10.123 Stock Purchase Agreement between Aero Services
International, Inc. and Mountain State Flight Services,
Ltd. dated March 31, 1995
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and
entered into as of the 31st day of March, 1995 by and among AERO
SERVICES INTERNATIONAL, INC. (the "Buyer"), MOUNTAIN STATE FLIGHT
SERVICES, LTD. (the "Corporation"), and each of VALLEY AIR
SERVICES, INC., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, R. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(collectively, the "Shareholders," and, individually, a
"Shareholder").
W I T N E S S E T H:
WHEREAS, the Shareholders are the owners of all of the issued
and outstanding shares of the capital stock of the Corporation,
consisting, in the aggregate, of One Hundred (100) shares of common
stock, par value One Dollar ($1.00) per share (the "Stock"), as
follows:
Shareholder Number of Shares
Valley Air Services, Inc. 70.0
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 7.5
R. ▇▇▇ ▇▇▇▇▇ 7.5
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 7.5
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 4.5
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 2.0
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1.0; and
WHEREAS, the Buyer desires to acquire from the Shareholders,
and the Shareholders desire to sell to the Buyer, all of the Stock
on the terms and conditions set forth in this Agreement (the
"Purchase");
NOW, THEREFORE, in consideration of the mutual promises,
covenants and agreements hereinafter set forth, and of the
respective representations and warranties herein, and for other
good and valuable consideration, the receipt and adequacy of which
is hereby acknowledged, the Buyer, the Corporation, and the
Shareholders, intending to be legally bound, hereby agree as
follows:
1. Sale of Stock. Subject to the terms and conditions set
forth in this Agreement:
1.1 The Shareholders hereby agree, at the Closing, to sell
and transfer the Stock to the Buyer and the Buyer agrees, at the
Closing, to acquire such Stock.
1.2. The Shareholders shall make such sale, transfer,
assignment and delivery of the Stock by delivering the Buyer all
certificates evidencing ownership of the Stock, free and clear of
all liens, encumbrances or claims of others whatsoever, duly
endorsed in blank or accompanied by appropriate instruments of
transfer satisfactory to the Buyer.
1.3 The purchase price (the "Purchase Price") for the Stock
shall be, in the aggregate, One Hundred Ten Thousand Dollars
($110,000), which is Eleven Hundred Dollars ($1,100) per share.
1.4 The Purchase Price shall be paid to the Shareholders
within forty-five (45) days of the Closing Date.
2. Closing. The closing (the "Closing") under this Agreement
shall take place at the offices of the Buyer at ▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, effective as of March 31, 1995,
(the "Closing Date"). Closing may also take place at such other
time and place as the parties shall mutually agree in writing.
3. Representations and Warranties of the Corporation and the
Shareholders. The Corporation and the Shareholders hereby jointly
and severally make the following representations and warranties,
each of which is true and correct on the date hereof and will be
true and correct on the Closing Date, and each of which shall
survive the Closing Date and the transactions contemplated hereby
to the extent set forth in Section 9 hereof.
3.1. Corporate Existence and Qualification. The Corporation
is a corporation duly organized, validly existing and in good
standing under the laws of the State of West Virginia and is duly
qualified to conduct its business in each jurisdiction where the
nature of its business or its properties require it be so
qualified. The Corporation has the corporate power and authority
to own and use its properties and to transact the business in which
it is engaged, and to enter into this Agreement and to consummate
the transaction contemplated hereby.
3.2. Capitalization. The entire authorized capital stock
of the Corporation consists of One Thousand (1,000) shares of
common stock, par value One Dollar ($1.00) per share (the "Common
Stock"). There are presently issued and outstanding One Hundred
(100) shares of Common Stock, all of which are duly authorized,
validly issued, fully paid and non-assessable and without
restriction on the right of transfer thereof and which were issued
in compliance with all applicable federal and state securities or
"blue-sky" laws and regulations. The remaining authorized shares
have never been issued. There are no outstanding warrants,
options, contracts, calls, or other rights of any kind with regard
to any authorized and unissued, or issued by not outstanding,
shares of Common Stock or any other security of the Corporation of
any kind. The Shareholders do not have any right or obligation to
purchase or redeem any shares of Common Stock or any other security
of the Corporation of any kind.
3.3 Title to Stock. The Shareholders are the only record
and beneficial owners of the issued and outstanding shares of
Common Stock and the Shareholders have full right and title without
any lien or encumbrance whatsoever to such shares and full and
unrestricted right, power and authority to exchange, assign,
transfer and deliver such shares, free and clear of claims,
charges, equities, restrictions, pledges, liens or encumbrances of
any kind. The Shareholders acquired such shares legally and
without knowledge or notice of any infirmity with respect to such
shares. Each of the certificates representing such shares is in
the form approved by the Board of Directors of the Corporation and
has been duly executed by the Officers of the Corporation
authorized to execute the same and bears the corporate seal of the
Corporation, duly affixed hereto by an authorized officer of the
Corporation. There are no restrictions as to the transferability
of such shares.
3.4. Subsidiaries. The Corporation (i) does not own, of
record or beneficially, any capital stock or other securities of
any other corporation; (ii) does not own, directly or indirectly,
any interest in a business, in a business trust, joint stock
company or other business organization or association; (iii) and is
not a party to any partnership, joint venture or other business
venture.
3.5 Agreement Legal and Authorized. The execution and
delivery of this Agreement does not, and the consummation by
Shareholders of the transactions contemplated herein and the
fulfillment by Shareholders of the terms, conditions, and
provisions hereof, will not:
(a) conflict with, or result in a breach of, any of the
terms, conditions or provisions of, or constitute a default under
Articles of Incorporation or By-laws or any agreement or other
instrument to which the Corporation or the Shareholders are a party
or by which any of the Corporation's properties or assets are
bound, or grant any other party the right to terminate an agreement
with the Corporation;
(b) conflict with, violate or result in a breach of any
law, administrative regulation or court decree applicable to the
Corporation or the Shareholders; or
(c) result in the creation or imposition of any lien,
charge or encumbrance of any nature upon any of the properties or
assets of the Corporation or upon outstanding the Corporation Stock
except as provided herein.
3.6. Valid and Binding Obligation. The Shareholders have
the right, power, legal capacity and authority to enter into and
perform their obligations under this Agreement. This Agreement
constitutes a valid, binding and enforceable obligation of the
Shareholders. The sale of stock owned by Valley Air Services, Inc.
has been approved by its Board of Directors, and to the extent
required by applicable law, its shareholders.
3.7. Financial Statements. The financial statement of the
Corporation, appearing as Schedule 3.7 is true, complete and
correct, and presents fairly the financial position of the
Corporation at the respective dates indicated and the results of
operations of the Corporation for the respective periods indicated,
and does not omit to state or reflect any material fact concerning
the Corporation required to be stated or reflected therein or
necessary to make the statements therein not misleading.
3.8. Events Subsequent to Financial Statement. Since the
date of the financial statement appearing as Schedule 3.7, there
has been no, actual, threatened or anticipated:
(a) material change in the financial condition, assets,
liabilities, prospects or business of the Corporation;
(b) damage, destruction or loss (whether or not covered
by insurance) materially adversely affecting the business,
prospects or any property of the Corporation or any material
deterioration in the operating condition of the Corporation's
assets;
(c) declaration, setting aside or payment of a dividend,
return of capital or other distribution in respect of any of the
Corporation's capital stock, or any direct or indirect redemption,
purchase or other acquisition of any capital stock or securities
convertible into or exchangeable for such capital stock;
(d) strike, lockout, labor trouble or any event or
condition of any character materially adversely affecting the
business, properties or prospects of the Corporation;
(e) mortgage or pledge of or creation of any other lien,
claim or encumbrance with respect to any of the Corporation's
assets, whether tangible or intangible;
(f) making or authorization of any capital expenditures
in excess of Five Thousand Dollars ($5,000);
(g) cancellation or waiver of any right material to the
operation of the Corporation's business or any cancellation or
waiver of any debts or claims of substantial value or any
cancellation or waiver of any debts or claims against any affiliate
of the Corporation;
(h) sale, transfer or other disposition of any assets of
the Corporation, except sales of assets in the ordinary course of
business;
(i) payment, discharge or satisfaction of any liability
or obligation (whether accrued, absolute, contingent or otherwise)
by the Corporation, other than the payment, discharge or
satisfaction, in the ordinary course of business, of liabilities or
obligations shown or reflected on the financial statement attached
hereto or incurred in the ordinary course of business since the
date thereof;
(j) write-offs as uncollectible of any notes or accounts
receivable of the Corporation or write-downs of the value of any
assets or inventory by the Corporation other than in immaterial
amounts or in the ordinary course of business consistent with past
practice;
(k) change by the Corporation in the method of accounting
or keeping its books of record or accounting practices, or any
write-up of the book value of any of the Corporation's assets; or
(l) creation, incurrence, assumption or guarantee by the
Corporation of any obligations or liabilities (whether absolute,
accrued, contingent or otherwise and whether due or to become due),
except in the ordinary course of business or any creation,
incurrence, assumption or guarantee by the Corporation of any
indebtedness for money borrowed.
3.9. Accounts Payable; Undisclosed Liabilities. The current
accounts payable of the Corporation are as set forth on Schedule
3.9 hereto. The Corporation does not have any liabilities or
obligations whatsoever, whether due or to become due, accrued,
absolute, contingent or otherwise, including liabilities for or in
respect of taxes (including, without limitation, any interest or
penalties relating thereto), and the Shareholders know of no basis
for any claim against the Corporation for any liability, except (a)
to the extent set forth and used in determining the net worth of
the Corporation in the financial statement (b) to the extent
specifically set forth in this Agreement or on any of the Schedules
delivered pursuant hereto, or (c) liabilities or obligations
incurred in the normal and ordinary course of the Corporation since
compilation of the financial statement.
3.10. Taxes.
(a) The Corporation has filed, or caused to be filed,
with the appropriate foreign, federal, state, local and other
agencies, all tax returns and tax reports required by law to be
filed by it and such returns and reports are true, complete and
correct.
(b) No audit or any federal, state or local income tax
returns or other tax returns by the Corporation is in progress, or
threatened. Neither the Corporation nor the Shareholders have any
information concerning of reasonable grounds to anticipate any such
audit within the foreseeable future.
(c) There exists no past due unpaid federal, state or
local income or other tax or any tax deficiency by a governmental
agency or authority having jurisdiction assessed against the
Corporation.
(d) All income, profits, franchise, sales and use,
occupation, property, excise, ad valorem and other taxes due have
been fully paid, or adequate reserves have been set up for the same
and reflected on the financial statement, except reserves for such
as may have accrued or been incurred in the ordinary course of
business since the compilation of the financial statement.
(e) There exist no grounds for the assertion or
assessment of any additional taxes against the Corporation or its
assets.
(f) Copies of all federal income tax returns, tax
examination reports and statements of deficiencies assessed
against, or agreed to by, the Corporation with respect to the last
three (3) years will be made available to the Buyer. Such tax
returns, and all records pertinent to their preparation, shall
remain the property of the Corporation after closing and shall be
delivered into possession of the Buyer at or before that time. No
waiver of any statute of limitations has been given and is in
effect against the Corporation.
3.11. Real and Personal Property - Owned. The Corporation
has good and merchantable title to all real and personal property
reflected on Schedule 3.11 and all such property is located at the
location specified on Schedule 3.11. The Corporation holds title
to such property free and clear of all mortgages, options, liens,
charges, security interests, claims, restrictions and other
encumbrances of every kind and there exists no restriction on the
use or transfer of such property.
3.12. Necessary Property; Title to Assets. The tangible and
intangible property owned or leased by the Corporation constitute
all of such property now used in, and necessary for the conduct of,
the business of the Corporation in the manner and to the extent
presently conducted or planned by it. There exists no restriction
or reservation affecting the Corporation's title to or the utility
of its assets which would prevent it from utilizing such assets, or
any part thereof after the Purchase is consummated, to the same
full extent that they might continue to do so if the transaction
contemplated hereby did not take place. The Corporation has
registered the fictitious name "Piedmont Aviation" which is
available to the Corporation and used by it currently without
interference. The use of all names shall belong exclusively to the
Corporation and are not, and will not, be used by the Shareholders
individually or through any other entity which they own or control.
All of the following assets are owned by the Corporation, are
proprietary property of the Corporation, and shall remain with the
Corporation at and after closing: All customer lists and marketing
information, all patents, the rights to and absolute use of all
trade secrets, formulas, plans, technical specification and all
other data pertaining to the production of the Corporation's retail
products, and all rights to and absolute use of all catalogues,
advertising and promotional materials, including artwork and
exhibits.
3.13. Use and Condition of Property. All currently used
property and assets of the Corporation are in good operating
condition and repair as required for their use in the business of
the Corporation as presently conducted or planned; and no notice of
any violation of any law, statute, ordinance, or regulation or
assessment for public improvements relating to any of such property
or assets has been received by the Shareholders or the Corporation
except such as have been fully complied with. All improvements
located on, and the use presently being made of, all real property,
leased or owned by the Corporation, comply with all applicable
zoning ordinances. the Corporation and the Shareholders are not
aware of any proposed, pending or threatened change in any such
code, ordinance or standard which would adversely affect the
business of the Corporation or the use of its property and assets.
The Corporation has not received any written or oral notice or
order by any governmental or other public authority, any insurance
company which has issued a policy with respect to any of such
properties or any board of fire underwriters or other body
exercising similar functions which (a) relates to violations or
alleged violations of building, safety, fire or other ordinances or
regulations, (b) claims any defect or deficiency with respect to
any such properties or (c) requests the performance of any repairs,
alterations or other work to or in any of such properties or in the
streets bounding the same.
The Corporation and the Shareholders are not aware of any
proposed, pending or threatened condemnation proceeding or similar
action affecting the property or assets of the Corporation and
there are no proposed, pending or threatened changes with respect
to any streets or public amenities appurtenant thereto or in the
vicinity thereof which would adversely affect the business of the
Corporation or the use of its property and assets.
3.14. Inventory. Schedule 3.14 hereto contains a summary
of the Corporation's inventory as of the last day of the month for
the month immediately preceding the date hereof.
3.15. Accounts Receivable. The Accounts receivable and
notes receivable of the Corporation are as set forth on Schedule
3.15 hereto. All the accounts and notes receivable of the
Corporation represent amounts receivable for merchandise actually
delivered or services actually provided (or, in the case of non-
trade accounts or notes, represent amounts receivable in respect of
other bona fide business transactions), have arisen in the ordinary
course of business, are not subject to any counterclaims or offsets
and have been billed. All such receivables are fully collectable
in the normal and ordinary course of business, except to the extent
of a reserve in an amount not in excess of the reserve for doubtful
accounts reflected on the attached financial statement. There are
no deposits held by the Corporation which may in the future become
due to the Corporation's customers except as set forth in a
certificate heretofore delivered by the Corporation setting forth,
at the date of such certificate, the amount of customer deposits
held by the Corporation.
3.16. Contract and Commitments. The Corporation does not
have outstanding:
(a) any contact providing for any expenditure by the
Corporation for the purchase of any real property, machinery,
equipment or other items which are in the nature of capital
investment; or any contract providing for an expenditure by the
Corporation for the purchase of supplies or other items which are
in the nature of inventory which are not in the ordinary course of
business and consistent ordinary course of business and consistent
with past business practices of the Corporation;
(b) any contract, bid or offer to sell products or to
provide services to third parties which (1) is, at a price which
would result in a net loss on the sale of such products or
providing such services, or (2) which is pursuant to terms or
conditions the Corporation cannot reasonably expect to satisfy or
fulfill in their entirety;
(c) any revocable or irrevocable power of attorney to any
person, firm or corporation for any purpose whatsoever; or
(d) any loan agreement, indenture, promissory note,
conditional sales agreement or other similar type of agreement
other than those reflected in the attached financial statement or
otherwise disclosed in writing to the Buyer.
All leases, contracts and other commitments to which the
Corporation is a party or by which it is bound are in full force
and effect; all parties to such leases, contracts and other
commitments have complied with the provisions thereof; no such
party is in default under any of the terms thereof; and no event
has occurred that with the passage of time or the giving of notice
or both would constitute a default by any party under any provision
thereof.
3.17. Debt Instruments. A list of all instruments defining
the terms on which the Corporation has borrowed or is committed to
loan money outside of the ordinary course of its business, or has
given or committed to give a guarantee of any obligation or any
other person is set forth in Schedule 3.17.
3.18. Reasonableness - Validity of Contracts. No purchase
commitment for materials, supplies, component parts or other items
of inventory to which the Corporation is a party is in excess of
normal, ordinary, usual and current requirements of its business or
at a price in excess of the current reasonable market price. Each
of the contracts and agreements to which the Corporation is a party
is a valid and binding obligation of the parties thereto in
accordance with its terms and conditions. No party to any such
contract or agreement is in default with respect to any term or
condition thereof, nor has any event occurred which, through the
passage of time or the giving of notice, or both, would constitute
a default thereunder or would cause the acceleration of any
obligation of any party thereto or the creation of a lien or
encumbrance upon any asset of the Corporation.
3.19. No Breach of Contract. The Corporation is not in
default under, or in violation of, any provision of its Articles of
Incorporation, By-laws, any promissory note, indenture or any
evidence of indebtedness or security therefore, lease, contract,
purchase or other commitment or any other agreement to which the
Corporation is a party or by which the Corporation is bound which
may result in an advance effect on the business or financial
condition of the Corporation.
3.20. Litigation. There is no suit, claim, action or
proceeding now pending or threatened before any court,
administrative or regulatory body, or any governmental agency, nor
are the Shareholders or the Corporation aware of any grounds
therefor, to which the Corporation is a party or which may result
in any judgment, order, decree, liability or other determination
which will, or could have any material adverse effect upon the
business or financial condition of the Corporation. No such
judgment, order or decree has been entered against the Corporation
nor any such liability incurred which has, or could have, such
effect. There is no claim action or proceeding now pending or
threatened before any court, administrative or regulatory body, or
any governmental agency, nor are the Shareholders or the
Corporation aware of any grounds therefor, which will, or could,
prevent or hamper the consummation of the transactions contemplated
by this Agreement.
3.21. Compliance with Laws. Schedule 3.21 sets forth a list
of all material permits, certificates, licenses, orders,
registrations, franchises, authorizations and other approvals
(including those related to environmental matters) from all
federal, state, local and foreign bodies and held by the
Corporation. The Corporation holds all licenses and permits
necessary and required for the conduct of its businesses. Such
licenses and permits are valid and in full force and effect, and
will not be terminated or otherwise adversely affected by the
consummation of the transaction contemplated hereby. All claims,
suits, actions or proceedings (including government investigations
and audits) pending or threatened at any time and the disposition
thereof, relating to the release, discharge or emission of any
pollutants or contaminants (including hazardous and toxic
substances) or the handling, generation, treatment, storage or
disposal of any wastes or otherwise relating to the protection of
the environment resulting from or relating to the operation of the
Corporation are identified on Schedule 3.21 hereto. With respect
to each such pending, threatened or prior matter, Schedule 3.21
lists the date of the claim, suit, action or proceeding (including
governmental investigations and audits), the claimant or
investigating agency, the nature and a brief description of the
matter, the damages claimed or relief sought, and the status or
outcome of the matter. Except as disclosed on Schedule 3.21, no
notice, citation, summons or order has been issued, no complaint
has been filed, no penalty has been assessed, no claim has been
asserted and no investigation, proceeding (including governmental
investigations and audits) or review has been conducted or is
pending or threatened by any governmental or other entity (a) with
respect to any alleged violation by the Corporation of any law,
ordinance, rule, regulation or order of any governmental entity, or
(b) with respect to any alleged failure by the Corporation to have
any permit, certificate, license, approval, registration or
authorization required in connection with its business, or (c) with
respect to any release, generation, treatment, storage, recycling,
transportation or disposal of wastes (including any hazardous or
toxic or polluting substances) generated or released by the
Corporation or any other environmental matter. To the best of the
Shareholders' knowledge, the Corporation is not in violation of any
federal, state or local law, regulation, permit, provision or
ordinance relating to the generation, storage, transportation,
treatment or disposal of wastes (including hazardous, toxic or
polluting substances), has obtained and adhered to all necessary
permits or other approvals necessary to store, dispose or otherwise
handle wastes (including hazardous, toxic and polluting
substances), and has reported, to the extent required by federal,
state and local law, all past and present sites where wastes
(including hazardous, toxic or polluting substances), if any, from
the Corporation have been treated, stored or disposed.
3.22. Officers, Directors, Employees and Consultants. Set
forth on Schedule 3.22 hereto is a complete list of:
(a) all directors of the Corporation;
(b) all officers (with office held) of the Corporation;
and
(c) the name and current annual salary rate of each
employee and a description of any perquisites of office enjoyed by
such employees.
3.23. Indebtedness to and from Officers, Directors and
Others. Except as set forth on Schedule 3.23 hereto, the
Corporation is not indebted to any shareholder, director, officer,
employee or agent of the Corporation except for amounts due as
normal salaries, wages, bonuses and reimbursements of ordinary
expenses on a current basis.
3.24. Compensation and Perquisites of Agents and Employees.
The Corporation has properly and accurately reflected on its books
and records all compensation paid to and perquisites provided to or
on behalf of its agents and employees. Such compensation and
perquisites have been properly and accurately disclosed in the
financial statements and other public or private reports, records
or filings of the Corporation, to the extent required by law.
Neither the Internal Revenue Service nor any other federal, state,
local or other governmental agency or entity has initiated or
threatened any investigation of any deduction claimed by the
Corporation with respect to any of such compensation or
perquisites, the disclosure of such compensation or perquisites in
any public or private reports, records or filings of the
Corporation, or otherwise relating to such compensation or
perquisites.
3.25. Labor Agreements, Employee Benefit Plans, and
Employment Agreements. There are no long-term employment
agreements between the Corporation and any employee. All
agreements are oral and may be terminated by the Corporation at
will, except to the extent that "at will" terminations are limited,
restricted or prohibited by applicable state or federal law. The
Corporation is not a party to (a) any union, collective bargaining
or similar agreement, (b) any profit sharing, deferred
compensation, bonus, stock option, stock purchase, retainer,
consulting, health, welfare, or incentive plan or agreement whether
legally binding or not, (c) any plan or policy providing for
"fringe benefits" to its employees, including but not limited to,
vacation, disability, sick leave, medical, hospitalization, life
insurance and other insurance plans, and related benefits, except
as set forth on Schedule 3.25 hereto. There are no negotiations,
demands or proposals which are pending or have been made which
concern matters that would be covered by the type of agreements
listed in this Section.
3.26. Over-time, Back Wages, Vacation and Minimum Wages.
No present or former employee of the Corporation has any material
claim against the Corporation (whether under federal or state law,
any employment agreement, or otherwise) on account of or for (a)
over-time pay, other than over-time pay for the current payroll
period, (b) wages or salary for any period other than the current
payroll period, (c) vacation, time off or pay in lieu of vacation
or time off, other than that earned in respect of the current
fiscal year, or (d) any violation of any statute, ordinance or
regulation relating to minimum wages or maximum hours of work.
3.27. Discrimination, Occupational Safety, Wage-price and
Other Statutes and Regulations. No person or party (including, but
not limited to, governmental agencies of any kind) has any claim or
basis for any action or proceeding, against the Corporation arising
out of any statute, ordinance or regulation relating to
discrimination in employment or employment practices, occupational
safety and health standards, or inflationary wage or price
standards, which would have an adverse effect on the business or
condition, financial or otherwise, of the Corporation.
3.28. Insurance Policies. Set forth on Schedule 3.28 hereto
is a list of all insurance policies and bonds in force of which the
Corporation is the owner, insured or beneficiary, or covering the
Corporation and any of its properties, operations or personnel.
Also set forth on Schedule 3.28 hereto is a listing of when each
such policy or bond became effective and changes or coverage or
premiums over the past three years. Policies thereon described
evidence insurance in such amounts and against such risk and losses
as are generally maintained with respect to comparable businesses
and properties. There is no default with respect to any provisions
contained in any such policy, nor has there been any failure to
give any notice or present any claim under any such policy in a
timely fashion or in the manner or detail required by such policy.
No notice of cancellation or non-renewal with respect to, or
disallowance of any claim under, any such policy has been received
by the Corporation. The Corporation has not been refused any
insurance, nor has its coverage been limited by any insurance
carrier to which it has applied for insurance or with which it has
carried insurance during the last five (5) years.
3.29. Energy Regulations. The Corporation is not currently
subject to any pending action resulting from a default or violation
of any applicable statute, law, ordinance, decree, order, rule or
regulation of any federal or state governmental body (including but
not limited to the Department of Energy) relating to energy
management, energy allocation or energy conservation.
3.30. Guarantees. The Corporation is not a guarantor,
indemnitor or otherwise liable for any indebtedness of any other
person, firm or corporation except as endorser of checks received
by the Corporation and deposited in the ordinary course of
business.
3.31. Product Warranties. Set forth on Schedule 3.31 hereto
are the Corporation's standard forms of product warranties and
guarantees utilized by it and copies of all other material product
warranties and guarantees. Except as set forth on Schedule 3.31,
no products liability, warrant or similar claims have been made
against the Corporation, and there are no liabilities of the
Corporation, fixed or contingent, asserted or unasserted, with
respect to any product liability or any similar claim that relates
to any product manufactured or sold by the Corporation.
3.32. Broker's Fees. Neither the Corporation nor any of its
officers, directors, or employees on behalf of the Corporation has
paid or agreed to pay any brokerage fee, or commission or any
finder's fees to any broker, agent or finder on account of this
Agreement or any matters contemplated by it.
3.33. Bank Accounts and Safe Deposit Boxes. Set forth on
Schedule 3.33 hereto are (a) the name, branch, account number, and
purpose of all bank accounts maintained by the Corporation together
with the names of authorized signatories on each such account, (b)
the amounts and terms of each compensating balance and the reasons
therefor, (c) the location of all safe deposit boxes maintained by
the Corporation together with the names of the persons with
authorized access thereto, and (d) the name and account number of
all securities brokers with which the Corporation maintains a
securities brokerage account and the names of all persons
authorized to deal or give instructions therewith. All the
Shareholders and the Corporation's employees except as shall be
designated at Closing shall be removed as signatories thereon or
thereto.
3.34. Books and Records. The books of account, stock record
books and minute books and other corporate records of the
Corporation are in all material respects complete and correct, have
been maintained in accordance with good business practices and the
matters contained therein are accurately reflected, to the extent
appropriate, on the Financial Statement. The articles of
incorporation and bylaws and all amendments thereto of the
Corporation, and the minute books and stock books of the
Corporation have been complete to the date hereof. All of such
records shall remain the property of the Corporation after Closing
and shall be delivered into the possession of the Buyer on or
before that date.
3.35. Securities Registration. The Corporation Stock is not
registered nor required to be registered under Section 12(a) of the
Securities Exchange Act of 1934, as amended.
3.36. Full Disclosure. The Corporation and Shareholder
shall provide full and unrestricted access to all financial records
of the Corporation to the Buyer. No representation or warranty by
the Corporation, or the Shareholders in this Agreement, or in any
certificate, exhibit, schedule or other document furnished or to be
furnished by the Corporation, or the Shareholders pursuant hereto,
contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact necessary to make the
statements contained therein not misleading.
3.37. Absence of Certain Conditions. Since the date of the
Financial Statement in Schedule 3.7, (other than as disclosed in
the Adjusted Balance Sheet set forth on Schedule 3.7) the
Corporation did not:
(a) Mortgage, pledge, or subject to lien, lease, security
interest or other charge or encumbrance any of the properties or
assets of the Corporation.
(b) Transfer, sell or dispose of any of the assets or
properties of the Corporation, except in the ordinary and usual
course of business.
(c) Incur, create, assume and guarantee any indebtedness,
liabilities, or obligations other than (1) in the usual and
ordinary course of business and with a maturity date of less than
one year or (2) that are incurred pursuant to contracts disclosed
in the Schedule delivered pursuant hereto.
(d) Enter into any contract or commitment or engage in
any transaction which is not in the usual and ordinary course of
business or which is inconsistent with past practices.
(e) Make any material capital expenditure or enter into
any lease of capital equipment or real estate.
(f) Enter into any contract, other than in the ordinary
course of business, which is to be performed in more than thirty
(30) days, other than those described in writing to the Buyer.
(g) Forgive or cancel any debts or claims or waive any
rights except in the ordinary course of business.
(h) Increase the rate of compensation to the officers,
agents, or salaried employees of the Corporation.
(i) Increase the rate of compensation to non-salaried
employees of the Corporation, provided, however, that ordinary
merit increases not unusual in character or amount may be made in
the ordinary course of business.
(j) Make any payments of severance of termination pay.
(k) Enter into or amend any stock option, deferred
compensation, bonus, profit-sharing, incentive, compensation
payment, pension, retirement, medical, hospitalization, life
insurance, other insurance, or other plan.
(l) Enter into any employment contracts or collective
bargaining agreement.
(m) Issue any additional shares of stock or other
securities.
(n) Make any distribution to the Shareholders by way of
dividends, purchase of shares, or otherwise.
(o) Make any amendments to or changes in its articles of
incorporation or by-laws.
(p) Perform any act, or attempt to do any act, or permit
any act or omission to act, which will cause a breach of any
material contract, commitment or obligation to which the
Corporation is a party.
3.38. Right to Negotiate Contracts of Employment. the
Shareholders and the Corporation agree that the Buyer shall have
the right to negotiate contracts of employment with the current
management and supervisory personnel of the Corporation.
4. Representations and Warranties of the Buyer. The Buyer
hereby makes the following representations and warranties, each of
which is true and correct on the date hereof and will be true and
correct on the Closing Date, and each of which shall survive the
Closing Date and the transactions contemplated hereby to the extent
set forth in Section 9 hereof.
3.1. Corporate Existence and Qualification. The Buyer is
a corporation duly organized, validly existing and in good standing
under the laws of the State of Louisiana and is duly qualified to
conduct its business in each jurisdiction where the nature of its
business or its properties require it be so qualified. The Buyer
has the corporate power and authority to own and use its properties
and to transact the business in which it is engaged, and to enter
into this Agreement and to consummate the transaction contemplated
hereby.
3.2. Agreement Legal and Authorized. The execution and
delivery of this Agreement does not, and the consummation by the
Buyer of the transactions contemplated herein and the fulfillment
by the Buyer of the terms, conditions, and provisions hereof, will
not:
(a) conflict with, or result in a breach of, any of the
terms, conditions or provisions of, or constitute a default under
Articles of Incorporation or By-laws or any agreement or other
instrument to which the Buyer is a party or by which any of the
Buyer's properties or assets are bound, or grant any other party
the right to terminate an agreement with the Buyer; or
(b) conflict with, violate or result in a breach of any
law, administrative regulation or court decree applicable to the
Buyer.
3.3. Valid and Binding Obligation. The Buyer has the
right, power, legal capacity and authority to enter into and
perform its obligations under this Agreement. This Agreement
constitutes a valid, binding and enforceable obligation of the
Buyer.
3.4. Broker's Fees. Neither the Buyer nor any of its
employees has paid or agreed to pay any brokerage fee or commission
or any finder's fee to any broker, agent or finder on account of
this Agreement.
5. Covenants of the Corporation and Shareholders. The
Corporation and Shareholders jointly and severally agree that from
and after the date of this Agreement and until the Closing Date
they will conduct the Corporation's business subject to the
following provisions and limitations contained in this Section 5.
5.1. Operation of Business. Without the prior written
consent of the Buyer, the Corporation will not:
(a) Mortgage, pledge or subject to lien, lease, security
interest, or other charge or encumbrance any of the properties or
assets of the Corporation.
(b) Transfer, sell, or dispose of any of the assets or
properties of the Corporation, except in the ordinary and usual
course of business.
(c) Incur, create, assume or guarantee any indebtedness,
liabilities, or obligations other than (1) in the usual and
ordinary course of business and with a maturity date of less than
one year or (2) that are incurred pursuant to contracts disclosed
in the Schedule delivered pursuant hereto.
(d) Enter into any contract or commitment or engage in
any transaction which is not in the usual and ordinary course of
business or which is inconsistent with past practices.
(e) Make any material capital expenditure or enter into
any lease of capital equipment or real estate.
(f) Forgive or cancel any debts or claims, or waive any
rights except in the ordinary course of business.
(g) Increase the rate of compensation to the officers,
agents, or salaried employees, of the Corporation.
(h) Increase the rate of compensation to non-salaried
employees of the Corporation, provided, however, that ordinary
merit increases not unusual in character or amount may be made in
the ordinary course of business.
(i) Make any payments of severance or termination pay.
(j) Enter into or amend any stock option, deferred
compensation, bonus, profit-sharing, incentive compensation
payment, pension, retirement, medical, hospitalization, life
insurance, other insurance, or other plan.
(k) Enter into any employment contracts or collective
bargaining agreement.
(l) Issue any additional shares of stock or other
securities.
(m) Make any distribution to the Shareholders by way of
dividends, purchase of shares, or otherwise.
(n) Make any amendments to or changes in its articles of
incorporation or by-laws.
(o) Perform any act, or attempt to do any act, or permit
any act or omission to act, which will cause a breach of any
material contract commitment or obligation to which the Corporation
is a party.
5.2. Preservation of Business. The Corporation shall
carry on its business diligently and substantially in the same
manner as heretofore conducted and shall keep its business
organizations intact, including its present employees (except for
such as may be discharged for cause and with prior notification to
the Buyer) and its present relationships with suppliers and
customers and others having business relations with it. The
Corporation will at all times maintain in inventory supplies to
allow it to continue and operate its business, after the Closing
Date, free from any reasonable shortage of such items.
5.3. Insurance and Maintenance of Property. The
Corporation will cause all property owned or leased by it to be
insured against all ordinary and insurable risks and will operate,
maintain, and repair all its property in a careful, prudent, and
efficient manner.
5.4. Full Access. the Buyer shall have full access at all
reasonable times to all premises, properties, books, records,
contracts, tax records, and documents of the Corporation and the
Corporation will furnish to the Buyer any information in respect of
the business and affairs of the Corporation as the Buyer may from
time to time reasonably request. Such examination and
investigation by the Buyer shall not affect the warranties and
representations of the Corporation and the Shareholders contained
in this Agreement.
5.5. Books, Records, and Financial Statements. The
Corporation shall maintain its books and financial records in
accordance with generally accepted accounting principles
consistently applied, and on a basis consistent with the past
practices of the Corporation. Said books and financial records
shall fairly and accurately reflect the operations of the
Corporation. The Corporation shall furnish to the Buyer as
available, monthly financial statements and operating reports
applicable to the operations of the Corporation, all of which shall
be prepared in accordance with generally accepted accounting
principles consistently applied and shall present fairly the
financial position and results of operations of the Corporation at
the dates and for the periods indicated.
6. Covenants of the Corporation, Shareholders, and the Buyer.
6.1. Confidentiality. Each party to this Agreement
covenants and agrees with the other parties to hold in confidence
all documents and information concerning the other parties
furnished to it in connection with the transaction contemplated by
this Agreement and not otherwise available to it, and agrees to use
such information only in connection with such transaction. Each
party further agrees not to release or disclose such information to
any other person, except its outside accountants, attorneys, and
consultants. If the transaction contemplated by this Agreement
shall not be consummated, such confidence shall be maintained and
such information shall not be used in competition with any other
party (except to the extent that such information was previously
known to such party, in the public domain, or later acquired by
such party from other legitimate sources and all such documents
shall immediately thereafter be returned to the party furnishing
same.
6.2. Good Faith Efforts. Each party to this Agreement
shall, respectively, utilize his, her, or its best good faith
efforts to carry out the intent and purposes of this Agreement and
to cure or correct any unintentional deviations from this Agreement
and to accomplish any of the undertakings in this Agreement.
7. Conditions Precedent to the Obligations of the Buyer to
Close. The obligations of the Buyer to consummate the transactions
contemplated by this Agreement are subject to satisfaction of each
of the conditions set forth in this Section 7 on or before the
Closing Date, subject to the right of the Buyer to waive any one or
more of such conditions.
7.1. Representations and Warranties of the Shareholders
and the Corporation. The representations and warranties of the
Shareholders and the Corporation contained in this Agreement and in
any certificate, exhibit, schedule or other document delivered to
the Buyer pursuant to the provisions of this Agreement or in
connection with the transaction contemplated hereby shall be true
and correct on and as of the Closing Date as though such
representations and warranties were made on the Closing Date.
7.2. Performance of this Agreement. The Shareholders and
the Corporation shall have performed and complied with all
agreements and conditions required by this Agreement to be
performed or complied with by them prior to or at the Closing.
7.3. Certificate. The Shareholders and the Corporation
shall have delivered to the Buyer a certificate, dated that Closing
Date, certifying to the fulfillment of the conditions specified in
Sections 7.1, 7.7, and 7.8 of this Agreement. Such certificate or
certificates shall be deemed a representation and warranty of the
Shareholders and the Corporation hereunder.
7.4. Approval by Boards of Directors and Shareholders.
The Shareholders and Board of Directors of the Corporation shall
have approved and adopted this Agreement and the transactions
contemplated hereby to the extent required by law and by the
Articles of Incorporation and By-Laws of the Corporation.
7.5. Secretary's Certificate. The Buyer shall have
received from the Secretary of the Corporation a certificate
certifying the approval by the Board of Directors and Shareholders
of this Agreement and the transactions contemplated hereby.
7.6. Material Adverse Change. There shall have been no
material adverse change, actual or threatened, in the properties,
business or condition, financial or otherwise, of the Corporation,
whether or not covered by insurance, as a result of fire, flood,
explosion, earthquake, disaster, accident or other calamity, labor
dispute, any action of the United States or other governmental
authority, riots, civil disturbance, uprisings, activity of the
Armed Forces, or act of God or the public enemy.
7.7. No Lawsuits. No suit, action or other proceeding or
investigation shall be threatened or pending before or by any court
or governmental agency concerning this Agreement or the
consummation of the transactions contemplated hereby, or in
connection with any material claim against the Corporation not
disclosed on the Schedules hereto. No governmental agency shall
have threatened or directed any request for information concerning
this Agreement, the transaction contemplated hereby, or the
consequences or implications of such transaction to the
Shareholders, Corporation or the Buyer, or any officer, director
employee or agent of any of them.
7.8. No Restriction. There shall not exist any
conditions, restrictions or reservations affecting the title to or
utility of the assets or property of the Corporation which would
prevent them from occupying and utilizing said assets and property,
or any part thereof, to the same full extent that they might
continue to do so if the Purchase contemplated hereby did not take
place.
7.9. Audit and Investigation. The Buyer shall have the
absolute right to have audits performed by their accountant(s) of
all financial records, tax returns, bank statements, audit reports
and all other materials relating to the conduct and operation of
the Corporation. The Buyer shall be reasonably satisfied with the
results of any audit and investigation of the Corporation
undertaken by them between the date of this Agreement and the
Closing Date.
7.10. Governmental Approvals. The Buyer shall have
obtained the approval or consent of such government agencies or
bodies, domestic or foreign, as the Buyer shall deem reasonably
necessary in connection with the consummation of the Purchase.
7.11. Further Assurances. The Buyer shall have received
such further instruments and documents as may reasonably be
required to carry out the transactions contemplated hereby and to
evidence the fulfillment of the agreements herein contained and the
performance of all conditions to the consummation of such
transactions.
7.12. Approval of Counsel. The validity of the
transactions herein contemplated and the form and substance of all
stock certificates, powers of attorney, instruments, closing
documents and other documents or certificates to be delivered by
the Corporation or Shareholders hereunder shall be satisfactory to
counsel for the Buyer.
7.13. Resignations. The Shareholders shall cause to be
delivered, at the Closing, written resignations of the
Corporation's directors and officers.
8. Conditions Precedent to the Obligations of the
Shareholders to Close. The obligations of the Shareholders to
consummate the transactions contemplated by this Agreement are
subject to satisfaction of each of the conditions set forth in this
Section 8 on or before the Closing Date, subject to the right of
the Shareholders to waive any one or more such conditions.
8.1. Representations and Warranties of the Buyer. The
representations and warranties of the Buyer contained in this
Agreement and in any certificate, exhibit, schedule or other
document delivered to the Shareholders pursuant to the provisions
of this Agreement or in connection with the transactions
contemplated hereby shall be true and correct on and as of the
Closing Date as though such representations and warranties were
made on the Closing Date.
8.2. Performance of this Agreement. The Buyer shall have
performed and complied with all agreements and conditions required
by this Agreement to be performed or complied with by it prior to
or at the Closing.
8.3. Approval of Counsel. The validity of the
transactions herein contemplated and the form and substance of all
instruments, closing documents, and other documents or certificates
to be delivered by the Buyer hereunder shall be satisfactory to
counsel for the Shareholders.
9. Indemnification; Survival of Representations and
Warranties.
9.1. Survival of Warranties and Representations. All
representations, warranties, and agreements of the Buyer, the
Corporation, and the Shareholders made under or pursuant to this
Agreement shall survive the Closing Date for a period of one (1)
year.
9.2. Indemnification. The Shareholders hereby covenant
and agree, for a period of one (1) year after the Closing Date, to
indemnify and hold harmless the Buyer from and against any and all
loss, liability image or expense (including, but not limited to,
reasonable attorney's fees incident thereto) arising out of, or
resulting from, any material misrepresentation or the breach of any
warranty, representation or covenant made by the Corporation or the
Shareholders in this Agreement, the Schedules hereto and any and
all written statements, certificates, instruments and documents
delivered to the Buyer pursuant to this Agreement on or before the
Closing Date. The Shareholders hereby covenant and agree, for a
period of one (1) year after the Closing Date, to indemnify the
Buyer against any and all liabilities of the Corporation of any
nature, whether accrued, absolute, contingent or otherwise, to the
extent not reflected in the Financial Statement attached hereto
including all tax liabilities, for any period prior to the date of
Closing or arising out of transactions entered into, and any stated
facts existing, prior to such date. The Shareholders hereby
covenant and agree, for a period of one (1) year after the Closing
Date, to indemnify and hold harmless buyer from and against any and
all loss, liability, damage or expense (including but not limited
to, reasonable attorney's fees incident thereto) arising out of, or
resulting from, the content or operations of the business of the
Corporation and all of its business equipment up to the date of
closing on the purchase and sale of stock provided for in this
agreement. Notwithstanding any of the foregoing provision, the
Shareholders' liability hereunder shall be limited to a cumulative
amount of One Hundred Thousand Dollars ($100,000).
9.3. Remedies. In the event that any claim is made
against the Buyer for any matter for which the Shareholders have
agreed to indemnify the Buyer per the terms of Section 9.2 of this
Agreement, the Shareholders shall have the right to defend such
claim. The Buyer agrees to provide the Shareholders at the
Shareholders' expense, with all material and information in the
Buyer's possession reasonably necessary to the defense of any such
claim by the Shareholders. The Buyer shall give the Shareholders
notice of any such claim with reasonable promptness. In the event
of litigation, such notice shall be in writing and sent to the
Shareholders within ten (10) days of receipt of the Complaint by
the Buyer. The Shareholders shall notify the Buyer in writing with
reasonable promptness (and in the event of litigation, within five
(5) days of receipt of the aforesaid notice of litigation) as to
whether the Shareholders intend to contest such claim or liability.
In the interim, the Buyer shall take any action it deems
appropriate with respect to such claim to protect against default.
If the Shareholders do not move to contest or defend any claims as
required herein, then upon such failure to do so, the Buyer shall
be entitled upon demand to immediate payment from the Shareholders
of the indemnified amount.
10. Termination.
10.1. Termination by the Shareholders. The Shareholders
may terminate this Agreement by giving written notice to the Buyer
at any time prior to the Closing if a condition to the performance
of the Shareholders hereunder shall not be fulfilled on or before
the date specified for the fulfillment thereof or if a material
default under or a material breach of this Agreement shall be made
by the Buyer.
10.2. Termination by the Buyer. The Buyer may terminate
this Agreement by giving written notice to the Shareholders at any
time prior to the Closing if a condition to the performance of the
Buyer hereunder shall not be fulfilled on or before the date
specified for the fulfillment thereof or if a material default
under or a material breach of this Agreement shall be made by the
Corporation or the Shareholders, or if a material misstatement,
error or omission in any representation or warranty set forth
herein or in any certificate, exhibit, schedule or other document
furnished by the Shareholders pursuant hereto shall occur or be
made by the Shareholders.
10.3. In the Event of Termination. In the event of the
termination and abandonment of the closing of this transaction
pursuant to the provisions of Section 10 of this Agreement, this
Agreement shall become void and have no effect, without any
liability on the part of any party or the directors, officers or
stockholders of the Buyer, the Shareholders or the Corporation
except for the provisions contained in the last sentence of Section
6.1 and all of Section 11.3 hereof; provided, however, that if any
party hereto willfully fails to perform its obligations herein, any
other party may seek any available legal or equitable remedies in
addition to those provided herein. The parties hereto shall have
the right to seek specific performance hereof.
11. Miscellaneous.
11.1. Notices. All notices, requests, consents, waivers,
elections and demands (collectively, "Notices") required or
permitted under this Agreement or any other Document shall be in
writing and shall be personally delivered or sent by messenger,
certified U.S. mail (return receipt requested), express courier
service or facsimile (with confirmation copy sent by overnight
delivery service unless receipt of the facsimile is confirmed), in
all cases with postage or charges prepaid, and any such Notice
shall be effective when first received by the addressee at its
address set forth below:
If to the Buyer:
Aero Services International, Inc.
▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Shareholders:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ Builders, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
R. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇ Partnership
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Valley Air Services, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Corporation:
Mountain State Flight Services, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: R. ▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may alter the address to which Notices are to be sent by
giving notice of such change of address in conformity with the
provisions of this section for the giving of Notices.
11.2. Successors and Assigns; Entire Agreement;
Modification. This Agreement shall be binding upon and inure to
the benefit of the respective parties hereto and their respective
assigns, successors, heirs, executors, and administrators. This
Agreement contains the entire agreement between the parties hereto
with respect to the transactions contemplated herein and shall not
be modified or amended except by an instrument in writing signed by
or on behalf of the parties hereto. However, at any time prior to
the Closing Date, either the Shareholders or the Buyer may:
(a) extend the time for the performance of any
obligations or acts of the other of them;
(b) waive any inaccuracies by the other in the
representations and warranties contained herein or in any document
delivered pursuant hereto; and
(c) waive compliance with any of the agreements or
conditions contained herein to be performed by the other.
11.3. Expenses. The Shareholders and Buyer shall pay their
own expenses incident to the preparation and execution of this
Agreement and the consummation of the transactions contemplated
hereby. The Corporation shall bear none of such expenses. The
Corporation shall have no liability or responsibility for payment
of any finders' fee or brokers' commissions arising from this
transaction.
11.4. Governing Law; Unenforceability. This Agreement
shall be governed by and construed and enforced in accordance with
the laws of the Commonwealth of Pennsylvania without giving effect
to its conflicts of laws provisions.
11.5. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall
be deemed an original but all of which together shall constitute
one and the same instrument.
11.6. Headings. The paragraph headings in this Agreement
are for convenience of reference only and shall not be deemed to
alter or affect any provisions hereof.
IN WITNESS WHEREOF, intending to be legally bound, the parties
hereto have duly executed this Agreement as of the date first
hereinabove written.
WITNESS/ATTEST: BUYER:
AERO SERVICES INTERNATIONAL, INC.
________________________ By: ______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ R. ▇▇▇ ▇▇▇▇▇
Its: CEO
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CORPORATION:
MOUNTAIN STATE FLIGHT SERVICES, LTD.
________________________ By: ______________________________
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Its: President
SHAREHOLDERS:
________________________ ___________________________________
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________________________ ___________________________________
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________________________ ___________________________________
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________________________ ___________________________________
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________________________ ___________________________________
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________________________ ___________________________________
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VALLEY AIR SERVICES, INC.
________________________ By:______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ R. ▇▇▇ ▇▇▇▇▇
Its: President
WRITTEN CONSENT IN LIEU OF A MEETING OF THE
BOARD OF DIRECTORS
OF
MOUNTAIN STATE FLIGHT SERVICES, LTD.
The undersigned, being all the directors of Mountain State
Flight Services, Ltd. (the "Corporation"), hereby adopt the
following resolutions by written consent without a meeting:
WHEREAS, the shareholders of the Corporation have
determined to sell all of the issued and outstanding
shares of the Corporation's common stock to Aero Services
International, Inc.
NOW, THEREFORE, BE IT RESOLVED, that the officers of the
Corporation be, and hereby are, authorized, empowered and
directed, in the name and on behalf of the Corporation,
to execute and deliver a stock purchase agreement (the
"Stock Purchase Agreement") for the sale of all of the
issued and outstanding shares of common stock of the
Corporation, which Stock Purchase Agreement shall be in
substantially the form and under substantially the terms
and conditions as set forth in Exhibit A hereto; and
BE IT FURTHER RESOLVED, that the officers of the
Corporation be, and hereby are, authorized, empowered and
directed, in the name and on behalf of the Corporation,
to execute and deliver all such other documents,
certificates and instruments, and to take all such other
acts, and do all such other things as shall be both
reasonable and necessary in order to effectuate these
resolutions and the transactions herein contemplated; and
BE IT FURTHER RESOLVED, that all actions heretofore taken
by the officers of the Corporation, and any of them, in
connection with and with respect to the transactions
contemplated by these resolutions be, and the same hereby
are, approved, confirmed and ratified in each and every
respect as the acts and deeds of the Corporation; and
BE IT FURTHER RESOLVED, that the Secretary of the
Corporation be, and hereby is, directed to file this
Consent with the minutes of the proceedings of the Board
of Directors.
This Consent may be executed in one or more counterparts, all
of which, taken together, shall constitute a single executed
original.
IN WITNESS WHEREOF, the undersigned have hereunto set their
hands as of this 31st day of March, 1995.
_______________________________
_______________________________
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_______________________________
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CERTIFICATE OF SECRETARY
The undersigned, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, duly elected, qualified and
acting as Secretary of Mountain State Flight Services, Ltd. (the
"Corporation"), certifies that:
1. Attached to this certificate as Exhibit A is
a true and complete copy of resolutions
adopted by Written Consent in Lieu of a
Meeting of the Board of Directors on March
31, 1995 (the "Resolutions"). The
Resolutions have not been amended and are in
full force and effect on and as of the date
of this certificate.
2. Attached to this certificate as Exhibit B is
a true and complete copy of the Articles of
Incorporation and all amendments thereto of
the Corporation as in effect on and as of the
date of this certificate.
3. Attached to this certificate as Exhibit C is
a true and complete copy of the Bylaws of the
Corporation as in effect on and as of the
date of this certificate.
4. Each of the following persons is, on and as
of the date of this certificate, a duly
elected, qualified and acting officer of the
Corporation, holding the office set forth
beside his respective name, and is authorized
to execute and deliver documents and to
effect other transactions pursuant to or
contemplated by the Resolutions, and the
signature appearing opposite his name below
is the true and genuine signature of such
officer:
NAME OFFICE SIGNATURE
R. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ President _______________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Vice President/
Secretary/Treasurer_______________________
IN WITNESS WHEREOF, I have executed this certificate as of the
5th day of
May , 1995.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Secretary
CERTIFICATE
The undersigned, Valley Air Services, Inc., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
R. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (collectively, the "Shareholders") and
Mountain State Flight Services, Ltd. (the "Corporation") hereby
certify that:
1. The representations and warranties of the
Shareholders and the Corporation contained in
the Stock Purchase Agreement by and among
Aero Services International, Inc. (the
"Buyer") the Corporation and the Shareholders
dated March 31, 1995 (the "Agreement") and in
any certificate, exhibit, schedule or other
document delivered to the Buyer pursuant to
the provisions of the Agreement or in
connection with the transaction remain true
and correct as of the date hereof.
2. No suit, action or other proceeding or
investigation is threatened or pending before
or by any court or governmental agency
concerning the Agreement or consummation of
the transaction, or in connection with any
material claim against the Corporation not
disclosed on the schedules attached and made
a part of the Agreement. No governmental
agency has threatened or directed any request
for information concerning the Agreement, the
transaction, or the consequences or
implications of such transaction to the
undersigned, the Buyer, or any officer
director, employee or agent of any of them.
3. No conditions, restrictions or reservations
exist that affect the title to or utility of
the assets or property of the Corporation
which would prevent them from occupying and
utilizing said assets and property, or any
part thereof as of the date hereof.
IN WITNESS WHEREOF, we have executed this certificate as of
the 5th day of
May , 1995.
VALLEY AIR SERVICES, INC.
By:
_________________________________
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MOUNTAIN STATE FLIGHT SERVICES, LTD.
By: _______________________________
R. ▇▇▇ ▇▇▇▇▇
CERTIFICATE OF SECRETARY
The undersigned, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, duly elected, qualified and
acting as Secretary of Valley Air Services, Inc. (the
"Corporation"), certifies that:
1. Attached to this certificate as Exhibit A is
a true and complete copy of resolutions
adopted by Written Consent in Lieu of a
Meeting of the Board of Directors on March
31, 1995 (the "Resolutions"). The
Resolutions have not been amended and are in
full force and effect on and as of the date
of this certificate.
2. Each of the following persons is, on and as
of the date of this certificate, a duly
elected, qualified and acting officer of the
Corporation, holding the office set forth
beside his respective name, and is authorized
to execute and deliver documents and to
effect other transactions pursuant to or
contemplated by the Resolutions, and the
signature appearing opposite his name below
is the true and genuine signature of such
officer:
NAME OFFICE SIGNATURE
R. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ President _________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Vice President_________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Secretary _________________________
IN WITNESS WHEREOF, I have executed this certificate as of the
5th day of
May , 1995.
_______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Secretary
