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Exhibit 10.26
AGREEMENT FOR PURCHASE OF ADDITIONAL SECURITIES
THIS AGREEMENT FOR PURCHASE OF ADDITIONAL SECURITIES (the "Additional
Purchase Agreement") is made and entered into this 21st day of August, 1997, by
and among AVTEAM, Inc. (the "Company") and the persons listed on the signature
page attached hereto (collectively referred to herein as the "Purchasers" and
individually as a "Purchaser").
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The parties hereto entered into that certain Stock Purchase Agreement
dated as of December 6, 1996 (the "Original Agreement") for the sale and
purchase of the Company's Preferred Stock for a purchase price of $7.00 per
share. The Company desires to sell 714,286 shares of the Company's Preferred
Stock (the "Shares"), and the Purchasers desire to purchase the Shares from the
Company, for a purchase price of $7.00 per share (or an aggregate purchase price
of $5,000,002), upon the terms and conditions set forth herein and in the
Original Agreement, such sales and purchases hereunder being deemed sales and
purchases of "Additional Securities," as that term is defined below. The
proceeds to the Company from the issuances and sales of the Shares may be used
to (i) provide capital for the purchase of used aircraft engines, parts,
aircraft and other aviation components, (ii) repay bank debt and (iii) provide
working capital for the Company. Except as otherwise defined herein, all
capitalized terms used herein shall have the meanings ascribed to them in the
Original Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties agree as follows:
1. AUTHORIZATION. The Company hereby agrees to issue and sell to the
Purchasers an aggregate of 714,286 shares of Preferred Stock, having the rights,
restrictions, privileges and preferences set forth in the Company's Second
Amended and Restated Articles of Incorporation and the Registration Rights
Agreement.
2. SALES AND PURCHASES OF ADDITIONAL SECURITIES. At the Additional
Closing referred to in Section 2 hereof (the "Additional Closing"), the Company
shall sell to each Purchaser, and each Purchaser shall purchase from the
Company, subject to the terms and conditions set forth herein and in the
Original Agreement, the shares of Preferred Stock set forth opposite such
Purchaser's name on Schedule 1 hereto (collectively, the "Additional
Securities") at the purchase price set forth on such Schedule (the "Purchase
Price").
3. SEPARATE SALES AND SEVERAL OBLIGATIONS. The sale of the Additional
Securities to each Purchaser at the Additional Closing shall constitute a
separate sale, and the obligations undertaken by each one (or more) of the
Purchaser(s) under this Additional Purchase Agreement are several and not joint,
such that the failure of any one (or more) of the Purchaser(s) to comply with
its (or their) obligations under this Additional Purchase Agreement shall not
give rise to any additional duties or obligations, or any liability, of any
other Purchaser(s) hereunder, except as provided in Section 1.3(c) of the
Original Agreement.
4. ADDITIONAL CLOSING. The closing of the several sales and purchases
of the Additional Securities shall take place at the offices of ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m.
(local time) on the date hereof, or at such other place as may be mutually
agreed to by the Company and the Purchaser Representative. At or prior to the
Additional Closing, (i) the Company shall have received from ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇ executed Acknowledgments and
Waivers in the form of Exhibit A attached hereto and (ii) the Company shall
cause to be delivered to the Purchasers an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel
for the Company, in the form of Exhibit B attached hereto, which opinion shall
be addressed to the Purchasers and shall be dated the date hereof.
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5. CONDITION PRECEDENT. The obligation of the Purchasers to purchase
any Additional Securities hereunder shall be subject to the condition that there
shall not have occurred any event or change that has had or could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect or
has resulted or could reasonably be expected to result in, individually or in
the aggregate, a material impairment of the ability of the Company to perform
any of its obligations under this Additional Purchase Agreement or any
Transaction Document.
6. INCORPORATION BY REFERENCE. The sale and purchase of the Additional
Securities contemplated hereby shall be deemed a sale and purchase of Additional
Securities under the Original Agreement, notwithstanding the provisions of
Section 1.3 of the Original Agreement. All of the provisions set forth in
ARTICLE III through ARTICLE VIII of the Original Agreement shall apply to this
Additional Purchase Agreement with the same force and effect as if set forth
herein in their entirety.
7. RESTATED FINANCIAL STATEMENTS. Each Purchaser hereby acknowledges
and agrees that it has (i) received and reviewed the Restated Financial
Statements of the Company, including the Notes thereto (the "Restated Financial
Statements"), a copy of which is set forth on Exhibit C attached hereto, (ii)
had the opportunity to review the books and records of the Company and (iii)
been furnished or provided access to such relevant information (financial or
otherwise) that such Purchaser has requested.
8. PROSPECTUS. Each Purchaser hereby acknowledges and agrees that (i)
it has received and reviewed a draft of the Prospectus of the Company dated May
21, 1997, a copy of which is set forth on Exhibit D attached hereto (the "Draft
Prospectus"), (ii) the financial information and operations data, the Financial
Statements and the Notes thereto and the section entitled, "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
contained in the Draft Prospectus (collectively, the "Outdated Information")
have been removed from the Prospectus and are not applicable to the Company at
and as of the date hereof and at and as of the respective dates to which such
Outdated Information relates, such Outdated Information having been superseded
by the restated financial information and operations data contained in the
Restated Financial Statements and (iii) it is not relying upon the Outdated
Information for the purchase of the Additional Securities.
9. ADDITIONAL INVESTMENT REPRESENTATIONS. As a material inducement to
the Company to enter into the Additional Purchase Agreement and issue and sell
the Additional Securities hereunder, each Purchaser, severally, and not jointly,
hereby represents and warrants that:
(a) Each Purchaser understands and acknowledges that (i) the
Additional Securities have not been registered under the Securities Act or under
any state or foreign securities laws in reliance upon exemptions provided
thereunder and that such Additional Securities may not be transferred or sold
except pursuant to the registration provisions of the Securities Act or pursuant
to an applicable exemption therefrom and pursuant to state or foreign securities
laws and regulations as applicable and are subject to restrictions on
transferability under the terms of the Shareholders Agreement and (ii) the
representations and warranties contained herein are being relied upon by the
Company as a basis for the exemption of the offer and sale of the Additional
Securities pursuant to this Additional Purchase Agreement under the registration
requirements of the Securities Act and any applicable state or foreign
securities laws. Each such Purchaser is acquiring the Additional Securities for
the Purchaser's own account, except that, in the case of Clipper Capital
Associates, L.P. ("Clipper Capital"), such Purchaser is acquiring a portion of
the Additional Securities as nominee for not more than three individuals who are
either "accredited investors" (as defined in Rule 501 promulgated under the
Securities Act) or full-time employees of Clipper Capital, for the purpose of
investment and not with a view to, or for sale in connection with, any
distribution thereof in violation of the Securities Act. Each Purchaser has had
the opportunity to review the books and records of the Company and has been
furnished or provided access to such relevant information that such Purchaser
has requested. Each Purchaser is knowledgeable, sophisticated and experienced in
business and financial matters of the type contemplated by the Additional
Purchase Agreement and the Transaction Documents and is able to bear the risks
associated with an investment in the Company. For purposes of this Section 9
hereof, the term "Purchasers" shall include the three individuals named herein.
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(b) If a Purchaser is not a United States Person, such
Purchaser hereby represents that it has satisfied itself as to the observance of
the laws of its jurisdiction in connection with the transactions contemplated by
this Additional Purchase Agreement, including (i) the legal requirements within
its jurisdiction for the purchase of the Additional Securities, (ii) any foreign
exchange restrictions applicable to such purchase, (iii) any governmental or
other consents that it may need to be obtained in connection therewith and (iv)
the income tax and other tax consequences, if any, that may be relevant to the
purchase, holding, redemption, sale, conversion or transfer of the Additional
Securities. Such Purchaser's subscription and payment for, and its continued
beneficial ownership of the Additional Securities, will not violate any
applicable securities or other laws of its jurisdiction.
(c) Each of the Purchasers is an "accredited investor" within
the meaning of Rule 501 promulgated under the Securities Act. None of the
Purchasers has been organized for the purpose of acquiring the Additional
Securities.
(d) Each of the Purchasers has considered the risks associated
with an investment in the Additional Securities and has had the opportunity to
ask questions of and receive answers from the officers of the Company about the
Additional Securities, the information contained in the Draft Prospectus, the
Restated Financial Statements and the business and financial condition of the
Company sufficient to enable it to evaluate the risks and merits of its
investment in the Company.
10. GOVERNING LAW; CONSENT TO JURISDICTION. The provisions of this
Additional Purchase Agreement and the documents delivered pursuant hereto shall
be governed by and construed in accordance with the laws of the State of
Florida, without regard to principles of conflict of laws. Each party hereto
agrees that all judicial proceedings brought against the Company or any
Purchaser arising out of or relating to this Additional Purchase Agreement or
the breach hereof may be brought in any state or federal court of competent
jurisdiction in the State of Florida or New York.
11. ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS. This Additional Purchase
Agreement, together with all exhibits attached hereto, constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties, and there are no warranties,
representations or other agreements among the parties in connection with the
subject matter hereof except as set forth specifically herein or contemplated
hereby. No supplement, modification or waiver of this Additional Purchase
Agreement shall be binding unless executed in writing by the party to be bound
thereby. No waiver of any of the provisions of this Additional Purchase
Agreement shall be deemed or shall constitute a waiver of any other provision
hereof (regardless of whether similar), nor shall any such waiver constitute a
continuing waiver unless otherwise expressly provided.
12. SUCCESSORS AND ASSIGNS. All covenants and agreements contained in
this Additional Purchase 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. In addition, and whether or not
any express assignment has been made, the provisions of this Additional Purchase
Agreement which are for any Purchaser's benefit as a purchaser or holder of the
Additional Securities are also for the benefit of, and enforceable by, any
subsequent holder of the Additional Securities.
13. MULTIPLE COUNTERPARTS. This Additional Purchase Agreement may be
executed in one or more counterparts, each of which shall be deemed an original
and all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Additional
Purchase Agreement on the date first written above.
COMPANY:
AVTEAM, Inc.
By:_______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
President and Chief Executive Officer
PURCHASERS:
CLIPPER CAPITAL ASSOCIATES, L.P. CLIPPER EQUITY PARTNERS I, L.P.
By: Clipper Capital Associates, Inc. By: Clipper Capital Associates, L.P.
its general partner its general partner
By: Clipper Capital Associates, Inc.
its general partner
By:__________________________ By:_________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Treasurer and Secretary Treasurer and Secretary
CLIPPER/MERCHANT PARTNERS, L.P. CLIPPER/EUROPEAN RE, L.P.
By: Clipper Capital Associates, L.P. By: Clipper Capital Associates, L.P.
its general partner its general partner
By: Clipper Capital Associates, Inc. By: Clipper Capital Associates, Inc.
its general partner its general partner
By:_________________________ By:_________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Treasurer and Secretary Treasurer and Secretary
CLIPPER/MERBAN, L.P. CLIPPER CAPITAL PARTNERS, L.P.
By: Clipper Capital Associates, L.P. in its capacity as Purchaser Representative
its general partner By: Clipper Capital Corporation
By: Clipper Capital Associates, Inc. its general partner
its general partner
By:_________________________ By:_____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Treasurer and Secretary Treasurer and Secretary
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