MEMBERSHIP INTEREST PURCHASE AGREEMENT
THIS
MEMBERSHIP INTEREST PURCHASE AGREEMENT (this
“Agreement”)
is
effective as of June 20, 2008, by and among Avantair, Inc., a Delaware
corporation, with offices located at 0000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx,
XX
00000 (“Seller”),
Share
100 Holding Co., LLC , a Delaware limited liability company, with offices
currently located at 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000
(the
“Company”),
and
Executive AirShare Corporation, a Kansas corporation, with offices located
at
000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxx Xxxx, XX 00000 (“Purchaser”).
Seller, Company and Purchaser are sometimes referred to herein individually
as a
“Party”,
and
collectively as the “Parties”.
RECITALS:
WHEREAS,
Seller
is currently the sole member of the Company and therefore owns one hundred
percent (100%) of the membership interests of the Company;
WHEREAS,
concurrent with the Closing, Seller and Purchaser will cause the current
operating agreement of the Company to be amended and restated in accordance
with
the terms and conditions herein (the “Restated
Operating Agreement”),
which
shall supersede any and all prior Operating Agreements and shall provide for
two
separate classes of membership interests in the Company, a Class A membership
interest (the “Class
A Interest”)
and a
Class B membership interest (the “Class
B Interest”);
WHEREAS,
subject
to and in accordance with the terms and conditions hereof, Purchaser desires
to
acquire from Seller the entire Class A Interest, and Seller desires to sell,
transfer and assign to Purchaser the entire Class A Interest; and
WHEREAS,
as a
result of the Closing of the transactions contemplated hereby, Purchaser will
become the sole record and beneficial owner of the Class A Interest, and Seller
will remain the sole record and beneficial owner of the Class B Interest.
NOW
THEREFORE,
in
consideration of the foregoing, the terms, covenants and conditions set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as
follows:
ARTICLE
I
DEFINITIONS
1.1 Definitions.
For
purposes of this Agreement, the following terms have the meanings set forth
below:
“Agreement”
means
this Membership Interest Purchase Agreement.
“Assignment
Document”
means
that certain Purchase Agreement VAE-180V/2006 executed between the Seller and
the Company, dated June 20, 2008, and acknowledged and consented to by Embraer
in the form of that certain Consent and Agreement attached thereto as Annex
I,
dated June 20, 2008, pursuant to which, among other things, all of Seller’s
right, title and interest in, to and under each of the APA and the LOA were
be
assigned, transferred and conveyed over to the Company. A copy of the Assignment
Document is attached hereto as Exhibit B.
1
“Class
A Interest”
has
the
meaning set forth in the Recitals.
“Class
B Interest”
has
the
meaning set forth in the Recitals.
“Closing”
has
the
meaning set forth in Section 2.3.
“Closing
Date”
has
the
meaning set forth in Section 2.3.
“Embraer”
means
Empresa Brasilleira de Aeronautica, S.A.
“Embraer
Consent”
means
the written Consent and Agreement of Embraer to the assignment of all of
Seller’s right, title and interest in, to and under the APA and the LOA to the
Company pursuant to the Assignment Document, which Embraer Consent is attached
to and contained within the Assignment Document.
“Embraer
Contracts”
means
the Embraer Consent, the Assignment Document, and that certain Embraer
Phenom 100 Purchase Agreement VAE-180V/2006, dated September 29, 2006, by and
between Seller and Embraer, as the same has been amended, supplemented or
otherwise modified by Amendment 1 to Purchase Agreement VAE-180V/2006, dated
June 20, 2008 (the “APA”), and that related Letter of Agreement VAE-181V/2006,
between Embraer and Seller, dated September 29, 2006 (the “LOA”), as the same
has been amended, supplemented or otherwise modified by Amendment 1 to Letter
of
Agreement VAE-181V/2006, dated June 20, 2008.
“Governmental
Authority”
means
any instrumentality, subdivision, court, administrative agency, commission,
official or other authority of the United States or any other country or any
state, county, province, municipality, locality or other government or political
subdivision thereof, any quasi-governmental or private body exercising any
regulatory, taxing or other governmental or quasi-governmental authority, or
any
arbitrator.
“Law”
means
any statute, law, ordinance, rule, regulation, mandate, order, writ, injunction,
judgment, decree, ruling, charge, or other requirement of, or any agreement
with, any Governmental Authority.
“Liens”
means
all judgments, pledges, interests, rights of first refusal or first offer,
mortgages, indentures, claims, liens, security interests and other encumbrances
of every kind and nature.
“Person”
means
any individual, corporation, partnership, limited liability company, joint
venture, association, bank, trust company, trust or other entity, or any
Governmental Authority.
2
“Purchase
Documents”
means,
collectively, each and every agreement, document, certificate or instrument
to
be executed by Purchaser pursuant to or in connection with this
Agreement.
“Restated
Operating Agreement”
has
the
meaning set forth in the Recitals.
“Restrictions”
means,
except as set forth in the Company’s Certificate of Formation or Restated
Operating Agreement, all of the following with respect to the membership
interests of the Company: options, proxies, voting trusts, voting agreements,
member agreements, preemptive rights, rights of first refusal or offer, transfer
restrictions and similar rights or restrictions (other than those imposed by
applicable Law).
“Seller
Documents”
means,
collectively, each and every agreement, document, certificate or instrument
to
be executed by Seller and/or the Company pursuant to or in connection with
this
Agreement.
“Taxes”
means
any federal, state, local and foreign income (including but not limited to
those
assessed on capital gain), payroll, withholding, excise, sales, use, license,
lease, personal and other property, use and occupancy, business and occupation,
mercantile, real estate, ad valorem, gross receipts, employment, payroll,
severance, stamp, premium, windfall profits, social security (or similar
unemployment), disability, transfer, registration, value-added, alternative
or
add-on minimum, estimated, capital stock and franchise and other tax of any
kind
whatsoever, including customs, conveyance fees, duties or other governmental
fees and like assessments or charges of whatever kind, and all interest and
penalties thereon, whether or not disputed.
ARTICLE
II
SALE
OF CLASS A
INTEREST;
CLOSING
2.1 Sale
and Purchase.
Subject
to the terms and conditions set forth herein, at the Closing, Purchaser shall
purchase from Seller, and Seller shall sell, assign, transfer and deliver to
Purchaser, the Class A Interest, free and clear of any and all Liens and
Restrictions.
2.2
Purchase
Price.
The
aggregate purchase price for the acquisition of the Class A Interest hereunder
by Purchaser shall be Five Hundred Twenty Thousand Dollars ($520,000.00) (the
“Purchase
Price”),
which
shall be paid by Purchaser as follows: (a) Three Hundred Thousand Dollars ($300,000.00)
shall be paid to Aero Records & Title in Oklahoma City, Oklahoma, as escrow
agent (the “Escrow Agent”) upon the Parties’ execution of this Agreement as a
refundable deposit (the “Deposit”), to be applied to the payment of the Purchase
Price at Closing, and (b) the balance of Two Hundred Twenty Thousand Dollars
($220,000.00) shall be paid directly to the Seller at Closing (subject to the
conditions herein) by wire transfer of immediately available funds to an account
designated by Seller.
3
2.3 Capital
Contribution.
Concurrent with Closing, and subject to the conditions to Closing as set forth
herein, Purchaser shall make an initial contribution to the capital of the
Company of One Million Nine Hundred Fifty Thousand Dollars ($1,950,000.00)
(the
“Purchaser Initial Capital Contribution”), which funds shall then be immediately
thereafter distributed to the Class B Member as a dividend, in each case in
accordance with the terms and conditions of the Restated Operating Agreement.
2.4 Closing.
The
closing and consummation of the transactions contemplated by this Agreement
(the
“Closing”)
shall
take place as soon as practicable but in no event later than the third business
day following the satisfaction or waiver of all conditions set forth in Article
VII (other than the conditions with respect to actions the Parties will take
at
the Closing itself), or on such other date and time as shall be mutually upon
by
the Parties, subject, however, to the provisions of Article IX (the
“Closing
Date”).
2.5 Deliveries
and Proceedings at Closing.
At the
Closing, the Parties shall deliver the documents set forth below, each of which
shall be considered a condition precedent to Closing and the obligations of
each
other Party hereto. All documents which any Party shall deliver to the others
shall be in form and substance reasonably satisfactory to the other Parties
and
their counsel.
(a)
Deliveries
of Seller.
Seller
and Company shall deliver to Purchaser:
(i)
a
certificate of good standing for each of Seller and the Company issued within
five (5) days of the Closing Date by the Secretary of State of Delaware;
(ii)
a
true, accurate and complete copy of (A) the Restated Operating Agreement,
executed by Seller, and which shall be consistent with the terms and conditions
set forth in Exhibit
A
and
otherwise in form and substance mutually agreed to between Seller and Purchaser,
and (B) each other Seller Document, in each case duly executed by Seller and/or
the Company, as the case may be;
(iii)
a
true, accurate and complete copy of the fully executed Assignment Document,
including the Embraer Consent, together with a true, accurate and complete
original copy of each of the other Embraer Contracts;
(iv)
all
consents, assignments, authorizations and approvals necessary for Seller and
the
Company to consummate in full the transactions contemplated by this Agreement,
each duly executed and in a form reasonably satisfactory to Purchaser;
(v)
a
certificate of a duly authorized officer of Seller certifying as true and
correct the following: (A) the incumbency and specimen signature of each officer
of Seller and Company executing this Agreement or any Seller Document; (B)
a
copy of the resolutions of the board of directors of Seller authorizing the
execution, delivery and performance by Seller and/or the Company, as the case
may be, of this Agreement, the Restated Operating Agreement, the Embraer
Consent, the Assignment Document, the other Seller Documents, and all
transactions contemplated hereby and thereby, and (C) a copy of the resolutions
of the Manager and sole member of the Company authorizing the execution,
delivery and performance by the Company of this Agreement, the Restated
Operating Agreement, the Seller Documents to which the Company is or will be
a
party, and all transactions contemplated hereby and thereby; and
4
(vi)
all
other documents required to be delivered by Seller or the Company to Purchaser
at or prior to the Closing pursuant to the terms of this Agreement or as
Purchaser may otherwise reasonably request.
(b)
Deliveries
of Purchaser.
Purchaser shall deliver to Seller and the Company, as applicable:
(i)
a
certificate of good standing for Purchaser issued within five (5) days of the
Closing Date by the Secretary of State of Kansas;
(ii)
the
Purchase Price and the Purchaser Initial Capital Contribution in accordance
with
Section 2.2 and Section 2.3 hereof;
(iii)
a
true, accurate and complete copy of (A) the Restated Operating Agreement,
executed by Purchaser, which shall be consistent with the terms and conditions
set forth in Exhibit
A
and
otherwise in form and substance mutually agreed to between Seller and Purchaser,
and (B) each other Purchaser Document, in each case duly executed by Purchaser;
(iv)
a
certificate of a duly authorized officer of Purchaser certifying as true and
correct the following: (A) the incumbency and specimen signature of each officer
of Purchaser executing this Agreement or any Purchaser Document; and (B) a
copy
of the resolutions of the board of directors of Purchaser authorizing the
execution, delivery and performance by Purchaser of this Agreement, the Restated
Operating Agreement, the Purchase Documents, and all transactions contemplated
hereby and thereby;
(v)
all
consents, assignments, authorizations and approvals necessary for Purchaser
to
consummate in full the transactions contemplated by this Agreement, each duly
executed and in a form reasonably satisfactory to Seller ; and
(vi)
all
other documents required to be delivered by Purchaser to Seller at or prior
to
the Closing pursuant to the terms of this Agreement or as Seller may otherwise
reasonably request.
ARTICLE
III
REPRESENTATIONS
AND
WARRANTIES
OF SELLER AND THE COMPANY
Seller
and the Company hereby jointly and severally represent and warrant to Purchaser
as of the date hereof and as of the Closing as follows:
5
3.1 Organization
and Good Standing. Seller
is
a corporation duly organized, validly existing and in good standing under the
laws of Delaware, and has all requisite power and authority to own, lease and
operate its properties and assets as now owned, leased and operated and to
carry
on its business as and where presently conducted. The Company is a limited
liability company duly organized, validly existing and in good standing under
the laws of Delaware, and has all requisite power and authority to own, lease
and operate its properties and assets as now owned, leased and operated and
to
carry on its business as and where presently conducted. Seller and the Company
are each qualified or licensed to do business and in good standing in each
jurisdiction where required.
3.2 Authorization
and Enforceability.
Seller
and the Company have the full power and authority to make, execute, deliver
and
perform this Agreement, the Embraer Contracts, the Seller Documents and the
Restated Operating Agreement, and to consummate the transactions contemplated
hereby and thereby. The execution, delivery and performance of this Agreement,
the Seller Documents and the Restated Operating Agreement, and the consummation
of the transactions contemplated hereby and thereby, by Seller and the Company
have been duly authorized, duly executed and delivered by Seller and the
Company, and this Agreement, the Seller Documents and the Restated Operating
Agreement constitute legal, valid and binding obligations of Seller and/or
the
Company, as the case may be, enforceable against them in accordance with their
terms, except to the extent that enforcement may be affected by Laws relating
to
bankruptcy, reorganization, insolvency and creditors’ rights and by the
availability of injunctive relief, specific performance and other equitable
remedies.
3.3 No
Violation. The
execution, delivery and performance of this Agreement, the Seller Documents,
the
Embraer Contracts and the Restated Operating Agreement do not, and the
consummation of the transactions contemplated hereby and thereby will not,
violate, conflict with or result in a default under (a) any of the
organizational documents of Seller or the Company, (b) any resolution of the
governing body or equity holders of either Seller or the Company, (c) any right
or interest in favor of any other Person, (d) any agreement, contract,
instrument, commitment or understanding to which Seller and/or the Company
is a
party or by which any of their assets may be bound or affected, (e) any
judgment, decree or order of any court, arbiter, or Governmental Authority,
or
(f) any applicable Law.
3.4 Consents.
Except
for the Embraer Consent and any filings the Seller is required to make with
the
Securities and Exchange Commission, no consent, approval or authorization of,
registration or filing with, or notice to, any Person is required by Seller
or
the Company in connection with (a) the execution and delivery of this Agreement,
the Embraer Contracts, the Seller Documents or the Restated Operating Agreement,
or (b) the consummation and performance by Seller and the Company of the
transactions contemplated hereby or thereby.
3.5 Title;
Liens.
Prior
to and at the Closing and the due execution of the Restated Operating Agreement,
Seller had and will have good and marketable title to the entire membership
interest in Company, free and clear of all Liens and Restrictions. As of the
Closing, Purchaser will acquire good and marketable title to the Class A
Interest, free and clear of any and all Liens and Restrictions. The Company
has
good and valid title to all of its property and assets, free and clear of all
Liens, and none of the Company property or assets are owned by or shared with
any other Person.
6
3.6 Capitalization.
At all
times prior to the Closing and the due execution of the Restated Operating
Agreement, Seller was the sole member of the Company and thus the sole record
and beneficial owner of the entire membership interest of the Company. As of
the
Closing and following the due execution of the Restated Operating Agreement
(a)
Purchaser will become the sole Class A member of the Company and thus the sole
record and beneficial owner of the entire Class A Interest, and (b) Seller
will
become the sole Class B member of the Company and thus the sole record and
beneficial owner of the entire Class B Interest. As of the Closing and following
the due execution of the Restated Operating Agreement, the only authorized
and
issued membership interests in the Company are the Class A Interest and the
Class B Interest, and all of the issued and outstanding membership interests
of
the Company have been validly issued, fully paid and nonassessable. There are
no
other securities of the Company of any kind authorized, issued or outstanding,
and, except as may be set forth in the Restated Operating Agreement, there
are
no outstanding subscriptions, options, warrants, rights (including preemptive
rights), rights of first refusal, calls, convertible securities or other
agreements or commitments of any character relating to the issued or unissued
membership interests, securities or equity interests of the Company. The Company
has not granted or agreed to grant any registration rights regarding any of
the
membership interests, securities or equity interests of the Company to any
Person. The Company does not hold or beneficially own any direct or indirect
equity interests or other securities in any Person, or any subscriptions,
options, warrants, rights, calls, convertible securities or other agreements
or
commitments regarding any such equity interests or other securities.
3.7 Assets;
Liabilities.
The
only property interests of, or assets owned by, the Company are the Embraer
Contracts (including credit for any deposits made by Seller pursuant to such
Embraer Contracts), any intellectual property rights associated with the
Company’s name, and any cash held by the Company as a result of the capital
contributions of its members. The only liabilities of the Company are the
payment and/or performance obligations of the Company expressly set forth in
the
Embraer Contracts and in the Restated Operating Agreement. For purposes of
clarity, the Company has not incurred any indebtedness for borrowed money,
nor
has Seller or Company taken any action or failed to take any action which has
subjected the Company or will subject the Company to any foreign, federal,
state
or local tax liabilities (except for any contingent tax liabilities which may
arise with respect to the purchase and delivery of the aircraft pursuant to
the
terms of the APA and LOA, and except for immaterial tax liabilities, if any,
arising out of the formation of the Company).
3.8 Embraer
Contracts.
(a)
As
of the
Closing, and other than the Restated Operating Agreement, the only agreements
or
contracts to which the Company will be a party, or by which any of its property
or assets may be bound or affected, will be the Embraer Contracts.
(b) Each
Embraer Contract has been or will be assigned by Seller to the Company at or
prior to the Closing pursuant to the Embraer Consent and the Assignment
Document, and in connection therewith, each such Embraer Contract will become
a
valid, binding and enforceable obligation of the Company in accordance with
its
terms, except as enforceability may be affected by Laws relating to bankruptcy,
reorganization, insolvency and creditors’ rights and by the availability of
injunctive relief, specific performance and other equitable remedies.
7
(c)
The
Embraer Consent and the Assignment Document will have the effect of assigning
or
having assigned in full all of Seller’s right, title and interest in, to and
under each and every other Embraer Contract to the Company, and the Seller
and
the Company have the full power and authority to make, execute, deliver and
perform the Embraer Consent and Assignment Document. The Embraer Consent and
the
Assignment Document each constitute a legal, valid and binding obligation of
the
Seller and the Company, enforceable against them in accordance with its terms,
except to the extent that enforcement may be affected by Laws relating to
bankruptcy, reorganization, insolvency and creditors’ rights and by the
availability of injunctive relief, specific performance and other equitable
remedies.
(c) With
respect to each Embraer Contract, there exists no default or event of default
or
breach by the Seller or the Company or, to the knowledge of Seller, Embraer,
or
event, occurrence or condition that, with the giving of notice or the lapse
of
time, would give rise to a default or event of default by the Seller or the
Company or, to the knowledge of Seller, Embraer. With respect to each such
Embraer Contract, (i) the consummation of the transactions contemplated hereby
will not result in a breach of or default under such Embraer Contract, or
otherwise cause such Embraer Contract to cease to be legal, valid, binding,
enforceable and in full force and effect; and (ii) neither the Company nor
Seller has received notice of the intention of any party to such Embraer
Contract to cancel, terminate or renegotiate such Embraer Contract, except
as
contemplated hereby.
(d) Seller
has provided or made available to Purchaser a true and correct copy of each
Embraer Contract, in each case together with all amendments, waivers or other
changes thereto.
3.9 Organizational
Documents.
True
and complete copies of the Company’s Certificate of Formation and all amendments
thereto, the current operating agreement of the Company as currently in force,
all material membership interest records, and the corporate minute books of
the
Company have been made available to Purchaser.
3.10 Compliance
with Laws (Company).
The
Company possesses and is in compliance with all permits or licenses required
by
Law in connection with the operation of its business or the ownership, use
or
operation of its property and assets. The Company has conducted and currently
conducts its business and the ownership, use and operation of its property
and
assets in compliance with all Laws. No
notice,
citation, summons or order has been issued, no complaint has been filed, no
penalty has been assessed and no investigation, review, charge or proceeding
is
pending or threatened, nor does there exist any basis for any of the foregoing,
with respect to any actual or alleged violation of any applicable Law by the
Company or otherwise related to the ownership, use or operation of the Company’s
property or assets or the consummation of the transactions contemplated hereby.
3.11 Compliance
with Laws (Seller). Seller
possesses and is in compliance with all permits or licenses required by Law
in
connection with the operation of its business or the ownership, use or operation
of its property and assets, the noncompliance with which would have a material
adverse effect upon Seller. Seller has conducted and currently conducts its
business and the ownership, use and operation of its property and assets in
compliance with all Laws, the noncompliance with which would have a material
adverse effect upon Seller. No notice, citation, summons or order has been
issued, no complaint has been filed, no penalty has been assessed and no
investigation, review, charge or proceeding is pending or, to the knowledge
of
Seller, threatened, nor to the knowledge of Seller, does there exist any basis
for any of the foregoing, with respect to any actual or alleged violation of
any
applicable Law by Seller, in each case which would be reasonably expected to
have a material adverse effect upon Seller or the consummation by Seller of
the
transactions contemplated hereby
8
3.12 Litigation
and Claims.
There
is no action, suit, grievance, claim, investigation, litigation or proceeding
pending or threatened by any Person relating to the Company, its business,
any
of its property or assets, or otherwise related to the ability of Seller or
the
Company to consummate the transactions contemplated hereby, nor is there any
basis for any of the foregoing. There are no outstanding judgments, decrees,
awards or orders against the Company, its business, any of its property or
assets or otherwise related to the ability of Seller or the Company to
consummate the transactions contemplated hereby. There is no action, suit,
grievance, claim, investigation, litigation or proceeding pending or, to the
knowledge of Seller, threatened by any Person relating to the Seller, its
business, any of its property or assets, which will adversely affect or
interfere with the ability of Seller to consummate the transactions contemplated
hereby, nor is there any basis for any of the foregoing. There are no
outstanding judgments, decrees, awards or orders against Seller, its business,
or any of its property or assets which relates to Seller’s ability to consummate
the transactions contemplated hereby.
3.13 Employees;
Benefit Plans.
At no
time prior to the Closing has the Company had any employees, nor has the Company
participated in, sponsored or otherwise offered any benefits, benefit plans
or
benefit programs to any employees or other Persons.
3.14 No
Implied Representations.
Except
as expressly set forth herein or in the Restated Operating Agreement, Seller
makes no representations or warranties of any kind to Purchaser or the Company.
3.15 Brokers
or Finders.
None of
Seller, the Company or any of their affiliates have engaged or otherwise dealt
with any broker, finder or other Person in connection with this Agreement or
the
transactions contemplated hereby that will result in or has resulted in
Purchaser becoming liable for any commission, fee, or similar payment for
arranging the transactions contemplated hereby or introducing the Parties to
each other.
3.16 Full
Disclosure.
No
representation or warranty made by Seller or the Company in this Agreement,
in
any Seller Document or in the Restated Operating Agreement, and no written
statement contained in any exhibit, certificate or schedule delivered by Seller
or the Company to Purchaser at the Closing, contains any materially untrue
statement of a material fact or omits to state a material fact necessary to
make
the statements contained herein and therein, in light of the circumstances
in
which they are made, not misleading.
9
ARTICLE
IV
REPRESENTATIONS
AND
WARRANTIES
OF PURCHASER
Purchaser
hereby represents and warrants to Seller as follows:
4.1 Organization
and Good Standing. Purchaser
is a corporation duly organized, validly existing and in good standing under
the
laws of Kansas, and has all requisite power and authority to own, lease and
operate its properties and assets as now owned, leased and operated and to
carry
on its business as and where presently conducted. Purchaser is qualified or
licensed to do business and in good standing in each jurisdiction where
required.
4.2 Authorization
and Enforceability.
Purchaser has the full power and authority to make, execute, deliver and perform
this Agreement, the Purchase Documents and the Restated Operating Agreement,
and
to consummate the transactions contemplated hereby and thereby. The execution,
delivery and performance of this Agreement, the Purchase Documents and the
Restated Operating Agreement, and the consummation of the transactions
contemplated hereby and thereby, by Purchaser have been duly authorized, duly
executed and delivered by Purchaser, and this Agreement, the Purchase Documents
and the Restated Operating Agreement constitute legal, valid and binding
obligations of Purchaser, enforceable against Purchaser in accordance with
their
terms, except to the extent that enforcement may be affected by Laws relating
to
bankruptcy, reorganization, insolvency and creditors’ rights and by the
availability of injunctive relief, specific performance and other equitable
remedies.
4.3 No
Violation. The
execution, delivery and performance of this Agreement, the Purchase Documents
and the Restated Operating Agreement do not, and the consummation of the
transactions contemplated hereby and thereby will not, violate, conflict with
or
result in a default under (a) any of the organizational documents of Purchaser,
(b) any resolution of the governing body or stockholders of Purchaser, (c)
any
right or interest in favor of any other Person, (d) any agreement, contract,
instrument, commitment or understanding to which Purchaser is a party or by
which any of its assets may be bound or affected, (e) any judgment, decree
or
order of any court, arbiter, or Governmental Authority, or (f) any applicable
Law.
4.4 Consents.
Except
for the Embraer Consent and the Assignment Document, no consent, approval or
authorization of, registration or filing with, or notice to, any Person is
required by Purchaser in connection with (a) the execution and delivery of
this
Agreement, the Purchase Documents or the Restated Operating Agreement, or (b)
the consummation and performance by Purchaser of the transactions contemplated
hereby or thereby.
4.5 Litigation
and Claims.
There
is no action, suit, grievance, claim, investigation, litigation or proceeding
pending or, to the knowledge of Purchaser, threatened by any Person relating
to
the Purchaser, its business, any of its property or assets, which will adversely
affect or interfere with Purchaser’s ability to consummate of the transactions
contemplated hereby, nor is there any basis for any of the foregoing. There
are
no outstanding judgments, decrees, awards or orders against Purchaser, its
business, or any of its property or assets which relates to Purchaser’s ability
to consummate the transactions contemplated hereby.
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4.6 Compliance
with Laws.
Purchaser possesses and is in compliance with all permits or licenses required
by Law in connection with the operation of its business or the ownership, use
or
operation of its property and assets, the noncompliance with which would have
a
material adverse effect upon Purchaser. Purchaser has conducted and currently
conducts its business and the ownership, use and operation of its property
and
assets in compliance with all Laws, the noncompliance with which would have
a
material adverse effect upon Purchaser. No notice, citation, summons or order
has been issued, no complaint has been filed, no penalty has been assessed
and
no investigation, review, charge or proceeding is pending or, to the knowledge
of Purchaser, threatened, nor to the knowledge of Purchaser, does there exist
any basis for any of the foregoing, with respect to any actual or alleged
violation of any applicable Law by Purchaser, in each case which would be
reasonably expected to have a material adverse effect upon Purchaser or the
consummation by Purchaser of the transactions contemplated hereby.
4.7 No
Implied Representations.
Except
as expressly set forth herein or in the Restated Operating Agreement, Purchaser
makes no representations or warranties of any kind to Seller or the Company.
4.8 Brokers
or Finders.
None of
Purchaser nor any of its affiliates have engaged or otherwise dealt with any
broker, finder or other Person in connection with this Agreement or the
transactions contemplated hereby that will result in or has resulted in Seller
or the Company becoming liable for any commission, fee, or similar payment
for
arranging the transactions contemplated hereby or introducing the Parties to
each other.
4.9 Full
Disclosure.
No
representation or warranty made by Purchaser in this Agreement, in any Purchaser
Document or in the Restated Operating Agreement, and no written statement
contained in any exhibit, certificate or schedule delivered by Purchaser to
Seller or the Company at the Closing, contains any materially untrue statement
of a material fact or omits to state a material fact necessary to make the
statements contained herein and therein, in light of the circumstances in which
they are made, not misleading.
ARTICLE
V
CERTAIN
COVENANTS
5.1 Confidentiality.
Subject
to the provisions of Section 5.2 below, Seller and Purchaser shall keep
confidential and not use, and shall cause their affiliates to keep confidential
and not use, any and all information disclosed to such Party in connection
with
the transactions contemplated hereby which relates to the other Party’s
property, assets, financial condition or business, except as specifically,
and
only to the extent, required by applicable Law or administrative or legal
process, or
to the
extent such information has become publicly available;
it
being understood that each Party will notify the other Party in writing at
least
five business days (to the extent possible) prior to any proposed disclosure
of
such information in order to enable such other Party to seek an appropriate
protective order.
5.2 Press
Release; Securities and Exchange Commission Filings.
The
Parties shall mutually agree upon any press release or other publicity
concerning this Agreement or the transactions contemplated hereby; provided
that
the foregoing shall not prohibit Seller from making any required disclosure
to
or filing with the Securities and Exchange Commission. In the event that Embraer
terminates the Purchase Documents solely due to the failure by Seller to comply
with its obligations in Section 11 of the Assignment Document, the Purchase
Price shall be reimbursed to Purchaser. In the event that Embraer terminates
the
Purchase Documents solely due to the failure by Purchaser to comply with its
obligations in Section 11 of the Assignment Document, the Purchase Price paid
to
Seller shall be forfeited by Purchaser. This
provision shall survive closing and execution and delivery of the Restated
Operating Agreement.
11
5.3 Further
Assurances.
The
Parties shall execute such further documents and perform such further acts
as
may be necessary to fully comply with the terms of this Agreement and to
consummate the transactions contemplated hereby.
ARTICLE
VI
CONDUCT
PRIOR TO CLOSING
6.1 General.
The
Parties have the rights and obligations with respect to the period between
the
date hereof and the Closing set forth below in this ARTICLE VI.
6.2 Seller
and Company Obligations.
Except
as otherwise expressly provided herein, Seller and Company shall (a) give to
Purchaser all information regarding the Company or, as it relates to the Embraer
Contracts and the transactions contemplated by this Agreement, the Seller,
as
Purchaser may reasonably request, (b) cause the Company to not carry on any
business, acquire any assets or incur any liabilities, except for the Embraer
Contracts as contemplated herein (c) obtain all consents, assignments,
authorizations and approvals necessary for Seller and the Company to consummate
in full the transactions contemplated by this Agreement, (d) cause the Company
to not amend its organizational documents or make any change in its authorized
or issued membership interests; and (e) cause the Company to not sell, transfer
or otherwise dispose of any property. Furthermore, neither Seller nor the
Company shall take or omit to take any action that would cause any of the
representations or warranties of Seller and/or the Company set forth herein
to
be inaccurate.
6.3 Purchaser’s
Obligations.
Purchaser (a) shall obtain all consents, assignments, authorizations and
approvals necessary for Purchaser to consummate in full the transactions
contemplated by this Agreement, and (b) shall not take or omit to take any
action that would cause any of the representations or warranties of Purchaser
set forth herein to be inaccurate.
6.4 Joint
Obligations.
(a) Each
of
the Parties shall use all commercially reasonable efforts to take, or cause
to
be taken, all actions and to do, or cause to be done, all things necessary,
proper or advisable to consummate the transactions contemplated hereby as soon
as practicable; and
(b) Upon
knowledge, each Party shall promptly give the other Parties written notice
of
the existence or occurrence of any condition (i) which would make any
representation or warranty set forth herein of such Party untrue, or (ii) which
might reasonably be expected to prevent the timely consummation of the
transactions contemplated hereby.
12
ARTICLE
VII
CONDITIONS
TO CLOSING
7.1 Conditions
to the Obligations of Seller and the Company.
The
obligations of Seller and the Company to close the transactions contemplated
hereby are subject to the fulfillment of all of the following conditions as
of
the Closing:
(a) The
representations and warranties of Purchaser in this Agreement shall be true
and
correct in all material respects as if originally made on and as of the Closing;
(b) All
material obligations of Purchaser to be performed hereunder (including those
set
forth in Section 2.5(b)) through, and including as part of, the Closing shall
have been performed and complied with; and
(c) Purchaser
shall have obtained all of the material consents, assignments, authorizations
and approvals necessary for Purchaser to consummate in full the transactions
contemplated by this Agreement, each of which shall be in form and substance
acceptable to Seller.
7.2
Conditions
to the Obligations of Purchaser.
The
obligation of Purchaser to close the transactions contemplated hereby is subject
to the fulfillment of all of the following conditions as of the
Closing:
(a) The
representations and warranties of Seller and/or the Company in this Agreement
shall be true and correct in all material respects as if originally made on
and
as of the Closing;
(b) All
material obligations of Seller and the Company to be performed hereunder
(including those set forth in Section 2.5(a)) through, and including as part
of,
the Closing shall have been performed and complied with; and
(c) Seller
and the Company shall have obtained all of the material consents, assignments,
authorizations and approvals (including the Embraer Consent and the Assignment
Document) necessary for Seller to consummate in full the transactions
contemplated by this Agreement, each of which shall be in form and substance
acceptable to Purchaser.
ARTICLE
VIII
INDEMNIFICATION
8.1 Indemnification.
The
Parties agree as follows:
(a) Seller
and Company shall, jointly and severally, indemnify, defend, protect and hold
harmless Purchaser and its shareholders, directors, officers and affiliates
from
and against any and all Damages arising out of, resulting from or related to
(i) any misrepresentation or any breach, violation or non-compliance with
respect to any representation, warranty, covenant, agreement or obligation
of
Seller or the Company in this Agreement, in the Restated Operating Agreement
or
in any Seller Document; (ii) any liability or obligation of Seller, and (iii)
except as expressly assumed by Purchaser pursuant to the terms and conditions
of
this Agreement or the Restated Operating Agreement, any liability or obligation
of the Company arising prior to the Closing (including any liability related
to
the ownership, use or operation of the business, property or assets of the
Company); provided,
however,
in each
case, no property of the Company allocated to, constituting all or a portion
of,
or otherwise related or attributable to, Purchaser’s membership interest in the
Company under the Restated Operating Agreement or otherwise shall be used in
any
way to satisfy the indemnification obligations of Seller and/or the Company
under this Section 8.1(a). By way of example, and not by way of limitation,
Seller shall have no right to contribution from the Company under this Section
8.1(a) or otherwise out of the property allocated to Purchaser’s membership
interest under the Restated Operating Agreement.
13
(b) Purchaser
shall indemnify, defend, protect and hold harmless Seller and its stockholders,
directors, officers and other affiliates from and against any and all Damages
arising out of, resulting from or related to (i) any misrepresentation or
any breach, violation or non-compliance with respect to any representation,
warranty, covenant, agreement or obligation of Purchaser in this Agreement
or in
any Purchaser Document; (ii) any liability or obligation of Purchaser, and
(iii)
except as expressly retained or assumed by
Seller
pursuant to the terms and conditions of this Agreement or the Restated Operating
Agreement, any liability or obligation of the Company arising subsequent to
the
Closing (including any liability related to the ownership, use or operation
of
the business, property or assets of the Company); provided,
however,
in each
case, no property of the Company allocated to, constituting all or a portion
of,
or otherwise related or attributable to, Seller’s membership interest in the
Company under the Restated Operating Agreement or otherwise shall be used in
any
way to satisfy the indemnification obligations of Purchaser under this Section
8.1(b). By way of example, and not by way of limitation, Purchaser shall have
no
right to contribution from the Company under this Section 8.1(b) or otherwise
out of the property allocated to Seller’s membership interest under the Restated
Operating Agreement.
(c) For
purposes of this Agreement, “Damages”
shall
mean any and all losses, liabilities, damages, governmental penalties,
obligations, awards, fines, deficiencies, and interest, and any actions,
demands, claims, proceedings, judgments, costs, expenses, fees and costs and
expenses to mitigate or otherwise reduce or eliminate any loss or expense
(including reasonable attorneys’ fees, court costs and all other reasonable
expenses incurred in investigating, preparing or defending any litigation or
proceeding, commenced or threatened) resulting from, arising out of or incident
to (i) any of the foregoing indemnifiable items in Sections 8.1(a) and 8.1(b),
or (ii) incident to the enforcement of this Agreement.
ARTICLE
IX
TERMINATION
9.1 Right
to Terminate.
Anything
to the contrary herein notwithstanding, this Agreement and the transactions
contemplated hereby may be terminated prior to the Closing:
14
(a)
by
the
mutual written consent of Seller and Purchaser; or
(b) by
prompt
notice given in accordance with Section 10.1, by either Purchaser or Seller,
if
the Closing shall not have occurred by 11:59 p.m. on June 20, 2008; provided,
however, the right to terminate this Agreement under this Section 9.1 (b) shall
not be available to any Party whose failure to fulfill any of its obligations
under this Agreement has been the cause of or resulted in the failure of the
Closing to occur.
Upon
any
such termination, the Deposit shall be returned to Purchaser by the Escrow
Agent, and Seller shall, within two (2) business days, pay and reimburse
Purchaser the Aircraft Advance Deposit, unless such failure of the Closing
to
occur by June 20, 2008 is due to the failure of Purchaser to fulfill its
obligations under this Agreement. For clarification, should any of the
conditions to Purchaser’s obligations as set forth in Section 7.2 not be
satisfied on or prior to June 20, 2008, then this Agreement and the transactions
contemplated hereby may be terminated by Purchaser, in which event the Deposit
shall be returned to Purchaser by the Escrow Agent, and Seller shall, within
two
(2) business days, pay and reimburse Purchaser the Aircraft Advance Deposit.
In
the event that Purchaser is required to take legal action to obtain return
of
the Deposit and/or reimbursement of the Aircraft Advance Deposit, then in
addition to all other rights and remedies, Purchaser may recover from Seller
and
Company and Seller and Company shall jointly and severally pay Purchaser all
reasonable attorney fees, court costs and other costs of collection incurred
in
obtaining return of the Deposit and reimbursement from Seller of the Aircraft
Advance Deposit, plus interest on the outstanding unpaid balance at the rate
of
one and one-half percent (1½%) per month.
ARTICLE
X
MISCELLANEOUS
10.1 Notices.
Any
notice given hereunder shall be in writing and deemed given (a) immediately
upon
being personally delivered or transmitted by facsimile, telecopy or other
electronic transmission (if a written copy is also sent no later than the next
business day otherwise in accordance with this Section 10.1), (b) three days
after being deposited in the United States mail, postage prepaid, sent certified
or registered with return receipt requested, or (c) by Federal Express, UPS
or
another nationally recognized overnight courier, and addressed as
follows:
If
to
Purchaser:
Executive
AirShare Corporation
Attn:
Xxxxxx X. Xxxxxx, Chairman and CEO
000
Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxx
Xxxx, XX 00000-0000
Fax:
(000) 000-0000
E-mail:
xxxxxxx@xxxxxxxxxxxx.xxx
With
a
copy to:
Xxxxxx
X.
Xxxxxx
0000
X.
00
Xxxxxxx
Xxxxx, XX 00000
15
And
a
copy to:
Xxxxx
X.
Xxxx, Esq.
Husch
Xxxxxxxxx Xxxxxxx LLP
000
Xx.
Xxxxx, Xxx. 0000
Xxxxxxxxxxx
XX 00000
Fax:
(000) 000-0000
Tel:
(000) 000-0000
E-mail:
xxxxx.xxxx@xxxxxxxxxxxxxx.xxx
If
to
Seller:
Attn:
Xxx
X. Xxxxxxxx
0000
Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx,
XX 00000
Fax:000-000-0000
E-mail:xxxxxxxxx@xxxxxxxx.xxx
10.2 Other.
Any Schedules and Exhibits referred to in and attached to this Agreement are
incorporated herein by reference. No Party may assign this Agreement without
the
consent of the other Parties. This Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of Delaware
(without reference to any conflict of law provisions). This
Agreement,
together with the exhibits, schedules and other agreements, certificates and
documents referenced herein or to be delivered in connection herewith,
constitute the entire understanding of the Parties hereto, and supersedes any
prior agreements or understandings, written or oral, between the Parties with
respect to the subject matter hereof. This
Agreement
may not
be amended except pursuant to a writing signed by all Parties. The failure
of
either party to enforce at any time any provision of this Agreement shall not
be
construed to be a waiver of such provision or of any other provision. The
Parties shall be entitled to an injunction to prevent a breach of this Agreement
and to enforce specifically the terms and provisions of this Agreement, this
being in addition to any other remedy to which any such Party may be entitled
to
at law or in equity. In the event any provision of this Agreement is held
invalid, illegal or unenforceable, in whole or in part, the remaining provisions
of this Agreement shall not be affected thereby and shall continue to be valid
and enforceable, and, if, for any reason, a court or other applicable arbiter
finds that any provision of this Agreement is invalid, illegal or unenforceable
as written, but that by limiting such provision it would become valid, legal
and
enforceable, then such provision shall be deemed to be written, and shall be
construed and enforced, as so limited.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but which together shall constitute one and the same
instrument.
[Signature
Page Following]
16
IN
WITNESS WHEREOF, the Parties hereto have caused this Membership Interest
Purchase Agreement to be executed effective as of the date first written
above.
|
EXECUTIVE
AIRSHARE CORPORATION
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxxx
|
||
|
Title:
|
Chairman
and Chief Executive Officer
|
||
|
By:
|
/s/
Xxxxxx X. Xxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxx
|
||
|
Title:
|
Chief
Executive Officer
|
||
|
SHARE
100 HOLDING CO., LLC
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxxx
|
||
|
Title:
|
Chairman
and Chief Executive Officer of Managing Member, Executive AirShare
Corporation
|
||
17
