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SHARE PURCHASE AGREEMENT
Among
XxXXXXX AIRCRAFT HOLDINGS, INC.
and
THE SEVERAL PURCHASERS NAMED IN ANNEX I HERETO
Dated as of November 2, 1994
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TABLE OF CONTENTS
Page
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ARTICLE I THE SHARES. . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.01. Purchase and Sale of Shares . . . . . . . . . . 1
SECTION 1.02. Closing Date. . . . . . . . . . . . . . . . . . 1
ARTICLE 11 REPRESENTATIONS AND WARRANTIES OF THE
COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.01. Organization, Qualifications
and Corporate Power . . . . . . . . . . . . . . 2
SECTION 2.02. Authorization of Agreement,
Etc.. . . . . . . . . . . . . . . . . . . . . . 3
Section 2.03. Validity. . . . . . . . . . . . . . . . . . . . 3
Section 2.04. Capital Stock . . . . . . . . . . . . . . . . . 3
Section 2.05. Financial Statements. . . . . . . . . . . . . . 6
Section 2.06. Offering of the Shares. . . . . . . . . . . . . 6
Section 2.07. Governmental Approvals. . . . . . . . . . . . . 6
Section 2.08. Disclosure. . . . . . . . . . . . . . . . . . . 7
Section 2.09. Litigation. . . . . . . . . . . . . . . . . . . 7
Section 2.10. Performance . . . . . . . . . . . . . . . . . . 7
Section 2.11. Title to Assets . . . . . . . . . . . . . . . . 7
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. . . . . . . 8
SECTION 3.01. Investment Representations. . . . . . . . . . . 8
ARTICLE IV CONDITIONS TO THE OBLIGATIONS OF THE
PURCHASERS AND THE COMPANY. . . . . . . . . . . . . . . . . . 8
SECTION 4.01. Conditions to the Obligations
of the Purchasers at Closing. . . . . . . . . . 8
SECTION 4.02. Conditions to the Obligations of
the Company at the Closing. . . . . . . . . . . 9
ARTICLE V MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 5.01. Expenses. . . . . . . . . . . . . . . . . . . . 10
SECTION 5.02. Survival of Agreements. . . . . . . . . . . . . 10
SECTION 5.03. Brokerage . . . . . . . . . . . . . . . . . . . 10
SECTION 5.04. Parties in Interest . . . . . . . . . . . . . . 11
SECTION 5.05. Covenants Concerning Corporate
Opportunity . . . . . . . . . . . . . . . . . . 11
SECTION 5.06. [Intentionally Deleted] . . . . . . . . . . . . 11
SECTION 5.07. Notices . . . . . . . . . . . . . . . . . . . . 11
SECTION 5.08. Governing Law . . . . . . . . . . . . . . . . . 12
SECTION 5.09. Entire Agreement; Amendment . . . . . . . . . . 12
SECTION 5.10. Counterparts. . . . . . . . . . . . . . . . . . 12
SECTION 5.11. Descriptive Headings. . . . . . . . . . . . . . 12
INDEX TO ANNEXES, EXHIBITS AND SCHEDULES
Item Description
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ANNEXES
Annex I Names, Addresses and Capital
Contributions of Purchasers
EXHIBITS
Exhibit 4.01(d) Second Amended and Restated
Registration Rights Agreement
Exhibit 4.01(e) Second Amended and Restated
Shareholders Agreement
Exhibit 4.01(f) Amended and Restated Articles of
Incorporation
SCHEDULES
Schedule 2.04 Capital Stock Matters
Schedule 2.07 Governmental Consents
Schedule 2.09 Litigation
Schedule 2.11 Title to Assets
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THIS SHARE PURCHASE AGREEMENT (this "Agreement"), dated as of November
2, 1994, is made by and among XXXXXXX AIRCRAFT HOLDINGS, INC., an Ohio
corporation (the "Company"), and the several Purchasers named in Annex I hereto
(each individually a "Purchaser" and collectively the "Purchasers").
PRELIMINARY STATEMENTS:
A. The Company wishes to issue to the Purchasers, severally and not
jointly, an aggregate of 271,471 Series C Convertible Preferred Shares,
without par value (the "Shares"), on and subject to the terms and conditions
contained herein.
B. The Purchasers, severally and not jointly, wish to purchase, and
exercise certain rights to receive, the Shares, all on the terms and subject to
the conditions hereinafter set forth.
AGREEMENT:
ARTICLE I
THE SHARES
SECTION 1.01. PURCHASE AND SALE OF SHARES.
(a) On the Closing Date (as hereinafter defined) the Company shall
issue and sell to each Purchaser, and each Purchaser shall purchase from the
Company, the number of Shares set forth opposite the name of such Purchaser
under the caption "Series C Convertible Preferred Shares to Be Purchased" on
Annex I hereto at a purchase price of $1.50 per Share, and the Company shall
issue and deliver to each Purchaser a share certificate or certificates in
definitive form, registered in the name of the Purchaser, evidencing the Shares
being purchased by it hereunder.
(b) As payment in full for the Shares being purchased by it
hereunder, and against delivery of the certificate or certificates therefor as
aforesaid, each Purchaser shall deliver to the Company on the Closing Date a
certified or official bank check payable to the order of the Company in the
amount set forth opposite the name of such Purchaser under the caption "Cash
Amount to Be Paid on the Closing Date" on Annex I hereto, or shall transfer such
sum to the account of the Company by wire transfer.
SECTION 1.02. CLOSING DATE. The closing of the sale and purchase of
the Shares (the "Closing") shall take place at the offices of Xxxxx, Xxxxx &
Xxxxx, 000 0xx Xxxxxx, Xxx Xxxx, X.X. 00000, on November 2, 1994 or on such
other date as may be
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mutually agreed upon by the Purchasers and the Company (such date of closing
being herein called the "Closing Date").
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to, and agrees with, the
Purchasers' as follows:
SECTION 2.01. ORGANIZATION, QUALIFICATIONS AND CORPORATE POWER.
(a) (i) The Company, and (ii) Tri-Star Holdings, Inc., an Ohio
corporation ("TSH"), Tri-Star Electronics International, Inc., an Ohio
corporation ("TSE"), Xxxx Holdings, Inc., an Ohio corporation ("CHI"), Tri-Star
Technologies, Inc., an Ohio corporation ("Tech"), Unidec, S.A., a Swiss
corporation ("Unidec"), Xxxx Components, Inc., a California corporation
("CCI"), Xxxxxxxxxxxx International, Inc., a California corporation ("HII"), and
Xxxxxxxxxxxx International Limited, a private company incorporated in England
("Limited") (collectively, the "Subsidiaries"), are corporations duly
incorporated, validly existing and in good standing under the laws of the
jurisdictions of their respective incorporations. Tri-Star Technologies, a
California general partnership ("TST [caad 214]Partnership") and together with
the Subsidiaries, the "Affiliates"), is duly formed and validly existing under
the laws of the State of California. Each of the Affiliates is duly licensed
or qualified to do business as a foreign corporation or partnership, as the
case may be, and is in good standing in each other jurisdiction in which, on the
date hereof, it owns or leases any real property or in which the nature of
business transacted by it makes such licensing or qualification necessary and
where the failure to be so licensed or qualified would have a material adverse
effect on the operations or financial condition of the Company or the Affiliate,
as the case may be (except that no representation or warranty is made with
respect to the qualification or good standing of Unidec or Limited). The
Company and each of the Affiliates has the corporate or partnership, as the case
may be, power and authority to own and hold its respective properties and to
carry on its respective businesses as currently conducted, and, with respect to
the Company, to execute, deliver and perform this Agreement and the other
agreements and transactions contemplated hereby, and to issue, sell and deliver
the Shares and, upon conversion thereof, to issue and deliver the number of the
Company's Common Shares, without par value (the "Common Shares"), issuable upon
such conversion (the "Conversion Shares").
(b) Except for the Affiliates, the Company does not own of record or
beneficially, directly or indirectly, (i) any shares of outstanding capital
stock or securities convertible
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into capital stock of any other corporation, or (ii) any participating interest
in any partnership, joint venture or other noncorporate business enterprise.
SECTION 2.02. AUTHORIZATION OF AGREEMENT, ETC.
(a) The execution, delivery and performance by the Company of this
Agreement and the other agreements and transactions contemplated hereby, and the
issuance, sale and delivery of the Shares and the delivery of the Conversion
Shares upon conversion of the Shares have been duly authorized by all requisite
corporate action and will not violate any provision of law, any order of any
court or other agency of government, the Amended and Restated Articles of
Incorporation ("Articles of Incorporation") or Code of Regulations of the
Company, or any provision of any indenture, agreement or other instrument by
which the Company or any of its properties or assets is bound or affected, or
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any such indenture, agreement or other instrument,
or result in the creation or imposition of any lien, charge or encumbrance of
any nature whatsoever upon any of the properties or assets of the Company.
(b) The Shares have been duly authorized and, when issued and
delivered in accordance with this Agreement, will be validly issued and
outstanding, fully paid and nonassessable. The Conversion Shares have been duly
reserved for issuance upon conversion of the Shares and, when so issued, will be
duly authorized, validly issued and outstanding, fully paid and non-
assessable Common Shares. Neither the issuance, sale and delivery of the Shares
nor the issuance and delivery of the Conversion Shares upon conversion thereof
are subject to any preemptive rights of shareholders of the Company or to any
right of first refusal or other similar right in favor of any person.
SECTION 2.03. VALIDITY. This Agreement has been duly executed and
delivered by the Company and constitutes the legal, valid and binding obligation
of the Company, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation, fraudulent
conveyance and other similar laws and principles of equity affecting creditors'
rights and remedies generally.
SECTION 2.04. CAPITAL STOCK. After giving effect to the filing of
the Articles of Incorporation referred to in Section 4.01(f), and assuming the
consummation of the transactions contemplated herein, in the Credit Agreement
(as defined in that certain Securities Purchase Agreement dated the date hereof
among the Company, the Affiliates, Electra Associates, Inc., a Delaware
corporation ("Electra") and Electra Investment Trust P.L.C., a corporation
formed under the laws of England ("EIT") (the "Loan Agreement")), in the Loan
Agreement,
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and in that certain Stock Purchase Agreement dated as of the date hereof
between Key Equity Capital Corporation ("KEC"), EIT and Electra (the "Electra
Agreement"):
(a) The authorized capital stock of the Company consists of Eight
Million (8,000,000) Common Shares, without par value, of which Two Hundred
Ninety-Three Thousand Eight Hundred Forty (293,840) shares are issued and
outstanding and held of record and beneficially as shown on Schedule 2.04
hereto; One Hundred Sixty-Seven Thousand Seven Hundred Two (167,702) shares of
Series A Convertible Preferred Shares, all of which are issued and outstanding
and held of record and beneficially as shown on Schedule 2.04 hereto; One
Million Six Hundred Fifteen Thousand Two Hundred Two (1,615,202) shares of
Series B Convertible Preferred Shares, of which One Million Five Hundred
Eighty-Three Thousand Five Hundred Thirty-Two (1,583,532) are issued and
outstanding and held of record and beneficially as set forth on Schedule 2.04
hereto; and Three Million (3,000,000) shares of Series C Convertible Preferred
Shares, Two Million Two Hundred Seventy One Thousand Four Hundred and
Seventy-One (2,271,471) of which are issued and outstanding and held of record
and beneficially as set forth on Schedule 2.04 hereto. All of such issued and
outstanding capital stock is fully paid and nonassessable.
(b) The authorized capital stock of TSH consists of Seven Hundred
Fifty (750) Common Shares, without par value, of which One Hundred (100) shares
are issued and outstanding and held of record and beneficially as shown on
Schedule 2.04 hereto. All of such issued and outstanding capital stock is fully
paid and nonassessable.
(c) The authorized capital stock of TSE consists of Seven Hundred
Fifty (750) Common Shares, without par value, of which One Hundred (100) shares
are issued and outstanding and held of record and beneficially as shown on
Schedule 2.04 hereto. All of such issued and outstanding capital stock is fully
paid and nonassessable.
(d) The authorized capital stock of TST consists of Seven Hundred
Fifty (750) Common Shares, without par value, of which One Hundred (100) shares
are issued and outstanding and held of record and beneficially as shown on
Schedule 2.04 hereto. All of such issued and outstanding capital stock is fully
paid and nonassessable.
(e) The authorized capital stock of CHI consists of Seven Hundred
Fifty (750) Common Shares, without par value, of which One Hundred (100) shares
are issued and outstanding and held of record and beneficially as shown on
Schedule 2.04 hereto. All of such issued and outstanding capital stock is fully
paid and nonassessable.
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(f) The authorized capital stock of CCI consists of One Hundred
Thousand (100,000) Common Shares, without par value, of which One Thousand
(1,000) shares are issued and outstanding and held of record and beneficially as
shown on Schedule 2.04 hereto. All of such issued and outstanding capital
stock is fully paid and nonassessable.
(g) The authorized capital stock of Unidec consists of Two Hundred
(200) fully paid-in bearer shares of par value, of which Two Hundred (200)
shares are issued and outstanding and held of record and beneficially as shown
on Schedule 2.04 hereto. All of such issued and outstanding capital stock is
fully paid and nonassessable.
(h) Schedule 2.04 hereto describes the percentage ownership interest
of each of the partners of TST Partnership in TST Partnership.
(i) The authorized capital stock of HII consists of Twenty-Five
Thousand (25,000) Common Shares, without par value, of which Three Thousand
(3,000) shares are issued and outstanding and held of record and beneficially
as shown on Schedule 2.04 hereto. All of such issued and outstanding capital
stock is fully paid and nonassessable.
(j) The authorized capital stock of Limited consists of Fifty Thousand
(50,000) ordinary one-pound shares, of which One Thousand (1,000) shares are
issued and outstanding and held of record and beneficially as shown on Schedule
2.04 hereto. All of such issued and outstanding capital stock is fully paid and
nonassessable.
(k) Other than as disclosed on Schedule 2.04 hereto, there are no
outstanding subscriptions, options, warrants, calls, rights (including
preemptive rights) or other agreements or commitments of any nature relating to
any capital stock of the Company or any Affiliate.
Except as disclosed in Schedule 2.04 or set forth in the Loan Agreement, the
Articles of Incorporation, or the Shareholders Agreement (as defined below) (i)
no subscription, warrant, option, convertible security or other right,
contingent or otherwise, to purchase or acquire any shares of any class of
capital stock of the Company or any Affiliate is authorized or outstanding,
(ii) there is not any commitment of the Company to issue any shares, warrants,
options or other such rights or to distribute to holders of any class of its
capital stock any evidence of indebtedness or assets, and (iii) neither the
Company nor any Affiliate has any obligation (contingent or otherwise) to
purchase, redeem or otherwise acquire any shares of its capital stock or any
interest therein or to pay any dividend or to make any other distribution in
respect thereof.
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SECTION 2.05. FINANCIAL STATEMENTS. The Company has delivered to the
Purchasers the audited balance sheets of the Company, as of December 31, 1993,
and audited statements of income and cash flows for the Company for the fiscal
year ended December 31, 1993; the unaudited balance sheets of the Company,
Tri-Star Electronics, Inc., an Ohio corporation ("Tri-Star"), HII, CCI, TST
Partnership and the Company as of December 31, 1993, and statements of income
and cash flows for Tri-Star, CCI, TST Partnership and the Company for the
eight-month period ended August 31, 1994; and the audited balance sheet of
Unidec as of December 31, 1993 and a statement of income and cash flow for
Unidec for the eight-month period ended August 31, 1994. Such financial
statements are true and correct in all material respects and fairly and
accurately present the results of the operations of the entities to which they
relate as of the dates and for the respective periods indicated therein. None
of the Company, TST Partnership, CCI or Unidec has any material contingent
liabilities, liabilities for taxes, material forward or long-term commitments,
or unrealized or anticipated losses from any unfavorable commitments not
previously disclosed in writing to the Purchasers. There has been no material
adverse change in the business, condition (financial or otherwise), operations,
prospects, or properties of the Company or TST Partnership, CCI or Unidec since
the effective date of the most recent financial statements referred to in this
Section 2.05, and there has been no material adverse change in the business
condition (financial or otherwise); operations, prospects or properties of TSH,
TSE, CHI or Tech since the date of their respective incorporations.
SECTION 2.06. OFFERING OF THE SHARES. Neither the Company nor any
person authorized or employed by the Company as agent, broker, dealer or
otherwise in connection with the offering or sale of the Shares or any similar
security of the Company has offered the Shares or any such security for sale to,
or solicited any offers to buy the Shares or any similar security of the Company
from, or otherwise approached or negotiated with respect thereto with, any
person or persons other than the Purchasers, and neither the Company nor any
person acting on its behalf has taken or will take any action (including,
without limitation, any offer, issuance or sale of any security of the Company
under circumstances which might require the integration of such security with
the Shares under the Securities Act of 1933 (the "Securities Act") or the rules
and regulations of the Securities and Exchange Commission thereunder) which
might subject the offering, issuance or sale of the Shares to the registration
provisions of the Securities Act.
SECTION 2.07. GOVERNMENTAL APPROVALS. Assuming the correctness and
completeness of all representations and warranties made on behalf of the
Purchasers herein, to the best of the Company's knowledge, no registration or
filing with, or consent or approval of, or other action by, any federal, state
or
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other governmental agency or instrumentality is or will be necessary for the
valid execution, delivery and performance of this Agreement or the issuance,
sale and delivery of the Shares or the Conversion Shares, except as disclosed on
Schedule 2.07 hereto.
SECTION 2.08. DISCLOSURE. Nothing contained in this Agreement nor any
Schedule annexed hereto, nor any certificate or other instrument referred to
herein and furnished to the Purchasers by the Company, or any other materials
delivered to the Purchasers in connection with the transactions contemplated
herein, contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained therein or
herein, in the light of the circumstances under which they were made, not
misleading.
SECTION 2.09. LITIGATION. Except as set forth on Schedule 2.09
hereto, in the Loan Agreement or in the Credit Agreement (or the schedules,
exhibits or attachments to the Loan Agreement or the Credit Agreement
(collectively, the "Attachments")), there are no actions, suits, proceedings,
orders, investigations or claims pending or, to the best of the Company's
knowledge, threatened against or affecting the Company, any Affiliate, or any of
their respective properties at law or in equity, or before or by any
governmental department, commission, board, bureau, agency or instrumentality
that would materially adversely affect the business or operations of the Company
or any Affiliate.
SECTION 2.10. PERFORMANCE. To the best of the Company's knowledge, the
Company and each of the Affiliates have performed all material obligations
required to be performed by them and are not in default in any material respect
under or in breach in any material respect under any contract, agreement or
instrument to which the Company or any Affiliate is a party or is subject, and
no event has occurred which with the passage of time or the giving of notice or
both would result in a material default, breach or event of noncompliance under
any such contract, agreement or instrument.
SECTION 2.11. TITLE TO ASSETS. Except as set forth on Schedule 2.11
hereto, the Company and each Affiliate have good and marketable title to, or
valid leasehold interests in, their respective assets free and clear of all
liens, security interests, charges and encumbrances, except for (i) liens for
taxes not yet due and payable, (ii) reservations, exceptions, encroachments,
easements, rights-of-way, covenants and conditions and restrictions affecting
any real property, and (iii) deposits under workmen's compensation,
unemployment insurance, social security and other similar laws.
Notwithstanding anything to the contrary contained in this Article II,
the representations and warranties made by the
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Company with respect to Unidec, Tech and CCI are made and limited to the actual
knowledge of the Company with respect to the subject matter thereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
SECTION 3.01. INVESTMENT REPRESENTATIONS. Each Purchaser represents
and warrants to the Company that it is acquiring the Shares for its own account
for the purpose of investment and not with a view to or for sale in connection
with any distribution thereof. Each Purchaser further represents that it
understands that (i) the Shares have not been registered under the Securities
Act by reason of their issuance in a transaction exempt from the registration
requirements of the Securities Act pursuant to Section 4(2) thereof, (ii) the
Shares must be held indefinitely unless a subsequent disposition thereof is
registered under the Securities Act or is exempt from such registration, (iii)
the Shares will bear a legend to such effect and (iv) the Company will make a
notation on its transfer books to such effect. Each Purchaser further
understands that the exemption from registration afforded by Rule 144 under the
Securities Act depends on the satisfaction of various conditions and that, if
applicable, Rule 144 affords the basis of sales of the Shares in limited amounts
under certain conditions. Each Purchaser (i) acknowledges that it has had a
full opportunity to request from the Company and to review and has received all
information which it deems relevant in making a decision to purchase the Shares
being purchased by it hereunder, (ii) will comply with the restrictions on
transferability of the Shares contained in the Registration Rights Agreement (as
defined below) and the Shareholders Agreement (as defined below), (iii) is an
accredited investor (as defined in the Securities Act) and has the experience in
making investments to make its own investment decision, and (iv) is able to
withstand the total loss of its investment in the Company.
ARTICLE IV
CONDITIONS TO THE OBLIGATIONS OF
THE PURCHASERS AND THE COMPANY
SECTION 4.01. CONDITIONS TO THE OBLIGATIONS OF THE PURCHASERS AT
CLOSING. The obligations of each Purchaser to perform its obligations
hereunder on the Closing Date are subject to the satisfaction, on or before
such date, of the following conditions:
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(a) REPRESENTATIONS AND WARRANTIES TO BE TRUE AND CORRECT. The
representations and warranties contained in Article II hereof shall be true and
correct on and as of the Closing Date.
(b) PERFORMANCE. The Company shall have performed and complied with
all agreements and conditions contained herein required to be performed or
complied with by it prior to or at the Closing Date.
(c) ALL PROCEEDINGS TO BE SATISFACTORY. All corporate and other
proceedings to be taken by the Company in connection with the transactions
contemplated hereby and all documents incident thereto shall be satisfactory in
form and substance to the Purchasers and their special counsel, and the
Purchasers shall have received all such counterpart originals or certified or
other copies of such documents as they may reasonably request.
(d) REGISTRATION RIGHTS AGREEMENT. Each other Purchaser, XxXxxxx,
Banc One Capital Partners Corporation, a Texas Corporation ("Banc One"),
Xxxxxxxx, Internationale Nederlanden (U.S.) Capital Corporation, a Delaware
corporation ("ING"), The Provident Bank, a banking association organized under
the laws of the State of Ohio ("Provident") and the Company shall have executed
and delivered the Second Amended and Restated Registration Rights Agreement in
the form attached hereto as Exhibit 4.01(d) (the "Registration Rights
Agreement").
(e) SHAREHOLDERS AGREEMENT. Each other Purchaser, XxXxxxx, Banc One,
Xxxxxxxx, ING, Provident and the Company shall have executed and delivered the
Second Amended and Restated Shareholders Agreement in the form attached hereto
as Exhibit 4.01(e) (the "Shareholders Agreement").
(f) AMENDED AND RESTATED ARTICLES OF INCORPORATION. The Company shall
have filed with the Secretary of State of the State of Ohio the Amended and
Restated Articles of Incorporation in the form of Exhibit 4.01(f) attached
hereto.
(g) CLOSING OF TRANSACTIONS. The closing of the transactions
contemplated by the Credit Agreement, the Loan Agreement and the Electra
Agreement shall have occurred or shall occur simultaneously with the Closing.
(h) OPINION OF COUNSEL. The Company shall have delivered to the
Purchasers an opinion of counsel satisfactory to the Purchasers and their
respective special counsel.
All such documents shall be satisfactory in form and substance to the
Purchasers and their respective special counsel.
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SECTION 4.02. CONDITIONS TO THE OBLIGATIONS OF THE COMPANY AT THE
CLOSING. The obligations of the Company to perform its obligations hereunder on
the Closing Date are, at its option, subject to the satisfaction, on or before
such date, of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TO BE TRUE AND CORRECT. The
representations and warranties contained in Article III hereof shall be true and
correct on and as of the Closing Date.
(b) PERFORMANCE. Each Purchaser shall have performed and complied
with all agreements and conditions contained herein required to be performed or
complied with by such Purchaser prior to or at the Closing Date.
(c) REGISTRATION RIGHTS AGREEMENT. The Purchasers, XxXxxxx, Banc
One, Xxxxxxxx, Provident and ING shall have executed and delivered the
Registration Rights Agreement.
(d) SHAREHOLDERS AGREEMENT. The Purchasers, XxXxxxx, Banc One,
Xxxxxxxx, Provident and ING and shall have executed and delivered the
Shareholders Agreement.
(e) CLOSING OF TRANSACTIONS. The closing of the transactions
contemplated by the Credit Agreement, the Loan Agreement and the Electra
Agreement shall have occurred or shall occur simultaneously with the Closing.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. EXPENSES. Each party hereto will pay its own expenses
in connection with the transactions contemplated hereby, whether or not such
transactions shall be consummated; provided that all reasonable legal fees and
costs of the parties in connection with the transactions contemplated hereby
shall be paid by the Company, whether or not such transactions shall be
consummated.
SECTION 5.02. SURVIVAL OF AGREEMENTS. All covenants, agreements,
representations and warranties made herein shall survive the execution and
delivery of this Agreement and the issuance, sale and delivery of the Shares
pursuant hereto, and the Conversion Shares upon conversion of the Shares, and
all statements contained in any certificate or other instrument delivered by the
Company hereunder shall be deemed to constitute representations and warranties
made by the Company.
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SECTION 5.03. BROKERAGE. Each party hereto will indemnify and hold
harmless the others against and in respect of any claim for brokerage or other
commissions relative to this Agreement or to the transactions contemplated
hereby, based in any way on agreements, arrangements or understandings made or
claimed to have been made by such party with any third party.
SECTION 5.04. PARTIES IN INTEREST. All covenants and agreements
contained in this Agreement by or on behalf of any of the parties hereto shall
bind and inure to the benefit of the respective successors and assigns of the
parties hereto whether so expressed or not.
SECTION 5.05. COVENANTS CONCERNING CORPORATE OPPORTUNITY.
(a) Each Purchaser agrees that, until the first to occur of (i)
January 1, 2001, (ii) the date upon which such Purchaser ceases to own any
Shares or Conversion Shares, or (iii) an underwritten public offering
covering the sale of Common Shares in which net proceeds to the Company are
at least $25,000,000.00, such Purchaser shall be obligated to present to the
Company, prior to making any commitment or investment on its own behalf, any
opportunity for acquisitions, joint ventures or other forms of equity
investment in any business or businesses engaged in the "Defined Aviation
Business," as such term is defined in paragraph (b) hereof.
(b) The term "Defined Aviation Business" shall mean and be limited
to (i) the avionics manufacturing business, (ii) the business of maintaining,
repairing and/or overhauling aircraft, and (iii) the business of manufacturing
secondary hydraulics for the aviation industry.
(c) Notwithstanding anything to the contrary in this Section 5.05, a
Purchaser shall not be required to present any opportunity to the Company with
respect to a Purchaser's stock ownership of less than 10% (on a fully diluted
basis) in a privately held or publicly traded corporation, partnership, limited
liability company or other business entity engaged in the Defined Aviation
Business.
SECTION 5.06. [intentionally deleted)
SECTION 5.07. NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing and shall be mailed by first-class
registered mail, postage prepaid, addressed as follows:
(a) if to the Company, at 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxx 00000, attention of R. Xxxx XxXxxxx;
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(b) if to any Purchaser, at its address set forth in Annex I hereto;
(c) if to any other party hereto, to such party at its address
appearing on the stock transfer records of the Company; and
(d) if to any subsequent holder of Shares, Conversion Shares, to such
holder at its address appearing on the stock transfer records of the Company;
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others, and shall be deemed to have
been given upon delivery, if delivered personally, three business days after
mailing, if mailed, or one business day after delivery to the courier, if
delivered by overnight courier service.
SECTION 5.08. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio.
SECTION 5.09. ENTIRE AGREEMENT; AMENDMENT. This Agreement
constitutes the entire agreement of the parties with respect to the subject
matter hereof and may not be modified or amended except in writing and with the
consent of (i) the holders of a majority of the outstanding Shares, and (ii) so
long as any Purchaser holds any Shares, by each such Purchaser.
SECTION 5.10. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 5.11. DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience of reference only and do not constitute a
part of and shall not be utilized in interpreting this Agreement.
[The remainder of this page is
intentionally left blank]
* * * *
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* * * *
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Share Purchase Agreement as of the day and year first above written.
XxXXXXX AIRCRAFT HOLDINGS, INC.
By: /s/ R. Xxxx XxXxxxx
-----------------------------------
R. Xxxx XxXxxxx, Chief Executive
Officer
ELECTRA INVESTMENT TRUST P.L.C.
By:
-----------------------------------
Its:
-----------------------------------
ELECTRA ASSOCIATES, INC.
By:
-----------------------------------
Its:
-----------------------------------
DSV PARTNERS, IV
By: DSV Management Ltd., its
general partner
By: /s/Xxxxx X. Xxxxxxx
---------------------------------
Xxxxx X. Xxxxxxx, General Partner
* * * *
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Share Purchase Agreement as of the day and year first above written.
XxXXXXX AIRCRAFT HOLDINGS, INC.
By:
-----------------------------------
R. Xxxx XxXxxxx, Chief Executive
Officer
ELECTRA INVESTMENT TRUST P.L.C.
By: /s/ H.A.L.H. Mumford
-----------------------------------
Its: H.A.L.H. MUMFORD, Director
-----------------------------------
DSV PARTNERS, IV
By: DSV Management Ltd., its
general partner
By:
--------------------------------
Xxxxx X. Xxxxxxx, General Partner
BANC ONE CAPITAL PARTNERS CORPORATION
By:
--------------------------------
Xxxxxxx Xxxxxxxxx, President
XXXXXXXX VENTURE PARTNERS II, L.P.
By: Xxxxxxxx Venture Management II,
L.P., its general partner
By: Pinkas Family Partners, L.P.,
its general partner
By:
---------------------------------
Xxxxxxx X. Xxxx, general partner
KEY EQUITY CAPITAL CORPORATION
By:
--------------------------------
Xxxxxxx X Xxxxxxxxx, President
-----------------------------------
R. XXXX XXXXXXX, in his individual
capacity
