Exhibit 10.1
STOCK PURCHASE AGREEMENT
DATED AS OF
DECEMBER 31, 2008
BETWEEN
AIR TRANSPORT GROUP HOLDINGS, INC.
AND
XXXXXX X. XXXXXXX
FOR THE PURCHASE AND SALE
OF
100% OF THE COMMON STOCK
OF
TECHNICAL AERO SERVICES, INC.
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "AGREEMENT") is dated as of December
31, 2008, by and between AIR TRANSPORT GROUP HOLDINGS, INC., a Nevada
corporation ("BUYER") and XXXXXX X. XXXXXXX ("SELLER"). Buyer and Seller
individually may be referred to individually as a "PARTY" and collectively as
the "PARTIES."
RECITALS
WHEREAS, Seller is the beneficial owner of all of the outstanding shares of
common stock (collectively, the "SHARES") of TECHNICAL AERO SERVICES, INC., a
Florida corporation (the "COMPANY"); and
WHEREAS, Seller desires to sell the Shares to Buyer, and Buyer desires to
purchase the Shares from Seller, upon the terms and subject to the conditions
hereinafter set forth.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and promises
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties, intending to be
legally bound, hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. DEFINITIONS. (a) The following terms, as used herein, have
the following meanings:
"AFFILIATE" means, with respect to any Person, any entity or any other
Person directly or indirectly controlling, controlled by or under common control
with such Person.
"AFFILIATED GROUP" means, with respect to federal income Taxes, any
affiliated group of corporations (as defined in Section 1504(a) of the Code) of
which the Company are members and, with respect to any state, local or foreign
income, franchise or similar income-based Tax, the consolidated, combined or
unitary group of which the Company is a member.
"BALANCE SHEET" means the unaudited balance sheet of the Company as of the
Balance Sheet Date.
"BALANCE SHEET DATE" means December 31st, 2008.
"BUSINESS" means the business and operations of the Company as such are
conducted by the Company as of the date hereof in the ordinary course of
business for the industry.
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"BUSINESS DAY" means a day other than Saturday, Sunday or any other day on
which commercial banks in New York, New York are closed.
"CLOSING" has the meaning set forth in Section 2.02.
"CLOSING DATE" has the meaning set forth in Section 2.02.
"CASH CONSIDERATION" has the meaning set forth in Section 2.01(a).
"CODE" means the Internal Revenue Code of 1986, as amended, and the rules
and regulations promulgated thereunder.
"COMPANY" has the meaning set forth in the Recitals.
"COMPANY INTELLECTUAL PROPERTY RIGHTS" means all Intellectual Property
Rights owned by, or licensed to, the Company.
"COMPANY MATERIAL ADVERSE EFFECT" means any event or happening that causes
the Company to cease having a positive net revenue stream or substantially
reduces the existing positive net revenue stream as a direct result of such
event or happening.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the rules and regulations promulgated thereunder.
"ERISA AFFILIATE" means any other entity which would be treated as a single
employer with the Company under Section 414 of the Code.
"ESCROW AGREEMENT" has the meaning set forth in Section 2.03.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GOVERNMENTAL AUTHORITY" shall mean any federal, state, local or foreign
government or any subdivision, agency, instrumentality, authority, department,
commission, board or bureau thereof or any federal, state, local or foreign
court, tribunal or arbitrator.
"INTELLECTUAL PROPERTY RIGHT" means any trademark, service xxxx, trade
name, invention, patent, trade secret, copyright, know how (including any
registrations or applications for registration of any of the foregoing) or any
other similar type of proprietary intellectual property right.
"KNOWLEDGE" means, with respect to any Person, the actual knowledge of such
Person but, with respect to the Company, the actual knowledge of the Seller.
"LAWS" means any law, regulation, rule, order, judgment or decree of a
Governmental Authority.
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"LIEN" means, with respect to any property or asset, any and all liens,
encumbrances, charges, security interests, options, mortgages, easements or
pledges in respect of such property or asset.
"MATERIAL CONTRACT" means a contract that is essential to performance of
Company's business and without which, Company could not continue its operations
in the manner in which it is being conducted as of the Closing Date.
"PERMITTED LIENS" means: (i) specific Liens reflected or reserved against
in the Balance Sheet or disclosed in the notes thereto; (ii) Taxes and general
and special assessments not in default and payable without penalty or interest
or being contested in good faith; (iii) mechanic's, materialman's, carrier's,
repairer's and other similar Liens arising or incurred in the ordinary course of
business or that are not yet due and payable or are being contested in good
faith; or (iv) Liens arising or incurred in the ordinary course of business
since the Balance Sheet Date, which individually or in the aggregate do not have
a Company Material Adverse Effect.
"PERSON" means an individual, corporation, partnership, limited liability
company, association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"REAL PROPERTY" means all real property that is owned or leased by the
Company.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"SHARES" has the meaning set forth in the Recitals.
"STOCK CONSIDERATION" has the meaning set forth in Section 2.01(b).
"TAX" means any federal, state, local or foreign income, gross receipts,
license, payroll, employment, excise, severance, stamp, occupation, premium,
windfall profits, environmental, unemployment, disability, real property,
personal property, sales, use, transfer, registration, value added, alternative
or add-on minimum, estimated or other tax of any kind whatsoever
"TAX AUDIT" shall mean any notice of deficiency, proposed adjustment,
adjustment, assessment, audit, examination or other administrative or court
proceeding, suit, dispute or other claim regarding Taxes.
"TAX RETURN" means any return, declaration, report, claim for refund or
information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
"TAXING AUTHORITY" means any governmental authority (domestic or foreign)
responsible for the imposition of any Tax.
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"TRANSPORTATION CODE" means 49 U.S.C. Subtitle VII, as amended, and any
successor statute thereto and the Federal Aviation Regulations issued or
promulgated pursuant thereto.
Section 1.02. OTHER DEFINITIONAL AND INTERPRETATIVE PROVISIONS. Unless
specified otherwise, in this Agreement the obligations of any Party consisting
of more than one Person are joint and several. The words "hereof", "herein" and
"hereunder" and words of like import used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement. The
captions herein are included for convenience of reference only and shall be
ignored in the construction or interpretation hereof. References to Articles,
Sections, Exhibits and Schedules are to Articles, Sections, Exhibits and
Schedules of this Agreement unless otherwise specified. All Exhibits and
Schedules annexed hereto or referred to herein are hereby incorporated in and
made a part of this Agreement as if set forth in full herein. Any capitalized
terms used in any Exhibit or Schedule but not otherwise defined therein shall
have the meaning as defined in this Agreement. Any singular term in this
Agreement shall be deemed to include the plural, and any plural term the
singular. Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation," whether or not they are in fact followed by those words or words of
like import. "Writing," "written" and comparable terms refer to printing, typing
and other means of reproducing words (including electronic media) in a visible
form. References to any Person include the successors and permitted assigns of
that Person. References from or through any date mean, unless otherwise
specified, from and including or through and including, respectively.
ARTICLE 2
PURCHASE AND SALE
Section 2.01. PURCHASE AND SALE. Subject to the terms and conditions of
this Agreement, the Buyer hereby purchases the Shares from the Seller and the
Seller hereby sells, assigns, conveys, and transfers to the Buyer all of the
Seller's right, title, and interest in and to the Shares for a purchase price of
Two Million Five Hundred Thousand Dollars ($2,500,000) (the "PURCHASE PRICE").
The Buyer shall pay to the Seller the Purchase Price as follows:
(a) One Million Eight Hundred Seventy-Five Thousand Dollars ($1,875,000)
(the "CASH CONSIDERATION") shall be paid to the Seller on or before March 31,
2009 by wire transfer of immediately available funds to the bank account
designated in writing by the Seller. The payment obligation for the Cash
Consideration is evidenced by that certain promissory note substantially in the
form attached hereto as EXHIBIT A (the "NOTE"). Payment of the Cash
Consideration shall be not be subject to any right of set off by the Purchaser.
(b) Shares of the Buyer with an aggregate value of Six Hundred Twenty-Five
Thousand Xxxxxxx ($625,000), issued at the highest ask price on December 31,
2008 (the "STOCK CONSIDERATION"), shall be issued to the Seller on or before
March 31, 2009. Upon issuance of the Stock Consideration, the Buyer shall
deliver to the Seller, free and clear of all Liens, the stock certificates
representing the Shares, in such denominations as the Seller may request, dated
the issuance date, in the name of the Seller.
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Section 2.02. CLOSING. Upon mutual execution of this Agreement and the
Escrow Agreement, as defined below, on or before December 31, 2008 (the "CLOSING
DATE"), via electronic counterparts with original copies to follow:
(a) Seller shall deliver to the Escrow Agent, as defined below, the
certificates representing the Shares (the "SELLER'S CERTIFICATES") and executed
stock powers separate from the Seller's Certificates which will allow the Buyer
to transfer the Shares as necessary.
(b) The Buyer shall deliver to the Seller the executed Note.
Section 2.03. ESCROW AGREEMENT. As security for the Buyer's obligations
under this Agreement, the Seller's Certificates shall be delivered to K&L Gates
LLP, as "ESCROW AGENT," who shall maintain possession of the Seller's
Certificates along with fully executed stock powers separate from the
Certificates. In accordance with the escrow agreement, substantially in the form
attached hereto as EXHIBIT B (the "ESCROW AGREEMENT"), the Escrow Agent shall
release the Seller's Certificates as more fully set forth therein.
Section 2.04. USE OF CORPORATE FUNDS AND ASSETS. Prior to payment in full
of the Purchase Price, all proceeds of the Company shall remain in the Company's
bank accounts and shall not be removed except for payments to vendors or other
payments in the ordinary course of business. In no event shall the Buyer remove
any funds from the Company's bank accounts except as set forth above.
Additionally, prior to payment in full of the Purchase Price, neither the
inventory nor the assets of the Company shall be sold, disposed of, pledged,
leased or used other than in the ordinary course of business. Breach of this
Section 2.04 shall be an Event of Default under Section 8.01, below.
Section 2.05 ESCROW OF PROFITS. Prior to the payment in full of the
Purchase Price, any and all profits of the Company shall be deposited with the
Escrow Agent and disbursed in accordance with the Escrow Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLER
Seller makes the following representations and warranties to Buyer with
respect to Company as of the date hereof (except to the extent expressly
relating to a specific date, in which event such representation or warranty
shall be made as of such date), which shall be unaffected by any investigation
heretofore or hereafter made by or on behalf of Buyer:
Section 3.01. CORPORATE EXISTENCE AND POWER. Company is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all corporate powers required to carry on
its business as now conducted.
Section 3.02. CORPORATE AUTHORIZATION AND BINDING EFFECT. The execution,
delivery and performance by Seller of this Agreement, and the consummation by
Seller and Company of the transactions contemplated hereunder and thereby have
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been duly authorized by all necessary corporate and shareholder action by Seller
and Company. Seller and Company have full power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. This Agreement
is a valid and binding obligation of Seller and Company, enforceable in
accordance with its terms and conditions.
Section 3.03. GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by Seller of this Agreement and the consummation by Seller of the
transactions contemplated hereby require no action by or in respect of, or
filing with, any Governmental Authority.
Section 3.04. NONCONTRAVENTION. The execution, delivery and performance by
Seller of this Agreement and the consummation by Seller and Company of the
transactions contemplated hereby does not and will not; (i) contravene or
conflict with the certificates or articles of incorporation or bylaws of the
Company; contravene or conflict with or constitute a violation of any provision
of any Law binding upon or applicable to Seller or Company or any of their
respective properties or assets; result in a violation or a breach of, or
constitute a default or require any consent under or give rise to a right of
termination, cancellation or acceleration of any right or obligation of Company
or to a loss of any benefit to which Company is entitled under any provision of
any note, bond, mortgage, indenture, lease, agreement, contract, obligation or
other instrument to which Company is bound, or any license, franchise, permit or
other similar authorization held by Company; or (iv) result in the creation or
imposition of any Lien on any asset of Company, except for any Permitted Liens.
Section 3.05. CAPITALIZATION. The Shares represent all of the issued and
outstanding capital stock of Company. All outstanding shares of capital stock of
Company are duly authorized, validly issued, fully paid, nonassessable and free
from preemptive rights. Except as set forth in this Section 3.05, there are no
outstanding shares of capital stock or other voting securities of or other
ownership interests in Company; ) securities of Company convertible into or
exchangeable for shares of capital stock or voting securities of or other
ownership interests in Company; or options or other rights to acquire from
Company, or any obligation of Company to issue, transfer or sell, any capital
stock or voting securities of or other ownership interests in Company or
securities convertible into or exchangeable for capital stock or voting
securities of or other ownership interests in Company (the items in clauses (i),
(ii) and (iii) being referred to collectively as the "COMPANY SECURITIES").
There are no outstanding obligations of Company to repurchase, redeem or
otherwise acquire any Company Securities. Company does not have any
subsidiaries.
Section 3.06. OWNERSHIP OF SHARES. Seller is the record and beneficial
owner of the Shares, free and clear of any Lien, and will transfer and deliver
to Buyer at the Closing valid title to the Shares, free and clear of any Lien.
Section 3.07. PERMITS; COMPLIANCE. (a) Company is in possession of all
franchises, grants, authorizations, licenses, permits, easements, variances,
exceptions, consents, certificates, approvals, clearances and orders of any
Governmental Authority necessary for Company to operate its Business as
currently conducted, to own, lease and operate its properties and to carry on
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the Business (the "COMPANY PERMITS") and the use and operation by Company of its
properties and the conduct of the Business comply with the requirements and
conditions of all Company Permits. A true and correct copy of each such Permit
is attached as SCHEDULE 2.
(b) All Company Permits are valid and in full force and effect. To the
Knowledge of Seller and/or Company, no suspension, cancellation or limitation of
any of Seller and/or Company Permits is threatened.
Section 3.08. FINANCIAL STATEMENTS. The unaudited consolidated balance
sheets of the Company as of December 31, 2008, and the related unaudited
consolidated statements of income, cash flows and stockholders equity for each
of the years ending December 31, 2006 and 2007 (collectively, the "FINANCIAL
STATEMENTS"), the financial position of the Company as of the dates thereof and
their consolidated results of operations, cash flows and stockholders equity for
the periods then ended have been provided to the Buyer. The Financial Statements
are attached as SCHEDULE 3.
Section 3.09. BOOKS AND RECORDS. The books of account, minute books and
stock record books of Company are complete and correct in all material respects
and have been maintained in accordance with reasonable and customary business
practices. The minute books of Company contain records that are complete and
correct in all material respects of all meetings of, and corporate action taken
by (including all actions by unanimous written consent), the shareholders and
directors of Company since its inception. True and complete copies of all minute
books and all stock record books of Company have heretofore been made available
to Buyer.
Section 3.10. ABSENCE OF CERTAIN CHANGES. As of the date of this Agreement,
Company has conducted its business in the ordinary course consistent with past
practices and there has not been, since December 31, 2008:
(a) any event, occurrence or development that has been the proximate cause
of any Company Material Adverse Effect;
(b) any declaration, setting aside or payment of any dividend or other
distribution with respect to any shares of capital stock of Company, or any
repurchase, redemption or other acquisition by Company of any outstanding shares
of capital stock or other securities of, or other ownership interests in, the
Company;
(c) any amendment of any material term of any outstanding security of the
Company;
(d) any incurrence, assumption, amendment or guarantee by the Company of
any indebtedness for borrowed money, or any foreign currency, hedging, financial
derivatives or similar transactions, other than in the ordinary course of
business and consistent with past practices;
(e) any creation or assumption by Company of any Lien, other than Permitted
Liens, on any asset of Company;
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(f) (i) any making of any loan, advance or capital contribution to or
investment in any Person by Company other than loans, advances, capital
contributions or investments made in the ordinary course of business consistent
with past practices; or (ii) any amendment of the terms of any loan to executive
officers or directors;
(g) any transaction or commitment made, or any contract or agreement
entered into, by Company relating to its assets or the Business (including the
acquisition or disposition of any assets), in either case, material to Company,
other than transactions and commitments in the ordinary course of business
consistent with past practices and those contemplated by this Agreement;
(h) any material change in any method of accounting or accounting practice
by Company.
(i) any payment, discharge or satisfaction of any material claim, liability
or obligation, except in the ordinary course of business or pursuant to the
terms of any Material Contract;
(j) any material modification to a Material Contract;
(k) except as required under applicable law or pursuant to existing
agreements, any grant of any severance or termination pay to any director,
officer or employee of Company, increase in compensation, bonus or other
benefits payable under any severance or retirement or termination pay policies
of Company, entering into of any employment, deferred compensation or other
similar agreement (or any amendment to any such existing agreement) with any
director, officer or employee of Company, except as provided in Section 7.03
below, or adoption of any new employee plan or modification of any employee
plan, in the case of each of clauses (i) through (iv), other than in the
ordinary course of business consistent with past practices; or
(l) any disposal or lapse of any rights to the use of any Company
Intellectual Property Right, which would have a Company Material Adverse Effect.
Section 3.11. NO UNDISCLOSED MATERIAL LIABILITIES. There are no material
liabilities or obligations of Company of any kind, other than:
(a) liabilities or obligations disclosed or provided for in the Balance
Sheet or expressly set forth on SCHEDULE 4;
(b) liabilities or obligations incurred in the ordinary course of business
since the Balance Sheet Date, which shall be disclosed on SCHEDULE 5;
(c) liabilities or obligations under existing Material Contracts of the
Company, which shall be disclosed on SCHEDULE 6;
(d) liabilities or obligations under this Agreement; and
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(e) other liabilities or obligations which in the aggregate would not
result in a Company Material Adverse Effect.
Section 3.12. LITIGATION. As of the date of this Agreement, to the
Knowledge of Seller and Company, there is no judicial or administrative action,
suit or proceeding pending or threatened against Seller or Company or relating
to the Business, any of the Company's properties or any of the officers or
directors of such Company before any court or arbitrator or before or by any
Governmental Authority that would, individually or in the aggregate, have a
Company Material Adverse Effect. The Company is not subject to any judgment,
order or decree that would result in a Company Material Adverse Effect. Any and
all litigation which Seller has Knowledge of, whether threatened, pending, or
resolved, shall be disclosed to Buyer before the Closing.
Section 3.13. TAXES. (a) Seller has filed all material Tax Returns for
Company due prior to the date of this Agreement. All such Tax Returns have been
correct and complete in all material respects and have been prepared in
substantial compliance with all applicable laws and regulations when filed.
Seller has paid all material Taxes shown or required to be shown on such
separate Tax Returns.
(b) There are no Liens for Taxes (other than Taxes not yet due and payable)
upon any of the Company Assets.
(c) Company has withheld and paid all employment, sales, use and other
Taxes required to have been withheld and paid in connection with any amounts
paid or owing to any employee, independent contractor, creditor or other third
party.
(d) To the Knowledge of Seller, there is no pending or any threatened
dispute or claim concerning any material Tax liability of Company for any
taxable period during which Company was a member of Seller's Affiliated Group.
Section 3.14. EMPLOYEE PLANS. Seller has provided Buyer with all
information regarding employee compensation plans.
(a) Company does not presently sponsor, maintain or contribute to, and has
not in the past sponsored, maintained or contributed to, or agreed to sponsor,
maintain or contribute to, any pension plan, nor is it required to under any
existing law of the United States.
(b) Labor Matters. As of the date of this Agreement and to the best of
Seller's Knowledge:
(i) there are no controversies pending or threatened between Company
and any of its employees;
(ii) Company has not breached in any material respect or otherwise
failed to comply in any material respect with any provision of any
collective bargaining agreement applicable to persons employed by Company,
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nor has any such breach or failure been alleged, and there are no material
grievances outstanding against Company thereunder;
(iii) there is no petition pending before the National Mediation
Board, as defined in 45 U.S.C. ss. 8, as amended, seeking certification or
any change in certification of a labor representative with respect to any
craft or class of employees of Company;
(iv) there is no strike, slowdown, work stoppage, labor action or
lockout or threat thereof, by or with respect to any employees of Company;
and
(v) there is no complaint for violation of the Railway Labor Act, 45
U.S.C. ss. 8, as amended, against Company pending before any Governmental
Authority.
Section 3.15. CERTAIN BUSINESS PRACTICES. Neither Company nor any of its
directors, officers, employees or any other person authorized to act on behalf
of the Company has used any corporate funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political activity, made
any unlawful payment to foreign or domestic government officials or employees or
to foreign or domestic political parties or campaigns from corporate funds,
violated any provision of the Foreign Corrupt Practices Act of 1977, 15 U.S.C.
xx.xx. 78dd-1, et seq., as amended, or made any bribe, rebate, payoff, influence
payment, kickback or other similar unlawful payment to any foreign or domestic
government official or employee from corporate funds.
Section 3.16. ENVIRONMENTAL MATTERS. Except as to matters that would not
have a Company Material Adverse Effect, to the best of Seller's Knowledge:
(a) no complaint has been filed, no penalty has been assessed, and no
third-party investigation, claim, suit, proceeding or review is pending or is
threatened by any Governmental Authority or other Person against Company and, in
each case, alleging or relating to any violation by Company of any environmental
law;
(b) Company is in compliance with all environmental laws and has obtained
and is in compliance with all permits, licenses, franchises, certificates,
approvals and other similar authorizations from any Governmental Authority
(collectively, "ENVIRONMENTAL PERMITS") charged with enforcing environmental
laws as they pertain to conduct the Business performed by Company.
Section 3.17. COMPLIANCE WITH LAWS AND COURT ORDERS. The Company is in
compliance with all, and is not under investigation with respect to, applicable
Laws
Section 3.18. EMPLOYEE MATTERS. Company is in compliance in all material
respects with all applicable Laws respecting employment and employment
practices, terms, and conditions of employment, and wages and hours and is not
engaged in any unfair labor practice.
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Section 3.19. TITLE TO ASSETS; LIENS. Company has good title to all the
properties and assets reflected in the Balance Sheet and all assets purchased by
the Company since the Balance Sheet Date free and clear of all Liens (other than
Permitted Liens). At the time of the Closing, the assets of the Company shall be
adequate in all material respects to allow Buyer at such time to conduct the
Business substantially as it is currently being conducted.
Section 3.20. MATERIAL CONTRACTS.
(a) Except as set forth in SCHEDULE 6, Company is not a party to or bound
by:
(i) any lease or lease of real property providing for annual rentals
of Thirty Thousand Dollars ($30,000) or more;
(ii) any agreement for the purchase of materials, supplies, goods,
services, equipment or other assets (other than pursuant to purchase orders
made in the ordinary course of business consistent with past practice)
providing for annual payments by Company of Fifty Thousand Dollars
($50,000) or more;
(iii) any material partnership, joint venture or other similar
agreement or arrangement;
(iv) any agreement relating to indebtedness for borrowed money or the
deferred purchase price of property (in either case, whether incurred,
assumed, guaranteed or secured by any asset), except any such agreement
with an outstanding principal amount not exceeding One Hundred Thousand
Dollars ($100,000);
(v) any agreement that limits in any material respect the freedom of
Company to compete in any line of business, with any person or entity in
any area for any length of time; or
(vi) other than as contemplated by this Agreement, any contract or
commitment requiring, after the date hereof, the mortgage, pledge, sale, or
disposal of assets with a value in excess of One Hundred Thousand Dollars
($100,000) or release, grant, or transfer of Company rights with a value in
excess of One Hundred Thousand Dollars ($100,000).
(b) Each agreement, contract, plan, lease, arrangement or commitment
required to be disclosed pursuant to this section is a valid and binding
agreement of Company and is in full force and effect, and to the best Knowledge
of both Company and Seller, Company is not in default or breach under the terms
of any such agreement, contract, plan, lease, arrangement or commitment.
Section 3.22. INSURANCE. Seller has made available to Buyer copies of all
insurance policies providing coverage in favor of Company or any of its
properties, including "all risk" insurance policies (collectively, the
"INSURANCE POLICIES"). There are no material claims by Company pending under any
of the Insurance Policies as to which coverage has been questioned, denied or
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disputed by the underwriters of such policies or in respect of which such
underwriters have reserved their rights. As of the date hereof, all Insurance
Policies are in full force and effect, all premiums due thereon have been paid
and Company is in compliance in all material respects with the terms and
provisions of the Insurance Policies. True and correct copies of the Insurance
Policies are attached as SCHEDULE 7.
Section 3.23. INTELLECTUAL PROPERTY. (a) No Company Intellectual Property
Right is subject to any outstanding judgment, injunction, order, decree or
agreement restricting the use thereof by Company or, for those Company
Intellectual Property Rights owned by Company, restricting the licensing thereof
by Company to any Person.
(b) Except as expressly disclosed to Buyer, Company has the sole and
exclusive right to use Company Intellectual Property Rights, and no consent of
any third party is required for the use thereof by Company following the Closing
Date. To the Knowledge of Company and/or Seller, no claims have been asserted by
any Person challenging the use of any Company Intellectual Property Rights, or
challenging or questioning the validity or effectiveness of any such license or
agreement. No additional Intellectual Property Rights other than Company
Intellectual Property Rights are necessary or material to the conduct of the
Business.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby makes the following representations and warranties to Seller
as of the date hereof (except to the extent expressly relating to a specific
date, in which event such representation or warranty shall be made as of such
date), which shall be unaffected by any investigation heretofore or hereafter
made.
Section 4.01. CORPORATE EXISTENCE AND POWER. Buyer is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all corporate powers required to carry on
its business as now conducted.
Section 4.02. CORPORATE AUTHORIZATION. The execution, delivery and
performance by Buyer of this Agreement and the consummation by Buyer of the
transactions contemplated hereby have been duly authorized by all necessary
corporate and shareholder action by Buyer. Buyer has full power and authority to
execute and deliver this Agreement and to perform its obligations hereunder.
This Agreement has been duly executed and delivered by Buyer and is a valid and
binding obligation of Buyer, enforceable in accordance with its terms and
conditions.
Section 4.03. GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by Buyer of this Agreement and the consummation by Buyer of the
transactions contemplated hereby requires no action by or in respect of, or
filing with, any Governmental Authority
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Section 4.04. NONCONTRAVENTION. The execution, delivery and performance by
Buyer of this Agreement and the consummation by Buyer of the transactions
contemplated hereby do not and will not (i) contravene or conflict with the
articles of incorporation or bylaws of Buyer, assuming compliance with the
matters referred to in Section 4.03, contravene or conflict with or constitute a
violation of any provision of any Law binding upon or applicable to Buyer,
result in a violation or a breach of, or constitute a default or require any
consent under or give rise to a right of termination, cancellation or
acceleration of any right or obligation of Buyer or to a loss of any benefit to
which Buyer is entitled under any provision of any note, bond, mortgage,
indenture, lease, agreement, contract, obligation or other instrument to which
Buyer is bound, or any license, permit or other similar authorization held by
Buyer.
Section 4.05. LITIGATION. As of the date of this Agreement, there is no
judicial or administrative action, suit or proceeding pending, or to the
Knowledge of Buyer, threatened against Buyer before any Governmental Authority
which in any manner challenges or seeks to prevent, enjoin, alter or materially
delay the transactions contemplated by this Agreement.
Section 4.06 TITLE TO SHARES; RESTRICTIONS ON TRADING. The Stock
Consideration, as of the date of transfer to Seller, shall be free and clear of
(a) any Liens and (b) any restrictions on trading and shall be freely tradable
on the OTC Bulletin Board.
ARTICLE 5
COVENANTS OF THE SELLER
Seller agrees that:
Section 5.01. CONDUCT OF THE COMPANY. Except as expressly contemplated by
this Agreement or as otherwise consented to by Buyer in writing, during the
period from the date hereof and continuing until the Closing Date, Seller shall
cause Company to:
(a) conduct its business in the usual, regular and ordinary course
consistent with past practices;
(b) not mortgage, pledge, sell or dispose of any Company assets with a
value of Three Thousand Dollars ($3,000) or more in the aggregate, and not
waive, release, grant, transfer or permit to lapse any Company rights of value
in excess of Five Thousand Dollars ($5,000) in the aggregate;
(c) comply in all material respects with all provisions of any Material
Contracts to which Company is a party;
(d) not take any action that would result in the representation set forth
in Section 3.10(k) being untrue;
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(e) not enter into any new or amended contract, agreement, side letter or
memorandum of understanding with any unions representing employees of Company;
(f) not enter into any agreement or understanding with any other Person
outside of the ordinary course of business consistent with past practices
involving expenditures in excess of Three Thousand Dollars ($3,000) in the
aggregate or involving terms of duration or commitments in excess of 3 months;
(g) not enter into any agreement or understanding with any other Person
containing any exclusivity, non-competition or similar provisions that would
materially restrict the ability of Company to compete;
(h) not adopt or propose any change in its organizational documents
(including bylaws); and
(i) not merge or consolidate with any other Person.
Section 5.02. CONFIDENTIALITY.
(a) After the Closing Date, Seller will hold, and will use its best efforts
to cause its respective officers, directors, employees, accountants, counsel,
consultants, advisors and agents to hold, in confidence, unless compelled to
disclose by judicial or administrative process or by other requirements of law,
all confidential documents and information concerning Company, except to the
extent that such information can be shown to have been: (i) previously known on
a non-confidential basis by either Seller or Company; (ii) in the public domain
through no fault of Seller or his Affiliates; or (iii) later lawfully acquired
by Seller from sources other than those related to his prior ownership of
Company. The obligation of Seller to hold any such information in confidence
shall be satisfied if he exercises the same care with respect to such
information as he would take to preserve the confidentiality of his own similar
information.
Section 5.03. NOTICES OF CERTAIN EVENTS. From the date hereof until the
Closing Date, Seller shall promptly notify Buyer of:
(a) any actions, suits, claims, investigations or proceedings: (i)
commenced against Company or Seller; or (ii) in respect of which Company has an
indemnification obligation and as to which Seller has Knowledge that, if pending
on the date of this Agreement, would have been required to have been disclosed
pursuant to Section 3.12;
(b) any material agreement or litigation, or consent or order of the
Federal Aviation Administration or Department of Transportation, related to
Company (other than those that apply generally to air carriers or companies in
the airline industry); and
(c) any incidents or accidents occurring on or after the date hereof
involving any property owned or operated by Company or Seller that has resulted
or would reasonably be expected to result in casualty damages or losses in
excess of Twenty Thousand Dollars ($20,000).
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ARTICLE 6
COVENANTS OF BUYER
Buyer agrees that:
Section 6.01. CONFIDENTIALITY. Prior to the Closing Date and after any
termination of this Agreement, Buyer and its Affiliates will hold, and will use
their best efforts to cause their respective officers, directors, employees,
accountants, counsel, consultants, advisors and agents to hold, in confidence,
all confidential documents and information concerning Company and Seller
furnished to Buyer or its Affiliates in connection with the transaction
contemplated by this Agreement.
Section 6.02. TRADEMARKS; TRADENAMES. Buyer shall not permit Company to use
any of the marks or names of Seller that the parties agree shall belong to
Seller after the Closing.
Section 6.03 TRADING OF SHARES. Buyer covenants and agrees that neither it
nor any of its Affiliates will trade any of the Buyer's shares on December 31,
2008.
Section 6.04 ACCESS TO INFORMATION. On and after the Closing Date, Buyer
will afford, promptly to Seller and its agents reasonable access to its books of
account, financial and other records (including accountant's work papers),
information, employees and auditors to the extent reasonably necessary for
Seller in connection with any audit, investigation, dispute or litigation (other
than any dispute or litigation involving the Buyer) relating to the Business;
PROVIDED that any such access by Seller shall be conducted during normal
business hours and shall not unreasonably interfere with the conduct of
Company's Business and Seller shall bear all of the out-of-pocket costs and
expenses (including reasonable attorneys' fees, but excluding reimbursement of
Buyer for general overhead, salaries and employee benefits) reasonably incurred
in connection with the foregoing.
Section 6.05 REPORTS UNDER THE EXCHANGE ACT. With a view to making
available to the Seller the benefits of Rule 144 promulgated under the
Securities Act or any similar rule or regulation of the SEC that may at any time
permit the Seller to sell securities of the Buyer to the public without
registration ("RULE 144") the Buyer agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) file with the SEC in a timely manner all reports and other documents
required of the Buyer under the Securities Act and the Exchange Act so long as
Buyer remains subject to such requirements and the filing of such reports and
other documents as are required by the applicable provisions of Rule 144; and
(c) furnish to Seller so long as Seller owns shares of Buyer, promptly upon
request, (i) a written statement by the Buyer that it has complied with the
reporting requirements of Rule 144, (ii) a copy of the most recent annual or
quarterly report of the Buyer and such other reports and documents so filed by
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Buyer, and (iii) such other information as may be reasonably requested to permit
Seller to sell such securities pursuant to Rule 144 without registration.
ARTICLE 7
COVENANTS OF BUYER AND SELLER
Buyer and Seller agree that:
Section 7.01. BEST EFFORTS; FURTHER ASSURANCES. (a) Subject to the terms
and conditions of this Agreement, Buyer and Seller will use their best efforts
to take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary or desirable under applicable laws and regulations to
consummate the transactions contemplated by this Agreement. Seller and Buyer
shall, and the Seller shall cause Company prior to the Closing, and Buyer shall
cause the Company after the Closing, to execute and deliver such other
documents, certificates, agreements and other writings and to take such other
actions as may be necessary or desirable in order to consummate or implement
expeditiously the transactions contemplated by this Agreement.
Section 7.02. PUBLIC ANNOUNCEMENTS. The Parties agree to consult with each
other before issuing any press release or making any public statement with
respect to this Agreement or the transactions contemplated hereby and, except
for any press releases and public announcements the making of which may be
required by applicable law or any listing agreement with any national securities
exchange, will not issue any such press release or make any such public
statement prior to such consultation.
Section 7.03 EMPLOYMENT AGREEMENT. Both Parties agree that within thirty
(30) days of the Closing Date, Seller shall have entered into an employment
agreement with Buyer or Company on mutually acceptable terms. Buyer and Seller
will negotiate in good faith all of the material terms of the agreement and will
use best faith efforts to complete and execute said agreement within thirty (30)
days of the Closing Date. During such thirty (30) day period, Seller shall
continue to operate the Business in accordance with past practices and shall not
be liable for any losses incurred or sustained by the Business.
ARTICLE 8
DEFAULT AND REMEDIES
Section 8.01. EVENT OF DEFAULT.
(a) The occurrence of any one or all of the following events shall
constitute an "EVENT OF DEFAULT" under this Agreement:
(i) Buyer's failure to pay in full the Purchase Price in accordance
with the terms of this Agreement, the Escrow Agreement and the Note;
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(ii) Any representation or warranty made or deemed made by Buyer in
this Agreement shall prove to have been false or misleading in any material
respect on the date when made or deemed to have been made;
(iii) Buyer's breach of any of the covenants made by Buyer in this
Agreement;
(iv) Any bankruptcy, insolvency, reorganization, arrangement,
readjustment, liquidation, dissolution, or similar proceeding, domestic or
foreign, is instituted by or against Buyer or Buyer shall take any steps
toward, or to authorize, such a proceeding;
(v) Buyer's breach of the covenant in Section 2.04, above; or
(vi) Buyer no longer being quoted on the OTC Bulletin Board.
Section 8.02. REMEDIES Buyer agrees that if an Event of Default occurs, the
Seller shall have the right to the return of the Certificates from the Escrow
Agent and Seller shall also be entitled to retain any portion of the Cash
Consideration already paid as it sole remedy.
ARTICLE 9
EMPLOYEE BENEFITS
Section 9.01. EMPLOYEE BENEFITS. Nothing herein shall be construed to
require Company or Buyer to continue after Closing the employment of any Company
employee or to otherwise interfere with Company's right to terminate any such
employees at any time after Closing.
ARTICLE 10
CONDITIONS TO CLOSING
Section 10.01. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER. The
obligations of Buyer and Seller to consummate the Closing are subject to the
satisfaction of the following conditions:
(a) no provision of any Law shall prohibit the consummation of the Closing;
and
(b) there shall not be in effect any Law enacted, enforced, promulgated,
issued or deemed applicable to the transactions contemplated hereby of any
Governmental Authority that makes illegal or otherwise materially restrains or
prohibits the consummation of the transactions contemplated hereby.
Section 10.02. CONDITIONS TO OBLIGATION OF BUYER. The obligation of Buyer
to consummate the Closing is subject to the satisfaction of the following
further conditions:
(a) Seller shall have performed or complied with, in all material respects,
all of the covenants and agreements required to be performed by it on or prior
to the Closing Date under this Agreement, and the representations and warranties
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of Seller set forth in this Agreement shall be true at and as of the Closing
Date as if made at and as of such time (except as to any representation or
warranty which speaks as of a specific date, which must be true as of such date;
and
(b) there shall not have occurred any Company Material Adverse Effect after
the date hereof which is continuing on the Closing Date or which has not been
disclosed to Buyer in writing.
Section 10.03. CONDITIONS TO OBLIGATION OF THE SELLERS. The obligation of
Seller to consummate the Closing is subject to satisfaction of the following
further conditions:
(a) Buyer's performance and compliance in all material respects with all of
the covenants and agreements required to be performed by it on or prior to the
Closing Date under this Agreement, and the representations and warranties of
Buyer set forth in this Agreement shall be true at and as of the Closing Date as
if made at and as of such time (except as to any representation or warranty
which speaks as of a specific date, which must be true as of such date).
ARTICLE 11
SURVIVAL; INDEMNIFICATION
Section 11.01. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained in this Agreement shall be true at the
time of each Party's execution of this Agreement and shall survive the
execution, delivery and acceptance of this Agreement and the closing of the
transactions described herein for a period of one year from the Closing Date,
unless otherwise specified herein.
Section 11.02 INDEMNIFICATION. Effective at and after the Closing Date,
Seller hereby indemnifies Buyer and its Affiliates against and agrees to hold
each of them harmless from any and all damage, loss and expense (including
reasonable expenses of investigation, attorneys' fees and expenses, and any
fines or penalties imposed) actually suffered ("DAMAGES") by Buyer or any of its
Affiliates arising out of any misrepresentation or breach of representation or
warranty (each such misrepresentation and breach, a "WARRANTY BREACH") or breach
of covenant or agreement made in or to be performed by Seller pursuant to this
Agreement.
(b) Effective at and after the Closing, Buyer hereby indemnifies Seller and
its Affiliates against and agrees to hold each of them harmless from any and all
Damages actually suffered by Seller or any of its Affiliates arising out of any
Warranty Breach or breach of covenant or agreement made or to be performed by
Buyer pursuant to this Agreement.
Section 11.03. PROCEDURES. (a) The party seeking indemnification under
Section 11.01 (the "INDEMNIFIED PARTY") agrees to give prompt notice to the
party against whom indemnity is sought (the "INDEMNIFYING PARTY") of the
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assertion of any claim, or the commencement of any suit, action or proceeding
("CLAIM") in respect of which indemnity may be sought under such Section and
will provide the Indemnifying Party such information with respect thereto that
the Indemnifying Party may reasonably request. The failure to so notify the
Indemnifying Party shall not relieve the Indemnifying Party of its obligations
hereunder, except to the extent such failure shall have adversely affected the
Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense
of any Claim asserted by any third party ("THIRD PARTY CLAIM") and, subject to
the limitations set forth in this Section, shall be entitled to assume the
control of and appoint lead counsel for such defense, in each case at its
expense.
(c) If the Indemnifying Party shall assume the control of the defense of
any Third Party Claim in accordance with the provisions of this Section 11.03:
(i) the Indemnifying Party shall obtain the prior written consent of the
Indemnified Party (which shall not be unreasonably withheld, delayed or
conditioned) before entering into any settlement of such Third Party Claim, but
only if the settlement does not release the Indemnified Party from all
liabilities and obligations with respect to such Third Party Claim or if the
settlement imposes injunctive or other equitable relief against the Indemnified
Party; and (ii) the Indemnified Party shall be entitled to participate in the
defense of such Third Party Claim and to employ separate counsel of its choice
for such purpose. The fees and expenses of such separate counsel shall be paid
by the Indemnified Party. The Indemnifying Party shall have no indemnification
obligations with respect to any Third Party Claim that shall be settled by the
Indemnified Party without the prior written consent of the Indemnifying Party,
which consent shall not be unreasonably withheld, delayed or conditioned.
(d) Each Party shall cooperate, and cause their respective Affiliates to
cooperate, in the defense or prosecution of any Third Party Claim and shall
furnish or cause to be furnished such records, information and testimony, and
attend such conferences, discovery proceedings, hearings, trials or appeals, as
may be reasonably requested in connection therewith. Indemnified Party shall
keep Indemnifying Party fully informed of the defense of any Third Party Claim
conducted by such Indemnified Party.
(e) Each Indemnified Party shall use reasonable efforts to collect any
amounts available under insurance coverage, or from any other Person alleged to
be responsible, for any Damages payable under Section 11.01.
Section 11.04. KNOWLEDGE. Notwithstanding anything in this Agreement to the
contrary, the rights of the Parties to indemnification based on the
representations and warranties set forth in this Agreement shall not be affected
by any investigation conducted with respect to, or any Knowledge acquired (or
capable of being acquired) about the accuracy or inaccuracy of or compliance
with, any such representation or warranty.
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ARTICLE 12
TERMINATION
Section 12.01. GROUNDS FOR TERMINATION. This Agreement may be terminated at
any time prior to the Closing:
(a) by mutual written agreement of Seller and Buyer;
(b) by either Seller or Buyer if consummation of the transactions
contemplated hereby would violate any non-appealable final order, decree or
judgment of any Governmental Authority having competent jurisdiction; or
(c) by Buyer if: (i) Seller shall have filed a petition for relief under
the Bankruptcy Code prior to the Closing; or (ii) an involuntary petition for
relief under the Bankruptcy Code is filed against Seller prior to the Closing by
any party other than (a) Buyer or its Affiliates; or (b) any Person acting at
the direction of or in concert with Buyer or its Affiliates and such petition is
not dismissed prior to the Closing.
The party desiring to terminate this Agreement pursuant to clauses of this
Section 12.01 shall give notice of such termination to the other party.
Section 12.02. EFFECT OF TERMINATION. If this Agreement is terminated as
permitted by Section 12.01, such termination shall be without liability of any
Party (or any stockholder, director, officer, employee, agent, consultant or
representative of such Party) to any other Party to this Agreement and the
Parties will have no further obligations under this Agreement. The provisions of
Section 6.01, 13.03, 13.05, 13.06 and 13.07 shall survive any termination hereof
pursuant to Section 12.01.
ARTICLE 13
MISCELLANEOUS
Section 13.01. NOTICES. All notices and other communications hereunder
shall be in writing (including facsimile transmission, with confirmation of
receipt) and shall be deemed to have been duly given: (i) when delivered
personally; (ii) when received by the addressee, if sent by Express Mail, FedEx
Express or other express delivery service with proof of delivery; or (iii) three
(3) business days after being sent by registered or certified mail, postage
paid, return receipt requested, in each case to the other party at the following
addresses (or to such other address for a party as shall be specified by like
notice, provided that notices of a change of address shall be effective only
upon receipt thereof):
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IF TO BUYER TO:
Air Transport Group Holdings, Inc.
Attn: Xxxxxx Xxxxxxx
0000 Xxxxxxxx Xxx
Xxxxx Xxxxxxxx, Xxxxxxx 00000
IF TO SELLER TO:
Xxxxxx X. Xxxxxxx
00000 XX 000xx Xxxxx
Xxxxx, Xxxxxxx 00000
WITH A COPY TO:
K&L Gates, LLP
Attention: Xxxx X. Xxxxxxxx, Esq.
000 X. Xxxxxxxx Xxxx.
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
All such notices, requests and other communications shall be deemed received on
the date of receipt by the recipient thereof if received prior to 5 p.m. in the
place of receipt and such day is a Business Day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to have
been received until the next succeeding Business Day in the place of receipt.
Section 13.02. AMENDMENTS AND WAIVERS. (a) Any provision of this Agreement
may be amended or waived only if such amendment or waiver is in writing and is
signed, in the case of an amendment, by each Party to this Agreement, or in the
case of a waiver, by the Party against whom the waiver is to be effective.
(b) No failure or delay by any Party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 13.03. EXPENSES. Except as otherwise provided herein, all costs and
expenses incurred in connection with this Agreement shall be paid by the Party
incurring such cost or expense.
Section 13.04. SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the Parties hereto and their
respective successors and assigns; provided that no Party may assign, delegate
22
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other Party hereto.
Section 13.05. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the law of the State of Florida, without regard to
the conflicts of law rules of such state.
Section 13.06. VENUE. The parties hereto agree that any suit, action or
proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with, this Agreement or the transactions contemplated
hereby shall be brought in a court of law in the United States District Court
for the Southern District of Florida. In any such suit, action or proceeding
each party irrevocably waives, to the fullest extent permitted by law, any
objection that it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding in any such court or that any such suit, action
or proceeding brought in any such court has been brought in an inconvenient
forum.
Section 13.07. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 13.08. COUNTERPARTS; EFFECTIVENESS; THIRD-PARTY BENEFICIARIES. This
Agreement may be signed in any number of counterparts which may be delivered by
facsimile or other electronic transmission, including email, each of which shall
be an original, with the same effect as if the signatures thereto and hereto
were upon the same instrument. No provision of this Agreement is intended to
confer any rights, benefits, remedies, obligations or liabilities hereunder upon
any Person other than the parties hereto and their respective successors and
assigns.
Section 13.09. ENTIRE AGREEMENT. This Agreement (including the Schedules
and Exhibits hereto) constitutes the entire agreement between the Parties with
respect to the subject matter of this Agreement and supersedes all prior
agreements and understandings, both oral and written, between the Parties with
respect to the subject matter of this Agreement.
Section 13.10. SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
so long as the economic and legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any Party. Upon such
a determination, the Parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the Parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
day and year first written above.
XXXXXX X. XXXXXXX
-------------------------------------
Xxxxxx X. Xxxxxxx, Individually
AIR TRANSPORT GROUP HOLDINGS, INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
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