Exhibit 10.1
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AMENDMENT
TO THE
COMMON STOCK PURCHASE AGREEMENT
DATED NOVEMBER 7, 2000
This Amendment to the Stock Purchase Agreement Dated November 7, 2000
(this "Amendment") is made as of December 15, 2003, by and between ▇▇▇▇▇
Brothers Aviation, Inc., a Utah corporation (the "Company") and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, or his assigns (the "Purchaser").
WHEREAS, the Company desires to extend the date at which the Purchaser
can "put" his shares to the Company, and
WHEREAS, in exchange for the extension, the Company agrees to a 15%
(fifteen percent) annual increase in the "put price" and/or "optional redemption
price" of the shares, and
WHEREAS, the Purchaser is willing to grant the herein described
extension and increases in the price;
WHEREAS, both parties to this Agreement recognize that the market price
for GNBA common stock is volatile and that during the period from now until
November 6, 2005, it may go as high as $20.00 or higher, and/or as low as $.01
or lower;
WHEREAS, Company recognizes that if Company by November 6, 2005 is
unable to or does not opt to purchase these shares in cash but rather to issue
stock under terms of the Common Stock Purchase Agreement, that Purchaser may at
that time gain a major or even controlling interest in Company; and whereas
Company agrees not to take any step in such a case to prevent this latter from
happening, such as declaring Bankruptcy or transferring assets from Company to
another entity;
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the receipt and sufficiency of which is hereby acknowledged,
the parties agree as follows:
1. Recitals. The foregoing recitals are true and correct and are
incorporated herein by this reference as if set forth in their entirety.
2. Amendments.
1. By deleting Section 5.1 of paragraph 5 "PUT OPTION" and
replacing such section with the following text:
"5.1 The Company hereby grants to the Purchaser the right to put (the "Put") to
the Company, at Purchaser's election, up to Seven Hundred Fifty Thousand
(750,000) shares (the "Put Shares") of the Common Stock of the Company. The Put
shall be exercisable upon November 7, 2005 (the "Initial Exercise Date") or at
any time during the three year period ending on the third anniversary of the
Initial Exercise Date (the "Termination Date"). The Put shall be exercisable in
whole or in part by the Purchaser by a written notice ("Put Notice") made no
later than 5:00 p.m., Eastern Standard Time, on the Termination Date via telex,
telecopy or other telegraphic communication. While exercisable, the Put may be
exercised as to all or any part of the Put Shares. The Put Notice shall specify
the number of shares of Common Stock to be put and whether such put is in whole
or in part (and if in part, the number of shares to be sold). The purchase price
for any and all shares so put (the "Purchase Price") shall be paid, at the
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election of the Company, in either cash or registered, unrestricted, freely
tradable shares of Common Stock of the Company within ten (10) business days of
receipt of a Put Notice (the "Settlement Date") in the manner set forth in
Section 5.2., 5.3. and 5.4. below, as applicable. The Strike Price of each share
put shall be Two Dollars and Eight Cents ($2.08) per share (One Million Five
Hundred Sixty Thousand Dollars ($1,560,000) in the aggregate in the event of
exercise of the entire 750,000 Put Shares (the "Aggregate Put Strike Price"))
providing that the Put is exercised prior to May 7, 2006. If the Put is
exercised between May 7, 2006 and November 6, 2006, the Strike Price shall be
$2,16. If the Put is exercised between November 7, 2006 and May 6, 2007, the
Strike Price shall be $2.25. If the Put is exercised between May 7, 2007 and
November 6, 2007, the Strike Price shall be $2.33. If the Put is exercised
between November 7, 2007 and May 6, 2008, the Strike Price shall be $2.41. If
the Put is exercised between May 7, 2008 and November 7, 2008, the Strike Price
shall be $2.50."
And;
2. By deleting Section 6.1 of paragraph 6 "OPTIONAL REDEMPTION OF
SHARES (CALL)" and replacing such section with the following text
"6.1 The entire number of Shares or any portion thereof (the "Redemption
Shares") (up to 750,000 shares) may be redeemed from Purchaser, at the option of
the Company (the "Optional Redemption"), at any time and from time to time
commencing on the date hereof and ending on November 7, 2005 (the "Redemption
Termination Date"). The redemption price ("Redemption Price") shall be One
Dollar and Seventy-Two Cents ($1.72) per Redemption Share ($1,290,000 in the
aggregate if all Redemption Shares are purchased (the "Aggregate Redemption
Price")) if shares are redeemed prior to May 7, 2004. The redemption price
("Redemption Price") shall be One Dollar and Eighty-Four Cents ($1.84) per
Redemption Share ($1,380,000 in the aggregate if all Redemption Shares are
purchased (the "Aggregate Redemption Price")) if shares are redeemed between May
7, 2004 and November 6, 2004. The redemption price ("Redemption Price") shall be
One Dollar and Ninety-Six Cents ($1.96) per Redemption Share ($1,470,000 in the
aggregate if all Redemption Shares are purchased (the "Aggregate Redemption
Price")) if shares are redeemed between November 7, 2004 and May 6, 2005, and
the redemption price ("Redemption Price") shall be Two Dollars and Eight Cents
($2.08) per Redemption Share ($1,560,000 in the aggregate if all Redemption
Shares are purchased (the "Aggregate Redemption Price")) if shares are redeemed
following May 6, 2005. The Company shall give written notice of redemption via
telex, telecopy or other telegraphic communication. Such notice shall specify
the number of Redemption Shares to be redeemed and the aggregate price thereof.
In the event of an Optional Redemption, the Company shall deliver payment for
the Redemption Shares to the Purchaser via wire transfer of immediately
available funds. The Purchaser shall promptly deliver to the Company a stock
certificate, along with an executed stock power in favor of the Company (the
stock certificate and stock power collectively referred to as the "Purchaser
Deliveries") for the amount of Redemption Shares being redeemed and the Company
shall promptly deliver to the Purchaser, if applicable, a stock certificate
representing the balance of the Redemption Shares not being redeemed by the
Company (the "Company Deliveries")."
3. All other paragraphs and text of the Common Stock Purchase
Agreement shall remain in effect.
3. Further Assurances. Each of the parties hereto shall, at the
requesting party's expense, take such further actions as are reasonably deemed
by the requesting party to be necessary or desirable in order to effectively
carry out the intent and purpose of this Agreement and the transactions
contemplated hereby.
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4. Amendments. This Agreement shall not be amended or discharged except
by an instrument in writing duly signed by each of the parties hereto.
5. Successors and Assigns. This Agreement shall insure to the benefit
of each of the parties hereto, their heirs, representatives, successors and
assigns.
6. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
7. Entire Agreement. The terms and conditions contained herein
supersede all proposals, communications, representations or agreements, either
oral or written, between the parties hereto prior to the date hereof with
respect to the subject matter hereof.
8. Prevailing Party. If any legal action or other proceeding is brought
by a party hereto for the enforcement of this Agreement, or because of an
alleged breach, default or misrepresentation by the other party in connection
with any provision of this Agreement, such party, if successful in such legal
action or other proceeding, shall be entitled to recover reasonable attorneys'
fees, sales and use taxes, court costs incurred in that action or proceeding, in
addition to any other relief to which such party may be entitled.
9. Governing Law. This Agreement shall in all respects be governed by,
and construed in accordance with, the laws of the State of Utah, without giving
effect to the conflicts of law principles thereof.
IN WITNESS WHEREOF, the parties have executed this Stock Purchase
Agreement as of the 15th day of December, 2003.
COMPANY: ▇▇▇▇▇ BROTHERS AVIATION, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇, President & CEO
PURCHASER: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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