Exhibit 10.3
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of October 2,
2002, is entered into by and between XXXXXXXX INCORPORATED, a Delaware
corporation ("Seller"), and TIMCO AVIATION SERVICES, INC., a Delaware
corporation ("Buyer").
R E C I T A L S
WHEREAS, Xxxxx Manufacturing Company, Inc., a California corporation
("Xxxxx"), manufactures commercial aircraft seats and supplies after-market
aircraft seating products (collectively, the "Business");
WHEREAS, Seller owns all of the issued and outstanding shares of common
stock, $1.00 par value (the "Shares"), of Xxxxx;
WHEREAS, Xxxxx has sustained operating income losses during at least
each of the past three years;
WHEREAS, since September 11, 2001, the Business, which sells
principally to the commercial airline industry, has significantly deteriorated;
WHEREAS, as a result of the substantial losses and further
deterioration of the Business since September 11, 2001, the parties hereto have
determined to value the Purchase Price (as defined below) for the Shares at less
than the tangible book value of Xxxxx and, in consideration of such reduced
price, have agreed that Seller will make only limited representations and
warranties about Xxxxx or the Business; and
WHEREAS, on the terms and subject to the conditions hereof, Seller
desires to sell the Shares to Buyer and Buyer desires to purchase the Shares
from Seller.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows.
ARTICLE I.
DEFINITIONS
The following terms, as used herein, have the following meanings:
"AAA" will have the meaning ascribed to such term in Section 10.10(a).
"Actual Knowledge" means, with respect to any Person, the actual
personal knowledge of such Person without independent investigation. With
respect to any Person that is a corporation, Actual Knowledge shall mean the
actual personal knowledge of the executive officers of such Person without
independent investigation.
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"Affiliate" means, with respect to any Person (as defined herein), a
Person directly or indirectly controlling, controlled by or under common control
with the Person, through the ownership of all or part of the Person.
"Agreement" will have the meaning ascribed to such term in the
Preamble.
"Applicable Law" means any domestic or foreign, federal, state or local
statute, law, common law, ordinance, policy, guidance, rule, administrative
interpretation, regulation, order, writ, injunction, directive, judgment,
decree, permit or other requirement of any Governmental Authority (as defined
herein).
"August Balance Sheet" means the unaudited balance sheet of Xxxxx as of
August 24, 2002 attached hereto as Exhibit A.
"Xxxxx" will have the meaning ascribed to such term in the Recitals.
"Business" will have the meaning ascribed to such term in the Recitals.
"Business Day" means each day of the week other than a Saturday, Sunday
or other day on which commercial banks in Los Angeles, California are authorized
or required by law to close. All references to "days" in the Agreement will be
to calendar days unless specifically referenced as a Business Day.
"Buyer" will have the meaning ascribed to such term in the Preamble.
"Class I Representations" means the Class I representations and
warranties of Seller set forth in Article III, Section 3A hereof.
"Class II Representations" means the Class II representations and
warranties of Seller set forth in Article III, Section 3B hereof.
"Closing" will have the meaning ascribed to such term in Section 2.04.
"Closing Balance Sheet" will have the meaning ascribed to such term in
Section 2.02(a).
"Closing Date" will have the meaning ascribed to such term in Section
2.04.
"Closing Working Capital" will have the meaning ascribed to such term
in Section 2.02(b).
"Code" means the Internal Revenue Code of 1986, as amended.
"Contracts" means all of the contracts, purchase orders and agreements
(whether written or oral) to which Xxxxx is a party or is legally bound.
"Damages" means actual out-of-pocket losses and damages, including
amounts paid in settlement, court costs and reasonable attorneys' fees.
Notwithstanding any other provision of this Agreement, "Damages" does not
include (and neither party shall be required to indemnify or reimburse any other
party for) any damage to reputation, lost business opportunities, lost profits,
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mental or emotional distress, incidental, special, exemplary, punitive, indirect
or consequential damages or diminution in value.
"Deposit" will have the meaning ascribed to such term in Section 2.03.
"Environmental Laws" means all applicable federal, state and local
laws, ordinances and regulations pertaining to air and water quality, Hazardous
Materials or other environmental matters, including the Clean Water Act, the
Clean Air Act, the Federal Water Pollution Control Act, the Solid Waste Disposal
Act, the Resource Conservation Recovery Act, the Occupational Health and Safety
Act, the Comprehensive Environmental Response, Compensation, and Liability Act,
and the rules, regulations and ordinances of the United States Environmental
Protection Agency and the California Environmental Protection Agency.
"Excluded Assets" will have the meaning ascribed to such term in
Section 2.06.
"Governmental Authority" means the United States of America, and any
state or local governmental authority in the United States of America.
"Hazardous Material" means any material or substance that is defined as
a "hazardous waste," "hazardous material," "hazardous substance," "extremely
hazardous waste," or "restricted hazardous waste" under any provision of any
Environmental Law.
"Indemnifying Party" means (a) Seller, with respect to any claim
asserted by Buyer under Article VII, and (b) Buyer, with respect to any claim
asserted by Seller under Article VII.
"Indemnitee" means (a) Buyer, with respect to any claim for which
Seller is an Indemnifying Party under Article VII; and (b) Seller with respect
to any claim for which Buyer is an Indemnifying Party under Article VII.
"IRS" means the Internal Revenue Service.
"Leased Premises" will have the meaning ascribed such term in Section
3.12(b).
"Letter Agreements" will have the meaning ascribed such term in Section
5.04(a).
"Liability" or "Liabilities" means, with respect to any Person, any
liability or obligation of any kind, character or description, whether known or
unknown, absolute or contingent, accrued or unaccrued, liquidated or
unliquidated, secured or unsecured, joint or several, due or to become due,
vested or unvested, executory, determined, determinable or otherwise.
"Liens" means, with respect to any asset, any mortgage, title defect or
objection, lien, pledge, charge, security interest, hypothecation, restriction,
encumbrance or charge of any kind.
"Loan Debt" of a Person means of indebtedness of such Person for
borrowed money in the form of loans from institutional lenders or debt
securities issued by such Person, including principal and accrued but unpaid
interest thereon, but excluding trade payables and obligations incurred in the
ordinary course of business.
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"Material Contracts" will have the meaning ascribed to such term in
Section 3B.04.
"Person" means any individual, corporation, partnership, limited
liability company, association, trust, estate or other entity or organization,
including a Governmental Authority.
"Proceeding" or "Proceedings" means any lawsuit, hearing, arbitration
or administrative proceeding.
"Purchase Price" will have the meaning ascribed to such term in Section
2.02.
"Representatives" mean, with respect to any Person, any of the Person's
Affiliates, officers, directors, employees, agents, accountants, attorneys,
financial advisors or bankers.
"Seller" will have the meaning ascribed to such term in the Preamble.
"September Accounting Month" will have the meaning ascribed to such
term in Section 2.02(a).
"Shares" will have the meaning ascribed to such term in the Recitals.
"Target" will have the meaning ascribed to such term in Section
2.02(b).
"Tax" or "Taxes" means, with respect to any Person, any federal, state,
local or foreign net income, gross income, gross receipts, sales, use, ad
valorem, value-added, capital, unitary, franchise, profits, withholding,
payroll, employment, excise, severance, stamp, transfer, occupation, premium,
property or windfall profit tax or other tax of any kind whatsoever, together
with any interest or penalty, imposed by any taxing authority, on such Person.
"Tax Returns" mean any return, report, form or other information filed
or required to be filed with the IRS or any other federal, foreign, state local,
provincial taxing authority with respect to any Tax, including any claim for
refund of Taxes and any amendments or supplements of any of the foregoing.
"Working Capital" of Xxxxx means the difference of (i) the sum of the
carrying values on Xxxxx'x balance sheet of current assets of Xxxxx, consisting
of xxxxx cash, accounts receivable, inventory and other current assets, minus
(ii) the sum of the carrying values on Xxxxx'x balance sheet of current
liabilities of Xxxxx, consisting of accounts payable and accrued liabilities.
ARTICLE II.
PURCHASE AND SALE OF SHARES
2.01. Sale of Shares. On the terms and subject to the conditions of
this Agreement Seller agrees to sell to Buyer and Buyer agrees to purchase from
Seller all of the Shares at the Closing.
2.02. Purchase Price. Buyer shall pay to Seller, as the purchase
price for the Shares, an aggregate amount of One Million, Three Hundred Thousand
Dollars ($1,300,000) in cash,
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subject to adjustment as described in this Section 2.02 (as adjusted, the
"Purchase Price"), inclusive of the Deposit credited back to Buyer, if any,
pursuant to Section 2.03, at the Closing.
(a) Immediately after the Closing, Buyer and Seller shall
cooperate to prepare an unaudited balance sheet for Xxxxx as of the Closing Date
using the same methodologies and assumptions used to create the August Balance
Sheet, which balance sheet shall exclude from current assets all Excluded Assets
and shall exclude from current liabilities and reserves all accrued workers'
compensation, liability and property insurance, accrued income taxes, accruals
related to the 401(k) plan, employee retention payment obligations, obligations
for success bonuses, and severance obligations or payments (the "Closing Balance
Sheet"). The carrying values of Xxxxx'x assets, the amount of reserves and the
accruals for liabilities on the Closing Balance Sheet shall be consistent with
those set forth on the August Balance Sheet. Without limiting the generality of
the foregoing, on the Closing Balance Sheet:
(i) the reserve for doubtful accounts receivable
shall be $55,164 (the amount of such reserve on the August Balance
Sheet) minus the amount of any accounts receivable written off in the
period from August 24, 2002 to the Closing Date (the "September
Accounting Month");
(ii) the reserve for slow-moving, obsolete,
defective and other inventory items shall be $368,276 (the amount of
such reserve on the August Balance Sheet) minus the amount of any
inventory written off in the September Accounting Month;
(iii) the warranty reserve shall be $75,422 (the
amount of such reserve on the August Balance Sheet) minus the amount of
any warranty expense incurred in the September Accounting Month;
(iv) that certain reserve for $53,000 not
specified for any particular purpose in the August Balance Sheet, shall
remain $53,000 on the Closing Balance Sheet, but shall be reserved for
that certain preferential payment claim relating to a payment made to
Xxxxx from Trans World Airline; and
(v) no liability shall be recorded for any
accounts payable, payroll or other matters for which a check has been
issued by Xxxxx on or before the Closing Date even if such check
remains uncashed on the Closing Date, provided that Seller shall
provide funding through its controlled disbursement account sufficient
to cover any such checks.
(b) If the parties hereto are unable to agree on the
Closing Balance Sheet within thirty (30) days after the Closing Date, the
dispute shall be resolved by a partner at a "Big Four" accounting firm that has
not provided services to Seller, Xxxxx or Buyer during the three (3) years
preceding the date of selection of such firm (the "Accountant") to resolve such
dispute. If the parties hereto are unable to agree on the selection of the
Accountant within forty (40) days after the Closing Date, then each party hereto
shall select a partner at any "Big Four" accounting firm, and those two partners
shall in turn mutually select the Accountant to resolve such dispute.
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(i) Once selected, the Accountant shall, within
forty-five (45) days after his or her appointment, reach an independent
determination regarding any the subject of the dispute. The
determination by the Accountant shall be final and conclusive on the
parties hereto. The fees and expenses of the Accountant in resolving
any such dispute shall be borne equally by each party hereto.
(c) Xxxxx'x Working Capital as of August 24, 2002 was One
Million, Two Hundred and Ninety-Two Thousand Dollars ($1,292,000.00) (the
"Target") based on the August Balance Sheet, and the calculation thereof is set
forth on Exhibit B hereto. The Working Capital of Xxxxx as of the Closing Date
(the "Closing Working Capital") shall be determined based on the Closing Balance
Sheet and in the same manner as the determination of the Target.
(d) To the extent that the Closing Working Capital
exceeds the Target, the Purchase Price shall be increased by the amount of such
excess and Buyer shall promptly pay to Seller the amount of such excess by means
of a wire transfer to the account set forth on Schedule 2.05(b). To the extent
that the Closing Working Capital is less than the Target, the Purchase Price
shall be decreased by the amount of such shortfall and Seller shall promptly pay
to Buyer the amount of such shortfall by means of a wire transfer to an account
designated by Buyer.
2.03. Deposit. On the date hereof, Buyer will pay $165,000 to
Seller as a nonrefundable deposit (the "Deposit"). Of the Deposit, (i)
$76,807.26 has previously been paid by Buyer to fund Xxxxx'x payroll for the
week ended Friday, September 26, 2002, and (ii) $88,192.74 shall be paid to
Seller on the date hereof by wire transfer to the account set forth on Schedule
2.05(b). If, and only if, the Closing occurs on or prior to October 11, 2002,
the Deposit shall be applied as a credit against the Purchase Price.
2.04. Closing. The closing of the sale and purchase of the Shares
and of the transactions contemplated hereby (the "Closing") will take place at
the offices of Xxxxxx, Xxxx & Xxxxxxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx,
XX 00000, 47th Floor, or such other place upon which the parties may agree, on
October 11, 2002 or such earlier date upon which the parties may agree (the
"Closing Date").
2.05. Closing Deliveries.
(a) At the Closing, Seller shall deliver to Buyer:
(i) a certificate or certificates representing the
Shares, duly endorsed for transfer to Buyer;
(ii) (A) copies of the Articles of Incorporation and
Bylaws of Xxxxx as in effect immediately prior to the
Closing Date; (B) copies of resolutions adopted by
the Board of Directors of Seller authorizing the
transactions contemplated by this Agreement as of the
Closing Date; and (C) a certificate of good standing
certificate for Xxxxx from the California Secretary
of State;
(iii) resignations from each of the officers and directors
of Xxxxx; and
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(iv) original minute books of Xxxxx.
(b) At the Closing, Buyer shall deliver to Seller the
Purchase Price, by wire transfer to the account set forth on Schedule 2.05(b).
2.06. Excluded Assets. Notwithstanding anything herein to the
contrary, Seller shall cause Xxxxx to pay to Seller by dividend prior to the
Closing, and Buyer shall cause Xxxxx to pay to Seller after the Closing, any and
all of the property of Xxxxx listed on Schedule 2.06 (collectively, the
"Excluded Assets").
ARTICLE III.
REPRESENTATIONS OF SELLER
3A. CLASS I REPRESENTATIONS. Seller hereby represents and warrants
to Buyer as follows:
3A.01. Corporate Existence. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Xxxxx is a corporation duly organized, validly existing and in good standing
under the laws of the State of California. Xxxxx is not qualified to conduct
business in any other state.
3A.02. Authorization. The execution, delivery and performance by
Seller of this Agreement and the consummation by Seller of the transactions
contemplated hereby have been duly authorized by all requisite corporate action
on the part of Seller. This Agreement has been duly and validly executed by
Seller and constitutes the legal, valid and binding agreement of Seller,
enforceable against it in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and subject to general principles of
equity.
3A.03. Non-Contravention. The execution, delivery and performance by
Seller of this Agreement does not and will not (a) contravene or conflict with
the Certificate of Incorporation, bylaws or other constituent documents of
Seller; (b) contravene or conflict with or constitute a violation of any
provision of any Applicable Law binding upon or applicable to Seller; (c)
contravene or constitute a material default under any loan agreement of Seller.
3A.04. Capitalization; Ownership of Shares. Except as otherwise
disclosed on Schedule 3A.04, the authorized capital stock of Xxxxx consist of
75,000 shares of common stock, of which 35,000 shares are issued and
outstanding. There are no equity or other ownership interests or securities of
Xxxxx issued and outstanding. Seller is the sole record and beneficial owner of
the Shares, free and clear of all Liens.
3A.05. Xxxxx Indebtedness. On the Closing Date, Xxxxx will not be
liable, whether as principal or guarantor, for any Loan Debt. Except as
contemplated by Section 2.02(a)(v), neither Seller nor any subsidiary of Seller
is liable to Xxxxx for any monetary obligation, and Xxxxx is not liable to
Seller or any subsidiary of Seller for any monetary obligation.
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3A.06 Title to Assets. Assets shown as owned by Xxxxx on the August
Balance Sheet will be owned by Xxxxx on the Closing Date free and clear of all
Liens other than Liens shown on the August Balance Sheet, except for assets sold
in the ordinary course of business. At August 24, 2002, Xxxxx was the lawful
owner of or had the right to use all of the assets shown on the August Balance
Sheet, free and clear of all Liens.
3A.07 Real Property Leases. Schedule 3A.07 sets forth a true and
correct list of all real property leases to which Xxxxx is a party. Xxxxx is
current in its payment of monthly rent under all such leases.
3A.08 Broker Fees. No Person is entitled to any brokerage or
finder's fee or other commission from Xxxxx or Seller in respect of this
Agreement or the transactions contemplated hereby other than Xxxx Group, whose
fees shall be paid by Seller. No broker fees or expenses owed to Xxxx Group
shall be accrued on the Closing Balance Sheet.
3A.09. Tax Matters.
(a) Except as disclosed on Schedule 3A.09, (i) Xxxxx has
filed or caused to be filed all material Tax Returns of Xxxxx which have become
due (taking into account valid extensions of time to file), and has paid or
caused to be paid all Taxes shown thereon as due, (ii) there are no outstanding
Tax liens that have been filed by any Tax authority against any property or
assets of Xxxxx, and (iii) no claims are currently being asserted in writing
with respect to any Taxes of Xxxxx.
(b) Except as disclosed on Schedule 3A.09, Xxxxx is not a
party to any tax indemnity agreement, tax sharing agreement, or other similar
agreement with Seller or any of its subsidiaries under which Xxxxx will have
liability following the Closing.
(c) At no time during its ownership by Seller has Xxxxx
been part of an affiliated, consolidated, combined or unitary group, other than
the group of which Seller is the parent corporation.
(d) Seller is not a "foreign person" within the meaning
of Section 1445(f)(3) of the Code.
3A.10 Insurance Coverage. Xxxxx, as a subsidiary of Seller, is a
named insured under Seller's insurance policies for workers' compensation and
for automobile, general and aircraft product liability listed on Schedule 3A.10.
3B. CLASS II REPRESENTATIONS. Seller hereby represents and
warrants to Buyer as follows:
3B.01 Litigation. To the Actual Knowledge of Seller and Xxxxx,
during the twelve (12) months preceding the date of this Agreement, no
Proceedings were pending or threatened against Xxxxx.
3B.02. Liabilities. To the Actual Knowledge of Seller and Xxxxx,
except as otherwise disclosed on Schedule 3B.02, the August Balance Sheet
includes all liabilities of Xxxxx that are
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required to be included therein by generally accepted accounting principles
consistently applied with prior periods. To the Actual Knowledge of Seller and
Xxxxx, since the date of the August Balance Sheet, Xxxxx has incurred no
additional liabilities that are required to be included in a balance sheet by
generally accepted accounting principles consistently applied with prior
periods, except for (a) liabilities incurred in the ordinary course of business
consistent with past practice and (b) liabilities contemplated by Section 5.04
hereof.
3B.03. Governmental Authorization. To the Actual Knowledge of Seller
and Xxxxx, the execution, delivery and performance by Seller of this Agreement
requires no action by, consent or approval of, or filing with, any Governmental
Authority.
3B.04. Material Contracts. To the Actual Knowledge of Seller and
Xxxxx:
(a) Schedule 3B.04(a) sets forth a complete and correct
list of the following agreements to which Xxxxx is a party or by which it is
bound (collectively, the "Material Contracts"):
(i) All credit and loan Contracts, promissory notes,
guarantees, letters of credit, and other obligations
in respect of borrowed money or financial
instruments;
(ii) All other Contracts (including purchase orders with
customers and suppliers) to which Xxxxx is a party
and by which it is bound and that involve $100,000 or
more (excluding the real property leases described in
Schedule 3A.07); and
(iii) All leases of capital equipment that involve $10,000
or more.
(b) During the twelve (12) months preceding the date of
this Agreement, Xxxxx has not received any written notice of material default
from any other party to a Material Contract.
3B.05. Employee Benefit and Deferred Compensation Plans. To the
Actual Knowledge of Seller and Xxxxx:
(a) Each of Xxxxx'x Employee Benefit Plans disclosed on
Schedule 3B.05 has been maintained, operated and administered in all material
respects in accordance with their terms and with all provisions of ERISA and
other applicable laws.
(b) Xxxxx has complied with the requirements of Code
Section 4980B, relating to health care continuation.
(c) Xxxxx does not maintain any deferred compensation
programs for employees other than the Employee Benefit Plans disclosed on
Schedule 3B.05.
3B.06 Environmental Compliance. To the Actual Knowledge of Seller
and Xxxxx, Xxxxx has not arranged for disposal or treatment, or arranged with a
transporter for transport for disposal or treatment, of any Hazardous Material
on any third party property that has resulted or
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may reasonably be expected to result, individually or in the aggregate, in any
material Liability. To the Actual Knowledge of Seller and Xxxxx, Xxxxx has not
exposed any employee or third party to any Hazardous Material or condition that
has resulted or may reasonably be expected to result, individually or in the
aggregate, in any material Liability. To the Actual Knowledge of Seller and
Xxxxx, Xxxxx has not received any notice, demand, letter, claim or request for
information relating to the Business that alleges violation of or Liability
under any Environmental Laws and there are no Proceedings, orders, decrees, or
injunctions, pending or against Xxxxx alleging Liability under any Environmental
Laws.
ARTICLE IV.
REPRESENTATIONS OF BUYER
As an inducement to Seller to enter into this Agreement and to
consummate the transactions contemplated hereby, Buyer hereby represents and
warrants to Seller as follows:
4.01. Organization and Existence. Buyer is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware.
4.02. Corporate Authorization. The execution, delivery and
performance by Buyer of this Agreement and the consummation by Buyer of the
transactions contemplated hereby are within the corporate powers of Buyer and
have been duly authorized by all necessary corporate action on the part of
Buyer. This Agreement constitutes the legal, valid and binding agreement of
Buyer, enforceable in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and subject to general principles of
equity.
4.03. Governmental Authorization. To the Actual Knowledge of Buyer,
the execution, delivery and performance by Buyer of this Agreement requires no
action by, consent or approval of, or filing with, any Governmental Authority.
4.04. Non-Contravention. The execution, delivery and performance by
Buyer of this Agreement does not and will not: (a) contravene or conflict with
the Certificate of Incorporation, bylaws or other constituent documents of
Buyer; (b) contravene or conflict with or constitute a violation of any
provision of any Applicable Law binding upon or applicable to Buyer; or (c)
contravene or constitute a material default under any loan agreement of Buyer.
4.05. Litigation. To the Actual Knowledge of Buyer, there are no
Proceedings that have been brought by any Governmental Authority or any other
Person against Buyer that seek to enjoin or rescind the purchased and sale of
those Shares contemplated by this Agreement.
4.06 No Representations and Warranties. Other than the express
representations and warranties, covenants and agreements made by Seller in
Articles III and V of this Agreement, neither Seller nor Xxxxx, nor any person
or entity acting by or on behalf of Seller or Xxxxx has made any representation,
warranty, inducement, promise, agreement, assurance or statement, oral or
written, of any kind to Buyer in this Agreement or elsewhere, upon which Buyer
is relying in entering into this Agreement and the transactions contemplated
hereby. Buyer has conducted a full and complete investigation and inspection of
the business, operations, assets and Liabilities,
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results of operations and financial condition of Xxxxx as Buyer may have deemed
necessary or appropriate for the purpose of entering into this Agreement and the
transactions contemplated hereby. In executing this Agreement, Buyer is relying
only on its own investigation of Xxxxx, the Business, the Shares and the
accuracy of the statements contained in Article III of this Agreement, and not
on any other representations, warranties, inducements, promises, agreements,
assurances or statements.
ARTICLE V.
COVENANTS
5.01. Further Assurances. The parties hereto agree to execute and
deliver such other documents, certificates, agreements and other writings and to
take such other actions as may be reasonably necessary or desirable in order to
consummate or implement expeditiously the transactions contemplated by this
Agreement. Notwithstanding the foregoing, no party hereto shall have any
obligation to expend any funds or to incur any other obligation in connection
with the consummation of the transactions contemplated hereby other than normal
out-of-pocket expenses (such as fees and expenses of counsel and accountants)
reasonably necessary to consummate such transactions. In the event that Seller
receives, at any time after the Closing, any property, cash or securities of
Xxxxx other than the Excluded Assets, Seller will notify Buyer that it has
received such property, will hold such property in trust for the benefit of
Xxxxx and will promptly remit such property to Xxxxx (forwarding checks payable
to Xxxxx and remitting all actual received cash by wire transfer to an account
provided to Seller by Xxxxx). Buyer shall use its best efforts to secure the
financing required pursuant to Section 6.01(b) and obtain the consents required
pursuant to Section 6.01(c).
5.02. Books and Records. Buyer shall use all commercially reasonable
efforts to preserve and keep all books, records, computer files, software
programs and any data processing files of Xxxxx existing as of the Closing for a
period of seven (7) years from the Closing Date, or for any longer period as may
be required by any government agency, ongoing litigation, law, regulation, audit
or appeal of Taxes at Buyer's sole cost and expense. During such period, Buyer
shall make such books and records available to Seller as may be reasonably
required by Seller, including but not limited to, in connection with any Tax
examination or audit. In the event that Buyer or Xxxxx wishes to destroy or
dispose of such books and business records, at any time alter the Closing, it
shall first give ninety (90) days prior written notice to Seller, and Seller
shall have the right at its option, upon prior written notice given to Buyer or
Xxxxx, to take possession of such records.
5.03. Cooperation on Tax and Other Matters.
(a) The Buyer and the Seller shall cooperate fully, as
and to the extent reasonably requested by the other party, in connection with
the filing of Tax Returns pursuant to this Section 5.03 and any audit,
litigation or other proceeding with respect to Taxes. Such cooperation shall
include the retention and (upon the other party's request) the provision of
records and information which are reasonably relevant to any such audit,
litigation or other proceeding and making employees available on a mutually
convenient basis to provide additional information and explanation of any
material provided hereunder. The Buyer and the Seller
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further agree, upon request, to use their reasonable best efforts to obtain any
certificate or other document from any Governmental Authority or any other
Person as may be necessary to mitigate, reduce or eliminate any Tax that could
be imposed (including, but not limited to, with respect to the transactions
contemplated hereby).
(b) The Seller agrees to use its reasonable best efforts
to assist the Buyer in responding to any review, investigation or other inquiry
by any Governmental Authority.
5.04. Employee Compensation.
(a) Seller shall pay, or cause Xxxxx to pay prior to the
Closing Date, the "success bonuses," if any, pursuant to paragraph 3 of the
letter agreements, each dated February 18, 2002, between Xxxxx and each of Xxx
X. Xxxx, Xxxxx X. Xxxxxxxx, Xxxxx Xxxxxxxxx, Xxxxx X. Xxxxxx and Xxxxxxx X.
Xxxxx (collectively, the "Letter Agreements").
(b) Seller shall pay, or cause Xxxxx to pay prior to the
Closing Date, half of the "guaranteed benefits," pursuant to paragraph 1 of the
Letter Agreements.
(c) Seller shall cause Xxxxx to terminate the employment
of Xxxxxxx X. Xxxxx ("Xxxxx") as of the Closing Date, or in the alternative
Xxxxx shall resign as of the Closing Date. Buyer shall not, and shall cause
Xxxxx not to, offer a position to Xxxxx to continue in his current position with
Xxxxx following the Closing Date; provided, however, that Buyer or Xxxxx may
employ Xxxxx as a consultant for a period not exceeding thirty (30) days after
the Closing Date. Provided that Buyer performs its obligations set forth in the
immediately preceding sentence, Seller shall assume the responsibility to pay
any "severance benefits" owed to Xxxxx pursuant to the Letter Agreement dated
February 18, 2002 between Xxxxx and Xxxxx.
(d) Except as expressly provided herein, Seller shall not
have any other Liabilities with respect to severance obligations to employees of
Xxxxx, including, without limitation, those arising under the Letter Agreements
(including, but not limited to, any payments for "severance benefits" pursuant
to paragraph 2 of the Letter Agreements), and Buyer shall cause Xxxxx to perform
all of such obligations after the Closing Date.
5.05 Termination of 401(k) Participation. At the Closing, the
participation of Xxxxx employees in Seller's 401(k) plan shall be terminated and
Seller shall cause all funds due to Xxxxx employees under such plan to be
distributed to such employees as soon as administratively practicable in
accordance with the terms of the plan, ERISA and the Code.
ARTICLE VI
CLOSING CONDITIONS
6.01. Conditions to Obligations of Buyer. Buyer's obligations to
consummate the transactions contemplated by this Agreement will be subject to
fulfillment of the following conditions, any of which may be waived by Buyer in
its sole discretion:
(a) The representations and warranties of Seller contained in this
Agreement shall be true and correct in all material respects at and as of the
Closing Date with the same effect as if
12
made at and as of the Closing Date (except to the extent such representations
specifically related to an earlier date, in which case such representations
shall be true and correct in all material respects as of such earlier date) and,
at the Closing, Seller shall have delivered to Buyer a certificate to that
effect executed by an executive officer of Seller.
(b) Buyer shall have obtained financing for 100% of the Purchase
Price from a lender acceptable to Buyer, in its sole discretion.
(c) Buyer shall have received the consent of Citicorp USA, Inc.
and any of its other lenders as required under any of its credit agreements to
consummate the transactions contemplated by the Agreement.
(d) No order, statute, rule, regulation, executive order,
injunction, stay, decree or restraining order shall have been enacted, entered,
promulgated or enforced by any Governmental Authority that prohibits the
consummation of the transactions contemplated hereby, and no litigation or
governmental Proceeding seeking such order shall be pending or threatened.
6.02. Conditions to Obligations of Seller. Seller's obligations to
consummate the transactions contemplated by this Agreement will be subject to
the fulfillment of the following conditions, any of which may be waived by
Seller in its sole discretion:
(a) Buyer shall have performed and satisfied each of its
obligations hereunder required to be performed and satisfied by it on or prior
to the Closing Date.
(b) No order, statute, rule, regulation, executive order,
injunction, stay, decree or restraining order shall have been enacted, entered,
promulgated or enforced by any Governmental Authority that prohibits the
consummation of the transactions contemplated hereby, and no litigation or
governmental Proceeding seeking such order shall be pending or threatened.
ARTICLE VII.
INDEMNIFICATION
7.01. Indemnification.
(a) Subject to the limitations contained in this Article
VII, Seller shall indemnify and hold harmless Buyer in respect of any and all
Damages reasonably incurred by Buyer that are caused by a breach by Seller of
any representation, warranty, covenant or agreement contained in this Agreement.
(b) Subject to the limitations contained in this Article
VII, Buyer shall indemnify and hold harmless Seller in respect of any and all
Damages reasonably incurred by Seller that are caused by a breach by Buyer of
any representation, warranty, covenant or agreement contained in this Agreement.
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7.02. Survival of Representations, Warranties and Covenants.
(a) Subject to Section 7.02(b), all representations,
warranties, covenants, agreements and obligations of each Indemnifying Party
contained in this Agreement, and all claims of Buyer or Seller in respect of any
breach of any representation, warranty, covenant, agreement or obligation
contained in this Agreement, shall expire twelve months after the Closing Date,
except that covenants or obligations of Seller or Buyer in Article V of this
Agreement that by their terms are to be performed after the Closing will survive
the Closing and will not expire unless otherwise provided in this Agreement.
(b) Notwithstanding Section 7.02(a), (i) the
representations and warranties of Seller set forth in Section 3A.09 (Tax
Matters) shall expire upon the expiration of the statute of limitations that
would be applicable to any claim that, if asserted against Xxxxx, would give
rise to an indemnification obligation of Seller under Section 3A.09, and (ii)
the Class II Representations of Seller shall expire on January 31, 2003.
(c) Notwithstanding anything herein to the contrary,
indemnification for claims for which written notice has been given pursuant to
Section 7.03 hereof in good faith prior to the expiration of the representation,
warranty, covenant, or agreement or obligation upon which such claim is based
will not expire, and such claims for indemnification may be pursued, until the
final resolution of such claim (but only to the extent set forth in the written
notice given pursuant to Section 7.03 hereof in good faith prior to the
expiration).
7.03. Claims for Indemnification.
(a) If any Indemnitee believes that the Indemnitee is
entitled to indemnification pursuant to this Article VII, that Indemnitee shall
give the Indemnifying Party prompt written notice thereof. Any such notice shall
set forth in reasonable detail the basis for such claim for indemnification.
(b) No Person will have any cause of action against any
Affiliate, stockholder, director, officer, employee, consultant, agent or other
Representative of any Indemnifying Party as a result of any inaccuracy or
misrepresentation in or breach of or failure to perform any representation,
warranty, covenant, agreement or obligation of such Indemnifying Party referred
to in Section 7.01 above. Nothing set forth herein shall be deemed to prohibit
or limit Buyer's or Seller's right to seek injunctive or other equitable relief
at any time before, on or after the Closing Date for the failure of any
Indemnifying Party to perform any covenant or agreement contained herein.
7.04. Defense of Claims. In connection with any claim that may give
rise to indemnity under this Article VII resulting from or arising out of any
claim or Proceeding against an Indemnitee by a Person that is not a party
hereto, upon written notice sent at any time to the Indemnitee, the Indemnifying
Party may assume the defense of any such claim or Proceeding. If the
Indemnifying Party assumes the defense of any such claim or Proceeding, the
Indemnifying Party shall control the defense of such claim or Proceeding, with
counsel of its choice, and shall diligently and promptly pursue the resolution
thereof. If the Indemnifying Party assumes the defense of any claim or
Proceeding in accordance with this Section 7.04, the Indemnifying Party may
consent to a settlement of, or the entry of any judgment arising from, any such
claim or Proceeding without the prior written consent of such Indemnitee;
provided, however, that:
14
(a) the Indemnifying Party shall pay or cause to be paid
all amounts arising out of such settlement or judgment either concurrently with
the effectiveness thereof or shall obtain and deliver to the Indemnitee in
connection with the execution of such settlement a general release executed by
the Person not a party hereto, which general release shall release such
Indemnitee and its Representatives from any Liability in such matter;
(b) such settlement or judgment shall admit no
culpability or fault on the part of the Indemnitee;
(c) the Indemnifying Party shall not be authorized to
encumber any of the assets of any Indemnitee or to agree to any restriction that
would apply to any Indemnitee or to its conduct of business; and
(d) a condition to any such settlement shall be a
complete release of the Indemnitee and its Representatives with respect to such
claim.
The Indemnitee shall be entitled to participate in (but not control) the defense
of any such action, with its own counsel and at its own expense (which expense
shall not be subject to reimbursement or indemnification by the Indemnifying
Party). The Indemnitee shall, and shall cause each of its Affiliates, officers,
employees, consultants, agents and other Representatives to, cooperate fully
with the Indemnifying Party in the defense of any claim or Proceeding being
defended by the Indemnifying Party pursuant to this Section 7.04. If the
Indemnifying Party does not assume the defense of any claim or Proceeding
resulting therefrom in accordance with the terms of this Section 7.04, the
Indemnitee may defend against such claim or Proceeding in such manner as it may
deem appropriate, provided, however, that such Indemnitee shall not consent to
the entry of judgment or enter into any settlement without the prior written
consent of the Indemnifying Party (which consent shall not be unreasonably
withheld).
7.05. Limitations on Indemnity Claims.
(a) Subject to Section 7.05(d), Seller shall not be
obligated to indemnify Buyer in respect of Damages resulting from breaches of
Class I Representations until such Damages exceed $250,000 in the aggregate, and
thereafter Seller shall be obligated to indemnify Buyer for Damages in excess of
such $250,000 up to an amount equal to the aggregate Purchase Price.
(b) Subject to Section 7.05(d), Seller shall not be
obligated to indemnify Buyer in respect of Damages resulting from breaches of
Class II Representations until such Damages exceed $200,000 in the aggregate,
and thereafter Seller shall be obligated to indemnify Buyer for up to $250,000
of Damages in excess of such $200,000.
(c) Subject to Section 7.05(d), Seller shall not be
obligated to indemnify Buyer in respect of any Damages resulting from breaches
of, or defaults under, any of the provisions of this Agreement other than
Article III until such Damages exceed $250,000 in the aggregate, and thereafter
Seller shall be obligated to indemnify Buyer for Damages in excess of such
$250,000 up to an amount equal to the aggregate Purchase Price.
15
(d) Notwithstanding any other provision of this
Agreement, the maximum aggregate Liability or indemnification obligation of
Seller pursuant to Section 7.01(a) or otherwise under this Agreement, any
document contemplated by this Agreement, or Applicable Law shall not exceed the
Purchase Price.
7.06 Determination of Indemnification Payments. Notwithstanding any
other provision of this Agreement, no party shall have any obligation to
indemnify the other party with respect to any Damages to the extent such Damages
could have been reasonably avoided by such other party or the Damages to such
other party could have been mitigated. All indemnification payments under this
Agreement shall be paid by the Indemnifying Party net of any Tax benefits and
insurance coverage that may be available to the Indemnitee. All indemnification
payments under this Agreement shall be deemed to be adjustments to the Purchase
Price.
ARTICLE VIII.
NONCOMPETITION AGREEMENT
Seller shall not, during the two (2) years following the Closing Date,
engage as an original equipment manufacturer in the business of selling complete
new airline seats to commercial airlines (the "New Airline Seat Business");
provided, however, that nothing herein shall prohibit or restrict Seller from
hereafter acquiring a business engaged, prior to its acquisition by Seller, in
the New Airline Seat Business and continuing such business after such
acquisition.
ARTICLE IX
TERMINATION
9.01 Termination. This Agreement (and the transactions contemplated
hereby) shall terminate as follows:
(a) upon the mutual written consent of Seller and Buyer;
or
(b) automatically, if the Closing has not occurred on or
prior to October 11, 2002.
9.02 Effect of Termination. Upon the termination of this Agreement
in accordance with Section 9.01 hereof, the parties shall be relieved of any
further obligations under this Agreement (other than Buyer's obligation to pay
the Deposit as provided in Section 2.04), and Seller shall retain the Deposit.
ARTICLE X
MISCELLANEOUS
10.01. Notices. All notices, requests, demands, claims and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder will be deemed duly given (a) if
personally delivered, when so delivered, (b) if mailed,
16
two Business Days after having been sent by registered or certified mail, return
receipt requested, postage prepaid and addressed to the intended recipient as
set forth below or (c) if sent through an overnight delivery service in
circumstances to which such service guarantees next day delivery, the day
following being so sent:
If to Seller:
Xxxxxxxx Incorporated
000 Xxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000-0000
Attn: Chief Financial Officer
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 X. Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Dhiya El-Saden, Esq.
Telecopier No.: (000) 000-0000
If to Buyer:
TIMCO Aviation Services, Inc.
000 Xxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attn: C. Xxxxxx Xxxxxxxx, Executive Vice President and CFO
Telecopier No.: (000) 000-0000
with a copy to:
Akerman Senterfitt & Xxxxxx, P.A.
Xxx Xxxxxxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Telecopier No.: (000) 000-0000
Any party may give any notice, request, demand, claim or other communication
hereunder using any other means (including ordinary mail or electronic mail),
but no such notice, request, demand, claim or other communication will be deemed
to have been duly given unless and until it actually is received by the
individual for whom it is intended. Any party may change the address to which
notices, requests, demands, claims and other communications hereunder are to be
delivered by giving the other parties notice in the manner herein set forth.
10.02. Amendments; No Waivers. Any provision of this Agreement may be
amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case of an
17
amendment, by all parties hereto, or in the case of a waiver, by the party
against whom the waiver is to be effective.
10.03. Expenses. All costs and expenses incurred in connection with
this Agreement and in closing and carrying out the transactions contemplated
hereby will be paid by the party incurring such cost or expense. This section
will survive the termination of this Agreement.
10.04. Successors and Assigns. This Agreement will be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns. No party hereto may assign either this Agreement or any
of its rights, interests or obligations hereunder without the prior written
approval of each other party.
10.05. Governing Law. This Agreement shall be construed in accordance
with and governed by the internal laws (without reference to choice or conflict
of laws) of the State of California.
10.06. Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts and the signatures delivered by telecopy, each of
which will be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. This Agreement will become effective when
each party hereto has received a counterpart hereof signed by the other parties
hereto.
10.07. Entire Agreement. This Agreement (including the Disclosure
Schedules and Exhibits referred to herein which are hereby incorporated by
reference and the other agreements executed simultaneously herewith), the letter
agreement dated April 26, 2002 between Buyer and Seller, and the Acknowledgment
executed by Xxx Xxxx as President of Buyer, constitute the entire agreement
between the parties with respect to the subject matter hereof and supersede all
prior agreements, understandings and negotiations, both written and oral,
between the parties with respect to the subject matter of this Agreement.
Neither this Agreement nor any provision hereof is intended to confer upon any
Person other than the parties hereto any rights or remedies hereunder.
10.08. Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof. All references to an Article or Section include all subparts thereof.
10.09. Severability. If any provision of this Agreement, or the
application thereof to any Person, place or circumstance, is held by a court of
competent jurisdiction to be invalid, unenforceable or void, the remainder of
this Agreement and such provisions as applied to other Persons, places and
circumstances will remain in full force and effect only if, after excluding the
portion deemed to be unenforceable, the remaining terms will provide for the
consummation of the transactions contemplated hereby in substantially the same
manner as originally set forth at the later of the date this Agreement was
executed or the date this Agreement was last amended.
10.10. Dispute Resolution.
(a) Subject to Section 2.02, any disputes or claims
arising out of or concerning this Agreement after the Closing Date, whether
arising under theories of liability or
18
damages based upon contract, tort or statute, shall be determined exclusively by
arbitration before a single arbitrator in accordance with the then effective
arbitration rules of the American Arbitration Association (the "AAA"); provided,
however, that the parties hereto may also bring an action in court for
injunctive relief. The arbitrator's decision shall be final and binding on the
parties hereto (other than with respect to matters subject to the foregoing
proviso) and judgment upon the award rendered by the arbitrator may be entered
in any court of competent jurisdiction. In recognition of the fact that
resolution of any disputes or claims in the courts is rarely timely or cost
effective for either party, the parties hereto enter this mutual agreement to
arbitrate in order to gain the benefits of a speedy, impartial and
cost-effective dispute resolution procedure.
(b) Any arbitration shall be held in Los Angeles,
California. The arbitrator shall be neutral and impartial and shall be an
attorney or retired judge with substantial experience in contract disputes,
selected by Seller, on the one hand, and Buyer, on the other hand, alternately
striking names from a list of five such persons provided by the AAA office in
Los Angeles, California, following a request by the party seeking arbitration
for a list of five such attorneys or retired judges with substantial
professional experience in contract disputes. If either party fails to so strike
names from the list, the arbitrator shall be selected from the list by the other
party.
(c) Buyer and Seller shall split the fees and expenses of
the arbitrator, and each party shall pay its respective fees and expenses in
connection with any matters subject to the provision in Section 10.10(b) above.
Each party shall pay its own attorney fees and costs including, without
limitation, fees and costs of any experts; provided, however, that attorney fees
and costs incurred by the party that "prevails" in any such arbitration
commenced pursuant to this Section 10.10 in any judicial action or proceeding
seeking to enforce the agreement to arbitrate disputes as set forth in this
Section 10.10 or seeking to enforce any order or award of any arbitration
commenced pursuant to this Section 10.10 may be assessed against the party or
parties that do not prevail in such arbitration; provided, further, that if any
party prevails on a statutory claim that entitles the prevailing party to
reasonable attorney fees (with or without expert fees) as part of the costs, the
arbitrator may award reasonable attorney fees (with or without expert fees) to
the prevailing party in accord with such statute. Buyer will be deemed to have
"prevailed" in any such arbitration or judicial action only if the amount of the
final award of Damages to Buyer by the arbitrator is greater than any amount
offered in settlement to Buyer by Seller, and conversely, Seller will be deemed
to have "prevailed" in any such arbitration or judicial action, only if the
amount of the final award of Damages to Buyer by the arbitrator is equal to or
less than any amount offered in settlement to Buyer by Seller. If Seller does
not offer any amount in settlement or if the resolution of any such action
results in non-monetary damages, then Buyer and Seller shall split the fees and
expenses as provided above. Any controversy over whether a dispute is an
arbitrable dispute or as to the interpretation or enforceability of this
paragraph with respect to such arbitration shall be determined by the
arbitrator.
(d) In a contractual claim under this Agreement, the
arbitrator shall have no authority to add, delete or modify any term of this
Agreement.
10.11. Third Party Beneficiaries. Except for Section 10.12, no
provision of this Agreement will create any third party beneficiary rights in
any Person, including any employee of Buyer or employee
19
or former employee of Xxxxx or any Affiliate thereof (including any beneficiary
or dependent thereof).
10.12. Disclaimer of Representations and Warranties.
(a) EXCEPT WITH RESPECT TO THE REPRESENTATIONS AND
WARRANTIES EXPRESSLY SET FORTH IN ARTICLE III OF THIS AGREEMENT (WHICH MAY BE
RELIED UPON BY BUYER), SELLER, XXXXX AND THEIR RESPECTIVE AFFILIATES AND
REPRESENTATIVES MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO
XXXXX, ITS BUSINESS OR ANY OF ITS ASSETS AND/OR LIABILITIES IN THIS AGREEMENT OR
ELSEWHERE. BUYER HAS RELIED ON ITS OWN EXAMINATION THEREOF IN ELECTING TO
ACQUIRE THE SHARES ON THE TERMS AND SUBJECT TO THE CONDITIONS SET FORTH IN THIS
AGREEMENT.
(b) SELLER, XXXXX AND THEIR RESPECTIVE AFFILIATES AND
REPRESENTATIVES, MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WHETHER
OF MERCHANTABILITY, SUITABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR
PURPOSE, OR QUALITY AS TO ANY OF XXXXX'X ASSETS OR ANY PART OR ITEM THEREOF, OR
AS TO THE CONDITION, DESIGN OBSOLESCENCE, WORKING ORDER OR WORKMANSHIP THEREOF,
OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR OTHERWISE, OR THE
TRANSFERABILITY THEREOF.
(c) BUYER MAY NOT RELY UPON ANY PURPORTED STATEMENTS,
REPRESENTATIONS, WARRANTIES OR OMISSIONS MADE BY SELLER, XXXXX OR ANY OF THEIR
RESPECTIVE AFFILIATES AND/OR REPRESENTATIVES UNLESS EXPRESSLY SET FORTH IN THIS
AGREEMENT.
(d) BUYER AGREES THAT NONE OF THE AFFILIATES AND
REPRESENTATIVES OF SELLER OR XXXXX SHALL HAVE ANY LIABILITY OR OBLIGATION TO
BUYER, AND BUYER HEREBY RELEASES AND DISCHARGES ALL OF THE AFFILIATES AND
REPRESENTATIVES OF SELLER OR XXXXX FROM ANY AND ALL LIABILITIES OR OBLIGATIONS,
IN RESPECT OF ANY STATEMENT, REPRESENTATION, WARRANTY OR ASSURANCE OF ANY KIND
MADE BY ANY OF THEM, THEIR REPRESENTATIVES OR ANY OTHER PERSON, INCLUDING, BUT
NOT LIMITED TO, ANY STATEMENTS IN THE CONFIDENTIAL INFORMATION MEMORANDUM
PROVIDED TO BUYER OR ANY STATEMENT MADE DURING ANY PRESENTATIONS OR DUE
DILIGENCE.
(e) THE DISCLAIMERS OF REPRESENTATIONS AND WARRANTIES AND
THE LIMITATIONS ON LIABILITIES OF SELLER MADE IN THIS AGREEMENT, AND BUYERS
ACKNOWLEDGEMENT AND AGREEMENT THERETO, EXTEND TO ALL CLAIMS OF EVERY NATURE AND
KIND WHATSOEVER, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, EXISTING, CLAIMING
TO EXIST, OR WHICH MAY HEREINAFTER ARISE OUT OF OR RESULT FROM, BE CONNECTED
WITH, PERTAIN TO, OR RELATE IN
20
ANY WAY TO THE MATTERS SET FORTH IN THIS AGREEMENT, AND BUYER WAIVES THE
PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE. SECTION 1542 OF THE
CALIFORNIA CIVIL CODE PROVIDES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH DEBTOR."
[signatures on following page]
21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
SELLER:
XXXXXXXX INCORPORATED,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------------------
Its: Vice President/Chief Financial Officer
------------------------------------------
BUYER:
TIMCO AVIATION SERVICES, INC.
a Delaware corporation
By: /s/ C. Xxxxxx Xxxxxxxx
------------------------------------------
Name: C. Xxxxxx Xxxxxxxx
-----------------------------------------
Its: Executive Vice President
------------------------------------------
22
