SC 13D

Number of

shares

beneficially

owned by

each

reporting

person

with

SOLE VOTING POWER

SHARED VOTING POWER

19,209,762*

SOLE DISPOSITIVE POWER

0

SHARED DISPOSITIVE POWER

19,209,762*

0001193125-19-257542.txt : 20190930 0001193125-19-257542.hdr.sgml : 20190930 20190930083628 ACCESSION NUMBER: 0001193125-19-257542 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 20190927 DATE AS OF CHANGE: 20190930 GROUP MEMBERS: ANTARA CAPITAL FUND GP LLC GROUP MEMBERS: ANTARA CAPITAL GP LLC GROUP MEMBERS: ANTARA CAPITAL MASTER FUND LP GROUP MEMBERS: HIMANSHU GULATI SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: EVO Transportation & Energy Services, Inc. CENTRAL INDEX KEY: 0000728447 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-AUTO DEALERS & GASOLINE STATIONS [5500] IRS NUMBER: 371615850 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-85966 FILM NUMBER: 191124455 BUSINESS ADDRESS: STREET 1: 8285 WEST LAKE PLEASANT PARKWAY CITY: PEORIA STATE: AZ ZIP: 85382 BUSINESS PHONE: 877-973-9191 MAIL ADDRESS: STREET 1: 8285 WEST LAKE PLEASANT PARKWAY CITY: PEORIA STATE: AZ ZIP: 85382 FORMER COMPANY: FORMER CONFORMED NAME: MINN SHARES INC DATE OF NAME CHANGE: 19830922 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Antara Capital LP CENTRAL INDEX KEY: 0001750183 IRS NUMBER: 824823093 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 500 FIFTH AVENUE, SUITE 2320 CITY: NEW YORK STATE: NY ZIP: 10110 BUSINESS PHONE: 646-762-8580 MAIL ADDRESS: STREET 1: 500 FIFTH AVENUE, SUITE 2320 CITY: NEW YORK STATE: NY ZIP: 10110 SC 13D 1 d812632dsc13d.htm SC 13D SC 13D

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. _ )*

EVO Transportation & Energy Services, Inc.

(Name of Issuer)

Common Stock, par value $0.0001 per share

(Title of Class of Securities)

26928L 107

(CUSIP Number)

Lance Kravitz

Antara Capital LP

500 Fifth Avenue, Suite 2320

New York, New York 10110

(646) 762 8591

(Name/Address/Telephone Number of Person Authorized to Receive Notices and Communications)

September 16, 2019

(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 Rule 13d-1(e), 13d-1(f) or 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 Rule 13d-7(b) 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).

SCHEDULE 13D


CUSIP No. 26928L 107


1		NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY) Antara Capital Master Fund LP
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) ☐ (b) ☒
3		SEC USE ONLY
4		SOURCE OF FUNDS (SEE INSTRUCTIONS) OO
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION Cayman Islands

Includes (i) 3,904,099 shares of Common Stock (as defined below) issuable upon the exercise of the Warrants owned directly by Antara Capital Master Fund LP and (ii) 15,305,663 shares of Common Stock beneficially owned by the Voting Agreement Parties (as defined below). Neither the filing of this statement on Schedule 13D nor any of its contents shall be deemed to constitute an admission by any Reporting Person hereto that it is the beneficial owner of any Common Stock subject to the Voting Agreement for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or for any other purpose, and such beneficial ownership is hereby expressly disclaimed.

^†

Based on (i) 14,325,636 shares of Common Stock outstanding as of September 16, 2019, in reliance on the representation made by the Issuer in the Financing Agreement (defined below), plus (ii) 3,904,099 shares of Common Stock issuable upon the exercise of the Warrants owned directly by Antara Capital Master Fund LP, plus (iii) 5,732,999 shares of Common Stock issuable upon the exercise of warrants and/or options to purchase Common Stock owned by the Voting Agreement Parties.

- 2 -


CUSIP No. 26928L 107


1		NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY) Antara Capital Fund GP LLC
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) ☐ (b) ☒
3		SEC USE ONLY
4		SOURCE OF FUNDS (SEE INSTRUCTIONS) OO
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION Delaware

^†

- 3 -


CUSIP No. 26928L 107


1		NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY) Antara Capital LP
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) ☐ (b) ☒
3		SEC USE ONLY
4		SOURCE OF FUNDS (SEE INSTRUCTIONS) OO
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION Delaware

Includes (i) 3,904,099 shares of Common Stock (as defined below) issuable upon the exercise of the Warrants owned directly by Antara Capital Master Fund LP, (ii) 335,901 shares of Common Stock (as defined below) issuable upon the exercise of the Warrants owned directly by a managed account for which Antara Capital LP serves as investment manager and (ii) 15,305,663 shares of Common Stock beneficially owned by the Voting Agreement Parties (as defined below). Neither the filing of this statement on Schedule 13D nor any of its contents shall be deemed to constitute an admission by any Reporting Person hereto that it is the beneficial owner of any Common Stock subject to the Voting Agreement for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or for any other purpose, and such beneficial ownership is hereby expressly disclaimed.

^†

Based on (i) 14,325,636 shares of Common Stock outstanding as of September 16, 2019, in reliance on the representation made by the Issuer in the Financing Agreement (defined below), plus (ii) 3,904,099 shares of Common Stock issuable upon the exercise of the Warrants owned directly by Antara Capital Master Fund LP, plus (iii) 335,901 shares of Common Stock (as defined below) issuable upon the exercise of the Warrants owned directly by a managed account for which Antara Capital LP serves as investment manager, plus (iv) 5,732,999 shares of Common Stock issuable upon the exercise of warrants and/or options to purchase Common Stock owned by the Voting Agreement Parties.

- 4 -


CUSIP No. 26928L 107


1		NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY) Antara Capital GP LLC
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) ☐ (b) ☒
3		SEC USE ONLY
4		SOURCE OF FUNDS (SEE INSTRUCTIONS) OO
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION Delaware

^†

Based on (i) 14,325,636 shares of Common Stock outstanding as of September 16, 2019, in reliance on the representation made by the Issuer in the Financing Agreement (defined below), plus (ii) 3,904,099 shares of Common Stock issuable upon the exercise of the Warrants owned directly by Antara Capital Master Fund LP, plus (iii) 335,901 shares of Common Stock (as defined below) issuable upon the exercise of the Warrants owned directly by a managed account for which Antara Capital LP serves as investment manager, plus (iv) 5,732,999 shares of Common Stock issuable upon the exercise of warrants and/or options to purchase Common Stock owned by the Voting Agreement Parties.

- 5 -


CUSIP No. 26928L 107


1		NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY) Himanshu Gulati
2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) ☐ (b) ☒
3		SEC USE ONLY
4		SOURCE OF FUNDS (SEE INSTRUCTIONS) OO
5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ☐
6		CITIZENSHIP OR PLACE OF ORGANIZATION New York

^†

Based on (i) 14,325,636 shares of Common Stock outstanding as of September 16, 2019, in reliance on the representation made by the Issuer in the Financing Agreement (defined below), plus (ii) 3,904,099 shares of Common Stock issuable upon the exercise of the Warrants owned directly by Antara Capital Master Fund LP, plus (iii) 335,901 shares of Common Stock (as defined below) issuable upon the exercise of the Warrants owned directly by a managed account for which Antara Capital LP serves as investment manager, plus (iv) 5,732,999 shares of Common Stock issuable upon the exercise of warrants and/or options to purchase Common Stock owned by the Voting Agreement Parties.

- 6 -

Item 1. Security and Issuer

This Schedule 13D relates to the common stock, par value $.0001 (“Common Stock”) of EVO Transportation & Energy Services, Inc. (“EVO” or the “Issuer”). The address of the principal executive office of EVO is 8285 West Lake Pleasant Parkway, Peoria, Arizona 85382.

Item 2. Identity and Background

(a) This Schedule 13D is filed by

(i)

Antara Capital Master Fund LP, a Cayman Islands exempted limited partnership (“Antara Master Fund”), with respect to the Common Stock directly and beneficially owned by it.

(ii)

Antara Capital Fund GP LLC, a Delaware limited liability company (“Antara Fund GP”), with respect to the Common Stock indirectly and beneficially owned by it.

(iii)

Antara Capital LP, a Delaware limited partnership (“Antara Capital”), with respect to the Common Stock indirectly and beneficially owned by it.

(iv)

Antara Capital GP LLC, a Delaware limited liability company (“Antara GP”), with respect to the Common Stock indirectly and beneficially owned by it.

(v)

Himanshu Gulati, an individual (“Mr. Gulati”), with respect to the Common Stock indirectly and beneficially owned by him.

Each of the foregoing is referred to as a “Reporting Person” and collectively as the “Reporting Persons.”

(b)	The principal business and principal office of each of the Reporting Persons is 500 Fifth Avenue, Suite 2320, New York, New York 10110.

(c)

The principal business of the Reporting Persons is investment management and investing in securities and other financial instruments. Antara Master Fund makes investments for its own account. The general partner of Antara Master Fund is Antara Fund GP. The investment manager of Antara Master Fund is Antara Capital. The general partner of Antara Capital is Antara GP. The sole member of Antara GP and Antara Fund GP is Mr. Gulati.

(d)	No Reporting Person, has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

(e)

No Reporting Person, has, during the last five years, been party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

- 7 -

Item 3. Source and Amount of Funds or Other Consideration

The Loan Warrants (as defined in Item 6 of this Schedule 13D) were received by the Antara Master Fund and a managed account for which Antara Capital serves as investment manager in connection with their entry into the Financing Agreement, and were acquired for no separate consideration.

Item 4. Purpose of Transaction

The Reporting Persons acquired the Loan Warrants and currently hold the Loan Warrants, for investment purposes. Under the terms of the Director Nomination Agreement (as defined in Item 6 of this Schedule 13D), Antara Master Fund is currently entitled to appoint one member of the Issuer’s board of directors (the “Board”). Antara Master Fund has nominated Mr. Gulati to serve as directors on the Board.

Because Antara Master Fund has designated a director to the Issuer’s Board, the Reporting Persons may have influence over the Issuer’s corporate activities, which may relate, without limitation, to the Issuer’s capitalization and the transactions described in subparagraphs (a) through (f) of Item 6 of this Schedule 13D. Additionally, the Reporting Persons review on a continuing basis their investment in the Issuer. Based on such review, one or more of the Reporting Persons, individually or in the aggregate, from time to time, may acquire, or cause to be acquired, through open market purchases, privately negotiated agreements or otherwise, additional securities or assets of the Issuer or its subsidiaries, dispose of, or cause to be disposed, securities of the Issuer or its subsidiaries, enter into or unwind hedging or other derivative transactions with respect to securities of the Issuer or its subsidiaries, form joint ventures with the Issuer or its subsidiaries, pledge their interest in securities of the Issuer or its subsidiaries as a means of obtaining liquidity or as credit support for loans for any purpose, or formulate other purposes, plans or proposals regarding the Issuer, its subsidiaries or any of their respective securities or assets, in light of the Reporting Persons’ investment mandates and the general investment and trading policies of the Reporting Persons, the Issuer’s business and prospects, financial condition and operating results, general market and industry conditions or other factors. In addition, the Reporting Persons and their representatives and advisers may communicate with the Board and management of the Issuer or its subsidiaries concerning the types of transactions disclosed in this paragraph, including but not limited to the acquisition of equity securities of, or assets from, the Issuer or its subsidiaries. In addition, the Reporting Persons may exercise any and all of their rights in a manner consistent with their direct and indirect equity interests, contractual rights and restrictions and other duties, if any. If the Reporting Persons were to acquire additional equity of the Issuer, the Reporting Persons’ ability to influence the management, the Board or the policies of the Issuer may increase. In addition, from time to time the Reporting Persons and their representatives and advisers may communicate with each other, the Board and with other security holders, industry participants and other interested parties concerning the Issuer. These potential actions could involve one or more of the events referred to in paragraphs (a) through (f) of Item 6 of this Schedule 13D.

The information set forth in Item 6 below is incorporated by reference in its entirety into this Item 4.

Except as set forth in this Schedule 13D, none of the Reporting Persons presently has any additional plans or proposals that relate to or would result in any of the transactions described in subparagraphs (a) through (f) of Item 6 of this Schedule 13D.

Item 5. Interest in Securities of the Issuer

(a) The Reporting Persons beneficially own, in the aggregate, 4,240,000 shares of Common Stock, issuable upon exercise of the Loan Warrants. For a more detailed description of the Loan Warrants, see Item 6 below, which descriptions are incorporated by reference herein in response to this Item 5.

In addition, the Reporting Persons may be deemed to share with each Voting Agreement Party (as defined in Item 6 of this Schedule 13D) the power to vote or to direct the voting of the Common Stock beneficially owned by such Voting Agreement Party solely with respect to those matters described in the Voting Agreement. Based on disclosures made by the Voting Agreement Parties in the Voting Agreement, the Voting Agreement Parties beneficially own, in the aggregate, 15,305,663 shares of Common Stock. Accordingly, the Reporting Persons may be deemed to be (i) the beneficial owner of the 15,305,663 shares of Common Stock beneficially owned by the

- 8 -

Voting Agreement Parties and (ii) members of a “group” within the meaning of Section 13(d)(3) of the Exchange Act with the Shareholders. Neither the filing of this statement on Schedule 13D nor any of its contents shall be deemed to constitute an admission by any Reporting Person hereto that it is the beneficial owner of any Common Stock subject to the Voting Agreement for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or for any other purpose, and such beneficial ownership is hereby expressly disclaimed.

The aggregate percentage of Common Stock reported owned by each person named herein is based upon 14,325,636 shares of Common Stock outstanding as of September 16, 2019, in reliance on the representation made by EVO in the Financing Agreement.

As of the date hereof, the Reporting Persons have the following interest in securities of EVO:


Name	Shares of Common Stock		Percentage of Class Represented
Antara Master Fund		19,209,762		80.17	%
Antara Capital		19,545,663		80.44	%
Antara GP		19,545,663		80.44	%
Antara Fund GP		19,209,762		80.17	%
Himanshu Gulati		19,545,663		80.44	%

Himanshu Gulati is deemed to have beneficial ownership of the Common Stock owned beneficially by each of the foregoing persons and, for the avoidance of doubt, the Managed Account. Antara Fund GP is deemed to have beneficial ownership of the Common Stock owned beneficially by Antara Master Fund. Antara GP and Antara Capital are deemed to have beneficial ownership of the Common Stock owned beneficially by Antara Master Fund and the Managed Account.

(b) Each of the Reporting Persons has the shared power to vote or direct the vote and shared power to dispose or to direct the disposition of the Common Stock reported for it, either for its own benefit or for the benefit of its investment clients or its partners, as the case may be.

(c) Except as provided in Item 6 hereof, incorporated herein by reference, there have been no transactions in the Common Stock effected during the past sixty days by any of the Reporting Persons.

(d) Except as otherwise described in this Schedule 13D, no other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, securities covered by this Section 13D.

(e) Not applicable.

- 9 -

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

The Reporting Persons are directly or indirectly party to the following arrangements with the Issuer:

(a) Financing Agreement

On September 16, 2019, EVO Transportation & Energy Services, Inc. (“EVO” or the “Issuer”), Cortland Capital Market Services LLC, as administrative agent and collateral agent, and the lenders from time to time party thereto, including Antara Master Fund and a managed account for which Antara Capital serves as investment manager, entered into a Financing Agreement (the “Financing Agreement”) and consummated the transactions contemplated thereby (the “Closing”).

Pursuant to the Financing Agreement, EVO borrowed $22.4 million (the “Term Loan”) and has the ability to borrow up to an additional $2.1 million in the aggregate prior to October 31, 2019. All of EVO’s subsidiaries are guarantors under the Financing Agreement, and the Term Loan is secured by all assets of EVO and its subsidiaries, including pledges of all equity in EVO’s subsidiaries. EVO paid a 2% financing fee in connection with its entry into the Financing Agreement.

The Term Loan bears interest at 12% per annum and has a maturity date of September 16, 2022. Until December 31, 2019, interest on the Term Loan will be paid in kind and capitalized as additional principal, and EVO has the option to pay interest on the capitalized interest in cash or in kind. After December 31, 2019, monthly interest payments will be due in cash, and all outstanding principal and interest will be due on the maturity date. The Term Loan may be prepaid at any time, subject to payment of a prepayment premium equal to (i) 7% of each prepayment made on or prior to September 16, 2020 and (ii) 5% of each prepayment made after September 16, 2020 but on or prior to September 16, 2021, with no premium due after September 16, 2021.

In the event of a default, the lenders have the right to terminate their obligations under the Financing Agreement and to accelerate the payment on any unpaid principal amount of all outstanding loans. As defined in the Financing Agreement, events of default include, but are not limited to: failure by EVO to pay any amount due under the Financing Agreement when due; failure by EVO to satisfy any financial covenant required under the Financing Agreement; and any representation or warranty made in connection with the Financing Agreement being materially false.

The foregoing summary description of the material terms of the Financing Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Financing Agreement, which is filed as Exhibit 1 and is incorporated herein by reference in its entirety.

(b) Warrants

In connection with the Financing Agreement, EVO issued (i) to Antara Master Fund 3,084,607 warrants to purchase Common Stock at $0.01 per share (the “Antara Penny Warrant”) and 819,492 warrants to purchase Common Stock at $2.50 per share (the “Antara General Warrant”) and (ii) to a managed account for which Antara Capital serves as investment manager (the “Managed Account”) 265,393 warrants to purchase Common Stock at $0.01 per share (the “Managed Account Penny Warrant”) and 70,508 warrants to purchase Common Stock at $2.50 per share (the “Managed Account General Warrant”) (collectively, the “Loan Warrants”), subject to certain adjustments. An Antara Penny Warrant and Managed Account Penny Warrant may be exercised for cash or on a cashless basis, pursuant to the terms of such warrants, only during the period (x) commencing the date of the Closing and (y) terminating at 5:00 p.m., New York City time, on September 16, 2024, the date that is five years from the date of the Closing. The Antara General Warrant and Managed Account General Warrant may be exercised for cash or on a cashless basis, pursuant to the terms of such warrants, only during the period (x) commencing the date of the Closing and (y) terminating at 5:00 p.m., New York City time, on September 16, 2029, the date that is ten years from the date of the Closing.

Pursuant to the Loan Warrants, EVO granted each holder preemptive rights to purchase its pro rata share, determined based on the number of shares held by holder or into which the applicable warrants are exercisable, of capital stock issued by EVO after the issuance date of the Loan Warrants, subject to certain excepted issuances.

The foregoing summary of the material terms of the Loan Warrants is not complete and is qualified in its entirety by reference to the text of the Loan Warrants, copies of which are filed herewith as Exhibits 2, 3, 4 and 5, the terms of which are incorporated herein by reference.

- 10 -

On September 16, 2019, and in connection with the Financing Agreement, EVO and Antara Master Fund entered into a director nomination agreement (the “Nomination Agreement”) pursuant to which EVO agreed to permit Antara Master Fund to designate one individual for election as a member of EVO’s board of directors (the “Board”) and one individual to serve as an observer to EVO’s Board. Pursuant to the Nomination Agreement and until the termination of the Nomination Agreement, EVO has agreed not to take any action to increase the number of directors on EVO’s Board to more than eight directors without Antara Master Fund’s prior written consent. Until termination of the Nomination Agreement, EVO has also agreed, subject to certain exceptions, not to repurchase, exchange or redeem any common or preferred stock of EVO without approval of EVO’s Board and Antara Master Fund’s designated director. Unless earlier terminated by Antara Master Fund, the Nomination Agreement will terminate on the date of expiration of the then-current term of Antara Master Fund’s designated director that expires after the date when Antara Master Fund and its affiliates beneficially own shares of EVO’s Common Stock representing less than 15% of the shares of Common Stock issuable upon exercise of the warrants issued by EVO to Antara Master Fund and the Managed Account described above.

The foregoing summary of the material terms of the Director Nomination Agreement is not complete and is qualified in its entirety by reference to the text of the Director Nomination Agreement, copies of which are filed herewith as Exhibit 6, the terms of which are incorporated herein by reference.

(d) Voting Agreement

In connection with the Financing Agreement, the Loan Warrants and the Nomination Agreement, each of (i) Danny Cuzick, (ii) John Lampsa, (iii) John Sheehy, (iv) Cliff Finkle, (v) James Finkle, (vi) Michael Ritter, (vii) Matt Ritter, (viii) Trey Peck and (ix) John P Yeros and Laura R Yeros JTWROS (the “Voting Agreement Parties”) entered into a Voting Agreement, dated as of September 16, 2019 (the “Voting Agreement”), agreeing to vote all shares of EVO equity securities (whether then owned or thereafter acquired) held by such Voting Agreement Parties (or shall consent pursuant to an action by written consent of stockholders of EVO) so as to elect to the Board one director designated by Antara Master Fund pursuant to the Nomination Agreement. The Voting Agreement Parties beneficially own, in the aggregate, 15,305,663 shares of Common Stock, consisting of (i) 9,472,664 shares of issued and outstanding Common Stock; (ii) 100,000 shares of Series A Preferred Stock convertible on a one-to-one basis into shares of Common Stock; (iii) 2,999,999 shares of Common Stock issuable upon the exercise of outstanding warrants; and (iv) 2,733,000 outstanding options to purchase Common Stock.

Under the Voting Agreement, the Voting Agreement Parties have granted to, and appointed, Antara Master Fund and its affiliates, and any designee, such Shareholder’s irrevocable (until the termination date of the Voting Agreement) proxy coupled with an interest in all equity securities owned by such Shareholder to vote all such equity securities in the manner described above. Except as described above, pursuant to the terms of the Voting Agreement, the Voting Agreement Parties shall not be restricted from voting in favor of, against or abstaining with respect to any matter presented to the shareholders of EVO.

Except as otherwise specified herein, this Voting Agreement will terminate when Antara Master Fund no longer has the right to nominate for election to the Board a designee pursuant to the terms of the Nomination Agreement.

The foregoing summary of the material terms of the Voting Agreement is not complete and is qualified in its entirety by reference to the text of the Voting Agreement, copies of which are filed herewith as Exhibit 7, the terms of which are incorporated herein by reference.

(e) Side Letter Agreement

In connection with the Financing Agreement, on September 16, 2019, EVO and Antara Master Fund entered into a side letter agreement (the “Side Letter Agreement”) pursuant to which EVO agreed to issue a warrant to Antara Capital to purchase up to 1,500,000 shares of Common Stock (the “Side Letter Warrant Shares”) at an exercise price of $0.01 per share. If EVO completes the acquisition of certain assets from Loadtrek (the “Loadtrek Acquisition”) within 90 days after the date of the Side Letter Agreement, then the number of Side Letter Warrant

- 11 -

Shares will be reduced as follows: (i) if the value of the assets acquired in the Loadtrek Acquisition is greater than or equal to $3,750,000, the warrant will be canceled; and (ii) if the value is less than $3,750,000, the Side Letter Warrant Shares will be reduced by the amount by which the value of the assets is less than $3,750,000, divided by $2.50. If EVO completes the Loadtrek Acquisition more than 90 days after the date of the Side Letter Agreement but before September 30, 2021, then the number of Side Letter Warrant Shares will be reduced as follows: (i) if the value of the assets acquired in the Loadtrek Acquisition is greater than or equal to $3,750,000, the warrant will be canceled; and (ii) if the value is less than $3,750,000, the Side Letter Warrant Shares will be reduced to a number equal to 100,000 plus the amount by which the value of the assets is less than $3,750,000, divided by $2.50.

Notwithstanding whether EVO consummates the Loadtrek Acquisition or the value of the assets acquired, if applicable, the warrant to be issued pursuant to the Side Letter Agreement is subject to automatic cancellation if EVO meets its financial plan for two consecutive fiscal quarters during the period beginning with the first full fiscal quarter after the warrant is issued and ending on September 30, 2021. The warrant will become exercisable on September 30, 2021 if not previously canceled, and the Loadtrek Acquisition and its terms are subject to Antara Master Fund’s review and approval.

The foregoing summary description of the material terms of the Side Letter Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Side Letter Agreement, which is filed as Exhibit 8 and is incorporated herein by reference in its entirety.

(f) Equity Side Letter Agreement

Pursuant to the the Financing Agreement, EVO agreed to use commercially reasonable efforts to consummate the sale of newly issued shares of common equity of EVO on market terms for aggregate gross proceeds of at least $10,000,000.00. In connection therewith, on September 16, 2019, EVO and Antara Master Fund entered into a side letter agreement (the “Equity Side Letter Agreement”), pursuant to which EVO agreed to sell to Antara, and Antara agreed to purchase from EVO, a number of shares of Common Stock equal to (a) the Commitment Amount (as defined below) divided by (b) the Per Share Price (such shares, as adjusted pursuant to the following proviso, the “Purchased Shares”); provided, however, that in no event shall Antara Master Fund acquire, and EVO shall not sell to Antara, shares of Common Stock that would result in any non-U.S. entity managed, advised or controlled by Antara Master Fund and that is treated as a corporation for U.S. tax purposes being treated as owning more than 9.9% of the total combined voting power of all classes of stock of EVO. The aggregate purchase price for the Purchased Shares shall be an amount equal to (1) the number of Purchased Shares multiplied by (2) the Per Share Price.

For purposes of the Equity Side Letter Agreement, (a) “Commitment Amount” means (i) if the Per Share Price is equal to or less than $2.50, $2,000,000.00 and (ii) if the Per Share Price is greater than $2.50, an amount equal to (A) $2,000,000.00 minus (B) $4,000.00 for each $0.01 by which the Per Share Price exceeds $2.50, (b) “Equity Offerings” means one or more public or private offerings of shares of Common Stock, consummated subsequent to the date of the Equity Side Letter Agreement and prior to the date that is six months after the date thereof; and (c) “Per Share Price” means the lowest price per share paid by a purchaser of shares of Common Stock in the Equity Offerings.

The foregoing summary description of the material terms of the Equity Side Letter Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Equity Side Letter Agreement, which is filed as Exhibit 9 and is incorporated herein by reference in its entirety.

The information set forth in Items 3 and 5 of this Schedule 13D is incorporated by reference in its entirety into this Item 6.

- 12 -

Item 7. Material to be Filed as Exhibits


Exhibit		Description

1		Financing Agreement, dated September 16, 2019, among EVO Transportation & Energy Services, Inc., each subsidiary of EVO Transportation & Energy Services, Inc., various lenders from time to time party thereto, and Cortland Capital Market Services LLC, as administrative agent and collateral agent. Incorporated by reference to Exhibit 4.1 to EVO’s Current Report on Form 8-K (File No. 000-54218), filed September 20, 2019.

2		Warrant, dated September 16, 2019, by and between EVO Transportation & Energy Services, Inc. and Antara Capital Master Fund LP.

3		Warrant, dated September 16, 2019, by and between EVO Transportation & Energy Services, Inc. and Corbin ERISA Opportunity Fund Ltd.

4		Warrant, dated September 16, 2019, by and between EVO Transportation & Energy Services, Inc. and Antara Capital Master Fund LP.

5		Warrant, dated September 16, 2019, by and between EVO Transportation & Energy Services, Inc. and Corbin ERISA Opportunity Fund Ltd.

6		Director Nomination Agreement, dated September 16, 2019, between EVO Transportation & Energy Services, Inc. and Antara Capital Master Fund LP. Incorporated by reference to Exhibit 10.3 to EVO’s Current Report on Form 8-K (File No. 000-54218), filed September 20, 2019.

7		Voting Agreement, dated September 16, 2019, by and among certain shareholders of EVO Transportation & Energy Services, Inc.

8		Side Letter Agreement, dated September 16, 2019, between EVO Transportation & Energy Services, Inc. and Antara Capital LP. Incorporated by reference to Exhibit 10.4 to EVO’s Current Report on Form 8-K (File No. 000-54218), filed September 20, 2019.

9		Letter Agreement, dated September 16, 2019, between EVO Transportation & Energy Services, Inc. and Antara Capital Master Fund LP.

10		Joint Filing Agreement, dated September 26, 2019, among Antara Capital Master Fund LP, Antara Capital Fund GP LLC, Antara Capital GP LLC, Himanshu Gulati and Antara Capital LP.

- 13 -

Signature

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

ANTARA CAPITAL MASTER FUND LP

By:

Antara Capital LP

not in its individual corporate capacity, but solely as Investment Advisor and agent


By:		Antara Capital GP LLC,
		its general partner


By:		/s/ Himanshu Gulati
Name:		Himanshu Gulati
Title:		Managing Member
Date:		September 27, 2019

ANTARA CAPITAL LP

By:

Antara Capital GP LLC,

its general partner


By:		/s/ Himanshu Gulati
Name:		Himanshu Gulati
Title:		Managing Member
Date:		September 27, 2019


ANTARA CAPITAL GP LLC

By:		/s/ Himanshu Gulati
Name:		Himanshu Gulati
Title:		Managing Member
Date:		September 27, 2019


ANTARA CAPITAL FUND GP LLC

By:		/s/ Himanshu Gulati
Name:		Himanshu Gulati
Title:		Managing Member
Date:		September 27, 2019


By:		/s/ Himanshu Gulati
		Himanshu Gulati, an individual
		Date: September 27, 2019

- 14 -

EX-99.2 2 d812632dex992.htm EX-99.2 EX-99.2

Exhibit 2

WARRANT

THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR QUALIFIED UNDER ANY STATE OR FOREIGN SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR ASSIGNED UNLESS (I) A REGISTRATION STATEMENT COVERING SUCH SHARES IS EFFECTIVE UNDER THE ACT AND IS QUALIFIED UNDER APPLICABLE STATE AND FOREIGN LAW OR (II) THE TRANSACTION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS UNDER THE ACT AND THE QUALIFICATION REQUIREMENTS UNDER APPLICABLE STATE AND FOREIGN LAW AND, IF THE CORPORATION REQUESTS, AN OPINION SATISFACTORY TO THE CORPORATION TO SUCH EFFECT HAS BEEN RENDERED BY COUNSEL.

Warrant Certificate No.: 36

Original Issue Date: September 16, 2019

FOR VALUE RECEIVED, EVO Transportation & Energy Services, Inc., a Delaware corporation (the “Company”), hereby certifies that Antara Capital Master Fund LP, a Delaware limited partnership, any of its affiliates or its registered assigns (the “Holder”) is entitled to purchase from the Company eight hundred and nineteen thousand four hundred and ninety-two (819,492) duly authorized, validly issued, fully paid and nonassessable shares of Common Stock at a purchase price per share of $2.50 (the “Exercise Price”), all subject to the terms, conditions and adjustments set forth below in this Warrant. Certain capitalized terms used herein are defined in Section 1 hereof.

1. Definitions. As used in this Warrant, the following terms have the respective meanings set forth below:

“Aggregate Exercise Price” means an amount equal to the product of (a) the number of Warrant Shares in respect of which this Warrant is then being exercised pursuant to Section 4 hereof, multiplied by (b) the Exercise Price in effect as of the Exercise Date in accordance with the terms of this Warrant.

“Board” means the board of directors of the Company.

“Business Day” means any day, except a Saturday, Sunday or legal holiday, on which banking institutions in New York are authorized or obligated by law or executive order to close.

“Change of Control” shall mean (i) a merger or consolidation of the Company with another entity, in which the Company is not the survivor or the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting securities of the surviving entity, (ii) the sale, assignment, transfer, conveyance or other disposal of all or substantially all of the properties or assets or all or a majority of the outstanding voting securities of the Company, (iii) a purchase, tender or exchange offer accepted by the holders of a majority of the outstanding voting shares of capital stock of the Company directly or indirectly, in one or more related transactions, (iv) a “person” or “group” (as these terms are used for purposes of Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) is or shall become the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of at least a majority of the outstanding shares of Common Stock of the Company through a stock purchase agreement or other business combination (including, without limitation, a reorganization, reclassification, spin off or scheme of arrangement) with another person, or (v) the Company has elected to reorganize, recapitalize or reclassify its Common Stock (other than to change domicile).

“Common Stock” means the common stock, par value $0.0001 per share, of the Company, and any capital stock into which such Common Stock shall have been converted, exchanged or reclassified following the date hereof.

“Common Stock Deemed Outstanding” means, at any given time, the sum of (a) the number of shares of Common Stock actually outstanding at such time, plus (b) the number of shares of Common Stock issuable upon exercise of Options actually outstanding at such time, plus (c) the number of shares of Common Stock issuable upon conversion or exchange of Convertible Securities actually outstanding at such time (treating as actually outstanding any Convertible Securities issuable upon exercise of Options actually outstanding at such time), in each case, regardless of whether the Options or Convertible Securities are actually exercisable at such time; provided, that Common Stock Deemed Outstanding at any given time shall not include shares owned or held by or for the account of the Company or any of its wholly owned subsidiaries.

“Company” has the meaning set forth in the preamble.

“Convertible Securities” means any securities (directly or indirectly) convertible into or exchangeable for Common Stock, but excluding Options.

“Excluded Issuances” means any issuance or sale (or deemed issuance or sale in accordance with Section 4(c)) by the Company after the Original Issue Date of: (a) shares of Common Stock issued upon the exercise of this Warrant; or (b) shares of Common Stock (as such number of shares is equitably adjusted for subsequent stock splits, stock combinations, stock dividends and recapitalizations) issued directly or upon the exercise of Options to directors, officers, employees, or consultants of the Company in connection with their service as directors of the Company, their employment by the Company or their retention as consultants by the Company, in each case authorized by the Board and issued pursuant to the Company’s Amended and Restated 2018 Stock Incentive Plan (including all such shares of Common Stock and Options outstanding prior to the Original Issue Date), so long as the exercise price in respect of any Options is not less than the Fair Market Value of the Common Stock as of the date such Option is issued.

“Exercise Date” means, for any given exercise of this Warrant, the date on which the conditions to such exercise as set forth in Section 4 shall have been satisfied at or prior to 5:00 p.m., New York City time, on a Business Day, including, without limitation, the receipt by the Company of the Exercise Form, the Warrant and the Aggregate Exercise Price.

“Exercise Form” has the meaning set forth in Section 4(a)(i).

“Exercise Period” has the meaning set forth in Section 2.

“Exercise Price” has the meaning set forth in the preamble.

“Fair Market Value” of a Warrant Share shall mean the arithmetic average of the last trade price of the Common Stock (as reported by Bloomberg Financial Markets) for the five (5) consecutive days on which the Nasdaq is open for trading, ending on the date immediately preceding the Exercise Date, on the principal trading market on which the Common Stock is quoted or listed for trading. If the Fair Market Value cannot be calculated on a particular date on the foregoing basis, the Fair Market Value shall be the average of the highest bid and lowest asked prices for the Common Stock on the principal trading market at the end of such day. If at any time the Common Stock is not listed on a domestic securities exchange or quoted on the Financial Industry Regulatory Authority OTC Bulletin Board electronic inter-dealer quotation system, the OTC Markets Group Inc. electronic inter-dealer quotation system or similar quotation system or association, the Fair Market Value of the Common Stock shall be the fair market value determined jointly in good faith by the Board and the Holder; provided, that if the Board and the Holder are unable to agree on the Fair Market Value of a Warrant Share within a reasonable period of time (not to exceed five (5) days from the Company’s receipt of the Exercise Form), Fair Market Value shall be determined by a nationally recognized investment banking, accounting or valuation firm jointly selected by the Holder and the Company and engaged by the Company. The determination of such firm shall be final and conclusive, and the fees and expenses of such valuation firm shall be borne by the Company. The investment bank so engaged shall determine the Fair Market Value of the Common Stock assuming an orderly sale transaction between a willing buyer and a willing seller, using valuation techniques then prevailing in the securities industry without regard to the lack of liquidity of the Common Stock due to any restrictions (contractual or otherwise) applicable thereto or any discount for minority interests and assuming full disclosure of all relevant information and a reasonable period of time for effectuating such sale and assuming the sale of all of the issued and outstanding Common Stock (including fractional interests) calculated on a fully diluted basis (except those securities, rights and warrants (a) owned or held by or for the account of the Company or any of its subsidiaries, or (b) convertible or exchangeable into Common Stock where the conversion, exchange or exercise price per share is greater than the Fair Market Value). All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during the applicable calculation period.

“Holder” has the meaning set forth in the preamble.

“Nasdaq” means The NASDAQ Stock Market LLC.

“New Securities” shall mean any capital stock of the Company issued after the Date of Issuance, all rights, options or warrants to purchase such capital stock, and any securities of any type whatsoever that shall be (or may become) exchangeable or exercisable for, or convertible into, such capital stock.

“Options” means any warrants or other rights or options to subscribe for or purchase Common Stock or Convertible Securities.

“Original Issue Date” means September 16, 2019.

“OTC Bulletin Board” means the Financial Industry Regulatory Authority OTC Bulletin Board electronic inter-dealer quotation system.

“Person” means any individual, sole proprietorship, partnership, limited liability company, corporation, joint venture, trust, incorporated organization or government or department or agency thereof.

“Pink OTC Markets” means the OTC Markets Group Inc. electronic inter-dealer quotation system, including OTCQX, OTCQB and OTC Pink.

“Warrant” means this Warrant and all warrants issued upon division or combination of, or in substitution for, this Warrant.

“Warrant Shares” means the shares of Common Stock or other capital stock of the Company then purchasable upon exercise of this Warrant in accordance with the terms of this Warrant.

2. Term of Warrant. Subject to the terms and conditions hereof, at any time or from time to time after the date hereof and prior to 5:00 p.m., New York City time, September 16, 2029 (the “Exercise Period”), the Holder of this Warrant may exercise this Warrant for all or any part of the Warrant Shares purchasable hereunder (subject to adjustment as provided herein). The Company shall give the Holder written notice of the expiration of the Exercise Period not less than 30 days but not more than 60 days prior to the end of the Exercise Period.

3. Automatic Exercise. If, at the end of the Exercise Period, the Holder has remaining Warrant Shares subject to this Warrant (excluding Warrant Shares that the Holder has delivered a duly executed Exercise Form pursuant to Section 4(a)(i) hereof) and the Fair Market Value of shares of Common Stock is greater than the Exercise Price, then such Warrant Shares shall be automatically deemed to be exercised pursuant to a Cashless Exercise (as defined below) by the Holder immediately prior to the end of the Exercise Period. The Company will promptly thereafter issue to the Holder a stock certificate representing the Warrant Shares the Holder is entitled to at such time.

4. Exercise of Warrant.

(a) Exercise Procedure. This Warrant may be exercised from time to time on any Business Day during the Exercise Period, for all or any part of the unexercised Warrant Shares, upon:

(i) surrender of this Warrant to the Company at its then principal executive offices (or an indemnification undertaking with respect to this Warrant in the case of its loss, theft or destruction), together with an Exercise Form in the form attached hereto as Exhibit A (each, an “Exercise Form”), duly completed (including specifying the number of Warrant Shares to be purchased) and executed; and

(ii) payment to the Company of the Aggregate Exercise Price in accordance with Section 4(b).

(b) Payment of the Aggregate Exercise Price. Payment of the Aggregate Exercise Price shall be made, at the option of the Holder as expressed in the Exercise Form, by the following methods:

(i) by delivery to the Company of a certified or official bank check payable to the order of the Company or by wire transfer of immediately available funds to an account designated in writing by the Company, in the amount of such Aggregate Exercise Price;

(ii) by instructing the Company to withhold a number of Warrant Shares then issuable upon exercise of this Warrant with an aggregate Fair Market Value as of the Exercise Date equal to such Aggregate Exercise Price (a “Cashless Exercise”); or

(iii) any combination of the foregoing.

In the event of any withholding of Warrant Shares or surrender of other equity securities pursuant to clause (ii), (iii) or (iv) above where the number of shares whose value is equal to the Aggregate Exercise Price is not a whole number, the number of shares withheld by or surrendered to the Company shall be rounded up to the nearest whole share and the Company shall make a cash payment to the Holder (by delivery of a certified or official bank check or by wire transfer of immediately available funds) based on the incremental fraction of a share being so withheld by or surrendered to the Company in an amount equal to the product of (x) such incremental fraction of a share being so withheld or surrendered multiplied by (y) in the case of Common Stock, the Fair Market Value per Warrant Share as of the Exercise Date, and, in all other cases, the value thereof as of the Exercise Date determined in accordance with clause (iii)(y) above.

(c) Issuance of Warrant Shares. Upon receipt by the Company of the Exercise Form, surrender of this Warrant and payment of the Aggregate Exercise Price (in accordance with Section 4(a) hereof), the Company at its expense shall, as promptly as practicable, and in any event within three (3) Business Days thereafter, cause to be issued via book-entry in the name of the Holder or as the Holder may direct, the number of shares of Warrant Shares to which the Holder shall be entitled upon such exercise, together with cash in lieu of any fraction of a share, as provided in Section 4(c) hereof. This Warrant shall be deemed to have been exercised and such Warrant Shares shall be deemed to have been issued via book-entry, and the Holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such Warrant Shares for all purposes, as of the Exercise Date.

(d) Fractional Shares. The Company shall not be required to issue a fractional Warrant Share upon exercise of any Warrant. As to any fraction of a Warrant Share that the Holder would otherwise be entitled to purchase upon such exercise, the Company shall pay to such Holder an amount in cash (by delivery of a certified or official bank check or by wire transfer of immediately available funds) equal to the product of (i) such fraction multiplied by (ii) the Fair Market Value of one Warrant Share on the Exercise Date.

(e) Delivery of New Warrant. Unless the purchase rights represented by this Warrant shall have expired or shall have been fully exercised, the Company shall, at the time of delivery of the certificate or certificates representing the Warrant Shares being issued in accordance with Section 4(c) hereof, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unexpired and unexercised Warrant Shares called for by this Warrant. Such new Warrant shall in all other respects be identical to this Warrant.

(f) Valid Issuance of Warrant and Warrant Shares; Payment of Taxes. With respect to the exercise of this Warrant, the Company hereby represents, covenants and agrees:

(i) This Warrant is, and any Warrant issued in substitution for or replacement of this Warrant shall be, upon issuance, duly authorized and validly issued.

(ii) All Warrant Shares issuable upon the exercise of this Warrant pursuant to the terms hereof shall be, upon issuance, and the Company shall take all such actions as may be necessary or appropriate in order that such Warrant Shares are, validly issued, fully paid and non-assessable, issued without violation of any preemptive or similar rights of any stockholder of the Company and free and clear of all taxes, liens and charges.

(iii) The Company shall take all such actions as may be necessary to ensure that all such Warrant Shares are issued without violation by the Company of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Common Stock or other securities constituting Warrant Shares may be listed at the time of such exercise (except for official notice of issuance which shall be immediately delivered by the Company upon each such issuance).

(iv) The Company shall use its best efforts to cause the Warrant Shares, immediately upon such exercise, to be listed on any domestic securities exchange upon which shares of Common Stock or other securities constituting Warrant Shares are listed at the time of such exercise.

(v) The Company shall pay all expenses in connection with, and all taxes and other governmental charges that may be imposed with respect to, the issuance or delivery of Warrant Shares upon exercise of this Warrant; provided, that the Company shall not be required to pay any tax or governmental charge that may be imposed with respect to any applicable withholding or the issuance or delivery of the Warrant Shares to any Person other than the Holder, and no such issuance or delivery shall be made unless and until the Person requesting such issuance has paid to the Company the amount of any such tax, or has established to the satisfaction of the Company that such tax has been paid.

(g) Conditional Exercise. Notwithstanding any other provision hereof, if an exercise of any portion of this Warrant is to be made in connection with a sale of the Company (pursuant to a merger, sale of stock, or otherwise), such exercise may at the election of the Holder be conditioned upon the consummation of such transaction, in which case such exercise shall not be deemed to be effective until immediately prior to the consummation of such transaction.

(h) Exercise Upon a Change of Control. Upon the occurrence of a Change of Control, the Holder may elect, by giving notice to the Company within fifteen (15) days of such Change of Control, to receive in exchange for its Warrants the kind and amount of securities, cash or other assets (the “Sale Consideration”) which the Holder would have received with respect to the Common Stock issuable upon the exercise of such Warrants if the Holder had exercised such Warrants on a cashless basis immediately prior to the occurrence of the Change of Control, with such number of shares of Common Stock which would have been so issuable to be determined by (i) subtracting B from A, (ii) dividing the result by A, and (iii) multiplying the quotient by C as set forth in the following equation:

X = (A - B) x C

where:

X =

the number of shares of Common Stock issuable upon exercise pursuant to this paragraph 4(g).

A =

the amount of Sale Consideration payable per share of Common Stock in connection with the Change of Control, (i) with such amount expressed in U.S. dollars and, if applicable, rounded to the nearest whole cent, and (ii) with any non-cash portion of such Sale Consideration valued at the value attributed thereto in the Change of Control.

B =

the Exercise Price.

C =

the number of shares of Common Stock as to which the applicable Warrants are exercisable (prior to payment of the Exercise Price).

(i) Reservation of Shares. During the Exercise Period, the Company shall at all times reserve and keep available out of its authorized but unissued Common Stock or other securities constituting Warrant Shares, solely for the purpose of issuance upon the exercise of this Warrant, the maximum number of Warrant Shares issuable upon the exercise of this Warrant, and the par value per Warrant Share shall at all times be less than or equal to the applicable Exercise Price. The Company shall not increase the par value of any Warrant Shares receivable upon the exercise of this Warrant above the Exercise Price then in effect, and shall take all such actions as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock upon the exercise of this Warrant.

5. Adjustment to Exercise Price and Number of Warrant Shares. In order to prevent dilution of the purchase rights granted under this Warrant, the Exercise Price and the number of Warrant Shares issuable upon exercise of this Warrant shall be subject to adjustment from time to time as provided in this Section 5 (in each case, after taking into consideration any prior adjustments pursuant to this Section 5).

(a) Adjustment to Exercise Price Upon Issuance of Common Stock. Except as provided in Section 5(c) and except in the case of an event described in either Section 5(e) or Section 5(f), if the Company shall, at any time or from time to time after the Original Issue Date, issue or sell, or in accordance with Section 5(d) is deemed to have issued or sold, any shares of Common Stock without consideration or for consideration per share less than the Exercise Price in effect immediately prior to such issuance or sale (or deemed issuance or sale), then immediately upon such issuance or sale (or deemed issuance or sale), the Exercise Price in effect immediately prior to such issuance or sale (or deemed issuance or sale) shall be reduced (and in no event increased) to an Exercise Price equal to the quotient obtained by dividing:

(i) the sum of (A) the product obtained by multiplying the Common Stock Deemed Outstanding immediately prior to such issuance or sale (or deemed issuance or sale) by the Exercise Price then in effect plus (B) the aggregate consideration, if any, received by the Company upon such issuance or sale (or deemed issuance or sale); by

(ii) the sum of (A) the Common Stock Deemed Outstanding immediately prior to such issuance or sale (or deemed issuance or sale) plus (B) the aggregate number of shares of Common Stock issued or sold (or deemed issued or sold) by the Company in such issuance or sale (or deemed issuance or sale).

(b) Adjustment to Number of Warrant Shares Upon Adjustment to Exercise Price. Upon any and each adjustment of the Exercise Price as provided in Section 5(a), the number of Warrant Shares issuable upon the exercise of this Warrant immediately prior to any such adjustment shall be increased to a number of Warrant Shares equal to the quotient obtained by dividing:

(i) the product of (A) the Exercise Price in effect immediately prior to any such adjustment multiplied by (B) the number of Warrant Shares issuable upon exercise of this Warrant immediately prior to any such adjustment; by

(ii) (ii) the Exercise Price resulting from such adjustment.

(c) Exceptions to Adjustment Upon Issuance of Common Stock. Anything herein to the contrary notwithstanding, there shall be no adjustment to the Exercise Price or the number of Warrant Shares issuable upon exercise of this Warrant with respect to any Excluded Issuance.

(d) Effect of Certain Events on Adjustment to Exercise Price. For purposes of determining the adjusted Exercise Price under Section 5(a) hereof, the following shall be applicable:

(i) Issuance of Options. If the Company shall, at any time or from time to time after the Original Issue Date, in any manner grant or sell (whether directly or by assumption in a merger or otherwise) any Options, whether or not such Options or the right to convert or exchange any Convertible Securities issuable upon the exercise of such Options are immediately exercisable, and the price per share (determined as provided in this paragraph and in Section 5(c)(v)) for which Common Stock is issuable upon the exercise of such Options or upon the conversion or exchange of Convertible Securities issuable upon the exercise of such Options is less than the Exercise Price in effect immediately prior to the time of the granting or sale of such Options, then the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of Convertible Securities issuable upon the exercise of such Options shall be deemed to have been issued as of the date of granting or sale of such Options (and thereafter shall be deemed to be outstanding for purposes of adjusting the Exercise Price under Section 5(a)), at a price per share equal to the quotient obtained by dividing (A) the sum (which sum shall constitute the applicable consideration received for purposes of Section 5(a)) of (x) the total amount, if any, received or receivable by the Company as consideration for the granting or sale of all such Options, plus (y) the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, plus (z), in the case of such Options which relate to Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable to the Company upon the issuance or sale of all such Convertible Securities and the conversion or exchange of all such Convertible Securities, by (B) the total maximum number of shares of Common Stock issuable upon the exercise of all such Options or upon the conversion or exchange of all Convertible Securities issuable upon the exercise of all such Options. Except as otherwise provided in Section 5(c)(iii), no further adjustment of the Exercise Price shall be made upon the actual issuance of Common Stock or of Convertible Securities upon exercise of such Options or upon the actual issuance of Common Stock upon conversion or exchange of Convertible Securities issuable upon exercise of such Options.

deemed to have been issued as of the date of granting or sale of such Convertible Securities (and thereafter shall be deemed to be outstanding for purposes of adjusting the Exercise Price pursuant to Section 5(a)), at a price per share equal to the quotient obtained by dividing (A) the sum (which sum shall constitute the applicable consideration received for purposes of Section 5(a)) of (x) the total amount, if any, received or receivable by the Company as consideration for the granting or sale of such Convertible Securities, plus (y) the minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or exchange of all such Convertible Securities, by (B) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities. Except as otherwise provided in Section 5(c)(iii), no further adjustment of the Exercise Price shall be made upon the actual issuance of Common Stock upon conversion or exchange of such Convertible Securities or by reason of the issue or sale of Convertible Securities upon exercise of any Options to purchase any such Convertible Securities for which adjustments of the Exercise Price have been made pursuant to the other provisions of this Section 5(c).

(iii) Change in Terms of Options or Convertible Securities. Upon any change in any of (A) the total amount received or receivable by the Company as consideration for the granting or sale of any Options or Convertible Securities referred to in Section 5(d)(i) or Section 5(d)(ii) hereof, (B) the minimum aggregate amount of additional consideration, if any, payable to the Company upon the exercise of any Options or upon the issuance, conversion or exchange of any Convertible Securities referred to in Section 5(d)(i) or Section 5(d)(ii) hereof, (C) the rate at which Convertible Securities referred to in Section 5(d)(i) or Section 5(d)(ii) hereof are convertible into or exchangeable for Common Stock, or (D) the maximum number of shares of Common Stock issuable in connection with any Options referred to in Section 5(d)(i) hereof or any Convertible Securities referred to in Section 5(d)(ii) hereof (in each case, other than in connection with an Excluded Issuance), then (whether or not the original issuance or sale of such Options or Convertible Securities resulted in an adjustment to the Exercise Price pursuant to this Section 5) the Exercise Price in effect at the time of such change shall be adjusted or readjusted, as applicable, to the Exercise Price which would have been in effect at such time pursuant to the provisions of this Section 5 had such Options or Convertible Securities still outstanding provided for such changed consideration, conversion rate or maximum number of shares, as the case may be, at the time initially granted, issued or sold, but only if as a result of such adjustment or readjustment the Exercise Price then in effect is reduced, and the number of Warrant Shares issuable upon the exercise of this Warrant immediately prior to any such adjustment or readjustment shall be correspondingly adjusted or readjusted pursuant to the provisions of Section 5(b).

(iv) Treatment of Expired or Terminated Options or Convertible Securities. Upon the expiration or termination of any unexercised Option (or portion thereof) or any unconverted or unexchanged Convertible Security (or portion thereof) for which any adjustment (either upon its original issuance or upon a revision of its terms) was made pursuant to this Section 5 (including without limitation upon the redemption or purchase for consideration of all or any portion of such Option or Convertible Security by the Company), the Exercise Price then in effect hereunder shall forthwith be changed pursuant to the provisions of this Section 5 to the Exercise Price which would have been in effect at the time of such expiration or termination had such unexercised Option (or portion thereof) or unconverted or unexchanged Convertible Security (or portion thereof), to the extent outstanding immediately prior to such expiration or termination, never been issued.

(v) Calculation of Consideration Received. If the Company shall, at any time or from time to time after the Original Issue Date, issue or sell, or is deemed to have issued or sold in accordance with Section 5(c), any shares of Common Stock, Options or Convertible Securities: (A) for cash, the consideration received therefor shall be deemed to be the net amount received by the Company therefor; (B) for consideration other than cash, the amount of the consideration other than cash received by the Company shall be the fair value of such consideration, except where such consideration consists of marketable securities, in which case the amount of consideration received by the Company shall be the market price (as reflected on any securities exchange, quotation system or association or similar pricing system covering such security) for such securities as of the end of business on the date of receipt of such securities; (C) for no specifically allocated consideration in connection with an issuance or sale of other securities of the Company, together comprising one integrated transaction, the amount of the consideration therefor shall be deemed to be the fair value of such portion of the aggregate consideration received by the Company in such transaction as is attributable to such shares of Common Stock, Options or Convertible Securities, as the case may be, issued in such transaction; or (D) to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock, Options or Convertible Securities, as the case may be, issued to such owners. The fair value of any consideration other than cash or marketable securities shall be determined in good faith jointly by the Board and the Holder; provided, that if the Board and the Holder are unable to agree on the fair value of any consideration other than cash or marketable securities within a reasonable period of time (not to exceed five (5) days from the Holder’s receipt of a certificate of adjustment pursuant to Section 5(h)(i) relating to the applicable issuance), such fair value shall be determined by a nationally recognized investment banking, accounting or valuation firm jointly selected by the Board and the Holder. The determination of such firm shall be final and conclusive, and the fees and expenses of such valuation firm shall be borne by the Company.

(vi) Record Date. For purposes of any adjustment to the Exercise Price or the number of Warrant Shares in accordance with this Section 5, in case the Company shall take a record of the holders of its Common Stock for the purpose of entitling them (A) to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or (B) to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.

(vii) Treasury Shares. The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the Company or any of its wholly-owned subsidiaries, and the disposition of any such shares (other than the cancellation or retirement thereof or the transfer of such shares among the Company and its wholly-owned subsidiaries) shall be considered an issue or sale of Common Stock for the purpose of this Section 5.

(viii) Other Dividends and Distributions. Subject to the provisions of this Section 5(d), if the Company shall, at any time or from time to time after the Original Issue Date, make or declare, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or any other distribution payable in securities of the Company (other than a dividend or distribution of shares of Common Stock, Options or Convertible Securities in respect of outstanding shares of Common Stock), cash or other property, then, and in each such event, provision shall be made so that the Holder shall receive upon exercise of the Warrant, in addition to the number of Warrant Shares receivable thereupon, the kind and amount of securities of the Company, cash or other property which the Holder would have been entitled to receive had the Warrant been exercised in full into Warrant Shares on the date of such event and had the Holder thereafter, during the period from the date of such event to and including the Exercise Date, retained such securities, cash or other property receivable by them as aforesaid during such period, giving application to all adjustments called for during such period under this Section 5 with respect to the rights of the Holder; provided, that no such provision shall be made if the Holder receives, simultaneously with the distribution to the holders of Common Stock, a dividend or other distribution of such securities, cash or other property in an amount equal to the amount of such securities, cash or other property as the Holder would have received if the Warrant had been exercised in full into Warrant Shares on the date of such event.

(e) Adjustment to Exercise Price and Warrant Shares Upon Dividend, Subdivision or Combination of Common Stock. If the Company shall, at any time or from time to time after the Original Issue Date, (i) pay a dividend or make any other distribution upon the Common Stock or any other capital stock of the Company payable in shares of Common Stock or in Options or Convertible Securities, or (ii) subdivide (by any stock split, recapitalization or otherwise) its outstanding shares of Common Stock into a greater number of shares, the Exercise Price in effect immediately prior to any such dividend, distribution or subdivision shall be proportionately reduced and the number of Warrant Shares issuable upon exercise of this Warrant shall be proportionately increased. If the Company at any time combines (by combination, reverse stock split or otherwise) its outstanding shares of Common Stock into a smaller number of shares, the Exercise Price in effect immediately prior to such combination shall be proportionately increased and the number of Warrant Shares issuable upon exercise of this Warrant shall be proportionately decreased. Any adjustment under this Section 5(e) shall become effective at the close of business on the date the dividend, subdivision or combination becomes effective.

(f) Adjustment to Exercise Price and Warrant Shares Upon Reorganization, Reclassification, Consolidation or Merger. To the extent the Holder does not exercise its applicable rights under Section 4(h) hereof, if there is a (i) capital reorganization of the Company, (ii) reclassification of the stock of the Company (other than a change in par value or from par value to no par value or from no par value to par value or as a result of a stock dividend or subdivision, split-up or combination of shares), (iii) consolidation or merger of the Company with or into another Person, (iv) Change of Control or (v) other similar transaction (other than any such transaction covered by Section 5(d)), in each case which entitles the holders of Common Stock to receive (either directly or upon subsequent liquidation) stock, securities or assets with respect to or in exchange for Common Stock, each Warrant shall, immediately after

such reorganization, reclassification, consolidation, merger, sale or similar transaction, remain outstanding and shall thereafter, in lieu of or in addition to (as the case may be) the number of Warrant Shares then exercisable under this Warrant, be exercisable for the kind and number of shares of stock or other securities or assets of the Company or of the successor Person resulting from such transaction to which the Holder would have been entitled upon such reorganization, reclassification, consolidation, merger, sale or similar transaction if the Holder had exercised this Warrant in full immediately prior to the time of such reorganization, reclassification, consolidation, merger, sale or similar transaction and acquired the applicable number of Warrant Shares then issuable hereunder as a result of such exercise (without taking into account any limitations or restrictions on the exercisability of this Warrant); and, in such case, appropriate adjustment (in form and substance satisfactory to the Holder) shall be made with respect to the Holder’s rights under this Warrant to insure that the provisions of this Section 5 hereof shall thereafter be applicable, as nearly as possible, to this Warrant in relation to any shares of stock, securities or assets thereafter acquirable upon exercise of this Warrant (including, in the case of any consolidation, merger, sale or similar transaction in which the successor or purchasing Person is other than the Company, an immediate adjustment in the Exercise Price to the value per share for the Common Stock reflected by the terms of such consolidation, merger, sale or similar transaction, and a corresponding immediate adjustment to the number of Warrant Shares acquirable upon exercise of this Warrant without regard to any limitations or restrictions on exercise, if the value so reflected is less than the Exercise Price in effect immediately prior to such consolidation, merger, sale or similar transaction). The provisions of this Section 5(e) shall similarly apply to successive reorganizations, reclassifications, consolidations, mergers, sales or similar transactions. The Company shall not effect any such reorganization, reclassification, consolidation, merger, sale or similar transaction unless, prior to the consummation thereof, the successor Person (if other than the Company) resulting from such reorganization, reclassification, consolidation, merger, sale or similar transaction, shall assume, by written instrument substantially similar in form and substance to this Warrant and satisfactory to the Holder, the obligation to deliver to the Holder such shares of stock, securities or assets which, in accordance with the foregoing provisions, such Holder shall be entitled to receive upon exercise of this Warrant. Notwithstanding anything to the contrary contained herein, with respect to any corporate event or other transaction contemplated by the provisions of this Section 5(e), the Holder shall have the right to elect prior to the consummation of such event or transaction, to give effect to the exercise rights contained in Section 2 instead of giving effect to the provisions contained in this Section 5(e) with respect to this Warrant.

(g) Certain Events. If any event of the type contemplated by the provisions of this Section 5 but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features) occurs, then the Board shall make an appropriate adjustment in the Exercise Price and the number of Warrant Shares issuable upon exercise of this Warrant so as to protect the rights of the Holder in a manner consistent with the provisions of this Section 5; provided, that no such adjustment pursuant to this Section 5(g) shall increase the Exercise Price or decrease the number of Warrant Shares issuable as otherwise determined pursuant to this Section 5.

(h) Certificate as to Adjustment.

(i) As promptly as reasonably practicable following any adjustment of the Exercise Price pursuant to the provisions of this Section 5, but in any event not later than five (5) Business Days thereafter, the Company shall furnish to the Holder a certificate of an executive officer setting forth in reasonable detail such adjustment and the facts upon which it is based and certifying the calculation thereof.

(ii) As promptly as reasonably practicable following the receipt by the Company of a written request by the Holder, but in any event not later than five (5) Business Days thereafter, the Company shall furnish to the Holder a certificate of an executive officer certifying the Exercise Price then in effect and the number of Warrant Shares or the amount, if any, of other shares of stock, securities or assets then issuable upon exercise of the Warrant.

(i) Notices. In the event:

(i) that the Company shall take a record of the holders of its Common Stock (or other capital stock or securities at the time issuable upon exercise of the Warrant) for the purpose of entitling or enabling them to receive any dividend or other distribution, to vote at a meeting (or by written consent), to receive any right to subscribe for or purchase any shares of capital stock of any class or any other securities, or to receive any other security; or

(ii) of any capital reorganization of the Company, any reclassification of the Common Stock of the Company, any consolidation or merger of the Company with or into another Person, or sale of all or substantially all of the Company’s assets to another Person; or

(iii) of the voluntary or involuntary dissolution, liquidation or winding-up of the Company;

then, and in each such case, the Company shall send or cause to be sent to the Holder at least ten (10) Business Days prior to the applicable record date or the applicable expected effective date, as the case may be, for the event, a written notice specifying, as the case may be, (A) the record date for such dividend, distribution, meeting or consent or other right or action, and a description of such dividend, distribution or other right or action to be taken at such meeting or by written consent, or (B) the effective date on which such reorganization, reclassification, consolidation, merger, sale, dissolution, liquidation or winding-up is proposed to take place, and the date, if any is to be fixed, as of which the books of the Company shall close or a record shall be taken with respect to which the holders of record of Common Stock (or such other capital stock or securities at the time issuable upon exercise of the Warrant) shall be entitled to exchange their shares of Common Stock (or such other capital stock or securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, sale, dissolution, liquidation or winding-up, and the amount per share and character of such exchange applicable to the Warrant and the Warrant Shares.

Holder would have acquired if the Holder had held the number of Warrant Shares acquirable upon complete exercise of this Warrant immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights. Anything herein to the contrary notwithstanding, the Holder shall not be entitled to the Purchase Rights granted herein with respect to any Excluded Issuance.

7. Preemptive Rights.

(a) Preemptive Right on New Securities. From and after the date hereof until the earlier of the expiration of the Exercise Period, the Company will not issue or sell any Common Stock, Options or Convertible Securities, except in an Excluded Issuance, without first complying with this Section 7. The Company hereby grants to the Holder the preemptive right to purchase its pro rata share of any New Securities that the Company may, from time to time, propose to sell or issue. A Holder’s “pro rata share” for purposes of this Section 7 is the number of shares of Common Stock held by the Holder or into which the Holder’s outstanding Warrants are exercisable, in each case, as of the date the Company delivers the notice to the Holder contemplated by Section 7(b) divided by the number of outstanding shares of Common Stock Deemed Outstanding as of the date the Company delivers the notice to the Holder contemplated by Section 7(b).

(b) Notice to Holder. Except in connection with an Excluded Issuance, if the Company proposes to issue or sell Common Stock, Options or Convertible Securities, then it will give the Holder written notice of its intention, describing the type of Common Stock, Options or Convertible Securities and the price and terms upon which the Company proposes to issue or sell the Common Stock, Options or Convertible Securities. The Holder will have fifteen (15) Business Days from the date of receipt of any such notice to agree to purchase up to its pro rata share of the Common Stock, Options or Convertible Securities for the price and upon the terms specified in the notice from the Company described above by giving written notice to the Company stating the quantity of Common Stock, Options or Convertible Securities agreed to be purchased.

(c) Alternate Issuance. Notwithstanding the foregoing, if the Board determines in good faith that compliance with the time period described in Section 7(b) would not be in the best interests of the Company, then, in lieu of offering any Common Stock, Options or Convertible Securities to the Holder at the time such Common Stock, Options or Convertible Securities are otherwise being issued or sold to the Holder, the Company may comply with the provisions of this Section 7 by making an offer to sell to the Holder its pro rata share of such Common Stock, Options or Convertible Securities (calculated before giving effect to the issuance of such Common Stock, Options or Convertible Securities) promptly, and in no event later than thirty days, after such issuance or sale is consummated; provided, that the Company may not consummate a Change of Control prior to complying with this section.

8. Transfer of Warrant. This Warrant and all rights hereunder are transferable, in whole or in part, by the Holder without charge to the Holder, upon surrender of this Warrant to the Company at its then principal executive offices with a properly completed and duly executed Assignment in the form attached hereto as Exhibit B, together with funds sufficient to pay any transfer taxes described in Section 4(f)(v) in connection with the making of such transfer. Upon such compliance, surrender and delivery and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant, if any, not so assigned and this Warrant shall promptly be cancelled.

9. Holder Not Deemed a Stockholder; Limitations on Liability. Except as otherwise specifically provided herein (including Section 5(c)(viii)), prior to the issuance to the Holder of the Warrant Shares to which the Holder is then entitled to receive upon the due exercise of this Warrant, the Holder shall not be entitled to vote or receive dividends or be deemed the holder of shares of capital stock of the Company for any purpose, nor shall anything contained in this Warrant be construed to confer upon the Holder, as such, any of the rights of a stockholder of the Company or any right to vote, give or withhold consent to any corporate action (whether any reorganization, issue of stock, reclassification of stock, consolidation, merger, conveyance or otherwise), receive notice of meetings, receive dividends or subscription rights, or otherwise. In addition, nothing contained in this Warrant shall be construed as imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a stockholder of the Company, whether such liabilities are asserted by the Company or by creditors of the Company. Notwithstanding this Section 9, the Company shall provide the Holder with copies of the same notices and other information given to the stockholders of the Company generally, contemporaneously with the giving thereof to the stockholders.

10. Replacement on Loss; Division and Combination.

(a) Replacement of Warrant on Loss. Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and upon delivery of an indemnity reasonably satisfactory to it (it being understood that a written indemnification agreement or affidavit of loss of the Holder shall be a sufficient indemnity) and, in case of mutilation, upon surrender of such Warrant for cancellation to the Company, the Company at its own expense shall execute and deliver to the Holder, in lieu hereof, a new Warrant of like tenor and exercisable for an equivalent number of Warrant Shares as the Warrant so lost, stolen, mutilated or destroyed; provided, that, in the case of mutilation, no indemnity shall be required if this Warrant in identifiable form is surrendered to the Company for cancellation.

respective Holders or their agents or attorneys. Subject to compliance with the applicable provisions of this Warrant as to any transfer or assignment which may be involved in such division or combination, the Company shall at its own expense execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants so surrendered in accordance with such notice. Such new Warrant or Warrants shall be of like tenor to the surrendered Warrant or Warrants and shall be exercisable in the aggregate for an equivalent number of Warrant Shares as the Warrant or Warrants so surrendered in accordance with such notice.

11. No Impairment. The Company shall not, by amendment of its Certificate of Incorporation or Bylaws, or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed by it hereunder, but shall at all times in good faith assist in the carrying out of all the provisions of this Warrant and in the taking of all such action as may reasonably be requested by the Holder in order to protect the exercise rights of the Holder against dilution or other impairment, consistent with the tenor and purpose of this Warrant.

12. Compliance with the Securities Act.

(a) Agreement to Comply with the Securities Act; Legend. The Holder, by acceptance of this Warrant, agrees to comply in all respects with the provisions of this Section 12 and the restrictive legend requirements set forth on the face of this Warrant and further agrees that such Holder shall not offer, sell or otherwise dispose of this Warrant or any Warrant Shares to be issued upon exercise hereof except under circumstances that will not result in a violation of the Securities Act of 1933, as amended (the “Securities Act”). This Warrant and all Warrant Shares issued upon exercise of this Warrant (unless registered under the Securities Act) shall be stamped or imprinted with a legend in substantially the following form:

”THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR QUALIFIED UNDER ANY STATE OR FOREIGN SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR ASSIGNED UNLESS (I) A REGISTRATION STATEMENT COVERING SUCH SHARES IS EFFECTIVE UNDER THE ACT AND IS QUALIFIED UNDER APPLICABLE STATE AND FOREIGN LAW OR (II) THE TRANSACTION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS UNDER THE ACT AND THE QUALIFICATION REQUIREMENTS UNDER APPLICABLE STATE AND FOREIGN LAW AND, IF THE CORPORATION REQUESTS, AN OPINION SATISFACTORY TO THE CORPORATION TO SUCH EFFECT HAS BEEN RENDERED BY COUNSEL.”

(b) Representations of the Holder. In connection with the issuance of this Warrant, the Holder specifically represents, as of the date hereof, to the Company by acceptance of this Warrant as follows:

(i) The Holder is an “accredited investor” as defined in Rule 501 of Regulation D promulgated under the Securities Act. The Holder is acquiring this Warrant and the Warrant Shares to be issued upon exercise hereof for investment for its own account and not with a view towards, or for resale in connection with, the public sale or distribution of this Warrant or the Warrant Shares, except pursuant to sales registered or exempted under the Securities Act.

(ii) The Holder understands and acknowledges that this Warrant and the Warrant Shares to be issued upon exercise hereof are “restricted securities” under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that, under such laws and applicable regulations, such securities may be resold without registration under the Securities Act only in certain limited circumstances. In addition, the Holder represents that it is familiar with Rule 144 under the Securities Act, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act.

(iii) The Holder acknowledges that it can bear the economic and financial risk of its investment for an indefinite period, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Warrant and the Warrant Shares. The Holder has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Warrant and the business, properties, prospects and financial condition of the Company.

13. Representations and Warranties of the Company. The Company hereby represents and warrants to the Holder that (i) it has the corporate power and authority to execute this Warrant and consummate the transactions contemplated by this Warrant, (ii) there are no statutory or contractual stockholders’ preemptive rights or rights of refusal with respect to the issuance of any Warrants and (iii) the execution and delivery by the Company of this Warrant and the issuance of the Common Stock upon exercise of any Warrant do not and shall not (A) conflict with or result in a breach of the terms, conditions or provisions of, (B) constitute a default under, (C) result in the creation of any lien, security interest, charge or encumbrance upon the Company’s capital stock or assets pursuant to, (D) result in a violation of, or (E) require any authorization, consent, approval, exemption or other action by or notice or declaration to, or filing with, any court or administrative or governmental body or agency pursuant to, the Company’s certificate of incorporation or bylaws or any law in effect as of the date hereof to which the Company is subject, or any agreement, instrument, order, judgment or decree to which the Company is subject as of the date hereof, except for any such authorization, consent, approval, notice or exemption required under applicable securities laws.

14. Warrant Register. The Company shall keep and properly maintain at its principal executive offices books for the registration of the Warrant and any transfers thereof. The Company may deem and treat the Person in whose name the Warrant is registered on such register as the Holder thereof for all purposes, and the Company shall not be affected by any notice to the contrary, except any assignment, division, combination or other transfer of the Warrant effected in accordance with the provisions of this Warrant.

15. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses indicated below (or at such other address for a party as shall be specified in a notice given in accordance with this Section 15).


If to the Company:		EVO Transportation & Energy Services, Inc 8285 West Lake Pleasant Parkway, Peoria, AZ, USA, 85382 Facsimile: 623-777-1408 E-mail: smays@evotransinc.com Attention: Shirley Mays, General Counsel

If to the Holder:		Antara Capital LP 500 Fifth Avenue, Suite 2320 New York, New York 10110

with a copy to:		Milbank LLP 2029 Century Park East, 33^rd Floor Los Angeles, CA 90067 Attention: Adam Moses E-mail: amoses@milbank.com

16. Cumulative Remedies. Except to the extent expressly provided in Section 8 to the contrary, the rights and remedies provided in this Warrant are cumulative and are not exclusive of, and are in addition to and not in substitution for, any other rights or remedies available at law, in equity or otherwise.

17. Equitable Relief. Each of the Company and the Holder acknowledges that a breach or threatened breach by such party of any of its obligations under this Warrant would give rise to irreparable harm to the other party hereto for which monetary damages would not be an adequate remedy and hereby agrees that in the event of a breach or a threatened breach by such party of any such obligations, the other party hereto shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction.

18. Entire Agreement. This Warrant constitutes the sole and entire agreement of the parties to this Warrant with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.

19. Successor and Assigns. This Warrant and the rights evidenced hereby shall be binding upon and shall inure to the benefit of the parties hereto and the successors of the Company and the successors and permitted assigns of the Holder. Such successors and/or permitted assigns of the Holder shall be deemed to be a Holder for all purposes hereunder.

20. No Third-Party Beneficiaries. This Warrant is for the sole benefit of the Company and the Holder and their respective successors and, in the case of the Holder, permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Warrant.

21. Headings. The headings in this Warrant are for reference only and shall not affect the interpretation of this Warrant.

22. Amendment and Modification; Waiver. Except as otherwise provided herein, this Warrant may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by the Company or the Holder of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Warrant shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

23. Severability. If any term or provision of this Warrant is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Warrant or invalidate or render unenforceable such term or provision in any other jurisdiction.

24. Governing Law. This Warrant shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of New York.

25. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or based upon this Warrant or the transactions contemplated hereby may be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in the city of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by certified or registered mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

26. Waiver of Jury Trial. Each party acknowledges and agrees that any controversy which may arise under this Warrant is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Warrant or the transactions contemplated hereby.

27. Counterparts. This Warrant may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Warrant delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Warrant.

28. No Strict Construction. This Warrant shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.

29. Investment Unit. The parties hereto agree (i) to treat the Financing Agreement, dated as of the date hereof, by and among, Antara Capital Master Fund LP (“Antara”), the Company, Cortland Capital Market Services LLC, as administrative agent and collateral agent, and the banks, financial institutions and other entities from time to time party thereto (the “Loan”), this Warrant and the other warrant issued by the Company to the Holder on the date hereof (the “Other Warrant”) as having been issued as an “investment unit” within the meaning of Section 1273(c)(2) of the U.S. Internal Revenue Code of 1986, as amended as of the date hereof (the “Code”), (ii) solely for purposes of Section 1273(c)(2) of the Code, to treat the portion of the amount advanced under the Loan on the date hereof that is paid for this Warrant and the Other Warrant as equal to the amount determined by Antara and, correspondingly, the Loan as having been issued with additional original issue discount for U.S. federal income tax purposes consistent with such allocation, and (iii) to not take any tax position inconsistent with such tax characterization. Antara shall notify the Company of the amount allocated to this Warrant and the Other Warrant pursuant to clause (ii) hereof within 60 days of the date hereof.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the Company has duly executed this Warrant on the Original Issue Date.


EVO TRANSPORTATION & ENERGY SERVICES, INC.



By:		/s/ John P. Yeros
Name: John P. Yeros
Title: CEO


Accepted and agreed,

Antara Capital Master Fund LP

By:		Antara Capital LP
not in its individual corporate capacity, but solely as Investment Advisor and agent

By:		Antara Capital GP LLC, its general partner

By:		/s/ Himanshu Gulati
Name: Himanshu Gulati
Title: Managing Member of Antara Capital LP

[Signature Page to Warrant]

EXHIBIT A

EXERCISE FORM

(To be executed upon exercise of Warrant(s))

The undersigned is the Holder of the attached Warrant (the “Warrant”) dated [●], issued by EVO Transportation & Energy Services, Inc., a Delaware corporation (the “Company”). Capitalized terms not otherwise defined in this Exercise Form shall have the meanings ascribed to such terms in the Warrant.

The undersigned hereby irrevocably elects to exercise the Warrant to purchase [●] shares of Common Stock for a purchase price of [●] per share.

If said number of Warrant Shares shall not be all the Warrant Shares issuable upon exercise of the Warrant, the undersigned requests that a new Warrant representing the balance of such Warrant shall be issued in the name of the undersigned Holder and delivered to the address of the Holder set forth in Section 12 of the Warrant.

The Holder hereby instructs the Company to deliver the shares to the following:

[details of account(s), names(s) and address(es) of any person(s) into whose name the shares is to be registered and/or any bank, broker or agent to whom documents evidencing the shares are to be delivered]


Dated:



Antara Capital Master Fund LP

By:		Antara Capital LP
not in its individual corporate capacity, but solely as Investment Advisor and agent

By:		Antara Capital GP LLC, its general partner

By:
Name:
Title:

EXHIBIT B

ASSIGNMENT FORM

FOR VALUE RECEIVED, the undersigned registered owner of the attached warrant (the “Warrant”) dated [●], issued by EVO Transportation & Energy Services, Inc., a Delaware corporation (the “Company”), hereby sells, assigns and transfers unto the assignee named below (the “Assignee”) all of the rights of the undersigned under the Warrant, with respect to the number of shares of Common Stock set forth below:


Name of Assignee		Address		No. of Shares

and does hereby irrevocably constitute and appoint ____________________ Attorney to make such transfer on the books of _____________ maintained for the purpose, with full power of substitution in the premises.

The undersigned also represents that, by assignment hereof, the Assignee acknowledges that this Warrant and the shares of stock to be issued upon exercise hereof or conversion thereof are being acquired for investment and that the Assignee will not offer, sell or otherwise dispose of this Warrant or any shares of stock to be issued upon exercise hereof or conversion thereof except under circumstances which will not result in a violation of applicable securities laws. Further, the Assignee has acknowledged that upon exercise of this Warrant, the Assignee shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the shares of stock so purchased are being acquired for investment and not with a view toward distribution or resale.

DATED: _____________________


Antara Capital Master Fund LP

By:		Antara Capital LP
not in its individual corporate capacity, but solely as Investment Advisor and agent

By:		Antara Capital GP LLC, its general partner

By:
Name:
Title:

EX-99.3 3 d812632dex993.htm EX-99.3 EX-99.3

Exhibit 3

WARRANT

Warrant Certificate No.: 38

Original Issue Date: September 16, 2019

FOR VALUE RECEIVED, EVO Transportation & Energy Services, Inc., a Delaware corporation (the “Company”), hereby certifies that Corbin ERISA Opportunity Fund Ltd, any of its affiliates or its registered assigns (the “Holder”) is entitled to purchase from the Company seventy thousand five hundred and eight (70,508) duly authorized, validly issued, fully paid and nonassessable shares of Common Stock at a purchase price per share of $2.50 (the “Exercise Price”), all subject to the terms, conditions and adjustments set forth below in this Warrant. Certain capitalized terms used herein are defined in Section 1 hereof.

1. Definitions. As used in this Warrant, the following terms have the respective meanings set forth below:

“Board” means the board of directors of the Company.

“Business Day” means any day, except a Saturday, Sunday or legal holiday, on which banking institutions in New York are authorized or obligated by law or executive order to close.

other disposal of all or substantially all of the properties or assets or all or a majority of the outstanding voting securities of the Company, (iii) a purchase, tender or exchange offer accepted by the holders of a majority of the outstanding voting shares of capital stock of the Company directly or indirectly, in one or more related transactions, (iv) a “person” or “group” (as these terms are used for purposes of Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) is or shall become the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of at least a majority of the outstanding shares of Common Stock of the Company through a stock purchase agreement or other business combination (including, without limitation, a reorganization, reclassification, spin off or scheme of arrangement) with another person, or (v) the Company has elected to reorganize, recapitalize or reclassify its Common Stock (other than to change domicile).

“Company” has the meaning set forth in the preamble.

“Convertible Securities” means any securities (directly or indirectly) convertible into or exchangeable for Common Stock, but excluding Options.

“Exercise Form” has the meaning set forth in Section 4(a)(i).

“Exercise Period” has the meaning set forth in Section 2.

“Exercise Price” has the meaning set forth in the preamble.

“Holder” has the meaning set forth in the preamble.

“Nasdaq” means The NASDAQ Stock Market LLC.

“Options” means any warrants or other rights or options to subscribe for or purchase Common Stock or Convertible Securities.

“Original Issue Date” means September 16, 2019.

“OTC Bulletin Board” means the Financial Industry Regulatory Authority OTC Bulletin Board electronic inter-dealer quotation system.

“Pink OTC Markets” means the OTC Markets Group Inc. electronic inter-dealer quotation system, including OTCQX, OTCQB and OTC Pink.

“Warrant” means this Warrant and all warrants issued upon division or combination of, or in substitution for, this Warrant.

“Warrant Shares” means the shares of Common Stock or other capital stock of the Company then purchasable upon exercise of this Warrant in accordance with the terms of this Warrant.

4. Exercise of Warrant.

(a) Exercise Procedure. This Warrant may be exercised from time to time on any Business Day during the Exercise Period, for all or any part of the unexercised Warrant Shares, upon:

(ii) payment to the Company of the Aggregate Exercise Price in accordance with Section 4(b).

(b) Payment of the Aggregate Exercise Price. Payment of the Aggregate Exercise Price shall be made, at the option of the Holder as expressed in the Exercise Form, by the following methods:

(iii) any combination of the foregoing.

(c) Issuance of Warrant Shares. Upon receipt by the Company of the Exercise Form, surrender of this Warrant and payment of the Aggregate Exercise Price (in accordance with Section 4(a) hereof), the Company at its expense shall, as promptly as practicable, and in any event within three (3) Business Days thereafter, cause to be issued via book-entry in the name of the Holder or as the Holder may direct, the number of shares of Warrant Shares to which the Holder shall be entitled upon such exercise, together with cash in lieu of any fraction of a share, as provided in Section 4(d) hereof. This Warrant shall be deemed to have been exercised and such Warrant Shares shall be deemed to have been issued via book-entry, and the Holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such Warrant Shares for all purposes, as of the Exercise Date.

(f) Valid Issuance of Warrant and Warrant Shares; Payment of Taxes. With respect to the exercise of this Warrant, the Company hereby represents, covenants and agrees:

(i) This Warrant is, and any Warrant issued in substitution for or replacement of this Warrant shall be, upon issuance, duly authorized and validly issued.

X= (A - B) x C

where:

X =

the number of shares of Common Stock issuable upon exercise pursuant to this paragraph 4(g).

A =

B =

the Exercise Price.

C =

the number of shares of Common Stock as to which the applicable Warrants are exercisable (prior to payment of the Exercise Price).

(ii) (ii) the Exercise Price resulting from such adjustment.

(d) Effect of Certain Events on Adjustment to Exercise Price. For purposes of determining the adjusted Exercise Price under Section 5(a) hereof, the following shall be applicable:

(h) Certificate as to Adjustment.

(i) Notices. In the event:

(iii) of the voluntary or involuntary dissolution, liquidation or winding-up of the Company;

7. Preemptive Rights.

10. Replacement on Loss; Division and Combination.

12. Compliance with the Securities Act.

(b) Representations of the Holder. In connection with the issuance of this Warrant, the Holder specifically represents, as of the date hereof, to the Company by acceptance of this Warrant as follows:



If to the Company:		EVO Transportation & Energy Services, Inc 8285 West Lake Pleasant Parkway, Peoria, AZ, USA, 85382 Facsimile: 623-777-1408 E-mail: smays@evotransinc.com Attention: Shirley Mays, General Counsel

If to the Holder:		Antara Capital LP 500 Fifth Avenue, Suite 2320 New York, New York 10110

with a copy to:		Milbank LLP 2029 Century Park East, 33^rd Floor Los Angeles, CA 90067 Attention: Adam Moses E-mail: amoses@milbank.com

21. Headings. The headings in this Warrant are for reference only and shall not affect the interpretation of this Warrant.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the Company has duly executed this Warrant on the Original Issue Date.


EVO TRANSPORTATION & ENERGY SERVICES, INC.



By:		/s/ Damon Cuzick


Name: Damon Cuzick
Title: President


Accepted and agreed,

CORBIN ERISA OPPORTUNITY FUND LTD By: Antara Capital LP in its capacity as Investment Sub-Advisor; Its: Himanshu Gulati, Managing Member of Antara Capital LP



By:		/s/ Himanshu Gulati


Name: Antara Capital LP in its capacity as Investment Sub-Advisor;
Title: Himanshu Gulati, Managing Member of Antara Capital LP

[Signature Page to Warrant]

EXHIBIT A

EXERCISE FORM

(To be executed upon exercise of Warrant(s))

The undersigned hereby irrevocably elects to exercise the Warrant to purchase [●] shares of Common Stock for a purchase price of [•] per share.

The Holder hereby instructs the Company to deliver the shares to the following:


Dated:



CORBIN ERISA OPPORTUNITY FUND LTD



By:


Name:
Title:

EXHIBIT B

ASSIGNMENT FORM


Name of Assignee	Address	No. of Shares

and does hereby irrevocably constitute and appoint Attorney to make such transfer on the books of maintained for the purpose, with full power of substitution in the premises.

DATED:


CORBIN ERISA OPPORTUNITY FUND LTD



By:


Name:
Title:

EX-99.4 4 d812632dex994.htm EX-99.4 EX-99.4

Exhibit 4

WARRANT

Warrant Certificate No.: 37

Original Issue Date: September 16, 2019

FOR VALUE RECEIVED, EVO Transportation & Energy Services, Inc., a Delaware corporation (the “Company”), hereby certifies that Antara Capital Master Fund LP, a Delaware limited partnership, any of its affiliates or its registered assigns (the “Holder”) is entitled to purchase from the Company three million eighty-four thousand six hundred and seven (3,084,607) duly authorized, validly issued, fully paid and nonassessable shares of Common Stock at a purchase price per share of $0.01 (the “Exercise Price”), all subject to the terms, conditions and adjustments set forth below in this Warrant. Certain capitalized terms used herein are defined in Section 1 hereof.

1. Definitions. As used in this Warrant, the following terms have the respective meanings set forth below:

“Board” means the board of directors of the Company.

“Business Day” means any day, except a Saturday, Sunday or legal holiday, on which banking institutions in New York are authorized or obligated by law or executive order to close.

“Company” has the meaning set forth in the preamble.

“Convertible Securities” means any securities (directly or indirectly) convertible into or exchangeable for Common Stock, but excluding Options.

“Exercise Form” has the meaning set forth in Section 4(a)(i).

“Exercise Period” has the meaning set forth in Section 2.

“Exercise Price” has the meaning set forth in the preamble.

“Holder” has the meaning set forth in the preamble.

“Nasdaq” means The NASDAQ Stock Market LLC.

“Options” means any warrants or other rights or options to subscribe for or purchase Common Stock or Convertible Securities.

“Original Issue Date” means September 16, 2019.

“Original Price” has the meaning set forth in Section 5(a).

“OTC Bulletin Board” means the Financial Industry Regulatory Authority OTC Bulletin Board electronic inter-dealer quotation system.

“Pink OTC Markets” means the OTC Markets Group Inc. electronic inter-dealer quotation system, including OTCQX, OTCQB and OTC Pink.

“Warrant” means this Warrant and all warrants issued upon division or combination of, or in substitution for, this Warrant.

“Warrant Shares” means the shares of Common Stock or other capital stock of the Company then purchasable upon exercise of this Warrant in accordance with the terms of this Warrant.

2. Term of Warrant. Subject to the terms and conditions hereof, at any time or from time to time after the date hereof and prior to 5:00 p.m., New York City time, on September 16, 2024 (the “Exercise Period”), the Holder of this Warrant may exercise this Warrant for all or any part of the Warrant Shares purchasable hereunder (subject to adjustment as provided herein). The Company shall give the Holder written notice of the expiration of the Exercise Period not less than 30 days but not more than 60 days prior to the end of the Exercise Period.

3. Automatic Exercise. If, at the end of the Exercise Period, the Holder has remaining Warrant Shares subject to this Warrant (excluding Warrant Shares that the Holder has delivered a duly executed Exercise Form pursuant to Section 4(a)(i) hereof) and the Fair Market Value of the Common Stock is greater than the Exercise Price, then such Warrant Shares shall be automatically deemed to be exercised pursuant to a Cashless Exercise (as defined below) by the Holder immediately prior to the end of the Exercise Period. The Company will promptly thereafter issue to the Holder a stock certificate representing the Warrant Shares the Holder is entitled to at such time.

4. Exercise of Warrant.

(a) Exercise Procedure. This Warrant may be exercised from time to time on any Business Day during the Exercise Period, for all or any part of the unexercised Warrant Shares, upon:

(ii) payment to the Company of the Aggregate Exercise Price in accordance with Section 4(b).

(b) Payment of the Aggregate Exercise Price. Payment of the Aggregate Exercise Price shall be made, at the option of the Holder as expressed in the Exercise Form, by the following methods:

(iii) any combination of the foregoing.

(c) Issuance of Warrant Shares. Upon receipt by the Company of the Exercise Form, surrender of this Warrant and payment of the Aggregate Exercise Price (in accordance with Section 4(a) hereof), the Company at its expense shall, as promptly as practicable, and in any event within three (3) Business Days thereafter, cause to be issued via book-entry in the name of the Holder or as the Holder may direct, the number of shares of Warrant Shares to which the Holder shall be entitled upon such exercise, together with cash in lieu of any fraction of a share, as provided in Section 4(d) hereof. This Warrant shall be deemed to have been exercised and such Warrant Shares shall be deemed to have been issued via book-entry, and the Holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such Warrant Shares for all purposes, as of the Exercise Date.

(f) Valid Issuance of Warrant and Warrant Shares; Payment of Taxes. With respect to the exercise of this Warrant, the Company hereby represents, covenants and agrees:

(i) This Warrant is, and any Warrant issued in substitution for or replacement of this Warrant shall be, upon issuance, duly authorized and validly issued.

X= (A - B) x C

where:

X =

the number of shares of Common Stock issuable upon exercise pursuant to this paragraph 4(g).

A =

B =

the Exercise Price.

C =

the number of shares of Common Stock as to which the applicable Warrants are exercisable (prior to payment of the Exercise Price).

5. Adjustment to Number of Warrant Shares. In order to prevent dilution of the purchase rights granted under this Warrant, the number of Warrant Shares issuable upon exercise of this Warrant shall be subject to adjustment from time to time as provided in this Section 5 (in each case, after taking into consideration any prior adjustments pursuant to this Section 5).

(a) Adjustment to Number of Warrant Shares Upon Issuance of Common Stock. Except as provided in Section 5(b) and except in the case of an event described in either Section 5(d) or Section 5(e), if the Company shall, at any time or from time to time after the Original Issue Date, issue or sell, or in accordance with Section 5(c) is deemed to have issued or sold, any shares of Common Stock without consideration or for consideration per share less than $ 2.50 (as such amount is proportionately adjusted for stock splits, reverse stock splits, stock combinations, stock dividends and other distributions and recapitalizations affecting the Common Stock after the Original Issue Date, the “Original Price”), then immediately upon such issuance or sale (or deemed issuance or sale), the number of Warrant Shares issuable upon exercise of this Warrant immediately prior to any such issuance or sale (or deemed issuance or sale) shall be increased to a number of Warrant Shares equal to the product obtained by multiplying the number of Warrant Shares issuable upon exercise of this Warrant immediately prior to such issuance or sale (or deemed issuance or sale) by a fraction (which shall in no event be less than one):

(i) the numerator of which shall be the number of shares of Common Stock Deemed Outstanding immediately after such issuance or sale (or deemed issuance or sale); and

(ii) the denominator of which shall be the sum of (A) the number of shares of Common Stock Deemed Outstanding immediately prior to such issuance or sale (or deemed issuance or sale) plus (B) the aggregate number of shares of Common Stock which the aggregate amount of consideration, if any, received by the Company upon such issuance or sale (or deemed issuance or sale) would purchase at either the Original Price or, if the consideration per share in such issuance or sale (or deemed issuance or sale) is not less than the Original Price, the Fair Market Value per share of the Common Stock immediately prior to such issuance or sale (or deemed issuance or sale).

(b) Exceptions to Adjustment Upon Issuance of Common Stock. Anything herein to the contrary notwithstanding, there shall be no adjustment to the number of Warrant Shares issuable upon exercise of this Warrant with respect to any Excluded Issuance.

(c) Effect of Certain Events on Adjustment to Number of Warrant Shares. For purposes of determining the adjusted number of Warrant Shares under Section 5(a) hereof, the following shall be applicable:

(i) Issuance of Options. If the Company shall, at any time or from time to time after the Original Issue Date, in any manner grant or sell (whether directly or by assumption in a merger or otherwise) any Options, whether or not such Options or the right to convert or exchange any Convertible Securities issuable upon the exercise of such Options are immediately exercisable, and the price per share (determined as provided in this paragraph and in Section 5(c)(v)) for which Common Stock is issuable upon the exercise of such Options or upon the conversion or exchange of Convertible Securities issuable upon the exercise of such Options is less than the Original Price in effect immediately prior to the time of the granting or sale of such Options, then the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of Convertible Securities issuable upon the exercise of such Options shall be deemed to have been issued as of the date of granting or sale of such Options (and thereafter shall be deemed to be outstanding for purposes of adjusting the number of Warrant Shares under Section 5(a)), at a price per share equal to the quotient obtained by dividing (A) the sum (which sum shall constitute the applicable consideration received for purposes of Section 5(a)) of (x) the total amount, if any, received or receivable by the Company as consideration for the granting or sale of all such Options, plus (y) the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, plus (z), in the case of such Options which relate to Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable to the Company upon the issuance or sale of all such Convertible Securities and the conversion or exchange of all such Convertible Securities, by (B) the total maximum number of shares of Common Stock issuable upon the exercise of all such Options or upon the conversion or exchange of all Convertible Securities issuable upon the exercise of all such Options. Except as otherwise provided in Section 5(c)(iii), no further adjustment of the number of Warrant Shares shall be made upon the actual issuance of Common Stock or of Convertible Securities upon exercise of such Options or upon the actual issuance of Common Stock upon conversion or exchange of Convertible Securities issuable upon exercise of such Options.

(ii) Issuance of Convertible Securities. If the Company shall, at any time or from time to time after the Original Issue Date, in any manner grant or sell (whether directly or by assumption in a merger or otherwise) any Convertible Securities, whether or not the right to convert or exchange any such Convertible Securities is immediately exercisable, and the price per share (determined as provided in this paragraph and in Section 5(c)(v)) for which Common Stock is issuable upon the conversion or exchange of such Convertible Securities is less than the Original Price in effect immediately prior to the time of the granting or sale of such Convertible Securities, then the total maximum number of shares of Common Stock issuable upon conversion or exchange of the total maximum amount of such Convertible Securities shall be deemed to have been issued as of the date of granting or sale of such Convertible Securities (and thereafter shall be deemed to be outstanding for purposes of adjusting the number of Warrant Shares pursuant to Section 5(a)), at a price per share equal to the quotient obtained by dividing (A) the sum (which sum shall constitute the applicable consideration received for purposes of Section 5(a)) of (x) the total amount, if any, received or receivable by the Company as consideration for the granting or sale of such Convertible Securities, plus (y) the minimum aggregate amount of additional consideration, if any, payable to the Company upon the

conversion or exchange of all such Convertible Securities, by (B) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities. Except as otherwise provided in Section 5(c)(iii), no further adjustment of the number of Warrant Shares shall be made upon the actual issuance of Common Stock upon conversion or exchange of such Convertible Securities or by reason of the issue or sale of Convertible Securities upon exercise of any Options to purchase any such Convertible Securities for which adjustments of the number of Warrant Shares have been made pursuant to the other provisions of this Section 5(c).

(iii) Change in Terms of Options or Convertible Securities. Upon any change in any of (A) the total amount received or receivable by the Company as consideration for the granting or sale of any Options or Convertible Securities referred to in Section 5(c)(i) or Section 5(c)(ii) hereof, (B) the minimum aggregate amount of additional consideration, if any, payable to the Company upon the exercise of any Options or upon the issuance, conversion or exchange of any Convertible Securities referred to in Section 5(c)(i) or Section 5(c)(ii) hereof, (C) the rate at which Convertible Securities referred to in Section 5(c)(i) or Section 5(c)(ii) hereof are convertible into or exchangeable for Common Stock, or (D) the maximum number of shares of Common Stock issuable in connection with any Options referred to in Section 5(c)(i) hereof or any Convertible Securities referred to in Section 5(c)(ii) hereof (in each case, other than in connection with an Excluded Issuance), then (whether or not the original issuance or sale of such Options or Convertible Securities resulted in an adjustment to the number of Warrant Shares pursuant to this Section 5) the number of Warrant Shares issuable upon exercise of this Warrant at the time of such change shall be adjusted or readjusted, as applicable, to the number of Warrant Shares which would have been in effect at such time pursuant to the provisions of this Section 5 had such Options or Convertible Securities still outstanding provided for such changed consideration, conversion rate or maximum number of shares, as the case may be, at the time initially granted, issued or sold, but only if as a result of such adjustment or readjustment, the number of Warrant Shares issuable upon exercise of this Warrant is increased.

(iv) Treatment of Expired or Terminated Options or Convertible Securities. Upon the expiration or termination of any unexercised Option (or portion thereof) or any unconverted or unexchanged Convertible Security (or portion thereof) for which any adjustment (either upon its original issuance or upon a revision of its terms) was made pursuant to this Section 5 (including without limitation upon the redemption or purchase for consideration of all or any portion of such Option or Convertible Security by the Company), the number of Warrant Shares then issuable upon exercise of this Warrant shall forthwith be changed pursuant to the provisions of this Section 5 to the number of Warrant Shares which would have been in effect at the time of such expiration or termination had such unexercised Option (or portion thereof) or unconverted or unexchanged Convertible Security (or portion thereof), to the extent outstanding immediately prior to such expiration or termination, never been issued.

received by the Company therefor; (B) for consideration other than cash, the amount of the consideration other than cash received by the Company shall be the fair value of such consideration, except where such consideration consists of marketable securities, in which case the amount of consideration received by the Company shall be the market price (as reflected on any securities exchange, quotation system or association or similar pricing system covering such security) for such securities as of the end of business on the date of receipt of such securities; (C) for no specifically allocated consideration in connection with an issuance or sale of other securities of the Company, together comprising one integrated transaction, the amount of the consideration therefor shall be deemed to be the fair value of such portion of the aggregate consideration received by the Company in such transaction as is attributable to such shares of Common Stock, Options or Convertible Securities, as the case may be, issued in such transaction; or (D) to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefor shall be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock, Options or Convertible Securities, as the case may be, issued to such owners. The fair value of any consideration other than cash or marketable securities shall be determined in good faith jointly by the Board and the Holder; provided, that if the Board and the Holder are unable to agree on the fair value of any consideration other than cash or marketable securities within a reasonable period of time (not to exceed five (5) days from the Holder’s receipt of a certificate of adjustment pursuant to Section 5(g)(i) relating to the applicable issuance), such fair value shall be determined by a nationally recognized investment banking, accounting or valuation firm jointly selected by the Board and the Holder. The determination of such firm shall be final and conclusive, and the fees and expenses of such valuation firm shall be borne by the Company.

(vi) Record Date. For purposes of any adjustment to the number of Warrant Shares in accordance with this Section 5, in case the Company shall take a record of the holders of its Common Stock for the purpose of entitling them (A) to receive a dividend or other distribution payable in Common Stock, Options or Convertible Securities or (B) to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be; provided, that if before the distribution to its holders of Common Stock the Company legally abandons its plan to pay or deliver such dividend, distribution, subscription or purchase rights, then thereafter no adjustment shall be required by the taking of such record and any such adjustment previously made in respect thereof shall be rescinded and annulled.

(viii) Other Dividends and Distributions. Subject to the provisions of this Section 5(c), if the Company shall, at any time or from time to time after the Original Issue Date, make or declare, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or any other distribution (the “Distribution”) payable in securities of the Company (other than a dividend or distribution of shares of Common Stock, Options or Convertible Securities in respect of outstanding shares of Common Stock), cash or other property, then the Company shall distribute to the Holder of this Warrant as of the record date for such Distribution the Distribution that such Holder would have received had their Warrant been exercised in full immediately prior to such record date.

(d) Adjustment to Number of Warrant Shares Upon Dividend, Subdivision or Combination of Common Stock. If the Company shall, at any time or from time to time after the Original Issue Date, (i) pay a dividend or make any other distribution upon the Common Stock or any other capital stock of the Company payable in shares of Common Stock or in Options or Convertible Securities, or (ii) subdivide (by any stock split, recapitalization or otherwise) its outstanding shares of Common Stock into a greater number of shares, the number of Warrant Shares issuable upon exercise of this Warrant immediately prior to any such dividend, distribution or subdivision shall be proportionately increased. If the Company at any time combines (by combination, reverse stock split or otherwise) its outstanding shares of Common Stock into a smaller number of shares, the number of Warrant Shares issuable upon exercise of this Warrant immediately prior to such combination shall be proportionately decreased. Any adjustment under this Section 5(d) shall become effective at the close of business on the date the dividend, subdivision or combination becomes effective.

(e) Adjustment to Number of Warrant Shares Upon Reorganization, Reclassification, Consolidation or Merger. To the extent the Holder does not exercise its applicable rights under Section 4(h) hereof, if there is a (i) capital reorganization of the Company, (ii) reclassification of the stock of the Company (other than a change in par value or from par value to no par value or from no par value to par value or as a result of a stock dividend or subdivision, split-up or combination of shares), (iii) consolidation or merger of the Company with or into another Person, (iv) Change of Control or (v) other similar transaction (other than any such transaction covered by Section 5(d)), in each case, which entitles the holders of Common Stock to receive (either directly or upon subsequent liquidation) stock, securities or assets with respect to or in exchange for Common Stock, each Warrant shall, immediately after such reorganization, reclassification, consolidation, merger, sale or similar transaction, remain outstanding and shall thereafter, in lieu of or in addition to (as the case may be) the number of Warrant Shares then exercisable under this Warrant, be exercisable for the kind and number of shares of stock or other securities or assets of the Company or of the successor Person resulting from such transaction to which the Holder would have been entitled upon such reorganization, reclassification, consolidation, merger, sale or similar transaction if the Holder had exercised this Warrant in full immediately prior to the time of such reorganization, reclassification, consolidation, merger, sale or similar transaction and acquired the applicable number of Warrant Shares then issuable hereunder as a result of such exercise (without taking into account any limitations or restrictions on the exercisability of this Warrant); and, in such case, appropriate adjustment (in form and substance satisfactory to the Holder) shall be made with respect to the Holder’s rights under this Warrant to insure that the provisions of this Section 5 hereof shall thereafter be applicable, as nearly as possible, to this Warrant in relation to any shares of stock, securities or assets thereafter acquirable upon exercise of this Warrant. The provisions of this Section 5(e) shall similarly apply to successive reorganizations, reclassifications, consolidations,

mergers, sales or similar transactions. The Company shall not effect any such reorganization, reclassification, consolidation, merger, sale or similar transaction unless, prior to the consummation thereof, the successor Person (if other than the Company) resulting from such reorganization, reclassification, consolidation, merger, sale or similar transaction, shall assume, by written instrument substantially similar in form and substance to this Warrant and satisfactory to the Holder, the obligation to deliver to the Holder such shares of stock, securities or assets which, in accordance with the foregoing provisions, such Holder shall be entitled to receive upon exercise of this Warrant. Notwithstanding anything to the contrary contained herein, with respect to any corporate event or other transaction contemplated by the provisions of this Section 5(e), the Holder shall have the right to elect prior to the consummation of such event or transaction, to give effect to the exercise rights contained in Section 2 instead of giving effect to the provisions contained in this Section 5(e) with respect to this Warrant.

(f) Certain Events. If any event of the type contemplated by the provisions of this Section 5 but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features) occurs, then the Board shall make an appropriate adjustment in the number of Warrant Shares issuable upon exercise of this Warrant so as to protect the rights of the Holder in a manner consistent with the provisions of this Section 5; provided, that no such adjustment pursuant to this Section 5(f) shall decrease the number of Warrant Shares issuable as otherwise determined pursuant to this Section 5.

(g) Certificate as to Adjustment.

(i) As promptly as reasonably practicable following any adjustment of the number of Warrant Shares pursuant to the provisions of this Section 5, but in any event not later than five (5) Business Days thereafter, the Company shall furnish to the Holder a certificate of an executive officer setting forth in reasonable detail such adjustment and the facts upon which it is based and certifying the calculation thereof.

(ii) As promptly as reasonably practicable following the receipt by the Company of a written request by the Holder, but in any event not later than five (5) Business Days thereafter, the Company shall furnish to the Holder a certificate of an executive officer certifying the number of Warrant Shares or the amount, if any, of other shares of stock, securities or assets then issuable upon exercise of the Warrant.

(h) Notices. In the event:

(iii) of the voluntary or involuntary dissolution, liquidation or winding-up of the Company;

6. Purchase Rights. In addition to any adjustments pursuant to Section 5 above, if at any time the Company grants, issues or sells any shares of Common Stock, Options, Convertible Securities or rights to purchase stock, warrants, securities or other property pro rata to the record holders of Common Stock (the “Purchase Rights”), then the Holder shall be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder would have acquired if the Holder had held the number of Warrant Shares acquirable upon complete exercise of this Warrant immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights. Anything herein to the contrary notwithstanding, the Holder shall not be entitled to the Purchase Rights granted herein with respect to any Excluded Issuance.

7. Preemptive Rights.

9. Holder Not Deemed a Stockholder; Limitations on Liability. Except as otherwise specifically provided herein (including Section 5(c)(viii)), prior to the issuance to the Holder of the Warrant Shares to which the Holder is then entitled to receive upon the due exercise of this Warrant, the Holder shall not be entitled to vote or be deemed the holder of shares of capital stock of the Company for any purpose, nor shall anything contained in this Warrant be construed to confer upon the Holder, as such, any of the rights of a stockholder of the Company or any right to vote, give or withhold consent to any corporate action (whether any reorganization, issue of stock, reclassification of stock, consolidation, merger, conveyance or otherwise), receive notice of meetings or subscription rights, or otherwise. In addition, nothing contained in this Warrant shall be construed as imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a stockholder of the Company, whether such liabilities are asserted by the Company or by creditors of the Company. Notwithstanding this Section 9, the Company shall provide the Holder with copies of the same notices and other information given to the stockholders of the Company generally, contemporaneously with the giving thereof to the stockholders.

10. Replacement on Loss; Division and Combination.

(b) Division and Combination of Warrant. Subject to compliance with the applicable provisions of this Warrant as to any transfer or other assignment which may be involved in such division or combination, this Warrant may be divided or, following any such division of this Warrant, subsequently combined with other Warrants, upon the surrender of this Warrant or Warrants to the Company at its then principal executive offices, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the respective Holders or their agents or attorneys. Subject to compliance with the applicable provisions of this Warrant as to any transfer or assignment which may be involved in such division or combination, the Company shall at its own expense execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants so surrendered in accordance with such notice. Such new Warrant or Warrants shall be of like tenor to the surrendered Warrant or Warrants and shall be exercisable in the aggregate for an equivalent number of Warrant Shares as the Warrant or Warrants so surrendered in accordance with such notice.

12. Compliance with the Securities Act.

to be issued upon exercise hereof except under circumstances that will not result in a violation of the Securities Act of 1933, as amended (the “Securities Act”). This Warrant and all Warrant Shares issued upon exercise of this Warrant (unless registered under the Securities Act) shall be stamped or imprinted with a legend in substantially the following form:

(b) Representations of the Holder. In connection with the issuance of this Warrant, the Holder specifically represents, as of the date hereof, to the Company by acceptance of this Warrant as follows:


If to the Company:		EVO Transportation & Energy Services, Inc 8285 West Lake Pleasant Parkway, Peoria, AZ, USA, 85382 Facsimile: 623-777-1408 E-mail: smays@evotransinc.com Attention: Shirley Mays, General Counsel

If to the Holder:		Antara Capital LP 500 Fifth Avenue, Suite 2320 New York, New York 10110

with a copy to:		Milbank LLP 2029 Century Park East, 33^rd Floor Los Angeles, CA 90067 Attention: Adam Moses E-mail: amoses@milbank.com

21. Headings. The headings in this Warrant are for reference only and shall not affect the interpretation of this Warrant.

Internal Revenue Code of 1986, as amended as of the date hereof (the “Code”), (ii) solely for purposes of Section 1273(c)(2) of the Code, to treat the portion of the amount advanced under the Loan on the date hereof that is paid for this Warrant and the Other Warrant as equal to the amount determined by Antara and, correspondingly, the Loan as having been issued with additional original issue discount for U.S. federal income tax purposes consistent with such allocation, and (iii) to not take any tax position inconsistent with such tax characterization. Antara shall notify the Company of the amount allocated to this Warrant and the Other Warrant pursuant to clause (ii) hereof within 60 days of the date hereof.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the Company has duly executed this Warrant on the Original Issue Date.


EVO TRANSPORTATION & ENERGY SERVICES, INC.

By:		/s/ John P. Yeros
Name:		John P. Yeros
Title:		CEO


Accepted and agreed,

Antara Capital Master Fund LP

By: Antara Capital LP
not in its individual corporate capacity,
but solely as Investment Advisor and agent

By: Antara Capital GP LLC,
its general partner

By:		/s/ Himanshu Gulati
Name:		Himanshu Gulati
Title:		Managing Member of Antara Capital LP

[Signature Page to Warrant]

EXHIBIT A

EXERCISE FORM

(To be executed upon exercise of Warrant(s))

The undersigned hereby irrevocably elects to exercise the Warrant to purchase [●] shares of Common Stock for a purchase price of $0.01 per share.

The Holder hereby instructs the Company to deliver the shares to the following:


Dated:

Antara Capital Master Fund LP

By: Antara Capital LP
not in its individual corporate capacity,
but solely as Investment Advisor and agent

By: Antara Capital GP LLC, its general partner

By:
Name:
Title:

EXHIBIT B

ASSIGNMENT FORM

FOR VALUE RECEIVED, the undersigned registered owner of the attached warrant (the “Warrant”) dated [•], issued by EVO Transportation & Energy Services, Inc., a Delaware corporation (the “Company”), hereby sells, assigns and transfers unto the assignee named below (the “Assignee”) all of the rights of the undersigned under the Warrant, with respect to the number of shares of Common Stock set forth below:


Name of Assignee		Address		No. of Shares

DATED:


Antara Capital Master Fund LP

By: Antara Capital LP
not in its individual corporate capacity,
but solely as Investment Advisor and agent

By: Antara Capital GP LLC, its general partner

By:
Name:
Title:

EX-99.5 5 d812632dex995.htm EX-99.5 EX-99.5

Exhibit 5

WARRANT

Warrant Certificate No.: 39

Original Issue Date: September 16, 2019

FOR VALUE RECEIVED, EVO Transportation & Energy Services, Inc., a Delaware corporation (the “Company”), hereby certifies that Corbin ERISA Opportunity Fund Ltd, any of its affiliates or its registered assigns (the “Holder”) is entitled to purchase from the Company two hundred and sixty-five thousand three hundred and ninety-three (265,393) duly authorized, validly issued, fully paid and nonassessable shares of Common Stock at a purchase price per share of $0.01 (the “Exercise Price”), all subject to the terms, conditions and adjustments set forth below in this Warrant. Certain capitalized terms used herein are defined in Section 1 hereof.

1. Definitions. As used in this Warrant, the following terms have the respective meanings set forth below:

“Board” means the board of directors of the Company.

“Business Day” means any day, except a Saturday, Sunday or legal holiday, on which banking institutions in New York are authorized or obligated by law or executive order to close.

“Company” has the meaning set forth in the preamble.

“Convertible Securities” means any securities (directly or indirectly) convertible into or exchangeable for Common Stock, but excluding Options.

“Exercise Form” has the meaning set forth in Section 4(a)(i).

“Exercise Period” has the meaning set forth in Section 2.

“Exercise Price” has the meaning set forth in the preamble.

“Holder” has the meaning set forth in the preamble.

“Nasdaq” means The NASDAQ Stock Market LLC.

“Options” means any warrants or other rights or options to subscribe for or purchase Common Stock or Convertible Securities.

“Original Issue Date” means September 16, 2019.

“Original Price” has the meaning set forth in Section 5(a).

“OTC Bulletin Board” means the Financial Industry Regulatory Authority OTC Bulletin Board electronic inter-dealer quotation system.

“Pink OTC Markets” means the OTC Markets Group Inc. electronic inter-dealer quotation system, including OTCQX, OTCQB and OTC Pink.

“Warrant” means this Warrant and all warrants issued upon division or combination of, or in substitution for, this Warrant.

“Warrant Shares” means the shares of Common Stock or other capital stock of the Company then purchasable upon exercise of this Warrant in accordance with the terms of this Warrant.

3. Automatic Exercise. If, at the end of the Exercise Period, the Holder has remaining Warrant Shares subject to this Warrant (excluding Warrant Shares that the Holder has delivered a duly executed Exercise Form pursuant to Section 4(a)(i) hereof) and the Fair Market Value of the Common Stock is greater than the Exercise Price, then such Warrant Shares shall be automatically deemed to be exercised pursuant to a Cashless Exercise (as defined below) by the Holder immediately prior to the end of the Exercise Period. The Company will promptly thereafter issue to the Holder a stock certificate representing the Warrant Shares the Holder is entitled to at such time.

4. Exercise of Warrant.

(a) Exercise Procedure. This Warrant may be exercised from time to time on any Business Day during the Exercise Period, for all or any part of the unexercised Warrant Shares, upon:

(ii) payment to the Company of the Aggregate Exercise Price in accordance with Section 4(b).

(b) Payment of the Aggregate Exercise Price. Payment of the Aggregate Exercise Price shall be made, at the option of the Holder as expressed in the Exercise Form, by the following methods:

(iii) any combination of the foregoing.

(c) Issuance of Warrant Shares. Upon receipt by the Company of the Exercise Form, surrender of this Warrant and payment of the Aggregate Exercise Price (in accordance with Section 4(a) hereof), the Company at its expense shall, as promptly as practicable, and in any event within three (3) Business Days thereafter, cause to be issued via book-entry in the name of the Holder or as the Holder may direct, the number of shares of Warrant Shares to which the Holder shall be entitled upon such exercise, together with cash in lieu of any fraction of a share, as provided in Section 4(d) hereof. This Warrant shall be deemed to have been exercised and such Warrant Shares shall be deemed to have been issued via book-entry, and the Holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such Warrant Shares for all purposes, as of the Exercise Date.

(f) Valid Issuance of Warrant and Warrant Shares; Payment of Taxes. With respect to the exercise of this Warrant, the Company hereby represents, covenants and agrees:

(i) This Warrant is, and any Warrant issued in substitution for or replacement of this Warrant shall be, upon issuance, duly authorized and validly issued.

X= (A - B) x C

where:

X =

the number of shares of Common Stock issuable upon exercise pursuant to this paragraph 4(g).

A =

B =

the Exercise Price.

C =

the number of shares of Common Stock as to which the applicable Warrants are exercisable (prior to payment of the Exercise Price).

(i) the numerator of which shall be the number of shares of Common Stock Deemed Outstanding immediately after such issuance or sale (or deemed issuance or sale); and

(c) Effect of Certain Events on Adjustment to Number of Warrant Shares. For purposes of determining the adjusted number of Warrant Shares under Section 5(a) hereof, the following shall be applicable:

(i) Issuance of Options. If the Company shall, at any time or from time to time after the Original Issue Date, in any manner grant or sell (whether directly or by assumption in a merger or otherwise) any Options, whether or not such Options or the right to convert or exchange any Convertible Securities issuable upon the exercise of such Options are immediately exercisable, and the price per share (determined as provided in this paragraph and in Section 5(c)(v)) for which Common Stock is issuable upon the exercise of such Options or upon the conversion or exchange of Convertible Securities issuable upon the exercise of such Options is less than the Original Price in effect immediately prior to the time of the granting or sale of such Options, then the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of Convertible Securities issuable upon the exercise of such Options shall be deemed to have been issued as of the date of granting or sale of such Options (and thereafter shall be deemed to be outstanding for purposes of adjusting the number of Warrant Shares under Section 5(a)), at a price per share equal to the quotient obtained by dividing (A) the sum (which sum shall constitute the applicable consideration received for purposes of Section 5(a)) of (x) the total amount, if any, received or receivable by the Company as consideration for the granting or sale of all such Options, plus (y) the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, plus (z), in the case of such Options which relate to Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable to the Company upon the issuance or sale of all such Convertible Securities and the conversion or exchange of all such Convertible Securities, by (B) the total maximum number of shares of Common Stock issuable upon the exercise of all such Options or upon the conversion or exchange of all Convertible Securities issuable upon the exercise of all such Options. Except as otherwise provided in Section 5(c)(iii), no further adjustment of the number of Warrant Shares shall be made upon the actual issuance of Common Stock or of Convertible Securities upon exercise of such Options or upon the actual issuance of Common Stock upon conversion or exchange of Convertible Securities issuable upon exercise of such Options.

(iii) Change in Terms of Options or Convertible Securities. Upon any change in any of (A) the total amount received or receivable by the Company as consideration for the granting or sale of any Options or Convertible Securities referred to in Section 5(c)(i) or Section 5(c)(ii) hereof, (B) the minimum aggregate amount of additional consideration, if any, payable to the Company upon the exercise of any Options or upon the issuance, conversion or exchange of any Convertible Securities referred to in Section 5(c)(i) or Section 5(c)(ii) hereof, (C) the rate at which Convertible Securities referred to in Section 5(c)(i) or Section 5(c)(ii) hereof are convertible into or exchangeable for Common Stock, or (D) the maximum number of shares of Common Stock issuable in connection with any Options referred to in Section 5(c)(i) hereof or any Convertible Securities referred to in Section 5(c)(ii) hereof (in each case, other than in connection with an Excluded Issuance), then (whether or not the original issuance or sale of such Options or Convertible Securities resulted in an adjustment to the number of Warrant Shares pursuant to this Section 5) the number of Warrant Shares issuable upon exercise of this Warrant at the time of such change shall be adjusted or readjusted, as applicable, to the number of Warrant Shares which would have been in effect at such time pursuant to the provisions of this Section 5 had such Options or Convertible Securities still outstanding provided for such changed consideration, conversion rate or maximum number of shares, as the case may be, at the time initially granted, issued or sold, but only if as a result of such adjustment or readjustment, the number of Warrant Shares issuable upon exercise of this Warrant is increased.

(iv) Treatment of Expired or Terminated Options or Convertible Securities. Upon the expiration or termination of any unexercised Option (or portion thereof) or any unconverted or unexchanged Convertible Security (or portion thereof) for which any adjustment (either upon its original issuance or upon a revision of its terms) was made pursuant to this Section 5 (including without limitation upon the redemption or purchase for consideration of all or any portion of such Option or Convertible Security by the Company), the number of Warrant Shares then issuable upon exercise of this Warrant shall forthwith be changed pursuant to the provisions of this Section 5 to the number of Warrant Shares which would have been in effect at the time of such expiration or termination had such unexercised Option (or portion thereof) or unconverted or unexchanged Convertible Security (or portion thereof), to the extent outstanding immediately prior to such expiration or termination, never been issued.

(g) Certificate as to Adjustment.

(ii) As promptly as reasonably practicable following the receipt by the Company of a written request by the Holder, but in any event not later than five (5) Business Days thereafter, the Company shall furnish to the Holder a certificate of an executive officer certifying the number of Warrant Shares or the amount, if any, of other shares of stock, securities or assets then issuable upon exercise of the Warrant.

(h) Notices. In the event:

(iii) of the voluntary or involuntary dissolution, liquidation or winding-up of the Company;

7. Preemptive Rights.

9. Holder Not Deemed a Stockholder; Limitations on Liability. Except as otherwise specifically provided herein (including Section 5(c)(viii)), prior to the issuance to the Holder of the Warrant Shares to which the Holder is then entitled to receive upon the due exercise of this Warrant, the Holder shall not be entitled to vote or be deemed the holder of shares of capital stock of the Company for any purpose, nor shall anything contained in this Warrant be construed to confer upon the Holder, as such, any of the rights of a stockholder of the Company or any right to vote, give or withhold consent to any corporate action (whether any reorganization, issue of stock, reclassification of stock, consolidation, merger, conveyance or otherwise), receive notice of meetings or subscription rights, or otherwise. In addition, nothing contained in this Warrant shall be construed as imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a stockholder of the Company, whether such liabilities are asserted by the Company or by creditors of the Company. Notwithstanding this Section 9, the Company shall provide the Holder with copies of the same notices and other information given to the stockholders of the Company generally, contemporaneously with the giving thereof to the stockholders.

10. Replacement on Loss; Division and Combination.

12. Compliance with the Securities Act.

(b) Representations of the Holder. In connection with the issuance of this Warrant, the Holder specifically represents, as of the date hereof, to the Company by acceptance of this Warrant as follows:



If to the Company:		EVO Transportation & Energy Services, Inc 8285 West Lake Pleasant Parkway, Peoria, AZ, USA, 85382 Facsimile: 623-777-1408 E-mail: smays@evotransinc.com Attention: Shirley Mays, General Counsel

If to the Holder:		Antara Capital LP 500 Fifth Avenue, Suite 2320 New York, New York 10110

with a copy to:		Milbank LLP 2029 Century Park East, 33^rd Floor Los Angeles, CA 90067 Attention: Adam Moses E-mail: amoses@milbank.com

21. Headings. The headings in this Warrant are for reference only and shall not affect the interpretation of this Warrant.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the Company has duly executed this Warrant on the Original Issue Date.


EVO TRANSPORTATION & ENERGY SERVICES, INC.



By:		/s/ Damon Cuzick


Name: Damon Cuzick
Title: President


Accepted and agreed,

CORBIN ERISA OPPORTUNITY FUND LTD By: Antara Capital LP in its capacity as Investment Sub-Advisor; Its: Himanshu Gulati, Managing Member of Antara Capital LP



By:		/s/ Himanshu Gulati


Name: Antara Capital LP in its capacity as Investment Sub-Advisor;
Title: Himanshu Gulati, Managing Member of Antara Capital LP

[Signature Page to Warrant]

EXHIBIT A

EXERCISE FORM

(To be executed upon exercise of Warrant(s))

The undersigned hereby irrevocably elects to exercise the Warrant to purchase [●] shares of Common Stock for a purchase price of $0.01 per share.

The Holder hereby instructs the Company to deliver the shares to the following:


Dated:



CORBIN ERISA OPPORTUNITY FUND LTD



By:


Name:
Title:

EXHIBIT B

ASSIGNMENT FORM


Name of Assignee	Address	No. of Shares

and does hereby irrevocably constitute and appoint Attorney to make such transfer on the books of maintained for the purpose, with full power of substitution in the premises.

DATED:


CORBIN ERISA OPPORTUNITY FUND LTD



By:


Name:
Title:

EX-99.7 6 d812632dex997.htm EX-99.7 EX-99.7

Exhibit 7

VOTING AGREEMENT

THIS VOTING AGREEMENT (the “Agreement”) is entered into as of September 16, 2019 by and among those certain Shareholders of EVO Transportation & Energy Services, Inc. (the “Company”) listed on Schedule A (together with any subsequent Shareholders, or any transferees, who become parties hereto pursuant to Section 4.1 below, each a “Shareholder” and collectively, the “Shareholders) and Antara Capital Master Fund LP (“Antara”).

RECITALS:

WHEREAS, substantially concurrently with the execution and delivery of this Agreement, the Company will issue, on the date hereof, to Antara warrants to purchase an aggregate of 4,240,000 shares of common stock (“Common Stock”) (the “Warrants”);

WHEREAS, in connection with the issuance of the Warrants to Antara, the Company and Antara are entering into a Director Nomination Agreement (the “Nomination Agreement”) pursuant to which the Company agrees, among other things, to nominate for election to the board of directors of the Company (the “Board”) one individual designated by Antara to serve as a Board member (the “Antara Designee”), on the terms and conditions set forth in the Nomination Agreement; and

WHEREAS, the Shareholders and Antara wish to set forth certain understandings between such parties, including with respect to certain voting matters.

AGREEMENT:

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree hereto as follows:

ARTICLE 1. GENERAL.

1.1 Definitions. As used in this Agreement the following terms shall have the following respective meanings:

(a) “Affiliate” with respect to any Person, means (i) a Family Member of such Person or (ii) any other Person with regard to which such Person, directly or indirectly, controls, is controlled by or is commonly controlled. For purposes of the preceding sentence, “control” shall mean the power to direct the principal business management and activities of a Person, whether through ownership of voting securities, by agreement (including, without limitation, in connection with any voting trust, proxy arrangement or similar device), or otherwise.

(b) “Antara Group” means Antara and each Affiliate of Antara that acquires Equity Securities. Unless the Shareholders Group is otherwise notified in writing by Antara, Antara shall at all times serve as the designated representative to act on behalf of the Antara Group for purposes of this Agreement and shall have the sole power and authority to bind the Antara Group with respect to all provisions of this Agreement. The Shareholders Group shall be entitled to rely on all actions taken by Antara or such designee on behalf of the Antara Group.

- 1 -

(c) “Beneficial Owner” means, with respect to a security, a direct or indirect beneficial owner of such security within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934. The term “Beneficially Own” shall have a correlative meaning.

(d) “Equity Securities” means (i) any Common Stock or preferred stock of the Company, (ii) any security convertible into or exercisable or exchangeable for, with or without consideration, any Common Stock or preferred stock of the Company (including any option to purchase such a security), (iii) any security carrying any option, warrant or right to subscribe to or purchase any Common Stock or preferred stock of the Company or other security referred to in clause (ii), or (iv) any such option, warrant or right.

(e) “Family Member” means, with respect to any natural person, (i) any child, stepchild, grandchild or more remote issue, parent, stepparent, grandparent, spouse, domestic partner, sibling, child of sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, cousin and adoptive relationships or estate of such family member or (ii) any foundation, trust, family limited partnership, family limited liability company or other entity created and used for estate planning purposes, so long as any such foundation, trust, family limited partnership, family limited liability company or other entity is controlled by, for the benefit of, or owned by such natural person or one or more persons described in clause (i).

(f) “Shareholders Group” means each Shareholder and each and every Shareholder Transferee.

(g) “Shareholder Transferee” means each and every direct and indirect transferee of any Shareholder who acquired such shares in a Transfer and that is required to execute the joinder attached as Exhibit A pursuant to the terms of Section 4.1.

(h) “Transfer” means any sale, assignment, encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by request, devise or descent, or other transfer or disposition of any kind, including, but not limited to, transfers to receivers, levying creditors, trustees or receivers in bankruptcy proceedings or general assignees for the benefit of creditors, whether voluntary or by operation of law, directly or indirectly, of any Equity Securities.

(i) “Person” shall mean an individual, partnership, corporation, limited liability company, unincorporated organization, trust, joint venture, government agency, or other entity.

ARTICLE 2. VOTING.

2.1 Election of Directors. On all matters relating to the election of directors of the Company, the Shareholders Group agrees, for so long as this Agreement is in effect pursuant to Section 6.8 hereof, to vote all shares of Equity Securities (whether now owned or hereafter acquired) held by it (or shall consent pursuant to an action by written consent of stockholders of the Company) so as to elect to the Board the Antara Designee.

- 2 -

2.2 Replacement of Directors. In the event that a vacancy is created at any time by the death, permanent disability, retirement, resignation or removal (with or without cause) of an Antara Designee and the Antara Group shall have the right to designate a replacement to fill such vacancy pursuant to the terms of the Nomination Agreement, the Shareholders Group agrees to vote all shares of Equity Securities (whether now owned or hereafter acquired) held by it (or shall consent pursuant to an action by written consent of stockholders of the Company) so as to elect such replacement director to the Board (to the extent such a vote or consent is required).

ARTICLE 3. GRANT OF PROXY.

3.1 Upon the failure of any member of the Shareholders Group to vote Equity Securities owned by it in accordance with the terms of this Agreement, such member hereby grants to the Antara Group a proxy coupled with an interest in all Equity Securities owned by such member to vote all such Equity Securities in the manner provided in Article 2 hereof. Any proxy granted, or deemed to have been granted under this Section 3.1 shall be irrevocable until this Agreement terminates pursuant to its terms or this Section 3.1 is amended to remove such grant of proxy in accordance with Section 6.7 hereof. Notwithstanding anything to the contrary, the grant of proxy contained herein is limited solely to voting on the matters contained in Article 2 hereof related to the election and replacement of directors.

ARTICLE 4. COVENANT.

4.1 Each Shareholder agrees to cause each transferee that is an Affiliate of such Shareholder who acquires from such Shareholder Equity Securities (other than a transferee that already is party to this Agreement) pursuant to any Transfer to be subject to the terms of this Agreement by executing and delivering a joinder agreement, substantially in the form of Exhibit A hereto.

4.2 The parties to this Agreement acknowledge that the provisions set forth herein results in the formation of a group (the “Voting Group”) (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended, or any successor provision) comprising the Antara Group and the Shareholders Group, which Voting Group constitutes an Affiliate of the Antara Group. The Antara Group and the Shareholders Group each agree to make such beneficial ownership filings as may be required by the Securities and Exchange Commission, including any Schedule 13D or Schedule 13G filings or amendments thereto, which shall reflect the Antara Group or the Shareholders Group, as the case may be, as a member of such group.

ARTICLE 5. EFFECTIVENESS.

5.1 This Agreement shall be effective as of the date hereof.

ARTICLE 6. MISCELLANEOUS.

6.1 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of New York.

- 3 -

6.2 Jurisdiction; Venue; Service of Process.

(a) Jurisdiction. Each party to this Agreement, by its execution hereof, (i) hereby irrevocably submits to the exclusive jurisdiction of the U.S. District Court for the Southern District of New York or, if that court does not have subject matter jurisdiction, in any state court located in The City and County of New York and the respective appellate courts thereof for the purpose of any action, claims or suit between the parties arising in whole or in part under or in connection with this Agreement, (ii) hereby waives to the extent not prohibited by applicable law, and agrees not to assert, by way of motion, as a defense or otherwise, in any such action, claim or suit, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that any such action, claim or suit brought in one of the above-named courts should be dismissed on grounds of forum non conveniens, should be transferred or removed to any court other than one of the above-named courts, or should be stayed by reason of the pendency of some other proceeding in any other court other than one of the above-named courts, or that this Agreement or the subject matter hereof may not be enforced in or by such court, and (iii) hereby agrees not to commence any such action, claim or suit other than before one of the above-named courts. Notwithstanding the previous sentence a party may commence any action, claim or suit in a court other than the above-named courts solely for the purpose of enforcing an order or judgment issued by one of the above-named courts.

(b) Venue. Each party agrees that for any action, claim or suit between the parties arising in whole or in part under or in connection with this Agreement, such party shall bring actions, claims and suits either in the U.S. District Court for the Southern District of New York or in the Supreme Court of the State of New York, New York County located in the Borough of Manhattan. Each party further waives any claim and will not assert that venue should properly lie in any other location within the selected jurisdiction.

(c) Service of Process. Each party hereby (i) consents to service of process in any action, claim or suit between the parties arising in whole or in part under or in connection with this Agreement in any manner permitted by New York law, (ii) to the fullest extent permitted by law, agrees that service of process made in accordance with clause (i) or made by registered or certified mail, return receipt requested, at its address specified pursuant to Section 6.11, will constitute good and valid service of process in any such action, claim or suit and (iii) waives and agrees not to assert (by way of motion, as a defense, or otherwise) in any such action, claim or suit any claim that service of process made in accordance with clause (i) or (ii) does not constitute good and valid service of process.

6.3 WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, THE PARTIES HEREBY WAIVE, AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING IN WHOLE OR IN PART UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY

- 4 -

OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE ITS RIGHT TO TRIAL BY JURY IN ANY PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS AGREEMENT WILL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.

6.4 Specific Performance. Each of the parties acknowledges and agrees that the other parties would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached or violated. Accordingly, to the fullest extent permitted by law, each of the parties agrees that, without posting bond or other undertaking, the other parties will be entitled to an injunction or injunctions to prevent breaches or violations of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof in any action, claim or suit in addition to any other remedy to which it may be entitled, at law or in equity. Each party further agrees that, in the event of any action for specific performance in respect of such breach or violation, it will not assert that the defense that a remedy at law would be adequate.

6.5 Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subjects hereof and no party shall be liable or bound to any other in any manner by any oral or written representations, warranties, covenants and agreements except as specifically set forth herein and therein. Each party expressly represents and warrants that it is not relying on any oral or written representations, warranties, covenants or agreements outside of this Agreement.

6.6 Severability. In the event one or more of the provisions of this Agreement should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.

6.7 Amendment and Waiver. Except as otherwise expressly provided, this Agreement may be amended or modified only upon the written consent of (i) the Antara Group and (ii) Shareholders Group.

6.8 Termination. Except as otherwise specified herein, this Agreement shall continue in full force and effect from the date hereof but shall terminate on the date when Antara no longer has the right to nominate for election to the Board the Antara Designee pursuant to the terms of the Nomination Agreement.

6.9 No Circumvention. None of (i) the Antara Group and (ii) the Shareholders nor any of their respective successors, assigns, transferees or Affiliates shall take (or permit or acquiesce to) any action to circumvent any of the rights under this Agreement inuring to the benefit of the others.

- 5 -

6.10 Delays or Omissions. It is agreed that no delay or omission to exercise any right, power, or remedy accruing to any party, upon any breach, default or noncompliance by another party under this Agreement shall impair any such right, power, or remedy, nor shall it be construed to be a waiver of any such breach, default or noncompliance, or any acquiescence therein, or of any similar breach, default or noncompliance thereafter occurring. It is further agreed that any waiver, permit, consent, or approval of any kind or character on any party’s part of any breach, default or noncompliance under the Agreement or any waiver on such party’s part of any provisions or conditions of this Agreement must be in writing and shall be effective only to the extent specifically set forth in such writing.

6.11 Notices. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by electronic mail or facsimile if sent during normal business hours of the recipient, if not, then on the next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery. All communications shall be sent to the party to be notified at the address as set forth in this Section 6.11 or the signature pages to the joinder agreement substantially in the form of Exhibit A hereto or at such other address as such party may designate by ten (10) days advance written notice to the other parties hereto.

(a) if to the Shareholders, to:

The addresses set forth on the signature pages of this Agreement.

(b) if to Antara or the Antara Group, to:

c/o Antara Capital LP

500 Fifth Avenue, Suite 2320

New York, NY 10110]

with a copy which shall not constitute notice to:

Milbank LLP

2029 Century Park East, 33^rd Floor

Los Angeles, CA 90067

Attention: Adam Moses

Email: amoses@milbank.com

6.12 Titles and Subtitles. The titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.

6.13 Counterparts. This Agreement may be executed in any number of counterparts, including facsimile or electronic (.PDF) counterparts, each of which shall be an original, but all of which together shall constitute one instrument.

6.14 Pronouns. All pronouns contained herein, and any variations thereof, shall be deemed to refer to the masculine, feminine or neutral, singular or plural, as to the identity of the parties hereto may require.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

- 6 -

IN WITNESS WHEREOF, the parties hereto have executed this VOTING AGREEMENT as of the date set forth in the first paragraph hereof.

SHAREHOLDERS

/s/ Danny Cuzick

Name: Danny Cuzick

Address:

[Signature Page to Voting Agreement]

/s/ John Lampsa

Name: John Lampsa

Address:

[Signature Page to Voting Agreement]

/s/ John Sheehy

Name : John Sheehy

Address:

[Signature Page to Voting Agreement]

/s/ James Finkle

Name: James Finkle

Address:

[Signature Page to Voting Agreement]

/s/ Clifford Finkle

Name: Clifford Finkle

Address:

[Signature Page to Voting Agreement]

/s/ Michael Ritter

Name: Michael Ritter

Address:

[Signature Page to Voting Agreement]

/s/ Matt Ritter

Name: Matt Ritter

Address:

[Signature Page to Voting Agreement]

Name: Jerry Moyes

Address:

[Signature Page to Voting Agreement]

/s/ Trey Peck

Name: Trey Peck

Address:

[Signature Page to Voting Agreement]

John P. Yeros & Laura R. Yeros, JTWROS

/s/ John P. Yeros

Name: John P. Yeros

Address:

/s/ Laura R. Yeros

Name: Laura R. Yeros

Address:

[Signature Page to Voting Agreement]


Antara Capital Master Fund LP

	By: Antara Capital LP not in its individual corporate capacity, but solely as Investment Advisor and agent

		By: Antara Capital GP LLC, its general partner

	By:	/s/ Himanshu Gulati
	Name:	Himanshu Gulati
	Title:	Managing Member of Antara Capital LP
	Date:

[Signature Page to Voting Agreement]

EVO Transportation & Energy Services, Inc.

/s/ John P Yeros

Name: John P Yeros

Its: CEO

Address:

[Signature Page to Voting Agreement]

SCHEDULE A


Name of Beneficial Owner	Number of Shares Beneficially Owned
Danny Cuzick		10,533,000
John Lampsa		800,000
John Sheehy		2,420,000
Cliff Finkle and James Finkle		1,250,000
Michael and Matt Ritter		2,428,014
Jerry Moyes		2,000,000
Trey Peck		1,499,999
John P Yeros & Laura R Yeros Jtwros		1,274,650

EXHIBIT A

FORM OF JOINDER AGREEMENT FOR A SHAREHOLDER TRANSFEREE

This JOINDER AGREEMENT (this “Joinder Agreement”) is executed pursuant to the terms of the Voting Agreement, dated as of September 16, 2019, by and between Antara Capital Master Fund LP (“Antara”) and the shareholder parties thereto, a copy of which is attached hereto and is incorporated herein by reference (the “Voting Agreement”), by the undersigned (the “Shareholder Transferee”). Capitalized terms used but not defined herein have the meanings set forth in the Voting Agreement. By execution and delivery of this Joinder Agreement, the Shareholder Transferee agrees as follows:

SECTION 1. Acknowledgment. The Shareholder Transferee acknowledges that such Shareholder Transferee has acquired Equity Securities from a Shareholder or a Shareholder Transferee pursuant to a Transfer.

SECTION 2. Agreement. The Shareholder Transferee (a) agrees that the Equity Securities it owns shall be bound by and subject to the terms of the Voting Agreement to the same extent as if such Shareholder Transferee were an original party to the Voting Agreement and (b) shall constitute a member of the “Shareholders Group” under the Voting Agreement.

SECTION 3. Notice. Any notice required to be provided by the Voting Agreement shall be given to the Shareholder Transferee at the address listed beside such Shareholder Transferee’s signature below.

SECTION 4. Governing Law. This Joinder Agreement and the rights of the parties hereto shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed therein, without giving effect to the conflict of laws principles thereof.


Executed and dated this day of.

Shareholder Transferee:

[INSERT NAME]

By:

Address for Notices:

E-mail Address for Notices:

EX-99.9 7 d812632dex999.htm EX-99.9 EX-99.9

Exhibit 9

PRIVATE & CONFIDENTIAL

LETTER AGREEMENT


From:		EVO Transportation & Energy Services, Inc. (“EVO” or the “Company”)

To:		Antara Capital Master Fund LP (“Antara”)

Ladies and Gentlemen,

Reference is made to that certain Financing Agreement, dated as of the date hereof, by and among, Antara, EVO, Cortland Capital Market Services LLC, as administrative agent and collateral agent, and the banks, financial institutions and other entities from time to time party thereto (the “Financing Agreement”).

Pursuant to Section 5.19 of the Financing Agreement, the Company has agreed to use commercially reasonable efforts to consummate the sale of newly issued shares of common equity of the Company on market terms for aggregate gross proceeds of at least $10,000,000.00. In furtherance of such efforts, the Company and Antara wish to enter into this Agreement regarding the purchase of shares of common equity of the Company by Antara, subject to the terms and conditions set forth herein.

In consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

Purchase and Sale. Subject to the terms and conditions set forth in this letter agreement (this “Agreement”), at the Closing (as defined below), the Company shall sell to Antara, and Antara shall purchase from the Company, a number of shares of common stock, par value $0.0001 per share, of the Company (“Common Stock”) equal to (a) the Commitment Amount (as defined below) divided by (b) the Per Share Price (such shares, as adjusted pursuant to the following proviso, the “Purchased Shares”); provided, however, that in no event shall Antara acquire, and the Company shall not sell to Antara, shares of Common Stock that would result in any non-U.S. entity managed, advised or controlled by Antara and that is treated as a corporation for U.S. tax purposes being treated as owning more than 9.9% of the total combined voting power of all classes of stock of the Company after giving effect to the Closing, such percentage to be calculated by Antara, in its sole discretion, in accordance with the principals used in determining whether a holder is a “10-percent shareholder” for purposes of Internal Revenue Code Section 871(h)(3). The aggregate purchase price for the Purchased Shares shall be an amount equal to (1) the number of Purchased Shares multiplied by (2) the Per Share Price.

For purposes of this Agreement, (a) “Commitment Amount” means (i) if the Per Share Price is equal to or less than $2.50, $2,000,000.00 and (ii) if the Per Share Price is greater than $2.50, an amount equal to (A) $2,000,000.00 minus (B) $4,000.00 for each $0.01 by which the Per Share Price exceeds $2.50, (b) “Equity Offerings” means one or more public or private offerings of shares of Common Stock, consummated subsequent to the date of this Agreement and prior to the date that is six months after the date of this Agreement (the “End Date”), as contemplated by Section 5.19 of the Financing Agreement, and (c) “Per Share Price” means the lowest price per share paid by a purchaser of shares of Common Stock in the Equity Offerings.

Closing. Subject to the terms and conditions of this Agreement, the purchase and sale of the Purchased Shares contemplated by this Agreement shall take place at a closing (the “Closing”) to be held at 9:00 a.m., New York City time, no later than five business days after the last of the conditions to Closing set forth in Section 5 has been satisfied or waived (other than conditions which, by their nature, are to be satisfied on the Closing Date), remotely by electronic mail and/or facsimile, or at such other time or on such other date or at such other place or by such other method as the Company and Antara may mutually agree upon in writing (the day on which the Closing takes place being the “Closing Date”).

Representations and Warranties of the Company. The Company hereby represents and warrants to Antara that (a) it has the corporate power and authority to execute this Agreement and consummate the transactions contemplated by this Agreement, (b) there are no statutory or contractual stockholders’ preemptive rights or rights of refusal with respect to the issuance of the Purchased Shares, (c) the execution and delivery by the Company of this Agreement and the issuance of the Purchased Shares do not and shall not (i) conflict with or result in a breach of the terms, conditions or provisions of, (ii) constitute a default under, (iii) result in the creation of any lien, security interest, charge or encumbrance upon the Company’s capital stock or assets pursuant to, (iv) result in a violation of, or (v) require any authorization, consent, approval, exemption or other action by or notice or declaration to, or filing with, any court or administrative or governmental body or agency pursuant to, the Company’s certificate of incorporation or bylaws or any law in effect as of the date hereof to which the Company is subject, or any agreement, instrument, order, judgment or decree to which the Company is subject as of the date hereof, except for any such authorization, consent, approval, notice or exemption required under applicable securities laws, (d) the authorized capital stock of the Company consists of 100,000,000 shares of Common Stock and 10,000,000 shares of preferred stock, $0.0001 par value, of the Company (“Preferred Stock”), (e) as of the date of this Agreement, 14,325,636 shares of Common Stock were outstanding, and 100,000 shares of Preferred Stock were outstanding, (f) as of the date of this Agreement, 5,069,250 shares of Common Stock are subject to options issued pursuant to employee benefit plans of the Company and 8,853,895 shares of Common Stock are subject to warrants issued by the Company, and (g) upon the expected closing of the Jerry Moyes CNG truck transaction, the Company expects 1,174,800 shares to be issued.

Representations and Warranties of Antara. Antara hereby represents and warrants to the Company that, as of the date hereof: (a) it is an “accredited investor” as defined in Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”); (b) it is acquiring the Purchased Shares to be issued upon the Closing for investment for its own account and not with a view towards, or for resale in connection with, the public sale or distribution of the Purchased Shares, except pursuant to sales registered or exempted under the Securities Act; (c) it understands and acknowledges that the Purchased Shares will be “restricted securities” under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that, under such laws and applicable regulations, such securities may be resold without registration under the Securities Act only in certain limited circumstances; (d) it can bear the economic and financial risk of its investment for an indefinite period, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Purchased Shares; and (e) it has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Purchased Shares and the business, properties, prospects and financial condition of the Company.

5.	Conditions to Closing.

Conditions to Obligations of All Parties. The obligations of each party to consummate the transactions contemplated by this Agreement shall be subject to the satisfaction, at or prior to the Closing, of the following conditions: (i) no governmental authority shall have enacted, issued, promulgated, enforced or entered any order, writ, judgment, injunction, decree, stipulation, determination or award, which is in effect and has the effect of making the transactions contemplated by this Agreement illegal, otherwise restraining or prohibiting consummation of such transactions or causing any of the transactions contemplated hereunder to be rescinded following completion thereof; and (ii) there shall not be pending any suit, action or proceeding by any governmental authority seeking to restrain, prohibit, preclude or enjoin the transactions contemplated by this Agreement.

Conditions to the Obligations of Antara. The obligations of Antara to consummate the transactions contemplated by this Agreement shall be subject to the satisfaction, at or prior to the Closing, of each of the following conditions: (i) the Company shall have received aggregate gross proceeds from the Equity Offerings from persons other than Antara (or its affiliates, managed accounts or co-investors) of at least $8,000,000.00; (ii) the Company and Antara shall have entered into a registration rights agreement in a customary and negotiated form reasonably acceptable to the Company and Antara, but in any event containing (A) piggyback registration rights affording Antara to include any shares of Common Stock (or securities convertible into or exercisable for shares of Common Stock) held by Antara (“Registrable Securities”) for resale in any registration statement that the Company files with the Securities Exchange Commission under the Securities Act and (B) demand registration rights with respect to any Registrable Securities that have not been registered pursuant to the exercise of the rights described in clause (A) within one year following the Closing; (iii) the representations and warranties of the Company set forth in this Agreement shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date, and the Company shall have delivered to Antara a certificate executed by an executive officer of the Company certifying to such effect; and (iv) the Company shall have delivered, or caused to be delivered, the Purchased Shares in book-entry form and registered in the name of Antara (or its assignee) with the transfer agent of the Company.

Conditions to the Obligations of the Company. The obligations of the Company to consummate the transactions contemplated by this Agreement shall be subject to the satisfaction, at or prior to the Closing, of each of the following conditions: (i) the representations and warranties of Antara set forth in this Agreement shall be true in correct in all material respects as of the Closing Date, and Antara shall have delivered to the Company a certificate executed by an officer of Antara certifying to such effect; and (ii) Antara shall have delivered, or caused to be delivered, on or prior to the Closing Date, the Aggregate Purchase Price by wire transfer of immediately available funds to an account designated by the Company at least three business days prior to the Closing Date.

6.	Termination. This Agreement may be terminated prior to the Closing by mutual written agreement of the Company and Antara. In addition, this Agreement shall automatically terminate if the conditions to the Closing set forth in Sections 5.a and 5.b have not been satisfied by the End Date.

7.	Counterparts. This Agreement may be executed and delivered (including by electronic transmission) in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.

Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation or in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.

9.	Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without reference to conflict of law principles, including all matters of construction, validity and performance.

10.

Submission to Jurisdiction. Any state or federal court sitting in New York, New York will retain exclusive jurisdiction to enforce the terms of this Agreement and to decide any claims or disputes which may arise or result from, or be connected with, this Agreement. Any and all judicial, administrative or arbitral actions, suits, proceedings (public or private), investigations, claims or demands (collectively, “Legal Proceedings”) related to the foregoing will be filed and maintained only in New York state or federal court, and the parties hereby consent to and submit to the jurisdiction and venue of such New York state or federal court for such purposes. The parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum for the maintenance of such dispute. Each of the parties agrees that a judgment in any such Legal Proceeding may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by any federal, state, local or foreign law, statute, directive, code, ordinance, rule or regulation, binding interpretations or common law requirement.

11.

Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, legal representatives, successors and permitted assigns. EVO may not assign this agreement without the prior written consent of Antara. Antara and its successors and assigns may freely assign this Agreement.

12.	Headings. Headings are for convenience only and shall not affect the interpretation of this Agreement.

13.	Further Assurances. Each of the parties agrees that it will take such actions and execute such additional documents as may be reasonably requested by the other party in order to effectuate more fully the purposes and intent of this Agreement.

14.

Specific Performance. In the event of any actual or threatened default in, or breach of, any of the terms, conditions and provisions of this Agreement, the party who is or is to be thereby aggrieved will have the right of specific performance and injunctive relief giving effect to its or their rights under this Agreement, in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies will be cumulative. The parties agree that any such breach or threatened breach would cause irreparable injury, that the remedies at law for any such breach or threatened breach, including monetary damages, are inadequate compensation for any loss and that any defense in any action for specific performance that a remedy at law would be adequate is waived.

[REMAINDER OF PAGE HAS INTENTIONALLY BEEN LEFT BLANK]

Please acknowledge receipt hereof and agreement with the terms embodied herein by signing in the space provided below and returning a fully executed copy of this Agreement to the undersigned as soon as possible.


Very truly yours,

EVO TRANSPORTATION & ENERGY SERVICES, INC.



By:		/s/ John Yeros


Name: John Yeros
Title: Chief Executive Officer


Antara Capital Master Fund LP

By: Antara Capital LP not in its individual corporate capacity, but solely as Investment Advisor and agent

By:		Antara Capital GP LLC, its general partner



By:		/s/ Himanshu Gulati


Name: Himanshu Gulati
Title: Managing Member of Antara Capital LP
Date: 9/16/19

EX-99.10 8 d812632dex9910.htm EX-99.10 EX-99.10

JOINT FILING AGREEMENT

This agreement is made this 26th day of September 2019, by and among each of the undersigned (the “Agreement”).

WHEREAS, each of the undersigned is required to file a Schedule 13D with respect to ownership of securities in EVO Transportation & Energy Services, Inc.

NOW, THEREFORE, the undersigned agree to file only one Schedule 13D reflecting their combined beneficial ownership of securities in EVO Transportation & Energy Services, Inc., and each of the undersigned hereby designates and appoints the other as his attorney-in-fact with full power of substitution for each of them, each acting singly, to sign, file and make any further amendments to such Schedule 13D.

This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

IN WITNESS WHEREOF, each of the undersigned has executed this Joint Filing Agreement as of the date first written above.


ANTARA CAPITAL MASTER FUND LP

By:		Antara Capital LP not in its individual corporate capacity, but solely as Investment Advisor and agent

By:		Antara Capital GP LLC, its general partner

By:		/s/ Himanshu Gulati
Name: Himanshu Gulati
Title: Managing Member

ANTARA CAPITAL LP

By:		Antara Capital GP LLC, its general partner

By:		/s/ Himanshu Gulati
Name: Himanshu Gulati
Title: Managing Member

ANTARA CAPITAL GP LLC

By:		/s/ Himanshu Gulati
Name: Himanshu Gulati
Title: Managing Member

ANTARA CAPITAL FUND GP LLC

By:		/s/ Himanshu Gulati
Name: Himanshu Gulati
Title: Managing Member

By:		/s/ Himanshu Gulati
		Himanshu Gulati, an individual

[Signature Page – 13D Joint Filing Agreement]