall be subject to approval by the Corporation’s counsel of all legal matters in connection therewith, including compliance with the requirements of the Securities Act, or any successor law, and the rules and regulations thereunder, and the requirements of any stock exchange upon which the Common Stock may then be listed or, if applicable, of The Nasdaq Stock Market, Inc. In furtherance thereof, such counsel may request that the Participant or other permissible person exercising the Option deliver such investment representation or other documents as such counsel deems necessary or appropriate.
12. Reservation of Shares. The Corporation shall at all times during the term of the Option reserve and keep available such number of shares of the class of stock then subject to the Option as will be sufficient to satisfy the requirements of this Agreement.
13. Disputes. Any dispute or disagreement which arises under, or as a result of, or in any way relates to, the interpretation, construction or application of this Agreement or the Plan will be resolved by the Board. Any such resolution made hereunder shall be final, binding and conclusive for all purposes upon all persons.
14. Limitation of Action. The Participant agrees that every right of action accruing to him or her and arising out of, or in connection with, this Agreement, against the Corporation will, irrespective of the place where an action may be brought, cease and be barred by the expiration of three (3) years from the date of the act or omission in respect of which such right of action arises.
15. Benefits of Agreement. This Agreement will inure to the benefit of, and be binding upon, each successor and assign of the Corporation. All obligations imposed upon the Participant and all rights granted to the Participant under this Agreement will be binding upon the Participant’s heirs, legal representatives and successors.
16. Plan Controls. The Option is subject to all of the provisions of the Plan, which is hereby incorporated by reference, and is further subject to all the interpretations, amendments, rules and regulations that may from time to time be promulgated and adopted by the Board pursuant to the Plan. In the event of any conflict among the provisions of the Plan and this Agreement, the provisions of the Plan will be controlling and determinative.
17. Counterpart Execution. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which together shall be deemed one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
* * *
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be executed in its name by its authorized officer as of the day, month and year first above written.
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SAKER AVIATION SERVICES, INC.
By: _____________________________
Name: Mark Raab
Title: Controller
________________________________
Participant:
Address of Participant
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EXHIBIT A
ELECTION TO PURCHASE
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To:
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Saker Aviation Services, Inc.
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20 South Street, Pier 6 East River
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The undersigned hereby irrevocably exercises the foregoing Option to purchase shares of Common Stock issuable upon the exercise of the Option and requests that a certificate for such shares be issued in the name of
(Name)
(Address)
(Taxpayer Social Security Number)
(Name)
(Address)
Dated: ____________, ____
Name of holder of Option:
(Please Print)
(Address)
(Signature)
| |
Note:
|
The above signature must correspond with the name as written upon the face of the Option in every particular, without alteration or enlargement or any change whatever.
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EXHIBIT B
NOTICE AS TO PARTIAL EXERCISE
BY
SAKER AVIATION SERVICES, INC.
WHEREAS, you are the named Participant in a Director Stock Option Agreement dated as of _________, ___ to purchase ______ shares of Common Stock and have exercised the Option as to _________ shares;
PLEASE TAKE NOTICE that the Director Stock Option Agreement is, by its terms, automatically amended so it now covers only _______________ shares.
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SAKER AVIATION SERVICES, INC.
By: ____________________
____________________
(Title)
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Saker Aviation Services (QB) (USOTC:SKAS)
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