EXHIBIT 10.1
SECURITIES PURCHASE AGREEMENT
dated as of
June 30, 2000
among
XXXXXXX AIRCRAFT HOLDINGS, INC.
XXXXXXX HOLDINGS CO.
and
THE PURCHASERS PARTY HERETO
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.1. Definitions.................................................1
ARTICLE II
PURCHASE AND SALE OF SECURITIES; TERMS OF SECURITIES
Section 2.1. Commitment to Purchase......................................3
Section 2.2. Procedures..................................................3
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Incorporation of Representations and Warranties in
Credit Agreement.............................................4
Section 3.2. Authorization, Execution and Enforceability..................4
Section 3.3. Capitalization...............................................5
Section 3.4. Solicitation.................................................5
Section 3.5. Non-fungibility..............................................5
Section 3.6. Governmental Authorization...................................5
Section 3.7. Noncontravention.............................................5
Section 3.8. Litigation...................................................6
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASERS
Section 4.1. Purchase for Investment; Authority; Binding Agreement........6
ARTICLE V
CONDITIONS PRECEDENT TO PURCHASE
Section 5.1. Conditions to Purchasers' Obligation at Takedown.............7
Section 5.2. Conditions to the Company's Obligations......................8
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ARTICLE VI
COVENANTS
Section 6.1. Limitation on Dividends on and Redemption of Holdings
Capital Stock................................................8
Section 6.2. FINANCIAL INFORMATION........................................9
ARTICLE VII
MISCELLANEOUS
Section 7.1. Notices.....................................................10
Section 7.2. No Waivers, Amendments......................................10
Section 7.3. Indemnification.............................................10
Section 7.4. Expenses....................................................11
Section 7.5. Payment.....................................................11
Section 7.6. Successors and Assigns......................................11
Section 7.7. Brokers.....................................................11
Section 7.8. New York Law; Submission to Jurisdiction; Waiver of Jury
Trial.......................................................11
Section 7.9. Severability................................................12
Section 7.10. Counterparts................................................12
Section 7.11. Confidentiality.............................................12
Section 7.12. Survival of Representations and Warranties..................13
Section 7.13. Construction................................................13
Section 7.14. Integration.................................................13
Section 7.15. Headings....................................................13
SCHEDULES
Schedule 2.1 Commitments to Purchase
Schedule 3.3 Pro Forma Capitalization of Holdings and the Company
EXHIBITS
Exhibit A Form of Senior Preferred Stock Certificate of Designations,
Preferences and Rights
Exhibit B Form of Senior Preferred Stock Registration Rights Agreement
Exhibit C Form of Warrant
Exhibit D Form of Amended and Restated Investors' Agreement
Exhibit E Form of Credit Agreement Amendment
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SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this "AGREEMENT"), dated as
of June 30, 2000 among XxXxxxx Aircraft Holdings, Inc., a Delaware
corporation (the "COMPANY"), XxXxxxx Holdings Co., a Delaware corporation
("HOLDINGS" and, together with the Company, the "ISSUERS") and the purchasers
listed on the signature pages hereto (the "PURCHASERS").
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. DEFINITIONS. The following terms, as used
herein, have the following meanings:
"AFFILIATE" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under common
control with such Person. For the purpose of this definition, the term
"CONTROL" (including with correlative meanings, the term "CONTROLLING",
"CONTROLLED BY" and "UNDER COMMON CONTROL WITH") when used with respect to
any Person, means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise.
"AGREEMENT" means this Agreement, as amended, supplemented
or otherwise modified from time to time in accordance with its terms.
"AMENDED AND RESTATED INVESTORS' AGREEMENT" means the
Amendment and Restated Investor's Agreement, substantially in the form set
forth on EXHIBIT D hereto.
"BUSINESS DAY" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or
required by law to close.
"COMPANY" is defined in the preamble.
"CREDIT AGREEMENT" means the Third Amended and Restated
Credit Agreement, dated as of May 11, 2000, among the Company, the lenders
party thereto, DLJ Capital Funding, Inc., as syndication agent, and The First
National Bank of Chicago, as administrative agent for the lenders, as
amended, modified, amended and restated, renewed, refunded, replaced or
refinanced from time to time to the date of this Agreement.
"CREDIT AGREEMENT AMENDMENT" means the First Amendment to
the Credit Agreement, substantially in the form set forth on EXHIBIT E hereto.
"DIVIDEND PERIOD" has the meaning given to such term in the
Senior Preferred Stock Certificate of Designations.
"DLJ HOLDERS" means DLJ Investment Partners II, L.P. and
any Affiliate thereof holding Securities.
"DOLLARS" or "$" mean lawful currency of the United States
of America.
"EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended.
"FINANCING DOCUMENTS" means this Agreement, the Senior
Preferred Stock Certificate of Designations, the Warrants, the Senior
Preferred Stock Registration Rights Agreement and the Amended and Restated
Investors' Agreement.
"HOLDER" means any holder of any Securities.
"HOLDINGS" is defined in the preamble.
"HOLDINGS CAPITAL STOCK" means all outstanding capital
stock of Holdings.
"HOLDINGS COMMON STOCK" means the authorized common stock,
par value $.01 per share, of Holdings.
"ISSUANCE DATE" is defined in Section 2.1.
"ISSUERS" is defined in the preamble.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse
effect upon the business, operations, properties, assets, financial condition
or prospects of the Issuers and their respective subsidiaries, taken as a
whole, or (ii) the material impairment of the ability of the Issuers to
perform their obligations under the Financing Documents or the Credit
Agreement Amendment, or of the Holders to enforce such obligations under the
Financing Documents.
"PARITY SECURITIES" has the meaning given to such term in
the Senior Preferred Stock Certificate of Designations.
"PERSON" means an individual or a corporation, partnership,
trust, incorporated or unincorporated association, joint venture, joint stock
company, government (or any agency or political subdivision thereof) or other
entity of any kind.
"PURCHASERS" is defined in the preamble.
"SECURITIES" means the Senior Preferred Stock and the
Warrants.
"SECURITIES ACT" means the Securities Act of 1933, as
amended.
"SENIOR PREFERRED STOCK" means the Company's 16% Senior
Redeemable Exchangeable Preferred Stock due 2009, with such terms described
in the Senior Preferred Stock Certificate of Designations.
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"SENIOR PREFERRED STOCK CERTIFICATE OF DESIGNATIONS" means
the Certificate of Designations Preferences and Rights substantially in the
form of EXHIBIT A hereto.
"SENIOR PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT"
means the Senior Preferred Stock Registration Rights Agreement by and among
the Company and the Purchasers, substantially in the form set forth on
EXHIBIT B hereto.
"WARRANTS" means Class B Warrants to purchase shares of
Holdings Common Stock, substantially in the form set forth on EXHIBIT C
hereto.
"WARRANT SHARES" has the meaning given to such term in the
Warrants.
ARTICLE II
PURCHASE AND SALE OF SECURITIES; TERMS OF SECURITIES
Section 2.1. COMMITMENT TO PURCHASE. Subject to the terms
and conditions set forth herein and in reliance on the representations and
warranties of the Issuers contained herein and their representations and
warranties in the other Financing Documents, the Issuers agree to issue and
sell to the Purchasers, and each Purchaser agrees to purchase on the date
hereof or such other date as the Issuers and Purchasers agree (the "ISSUANCE
DATE") the amount of Securities set forth opposite such Purchaser's name
Schedule 2.1. The purchase price shall be equal to the aggregate liquidation
preference of Senior Preferred Stock being purchased by such Purchaser.
Section 2.2. PROCEDURES. (a) On the Issuance Date, the
Purchasers, severally and not jointly, shall deliver by wire transfer, to the
account number of the Issuers specified by the Issuers in writing no later
than 10:00 A.M. (New York City time) on the Issuance Date, immediately
available funds in an amount equal to the aggregate purchase price of the
Securities to be purchased by the Purchasers hereunder on such Issuance Date,
less the aggregate amount of expenses payable to the Purchasers on such date
pursuant to Section 7.4.
(b) On the Issuance Date, against payment as set forth in
clause (a) above, the Issuers shall deliver to each Purchaser a single
certificate representing Senior Preferred Stock and a single Warrant
representing the amount of such Securities to be purchased by such Purchaser
registered in the name of such Purchaser, or, if requested by such Purchaser,
separate certificates representing Senior Preferred Stock and/or Warrants in
such other denominations and registered in such name or names as shall be
designated by such Purchaser by notice to the Company at least one Business
Day prior to the Issuance Date.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each Issuer represents and warrants, jointly and severally, to
the Purchasers as set forth below:
Section 3.1. INCORPORATION OF REPRESENTATIONS AND WARRANTIES
IN CREDIT AGREEMENT. Each Issuer hereby represents and warrants, for the benefit
of the Purchasers and the Holders from time to time of the Securities, that the
representations and warranties contained in the following sections of the Credit
Agreement are true and correct as of the Issuance Date:
(a) 5.1 (Organization, Powers, Qualifications, Good
Standing, Business and Subsidiaries);
(b) 5.3 (Financial Condition);
(c) 5.4 (No Material Adverse Change; No Restricted Junior
Payments);
(d) 5.5 (Title to Properties; Liens; Real Property);
(e) 5.6 (Litigation; Adverse Facts);
(f) 5.7 (Payment of Taxes);
(g) 5.8 (Governmental Regulation);
(h) 5.9 (Securities Activities);
(i) 5.10 (Employee Benefit Plans);
(j) 5.11 (Environmental Protection);
(k) 5.12 (Employee Matters);
(l) 5.13 (Solvency);
(m) 5.15 (Disclosure);
(n) 5.16 (Year 2000 Compliance).
Section 3.2. AUTHORIZATION, EXECUTION AND ENFORCEABILITY. Each
of the Financing Documents to which it is a party and the Credit Agreement
Amendment constitutes its valid and binding agreement of such party enforceable
in accordance with its terms, subject to applicable bankruptcy, insolvency and
other similar laws affecting creditors' rights generally and equitable
principles of general applicability. The shares of Senior Preferred Stock being
sold to the Purchasers have been duly and validly authorized and when issued and
delivered against payment therefor in accordance
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with the terms hereof, will be validly issued, fully paid, non-assessable and
free of preemptive rights. The Warrants, when executed and delivered, will
constitute valid and binding obligations of Holdings in accordance with their
terms. Holdings will reserve and keep available for issuance upon exercise of
the Warrants the total number of Warrant Shares deliverable upon exercise of
all of the Warrants. The issuance of the Warrant Shares has been validly
authorized and, when issued and sold in accordance with the Warrants, will be
validly issued, fully paid, nonassessable and free of preemptive rights.
Section 3.3. CAPITALIZATION. At the Issuance Date, after
giving effect to the consummation of the issuance and sale of Securities
hereunder, the capitalization of the Issuers will be as set forth on Schedule
3.3. Except as set forth on Schedule 3.3, there are no subscriptions, options,
warrants, rights, convertible securities, exchangeable securities or other
agreements or commitments of any character pursuant to which either Issuer is
required to issue or purchase any shares of its capital stock.
Section 3.4. SOLICITATION. No form of general solicitation or
general advertising was used by the Issuers or, to the best of their knowledge,
any other Person acting on behalf of the Issuers, in connection with the offer
and sale of the Securities. Neither the Issuers nor any Person acting on behalf
of the Issuers has, either directly or indirectly, sold or offered for sale to
any Person any of the Securities or any other security of the Issuers similar to
the Senior Preferred Stock or the Warrants, except as contemplated by this
Agreement, and the Issuers represent that neither the Issuers nor any person
acting on their behalf other than the Purchasers and its Affiliates will sell or
offer for sale to any Person any such security to, or solicit any offers to buy
any such security from, or otherwise approach or negotiate in respect thereof
with, any Person or Persons so as thereby to bring the issuance or sale of any
of the Senior Preferred Stock or Warrants within the provisions of Section 5 of
the Securities Act.
Section 3.5. NON-FUNGIBILITY. When the Securities are issued
and delivered pursuant to this Agreement, neither the Senior Preferred Stock nor
the Warrants will be of the same class (within the meaning of Rule 144A under
the Securities Act) as securities which are (i) listed on a national securities
exchange registered under Section 6 of the Exchange Act or (ii) quoted in a U.S.
automated inter-dealer quotation system.
Section 3.6. GOVERNMENTAL AUTHORIZATION. The execution,
delivery and performance by the Issuers of this Agreement and the consummation
of the transactions contemplated hereby require no material order, license,
consent, authorization or approval of, or exemption by, or action by or in
respect of, or notice to, or filing or registration with, any governmental body,
agency or official except such as have been made or obtained.
Section 3.7. NONCONTRAVENTION. The execution, delivery and
performance by the Issuers of this Agreement and the consummation of the
transactions contemplated hereby does not and will not (i) violate the articles
of incorporation or by-laws of the Issuers, (ii) violate any material applicable
law, rule, regulation, judgment, injunction, order or decree, (iii) require any
material consent (other than consents obtained in satisfaction of conditions
precedent set forth in Article V) or other action by any Person under,
constitute a material default under, or give rise to any material right of
termination, cancellation or acceleration of any right or obligation of the
Issuers or to a loss of any material benefit to which the Issuers are entitled
under any provision of any agreement or other in
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strument binding upon the Issuers or any of the Issuers' assets or properties
or (iv) result in the creation or imposition of any material lien on any
property or asset of the Issuers.
Section 3.8. LITIGATION. There is no action, suit,
investigation or proceeding pending against, or to the knowledge of the Issuers,
threatened against or affecting the Issuers or any of their properties before
any court or arbitrator or any governmental body, agency or official which could
reasonably be expected to have a material adverse effect on the transactions
contemplated hereby.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASERS
Section 4.1. PURCHASE FOR INVESTMENT; AUTHORITY; BINDING
AGREEMENT. Each of the Purchasers represents and warrants, severally and not
jointly, as to itself only, to the Issuers that:
(a) such Purchaser is an Accredited Investor within the
meaning of Rule 501(a) under the Securities Act and the Securities to be
acquired by it pursuant to this Agreement are being acquired for its own account
without a view toward distribution in violation of the Securities Act and the
Purchaser will not offer, sell, transfer, pledge, hypothecate or otherwise
dispose of the Securities unless pursuant to a transaction either registered
under, or exempt from registration under, the Securities Act;
(b) the execution, delivery and performance of this
Agreement and the purchase of the Securities pursuant hereto are within such
Purchaser's corporate powers and have been duly and validly authorized by all
requisite corporate action;
(c) this Agreement has been duly executed and delivered
by such Purchaser;
(d) this Agreement constitutes a valid and binding
agreement of such Purchaser enforceable in accordance with its terms; and
(e) such Purchaser has such knowledge and experience in
financial and business matters so as to be capable of evaluating the merits and
risks of its investment in the Securities and such Purchaser is capable of
bearing the economic risks of such investment.
ARTICLE V
CONDITIONS PRECEDENT TO PURCHASE
Section 5.1. CONDITIONS TO PURCHASERS' OBLIGATION AT TAKEDOWN.
The obligation of the Purchasers (which is several and not joint) to purchase
the Securities to be issued and sold by the Issuers on the Issuance Date is
subject to the satisfaction of the following conditions contemporaneously with
such purchase:
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(a) The Purchasers shall have received copies of each of
the Financing Documents and the Credit Agreement Amendment, each of which shall
be in full force and effect and no term or condition thereof shall have been
amended, waived or otherwise modified without the prior consent of the
Purchasers.
(b) There shall exist no action, suit, investigation,
litigation or proceeding pending or to the Company's knowledge threatened in any
court or before any arbitrator or any governmental instrumentality that could
reasonably be expected to (A) have a material adverse effect on any Financing
Document, the Credit Agreement Amendment or the other transactions contemplated
thereby or hereby or (B) result in a Material Adverse Effect.
(c) The Purchasers shall have received an opinion, dated
on or prior to the Issuance Date, of Xxxxxx Xxxxx & Xxxxxxx LLP in form and
substance satisfactory to the Purchasers.
(d) All fees and expenses payable to the Purchasers on or
prior to the Issuance Date (other than amounts to be netted against the purchase
price of the Securities pursuant to Section 2.2(a)) shall have been paid in
full.
(e) The representations and warranties of the Issuers
contained in the Financing Documents shall be true and correct in all material
respects on and as of the Issuance Date as if made on and as of such date
(unless stated to relate solely to an earlier date, in which case, such
representations and warranties shall be true and correct in all material
respects as of such earlier date) and each Issuer shall have performed and
complied with all covenants and agreements required by the Financing Documents
and the Credit Agreement Amendment to be performed by it or complied with by it
at or prior to the Issuance Date, and the Purchasers shall have received
certificates from authorized officers of the Issuers to such effect.
(f) The Company's certificate of incorporation shall have
been amended to authorize the issuance of the Senior Preferred Stock and the
Senior Preferred Stock Certificate of Designations shall have been duly filed at
the office of the Secretary of State of the State of Delaware.
(g) The Purchasers shall have received the Warrants and
certificates representing the Senior Preferred Stock to be issued on the
Issuance Date, duly executed in the denominations and registered in the names
specified pursuant to Section 2.2.
(h) The Purchasers shall have received a certificate of
the Secretary or Assistant Secretary of each of the Issuers, dated as of a date
reasonably satisfactory to the Purchasers, certifying (A) (i) that attached
thereto is a true, complete and correct copy of resolutions duly adopted by the
Board of Directors of such Issuer authorizing (1) the execution, delivery and
performance of the Financing Documents to which it is a party and the Credit
Agreement Amendment, and (2) the transactions contemplated hereby, and (ii) that
such resolutions have not been amended, modified, revoked or rescinded, (B) as
to the incumbency and specimen signature of each officer executing any Financing
Documents or the Credit Agreement Amendment on its behalf, and (C) true and
complete copies of its constituent documents, and such certificates and the
resolutions attached thereto shall be in form and substance satisfactory to the
Purchasers.
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(i) The purchase of the Securities by the Purchasers
shall not be prohibited by any applicable law, court order or governmental
regulation.
(j) Since December 31, 1999, there shall not have
occurred any material adverse change in the business, assets, financial
condition, operations or properties or prospects of the Issuers and their
respective subsidiaries, taken as a whole.
(k) The Purchasers shall have received such additional
certificates, legal and other opinions and documentation as they shall
reasonably request.
Section 5.2. CONDITIONS TO THE COMPANY'S OBLIGATIONS. The
obligations of the Issuers to issue and sell the Securities to the Purchasers
pursuant to this Agreement are subject to the satisfaction, at or prior to the
Issuance Date, of the following conditions:
(a) The representations and warranties of the Purchasers
contained herein shall be true and correct in all material respects on and as of
the Issuance Date as if made on and as of such date.
(b) The issuance and sale of the Securities shall not be
prohibited by any applicable law, court order or governmental regulation.
(c) Contemporaneously therewith, the Issuers shall have
received the purchase price for the Securities to be purchased by the Purchasers
in accordance with Section 2.2(a).
(d) The Issuers shall have received from each Purchaser
its executed signature page to the Amended and Restated Investors Agreement.
ARTICLE VI
COVENANTS
Section 6.1. LIMITATION ON DIVIDENDS ON AND REDEMPTION OF
HOLDINGS CAPITAL STOCK. The Issuers make the following covenants for the benefit
of the Holders of Senior Preferred Stock:
(a) So long as any shares of Senior Preferred Stock are
outstanding, no dividends (other than dividends or distributions paid in shares
of, or options, warrants or rights to subscribe for or purchase shares of,
Holdings Capital Stock) shall be declared or paid or set apart for payment or
other distribution declared or made upon Holdings Capital Stock for any
consideration by Holdings, directly or indirectly (except by conversion into or
exchange for Holdings Capital Stock), unless in each case (i) the full
cumulative dividends on all outstanding shares of the Senior Preferred Stock and
any other Parity Securities shall (whether or not payable in cash) have been
paid in cash or set apart for payment in cash for all past Dividend Periods with
respect to Senior Preferred Stock and all past dividend periods with respect to
such Parity Securities and (ii) (whether or not payable in cash) sufficient
funds shall have been paid or set apart for the payment in cash of the dividend
for the current
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Dividend Period with respect to the Senior Preferred Stock and the current
dividend period with respect to such Parity Securities.
(b) So long as any shares of Senior Preferred Stock are
outstanding, no Holdings Capital Stock shall be redeemed by Holdings or any of
its subsidiaries, purchased or otherwise acquired for any consideration (or any
moneys be paid to or made available for a sinking fund for the redemption of any
shares of any such stock) by Holdings, directly or indirectly (except by
conversion into or exchange for Holdings Capital Stock).
(c) Sections 6.1(a) and (b) will not prohibit:
(i) the repurchase, redemption or other acquisition or
retirement for value of any Holdings Capital Stock held by any
member of Holdings' or any of its subsidiaries' management
pursuant to any management equity subscription agreement or stock
option agreement, PROVIDED that the aggregate price paid for all
such repurchased, redeemed, acquired or retired Holdings Capital
Stock shall not exceed:
(x) $4.0 million in any calendar year with
unused amounts in any calendar year being carried
over to succeeding calendar years subject to a
maximum, without giving effect to the following
clause (y), of $7.0 million in any calendar year,
plus
(y) the aggregate cash proceeds received by
Holdings during such calendar year from any
reissuance of Holdings Capital Stock by Holdings to
members of management of Holdings and its
subsidiaries; and
(ii) repurchases of Holdings Capital Stock deemed to
occur upon exercise of stock options if such Holdings Capital
Stock represent a portion of the exercise price of such options.
Section 6.2. FINANCIAL INFORMATION. The Issuers agree to
deliver to any Holder who is a DLJ Holder any financial information of this
Issuers delivered to the lenders under the Credit Facility or any equityholder
of the Company concurrently with such delivery to such other person.
ARTICLE VII
MISCELLANEOUS
Section 7.1. NOTICES. All notices, demands and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party at its address set forth on
the signature pages hereof, or such other address as such party may hereinafter
specify for the purpose. Each such notice, demand or other communication shall
be effective (i) if given by facsimile, when such facsimile is transmitted to
the facsimile number specified on the signature page hereof, or (ii) if given by
overnight courier, addressed as aforesaid or by any other means, when delivered
at the address specified in this Section.
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Section 7.2. NO WAIVERS, AMENDMENTS. (a) No failure or delay
on the part of any party in exercising any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. The remedies provided for
herein are cumulative and are not exclusive of any remedies that may be
available to any party at law or in equity or otherwise.
(b) Any provision of this Agreement may be amended,
supplemented or waived if, but only if, such amendment, supplement or waiver is
in writing and is signed by the Issuers and the Holders of the majority of the
outstanding Securities, EXCEPT amendments of Section 6.1, which require consent
by the Issuers and Holders of a majority of the outstanding Senior Preferred
Stock, and Section 6.2, which require consent by the Issuers and the Holders of
a majority of the outstanding Warrants.
(c) In determining whether the requisite Holders of Senior
Preferred Stock and/or Warrants have concurred in any direction, consent, or
waiver as provided in this Agreement or in the Senior Preferred Stock
Certificate of Designations, Senior Preferred Stock which is owned by the
Issuers, or, except for the DLJ Holders and their Affiliates (other than
Holdings and its subsidiaries), by any Person controlling, controlled by, or
under common control with any of the foregoing, shall be disregarded and deemed
not to be outstanding for the purpose of any such determination; and PROVIDED,
FURTHER, that no such amendment, supplement or waiver which affects the rights
of the Holders and their Affiliates otherwise than solely in their capacities as
Holders of Senior Preferred Stock shall be effective with respect to them
without their prior written consent
Section 7.3. INDEMNIFICATION. (a) The Issuers hereby
indemnify, jointly and severally, each Purchaser and its affiliates, limited
partners, general partners, directors, members, officers and employees against
and agrees to hold each of them harmless from any and all damage, loss,
liability and expense (including, without limitation, reasonable expenses of
investigation and reasonable attorneys' fees and expenses in connection with any
action, suit or proceeding) ("DAMAGES") incurred or suffered by any such party
arising out of any misrepresentation or breach of warranty, covenant or
agreement made or to be performed by the Issuers pursuant to this Agreement.
(b) Each Purchaser hereby indemnifies, severally and not
jointly, each Issuer and its affiliates, limited partners, general partners,
directors, members, officers and employees against and agrees to hold each of
them harmless from any and all Damages incurred or suffered by any such party
arising out of any misrepresentation or breach of warranty, covenant or
agreement made or to be performed by such Purchaser pursuant to this Agreement;
PROVIDED that such Purchaser's maximum liability under this Section 7.3(b) shall
not exceed the amount of the consideration paid by such Purchaser to the Issuer.
(c) After the Issuance Date, Section 7.3 will provide the
exclusive remedy for any misrepresentation, breach of warranty, covenant or
other agreement or other claim arising out of this Agreement or the transactions
contemplated hereby except to the extent any such claim is in respect of fraud.
Section 7.4. EXPENSES. The Company agrees to pay all
reasonable out-of-pocket costs, expenses and other payments of the Purchasers in
connection with the purchase and sale of the
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Securities as contemplated by this Agreement including without limitation (i)
reasonable fees and disbursements of not more than one special counsel for
all of the Purchasers incurred in connection with the preparation of this
Agreement and (ii) all reasonable out-of-pocket expenses of the Purchasers,
including reasonable fees and disbursements of such special counsel, in
connection with any waiver or consent hereunder or any amendment hereof.
Section 7.5. PAYMENT. The Company agrees that, so long as a
Purchaser shall own any Senior Preferred Stock purchased by it from the Company
hereunder, the Company will make payments to such Purchaser of all amounts due
thereon by wire transfer by 1:00 P.M. (New York City time) on the date of
payment to such account as is specified beneath the Purchasers' name on the
signature page hereof or to such other account or such other similar manner as
such Purchaser may designate to the Company in writing.
Section 7.6. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and shall inure to the benefit of the Issuers, the Purchasers and
their respective successors and assigns; PROVIDED that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of each other party hereto.. All provisions
hereunder purporting to give rights to the Purchasers and its Affiliates, or to
Holders are for the express benefit of such Persons.
Section 7.7. BROKERS. The Company represents and warrants that
it has not employed any broker, finder, financial advisor or investment banker
who might be entitled to any brokerage, finder's or other fee or commission in
connection with the sale of the Securities.
Section 7.8. NEW YORK LAW; SUBMISSION TO JURISDICTION; WAIVER
OF JURY TRIAL. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY
FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN
SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 7.9. SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
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Section 7.10. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall be an original with the same
effect as if the signatures thereto and hereto were upon the same instrument.
Section 7.11. CONFIDENTIALITY. (a) The Company acknowledges
and agrees that: (i) certain Affiliates of the Purchasers are a full service
financial firm and as such may from time to time effect transactions for their
own account or the account of customers, and hold positions in loans or options
on loans of Persons that may be the subject of this arrangement; (ii) the
Purchasers may employ the services of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation and its Affiliates in providing certain services hereunder and may,
subject to clause (b) below, exchange with such entities information concerning
the Issuers and such Affiliates will be entitled to the benefits afforded the
Purchasers hereunder, and (iii) the Purchasers or their respective Affiliates
may be providing financing or other services to Persons whose interests may
conflict with the interests of the Issuers.
(b) The Purchasers and each other Holder agree to keep
confidential non-public information provided to the Purchasers and designated by
either Issuer as "confidential"; PROVIDED that nothing herein shall prevent the
Purchasers or such other Holder from disclosing any such information (i) to any
Person that receives such information having been made aware of, and which
agrees to maintain, the confidential nature thereof in order to facilitate or
enable the Purchasers or such other Holder to syndicate, sell, transfer or
assign any portion of its securities, (ii) to any Holder, (iii) to its
employees, directors, agents, attorneys, accountants and other professional
advisors who receive such information having been made aware of the confidential
nature thereof and have agreed to comply with the confidentiality obligations
hereunder, (iv) upon the request or demand of any governmental authority having
jurisdiction over any Purchaser, (v) in response to any order of any court or
other governmental authority or as may otherwise be required pursuant to any
requirement of law, (vi) which has been publicly disclosed other than in breach
of this Agreement or (vii) in connection with the exercise of any remedy
hereunder.
Section 7.12. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder, in any document, certificate or
statement delivered pursuant hereto or in connection herewith and the covenants
made in Article Six shall survive the execution and delivery of this Agreement
and the issuance of the Securities.
Section 7.13. CONSTRUCTION. Each covenant contained herein
shall be construed (absent express provision to the contrary) as being
independent of each other covenant contained herein, so that compliance with any
one covenant shall not (absent such an express contrary provision) be deemed to
excuse compliance with any other covenant. Where any provision herein refers to
action to be taken by any Person, or which such person is prohibited from
taking, such provision shall be applicable whether such action is taken directly
or indirectly by such Person.
Section 7.14. INTEGRATION. This Agreement represents the
agreement of the parties hereto with respect to the subject matter hereof, and
there are no promises, undertakings, representations or warranties by the
Purchasers relative to the subject matter hereof not expressly set forth herein
or in the other Financing Documents.
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Section 7.15. HEADINGS. Section headings used herein and in
the table of contents are for convenience only and are not to effect the
construction of, or be taken into consideration in interpreting this Agreement
and the other Financing Documents.
[Signature Pages Follow]
-13-
S-1
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers, as of the
date first above written.
XXXXXXX AIRCRAFT HOLDINGS, INC.
By: _________________________________
Name:
Title:
Address for Notices:
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xx Xxxxxxx, XX 00000
Telecopier: 000-000-0000
Attention: R. Xxxx XxXxxxx
XXXXXXX HOLDINGS CO.
By: _________________________________
Name:
Title:
Address for Notices:
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xx Xxxxxxx, XX 00000
Telecopier: 000-000-0000
Attention: R. Xxxx XxXxxxx
S-2
Purchasers:
DLJ INVESTMENT PARTNERS, L.P.
By: DLJ INVESTMENT PARTNERS,
INC., as managing general partner
By: _________________________________
Name:
Title:
Address for Notices:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier: 000-000-0000
Attention: Xxxxxxxx Xxxxxxx
Wiring Instructions:
A/C # 275-011781
Attention: Xxxxx Xxxxxxx
X-0
XXX INVESTMENT PARTNERS II, L.P.
By: DLJ INVESTMENT PARTNERS II,
INC., as managing general partner
By: _________________________________
Name:
Title:
Address for Notices:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier: 000-000-0000
Attention: Xxxxxxxx Xxxxxxx
Wiring Instructions:
A/C # 275-011781
Attention: Xxxxx Xxxxxxx
X-0
XXX INVESTMENT FUNDING II, INC.
By: _________________________________
Name:
Title:
Address for Notices:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier: 000-000-0000
Attention: Xxxxxxxx Xxxxxxx
Wiring Instructions:
A/C # 275-011781
Attention: Xxxxx Xxxxxxx
X-0
XXX ESC II, L.P.
By: DLJ LBO PLANS MANAGEMENT
CORPORATION, as managing general
partner
By: _________________________________
Name:
Title:
Address for Notices:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier: 000-000-0000
Attention: Xxxxxxxx Xxxxxxx
Wiring Instructions:
A/C # 275-011781
Attention: Xxxxx Xxxxxxx
SCHEDULE 2.1
COMMITMENTS TO PURCHASE
Aggregate Liquidation Number of Shares
Preference of Senior of Common Stock
Purchaser Preferred Stock Underlying Warrant
--------------------------------------------------- ---------------------------- ---------------------
DLJ Investment Partners II, L.P.................. $14,206,400.00 79,191
DLJ Investment Partners, L.P..................... 6,314,000.00 35,196
DLJ Investment Funding II, Inc................... 1,343,000.00 7,491
DLJ ESC II, L.P.................................. 3,135,700.00 17,479
------------- -------
Total............................. $25,000,000.00 139,357
SCHEDULE 3.3
PRO FORMA CAPITALIZATION
HOLDINGS
SHARES OUTSTANDING AS OF MAY 31, 2000
SALE OF
SECURITIES
HISTORICAL HEREUNDER PRO FORMA
---------- ----------- ---------
PREFERRED STOCK
14% Holdings preferred stock 342,417 342,417
COMMON STOCKHOLDERS' EQUITY
Common Stock 3,893,567 3,893,567
Additional paid-in capital 0
Notes receivable for shares sold 0
Accumulated deficit 0
Accumulated other comprehensive
income (loss)
Warrants to Purchase Common Stock
Exercisable at $0.01 per share 150,000 139,357 289,357
Exercisable at $23.00 per share 155,000 155,000
Stock options - exercisable at $23.00 per share
Management Option Plan
Total authorized plan 356,257 356,257
Options granted 262,703 262,703
Options Granted to Global Technology Partners 44,612 44,612
----------- -----------
Total common capitalization 4,645,239 4,784,596
----------- -----------
Total capitalization 4,987,656 5,127,013
=========== ===========
=========== ===========
THE COMPANY
AS OF MAY 31, 2000
--------------------------
HISTORICAL SALE OF SECURITIES HEREUNDER PRO FORMA
---------- ---------------------------- ---------
NO. OF DOLLARS NO. OF DOLLARS NO. OF DOLLARS
SHARES (IN 000'S) SHARES (IN 000'S) SHARES (IN 000'S)
------- ---------- -------- ----------- -------- ----------
PREFERRED STOCK
Senior Preferred Stock issued hereunder 250,000 25,000 250,000 25,000
COMMON STOCKHOLDERS' EQUITY
Common Stock 100 0 100 0
Additional paid-in capital 124,749 0 124,749
Notes receivable for shares sold (2,525) 0 (2,525)
Accumulated deficit (4,885) 0 (4,885)
Accumulated other comprehensive
income (loss) (2,244) 0 (2,244)
-------- --------- -------- ---------
Total common capitalization 100 115,095 100 115,095
-------- --------- -------- ---------
Total capitalization 100 115,095 250,100 140,095
======== ========= ========= =========
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