STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement"), is entered into on
November 6, 2002 by and among Xxxxxxx X. Gold (the "Seller"), and Massachusetts
Mutual Life Insurance Company, a Massachusetts mutual life insurance company,
TSCP Selective, L.P., a Delaware limited partnership, and Tower Square Capital
Partners, L.P., a Delaware limited partnership (each a "Buyer" and collectively
the "Buyers").
RECITALS
A. As a result of the liquidation of TCO/PSI, LLC, a Delaware
limited liability company, Seller owns 700,000 shares of common stock, $0.0001
par value per share (the "Common Stock"), of Pemco Aviation Group, Inc. (the
"Company").
B. Seller desires to sell and transfer the Common Stock to the
Buyers, and the Buyers desire to purchase the Common Stock, subject to the terms
and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein and for other good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
ARTICLE 1
STOCK PURCHASE
1.1 Stock Purchase. Seller hereby sells, conveys, transfers, assigns
and delivers to each Buyer, and each Buyer hereby purchases and acquires, the
number of shares of Common Stock set forth opposite its name on Exhibit A
hereto. Seller represents and warrants that the Common Stock is owned by Seller
of record and beneficially, free and clear of all claims, liens or encumbrances
of any nature whatsoever.
1.2 Consideration. As consideration for the purchase of the Common
Stock, each Buyer shall pay the purchase price set forth opposite its name on
Exhibit A hereto by wire transfer to Seller, for an aggregate purchase price of
Fourteen Million Five Hundred Thousand Dollars ($14,500,000). Seller shall not
be obligated to sell any of the shares of Common Stock unless Seller receives
payment of the entire Fourteen Million Five Hundred Thousand Dollar
($14,500,000) purchase price.
1.3 Closing. The closing of the transactions contemplated herein
(the "Closing") shall be held immediately upon full execution of this Agreement
at a location to be agreed upon by the parties.
1.4 Documents to be Delivered. To effect the transfer referred to in
Section 1.1 and the delivery of the consideration described in Section 1.2
hereof, the Seller and the Buyers shall at the Closing deliver the following:
1.4.1 Seller shall deliver to the Buyers certificates
evidencing the Common Stock, free and clear of any claims, liens or encumbrances
of any nature whatsoever, duly endorsed in blank for transfer or accompanied by
stock powers duly executed in blank.
1.4.2 Buyers shall effect wire transfers to Seller as provided
in Section 1.2.
ARTICLE 2
Representations and warranties
Each Buyer represents and warrants to the Seller that the statements
in the following paragraphs of this section 2 are true and correct:
2.1 Purchase for Own Account. The Common Stock to be purchased by
the Buyer hereunder will be acquired for investment for the Buyer's own account,
not as a nominee or agent, and not with a view to the public distribution
thereof within the meaning of the Securities Act of 1933, as amended (the "1933
Act"). The Buyer also represents that it has not been formed for the specific
purpose of acquiring the Common Stock.
2.2 Accredited Investor Status. The Buyer is an "accredited
investor" within the meaning of Regulation D promulgated under the 1933 Act. By
reason of its business and financial experience, sophistication and knowledge,
the Buyer is capable of evaluating the risks and merits of the investment made
pursuant to this Agreement. The Buyer confirms that it is able (i) to bear the
economic risk of this investment, (ii) to hold the Common Stock for an
indefinite period of time, and (iii) to bear a complete loss of the Buyer's
investment.
2.3 Restricted Securities. The Buyer understands that the shares of
Common Stock are characterized as "restricted securities" under the 1933 Act
inasmuch as they are being acquired from the Seller in a transaction not
involving a public offering and that under the 1933 Act and applicable
regulations thereunder such securities may be resold without registration under
the 1933 Act only in certain limited circumstances. In this connection, the
Buyer represents that it is familiar with Rule 144 of the U.S. Securities and
Exchange Commission, as presently in effect, and understands the resale
limitations imposed thereby and by the 0000 Xxx.
2.4 Due Diligence and No Solicitation. The Buyer has had a
reasonable opportunity to conduct comprehensive due diligence and to ask
questions of and receive answers from the Company and its officers, and all such
questions have been answered to the full satisfaction of the Buyer. At no time
was the Buyer presented with or solicited by any leaflet, public promotional
meeting, circular, newspaper or magazine article, radio or television
advertisement or any other form of general advertising.
2
ARTICLE 3
MISCELLANEOUS
3.1 Further Assurances. Following the Closing, the Seller and the
Buyers will take all appropriate action and execute all documents, instruments
or conveyances of any kind which may be reasonably necessary or advisable to
carry out any of the provisions hereof.
3.2 Assignments. Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by the Seller without the prior written
consent of the Buyers, or by the Buyers without the prior written consent of the
Seller. Subject to the foregoing, this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns, and no other person shall have any right, benefit or obligation
hereunder.
3.3 Notices. Unless otherwise provided herein, any notice, request,
instruction or other document to be given hereunder by any party to the others
shall be in writing and delivered in person or by courier, telegraphed, telexed
or by facsimile transmission or mailed by certified mail, postage prepaid,
return receipt requested (such mailed notice to be effective on the date of such
receipt is acknowledged), as follows:
If to the Seller: Xxxxxxx X. Gold
0000 Xxxxxx Xxxx, #0
Xxxx Xxxxxx Xxx 000
Xxxxxx, XX 00000
If to the Buyers: Xxxxx X. Xxxxxx & Company, Inc.
a Member of the MassMutual Financial Group
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, XX
or to such other place and with such other copies as either part may designate
as to itself by written notice to the others.
3.4 Choice of Law. This Agreement shall be construed, interpreted
and the rights of the parties determined in accordance with the laws of the
State of Delaware.
3.5 Entire Agreement; Amendments and Waivers. This Agreement,
together with all exhibits and schedules hereto, constitutes the entire
agreement among the parties pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties. No supplement, modification or waiver
of this Agreement shall be binding unless execution in writing by the
3
party to be bound thereby. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provision hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver
unless otherwise expressly provided.
3.6 Headings. The headings of the Articles and Sections herein are
inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
[Signature Page Follows]
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
or have caused this Agreement to be duly executed on their respective behalf by
their respective officers thereunto duly authorized, as of the day and year
above written.
SELLER: BUYERS:
------- -------
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: Xxxxx X. Xxxxxx & Company Inc. as
/s/ Xxxxxxx X. Gold Investment Adviser
-------------------
XXXXXXX X. GOLD
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
TSCP SELECTIVE, L.P.
By: Mezzco LLC, its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Manager
TOWER SQUARE CAPITAL PARTNERS, L.P.
By: Mezzco LLC, its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Manager
5
EXHIBIT A
NUMBER OF
BUYER SHARES PURCHASED PURCHASE PRICE
----- ---------------- --------------
Massachusetts Mutual Life 603,448 $12,500,000
Insurance Company
TSCP Selective, L.P. 3,652 $ 75,643
Tower Square Capital Partners, L.P. 92,900 $ 1,924,357
-----------
$14,500,000
===========
Exhibit A
