SHARE EXCHANGE AGREEMENT
SHARE
EXCHANGE AGREEMENT (this “Agreement”), dated as of March
2, 2009 between FirstFlight, Inc., a Nevada corporation (“FirstFlight”), Airborne, Inc.,
a New York corporation (“Airborne”), Xxxx X. Xxx, an
individual (“X. Xxx”),
and Xxxxxx Xxx, an individual (“X. Xxx” and together with X.
Xxx the “Shareholders”).
WHEREAS,
X. Xxx owns 1,251,667 shares of common stock, $0.001 par value (“FF Common Stock”), of
FirstFlight, X. Xxx owns 1,166,667 shares of FF Common Stock, the Shareholders
jointly own 1,000,200 shares of FF Common Stock, X. Xxx owns options to purchase
500,000 shares of FF Common Stock and the Shareholders jointly own warrants to
purchase 600,000 shares of FF Common Stock (collectively, the “FirstFlight
Securities”);
WHEREAS,
FirstFlight owns 20,000 shares of common stock, no par value (collectively, the
“A Common Stock”), of
Airborne;
WHEREAS,
Airborne owns and operates an aircraft management and charter business under the
name “FirstFlight” as well as an aircraft brake and wheel service business and
insurance business through B&F Brake and Wheel Service, Inc. and Xxxxxxxx
&Associates, Inc., wholly owned subsidiaries of Airborne (collectively the
“Businesses”);
WHEREAS,
the Shareholders desires to assign, transfer and deliver to FirstFlight, and
FirstFlight desires to acquire and accept from the Shareholders, the FirstFlight
Securities; and
WHEREAS,
in consideration thereof, FirstFlight desires to assign, transfer and deliver to
the Shareholders, and the Shareholders desire to acquire and accept from the
FirstFlight, the A Common Stock.
NOW,
THEREFORE, in consideration of the mutual promises, covenants, representations
and warranties contained herein, Shareholders and FirstFlight hereby agree as
follows:
1. Exchange. Subject
to the terms and conditions of this Agreement and in reliance upon the
representations and warranties contained herein, simultaneously with the
execution of this Agreement, (a) the Shareholders shall, jointly and
severally, assign, convey, transfer and deliver to FirstFlight all of their
right, title and interest in, to and under the FirstFlight Securities, free and
clear of all material liens, encumbrances, security interests and mortgages
(“Liens”) (other than
(i) those arising as a result of the delivery of the FirstFlight Securities to
FirstFlight or arising out of actions taken by FirstFlight) or (ii) those
arising under applicable securities laws and (b) in consideration thereof,
FirstFlight shall assign, convey, transfer and deliver to the Shareholders all
of its right, title and interest in, to and under the A Common Stock, free and
clear of all Liens (other than (i) those arising as a result of the delivery of
the A Common Stock to the Shareholders or arising out of actions taken by the
Shareholders or (ii) those arising under applicable securities
laws).
2. Closing
(a) Time and
Place. The closing of the transactions contemplated by this
Agreement shall take place at the offices of Xxxxxxx & Masyr, LLP, 000 Xxxx
00 Xxxxxx, Xxx Xxxx, XX simultaneously with the execution of this
Agreement.
(b) Delivery by the
Shareholders. At the closing of the transactions contemplated
hereby (the “Closing”),
the Shareholders will deliver to FirstFlight stock certificates and other
instruments evidencing the FirstFlight Securities, in each case duly endorsed in
blank or accompanied by an appropriate instrument of transfer duly endorsed in
blank, together with any other documents that are necessary for FirstFlight to
acquire record and beneficial ownership of the FirstFlight
Securities.
(c) Delivery by
FirstFlight. At the Closing, FirstFlight will deliver to
Airborne stock certificates and other instruments evidencing the A Common Stock,
in each case duly endorsed in blank or accompanied by an appropriate instrument
of transfer duly endorsed in blank, together with any other documents that are
necessary for the Shareholders to acquire record and beneficial ownership of the
A Common Stock.
3. Representations and
Warranties of FirstFlight. FirstFlight represents and warrants
to the Shareholders as follows:
(a) Authorization;
Enforcement. FirstFlight has all requisite power and authority
to authorize, execute, deliver and perform this Agreement. The
execution, delivery and performance by FirstFlight of this Agreement, and the
consummation by FirstFlight of the transactions contemplated hereby, have been
duly authorized by all necessary action on the part of FirstFlight and no
further consent or authorization therefor is presently required by
FirstFlight. This Agreement has been duly and validly executed and
delivered by FirstFlight and constitutes the valid and binding obligations of
FirstFlight, enforceable against FirstFlight in accordance with its
terms.
(b) No
Conflicts. None of the execution, delivery or performance of
this Agreement by FirstFlight will result in any material breach of, or
constitute a material default under, any (x) material contract, agreement or
instrument to which FirstFlight is a party or by which it or any of its assets
is bound or (y) material law or regulation to which FirstFlight or any of its
assets is subject.
(c) Consents;
Approvals. Other than filings required pursuant to the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder (the “Exchange
Act”), neither the execution, delivery or performance by FirstFlight of
this Agreement, nor the consummation by it of the obligations and transactions
contemplated hereby, requires any consent or approval of, authorization by,
exemption from, filing with or notice to any governmental entity or any other
person.
(d) Ownership of the FirstFlight
Securities. The A Common Stock constitutes all of the issued
and outstanding shares, interests, participations, rights in or other
equivalents of Airborne’s capital stock and upon the closing of the share
exchange described in this Agreement the Shareholders shall be the sole owners
of any outstanding equity interest in Airborne. FirstFlight owns the
A Common Stock free and clear of all Liens other than (x) those arising as a
result of the delivery of the A Common Stock Shares to the Shareholders or
arising out of actions taken by the Shareholders and (y) those arising under
applicable securities laws.
2
(e) Business
Assets. Airborne owns all of the assets set forth on the balance sheet dated
December 31, 2008 (collectively the “Assets”) attached hereto as Exhibit A,
subject to the liabilities recorded therein (collectively the
“Liabilities”). The Assets represent substantially all of the assets
Airborne utilizes in the conduct of the Business. Upon closing of the
transaction described in this Agreement, Airborne shall own substantially all of
the Assets, subject to the Liabilities, any increase or decrease since December
31, 2008 having occurred in the ordinary course of business. In the
event the parties shall discover subsequent to closing any assets that either
have been utilized by Airborne in the conduct of the Business or should have in
the ordinary course of business been included as an Asset but were not, the
parties shall utilize their best efforts to have the title to those omitted
assets transferred to Airborne.
(f) Name First Flight.
FirstFlight has exclusive proprietary and ownership rights to the name
“FirstFlight.” Within six months after the closing of the share
exchange described in this Agreement, FirstFlight shall take such steps as are
necessary to change its name and shall simultaneously convey all of its right,
title, and interest in and to the name FirstFlight to Airborne.
4. Representations and
Warranties of the Shareholders. The Shareholders, jointly and
severally, represent and warrant to FirstFlight as follows:
(a) Capacity;
Enforcement. Each Shareholder has full legal capacity to
execute, deliver and perform this Agreement. This Agreement has been
duly and validly executed and delivered by Shareholders and constitutes the
valid and binding obligations of the Shareholders, enforceable against the
Shareholders in accordance with its terms.
(b) No
Conflicts. None of the execution, delivery or performance of
this Agreement by the Shareholders will result in any material breach of, or
constitute a material default under, any (x) material contract, agreement or
instrument to which any of the Shareholders is a party or by which it or any of
their respective assets is bound or (y) material law or regulation to which the
Shareholders or any of their respective assets is subject.
(c) Consents;
Approvals. Other than filings required pursuant to the
Exchange Act, neither the execution, delivery or performance by the Shareholders
of this Agreement, nor the consummation by it of the obligations and
transactions contemplated hereby, requires any consent or approval of,
authorization by, exemption from, filing with or notice to any governmental
entity or any other person.
(d) Ownership of the FirstFlight
Securities. Shareholders collectively own the FirstFlight
Securities free and clear of all Liens other than (x) those arising as a result
of the delivery of the FirstFlight Securities to FirstFlight or arising out of
actions taken by FirstFlight and (y) those arising under applicable securities
laws.
3
(e) Other
Acknowledgments. The Shareholders, jointly and severally,
represent, acknowledge and confirm as of the date of this Agreement with respect
to the transactions contemplated hereby or when agreeing to any other matter
with FirstFlight that:
(i) Each
Shareholder (A) is a sophisticated investor and has such knowledge and
experience in financial and business matters as to be capable of evaluating
independently the merits, risks and suitability of entering into this Agreement
and the transactions contemplated hereby, (B) is able to bear the risks
attendant to the transactions contemplated hereby for an indefinite period, (C)
is dealing with FirstFlight on a professional arms’-length basis and neither
FirstFlight nor any of its affiliates or representatives is acting as a
fiduciary or advisor to the Shareholders with respect to this Agreement and any
of the transactions contemplated hereby, (D) has expertise in assessing tax,
legal, jurisdictional and regulatory risk, and (E) is acquiring the A Common
Stock on an “As Is Where Is” basis without any representation or warranty of any
kind, express or implied, except as is set forth in Section 3
hereof.
(ii) Each
Shareholders has been, and will continue to be, solely responsible for making
his or her own independent appraisal of and investigations into, and in
connection with this Agreement and the transactions contemplated hereby it has
made such an independent appraisal of and investigation into, the financial
condition, creditworthiness, affairs, status and nature of Airborne and
FirstFlight and their respective related companies and neither of them has
relied, and will not hereafter rely, on FirstFlight or any affiliate,
representative or agent of FirstFlight or any other third party with respect to
such matters or to update them with respect to such matters or to keep such
matters under review on their behalf. In addition, without limiting
the foregoing, the Shareholders have not relied, and will not hereafter rely, on
FirstFlight or any affiliate, representative or agent of FirstFlight or any
other third party with respect to information relating to or in any way
affecting the A Common Stock, the FirstFlight Securities, the business and
operations of Airborne or FirstFlight or the decision of exchange the
FirstFlight Securities for the A Common Stock.
(iii) The
Shareholders are receiving the transfer of the A Common Stock hereunder for
investment purposes, and not with a view to, or for a resale in connection with,
any distribution of the A Common Stock. The Shareholders have not
entered into any agreement, contract, understanding or commitment to and has no
present intention to offer, sell, transfer or otherwise dispose of any portion
of the A Common Stock either currently or after the passage of a fixed or
determinable period of time or upon the occurrence or non-occurrence of any
predetermined event or circumstance and has not offered for sale or entered into
any negotiations for the sale or transfer of any of the A Common
Stock.
(iv) The
Shareholders understand that the A Common Stock has not been registered under
the Securities Act of 1933, as amended (the “Securities Act”), and that the
certificates evidencing such shares bear a legend to that effect.
4
(v) Shareholders
acknowledges that in connection with its investment in Airborne, FirstFlight and
its affiliates, representatives or agents may have possession of material
non-public information that could have a bearing on the price or valuation of
the A Common Stock and the FirstFlight Securities, but which FirstFlight and
their affiliates, representatives or agents are not permitted to disclose and/or
shall not disclose to the Shareholders. Each Shareholder acknowledges
and agrees that FirstFlight and its affiliates, representatives and agents shall
have no obligation whatsoever to, and that FirstFlight shall have no obligation
whatsoever to cause such affiliates, representatives or agents to, disclose any
such information to the Shareholders and the Shareholders hereby waive any
rights to receive such information and forever waive, to the maximum extent
permitted by law, on its own behalf and on the behalf of its affiliates,
successors and assigns, any claims or remedies arising out of or relating to any
such non-disclosure.
(f) Accredited
Investor. Each Shareholder is an “accredited investor,” as
that term is defined in Regulation D promulgated under the Securities
Act.
5. Assumption of
Leases. Upon and subject to the conditions of this Agreement,
simultaneously with the execution of this Agreement, FirstFlight shall assign
and transfer to Airborne, and Airborne shall take assignment of, all of
FirstFlight’s right, title and interest in, to and under the leases of the IST
Center and 236 Sing Sing Road, to the extent relating to the period subsequent
to the Closing.
6. Indemnification. FirstFlight
shall indemnify Airborne and the Shareholders, in respect of, and hold each of
them harmless from and against any and all Losses suffered, incurred or
sustained by any of them or to which any of them becomes subject, resulting
from, arising out of or relating to any litigation resulting from claims made by
Xxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxx Xxxxxxxxx, Xxxxx XxXxxxx or their Affiliates
against Airborne or the Shareholders. Airborne shall indemnify
FirstFlight, its shareholders, directors and officers, in respect of, and hold
each of them harmless from and against any and all Losses suffered, incurred or
sustained by any of them or to which any of them becomes subject, resulting
from, arising out of or relating to the business and operations of Airborne
after the Closing. Any party required to indemnify another party
pursuant to this Section 6 shall
reimburse each party entitled to indemnification for all expenses (including
reasonable counsel fees and disbursements) as they are incurred by such
indemnified party in connection with investigating and preparing or defending
any action, suit, proceeding or investigation. “Loss” means any and all
damages, fines, fees, taxes, penalties, deficiencies, diminution in value of
investment, losses and expenses, including interest, reasonable expenses of
investigation, court costs, reasonable fees and expenses of attorneys,
accountants and other experts or other expenses of litigation or other
proceedings or of any claim, default or assessment (including, without
limitation, fees and expenses of attorneys, incurred in connection with (i) the
investigation or defense of any claim made by a Person not a party hereto and
(ii) asserting or disputing any rights under this Agreement against any party
hereto or otherwise).
7. Miscellaneous.
(a) Entire Agreement.
This Agreement constitutes the entire agreement among the parties with respect
to the subject matter hereof. This Agreement supersedes any prior
agreement or understanding among them, and may not be modified or amended in any
manner other than by an instrument in writing signed by the parties hereto, or
their respective successors or assigns, or otherwise as provided
herein. Without limiting the foregoing, with respect to the
transactions contemplated by this Agreement and the subject matter of this
Agreement, neither the Shareholders and their affiliates nor FirstFlight and its
affiliates make any representations or warranties other than those explicitly
set forth in this Agreement.
5
(b) Choice of
Law. EXCEPT AS OTHERWISE PROVIDED HEREIN, THIS AGREEMENT SHALL
BE GOVERNED BY AND INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW
PRINCIPLES THEREOF.
(c) Jurisdiction. The
parties hereto agree that any proceeding arising out of or relating to this
Agreement or the breach or threatened breach of this Agreement may be commenced
and prosecuted in a court in the State of New York. Each of parties
hereto hereby irrevocably and unconditionally consents and submits to the
exclusive personal jurisdiction of any court in the State of New York in respect
of any such proceeding. Each of the parties hereto consents to
service of process upon such party with respect to any such proceeding by
registered mail, return receipt requested, and by any other means permitted by
applicable laws and rules. Each of the parties hereto waives any
objection that such party may now or hereafter have to the laying of venue of
any such proceeding in any court in the State of New York and any claim that
such party may now or hereafter have that any such proceeding in any court in
the State of New York has been brought in an inconvenient forum.
(d) Waiver of Jury
Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH PARTY UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF THIS WAIVER AND (iii) EACH SUCH PARTY HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS SET FORTH HEREIN.
(e) Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their legal representatives, heirs, administrators,
executors, successors and permitted assigns. Except for the
provisions of Section
5, nothing in this Agreement, express or implied, is intended or shall be
construed to give any person other than the parties to this Agreement and their
respective successors or permitted assigns, any legal or equitable right, remedy
or claim under or in respect of any agreement or any provision contained
herein.
(f) Amendments. Neither
this Agreement nor any term or provision hereof may be amended, modified, waived
or supplemented orally, but only by a written instrument executed by the parties
hereto.
6
(g) Assignability.
Neither this Agreement nor any right, remedy, obligation or liability arising
hereunder or by reason hereof shall be assignable by the Shareholders or
FirstFlight without the prior written consent of the other parties.
(h) Notices. All
notices, requests, claims, demands and other communications hereunder shall be
in writing and shall be deemed to have been duly given on the date of delivery,
if personally delivered, or if mailed (registered or certified mail, postage
prepaid, return receipt requested), on the third (3rd) business day following
mailing as follows:
|
If
to Shareholders:
|
|
|
Xxxxxx
Xxx and Xxxx Xxx
|
|
|
00
Xxxxxxxxxxx Xxxxx
|
|
|
Xxxxxx,
Xxx Xxxx 00000
|
|
|
Tele:
000-000-0000
|
|
|
Cell: 000-000-0000
|
|
|
with
a copy to:
|
|
|
Xxxxxxx
X. Xxxxxx
|
|
|
Keyser,
Maloney, & Winner, LLP
|
|
|
HSBC
Building 2nd
Floor
|
|
|
000
Xxxx Xxxxxx
|
|
|
Xxxxxx,
Xxx Xxxx 00000
|
|
|
Tele:
607-734-0990
|
|
|
If
to FirstFlight:
|
|
|
000
Xxxxxx Xxxx
|
|
|
Xxxxx,
XX 00000
|
|
|
Fax: 000-000-0000
|
|
|
Attention:
Xxx Xxxxxxxxx
|
(i) Headings. Captions
contained in this Agreement are inserted only as a matter of convenience and in
no way define, limit or extend the scope or intent of this Agreement or any
provision hereof.
(j) Severability. If
any provision of this Agreement, or the application of such provision to any
person or circumstance, shall be held invalid, the remainder of this Agreement,
or the application of such provision to persons or circumstances other than
those to which it is held invalid, shall not be affected thereby.
(k) Waivers. No
provision of this Agreement shall be deemed to have been waived unless such
waiver is contained in a written notice given to the party claiming such waiver,
and no such waiver shall be deemed to be a waiver of any other or further
obligation or liability of the party or parties in whose favor the waiver was
given.
(l) Counterparts. This
Agreement may be executed in counterparts, each of which shall constitute one
and the same instrument.
7
(m) Further
Assurances. The parties agree (i) to furnish upon request to
each other such further information, (ii) to execute and deliver to each other
such other documents, and (iii) to do such other acts and things, all as the
other party may reasonably request for the purpose of carrying out the intent of
this Agreement.
(n) No Recourse Against
Others. No director, officer, partner, employee, owner,
representative, agent, heir, executor, administrator, stockholder, or
controlling person, as such, of Shareholders shall have any liability hereunder
or for any obligations of Shareholders, in respect of the Shares or for any
claim based on, in respect or by reason of, such obligations or their creation
or this Agreement. Each party, by execution of this Agreement, waives
and releases all such persons for all such liabilities.
IN
WITNESS WHEREOF, Shareholders and FirstFlight have executed this Agreement as of
the date first above written.
|
By:
/s/ Xxxxxx X.
Xxxxxxxxx
|
|
|
Name: Xxxxxx X. Xxxxxxxxx
|
|
|
Title: Vice Chairman
|
|
|
AIRBORNE,
INC.
|
|
|
By:
/s/ Xxxx X.
Xxx
|
|
|
Name: Xxxx X. Xxx
|
|
|
Title: President
|
|
|
/s/
Xxxx X.
Xxx
|
|
|
XXXX
X. XXX
|
|
|
/s/
Xxxxxx
Xxx
|
|
|
XXXXXX
XXX
|
8
