AGREEMENT
AGREEMENT,
dated as of June 26, 2007 (the “Agreement”), by and among Air Brook Airport
Express, Inc., a Delaware Corporation (the “Company”), Xxxxxx X. Xxxxxxxx
(“Xxxxxx”), Xxxxxxx X. Xxxxxxxx (“Xxxxxxx”), Xxxxxxx Xxxxxxxx (“Xxxxxxx”), Air
Brook Limousine, Inc., a New Jersey corporation, (“ABL”) and Lextra Management
Group, Inc., a Delaware corporation (the “Purchaser”). The Company, Donald,
Jeffrey, Xxxxxxx, ABL and the Purchaser are referred to herein as a “Party” and
collectively, as the “Parties”. Donald, Jeffrey, Xxxxxxx and ABL are each
individually referred to as a “Selling Party” or collectively the “Selling
Parties”
PREAMBLE
The
Selling Parties are the owners of an aggregate of 1,165,397 shares of common
stock of the Company (“Sellers Shares”), as set forth next to their respective
names on Schedule A, hereto annexed. The Selling Parties own, in the aggregate,
approximately 51.2% of the issued and outstanding capital stock of the Company,
as of the date hereof.
At
the
Closing, as set forth in this Agreement:
(a) The
Selling Parties shall sell and the Purchaser shall acquire from the Selling
Parties, the Sellers Shares for the sum of One Hundred One Thousand ($116,500)
Dollars; and
(b) Pursuant
to an assignment and assumption agreement of even date herewith, the Purchaser
shall acquire from ABL an account receivable due from the Company and payable
to
ABL by the Company, described in the Company’s financial reporting as “Due to
Affiliates” in an amount not greater than Three Hundred Forty Thousand
($340,000) Dollars; and
(c) The
Purchaser shall pay the Selling Parties a total sum of Forty Three Thousand
Five
Hundred ($43,500) Dollars in consideration of legal and other fees incurred
by
them in connection with this transaction.
The
obligations of the Purchaser are based upon the assumption that at the Closing
the Company will have no material assets and will be free and clear of any
material liabilities or claims of any description, other than the aforementioned
“Due to Affiliates” amount which will in no event be greater than the agreed
amount of Three Hundred Forty Thousand ($340,000) Dollars at the Closing Date.
NOW,
THEREFORE,
in
consideration of the foregoing and the mutual promises and covenants herein
contained, the adequacy and sufficiency of which are deemed appropriate by
the
Parties, the Company, the Selling Parties and the Purchaser hereby agree as
follows:
| 1. |
Purchase
of the Selling Parties’ Shares:
|
(a) At
the
Closing, the Selling Parties shall sell, transfer, convey and deliver to the
Purchaser the Selling Parties Shares at the Purchase Price set forth in Section
1 (b), below.
(b) The
Purchase Price for the Selling Parties Shares being purchased by the Purchaser
herein shall be One Hundred Sixteen Thousand Five Hundred ($116,500) Dollars,
payable at the Closing by the Purchaser by wire transfer or by Bank Cashier’s
check in Federal funds to Selling Parties Representative, described in Section
4, below.
| 2. |
Assignment
of Amount Due to Affiliate:
|
(a) At
the
Closing, ABL shall assign, transfer and deliver to the Purchaser an Account
Receivable due to ABL from the Company (the “Receivable”) in an amount not to
exceed Three Hundred Forty Thousand ($340,000) Dollars. This Receivable due
from
the Company to ABL is described as “Due to Affiliate” on the Company’s Balance
Sheet.
(b) The
Purchase Price for the Receivable held by ABL shall be equal to the amount
due
to ABL by the Company at the date of Closing, provided however that in no event
will such amount exceed Three Hundred Forty Thousand ($340,000) Dollars, payable
at the Closing by the Purchaser by wire transfer to ABL or by Bank Cashier’s
check in Federal Funds.
| 3. |
Payment
of Legal and Other Fees:
|
At
the
Closing, the Purchaser shall pay to the Selling Parties Representative, on
behalf of the Selling Parties, the sum of Forty Three Thousand Five Hundred
($43,500) Dollars by wire transfer or by Bank Cashier’s check in Federal Funds,
as payment for certain legal and accounting fees incurred by them for the
execution of this transaction.
| 4. |
Selling
Parties Representative:
|
Each
of
the Selling Parties named and described in this Agreement do hereby
unconditionally and irrevocably constitute, designate and appoint Xxxxxx X.
Xxxxxxxx as his, her or its Selling Parties Representative and by this
declaration do hereby xxxxx Xxxxxx X. Xxxxxxxx full and complete authority
to
act on behalf of each and all of the Selling Parties in matters relating to
this
Agreement and the transactions contemplated hereby.
| 5. |
The
Closing.
|
(a)
General. The closing of the transactions contemplated in this Agreement, all
of
which transactions shall all occur contemporaneously (the “Closing”), shall take
place at the offices of the Company, or at such other place and at such other
time as the Parties hereto shall mutually agree, or, with the mutual agreement
of all of the parties, by exchange of documents among the Parties, following
the
satisfaction or waiver of all conditions to the obligations of the Parties
to
consummate the transactions contemplated herein (other than conditions with
respect to actions the Parties will take at the Closing itself) on July , 2007
but not earlier than the eleventh day after the due filing of Form 14f-1 set
forth and described in Section 11 (d) herein, or such other date as the
Purchaser and the Selling Parties may mutually determine (the “Closing
Date”).
(b) Escrow.
(i) Contemporaneous
with the execution of this Agreement, Purchaser shall deposit with Xxxxxxx
X.
Xxxxxxxxx, Esq. (The “Escrow Holder”) the amount of Fifty Thousand ($50,000.00)
Dollars as a good faith non-refundable deposit (the “Cash Deposit”) to be held
by the Escrow Holder in an Attorney Escrow Account at the Sterling National
Bank, New York, New York pursuant to the terms of an Escrow Agreement, dated
as
at the date hereof among the Parties hereto and the Escrow Holder and annexed
hereto and incorporated by reference herein as Exhibit “A.” The non-refundable
Cash Deposit shall be paid to the Sellers Representative, for and on behalf
of
the Selling Parties in the event that the Purchaser shall not fulfill its
obligations pursuant to Sections 1-3, above, unless the Purchaser is precluded
from fulfilling its obligations hereunder as a result of the actions or
inactions of the Selling Parties, in which event the Cash Deposit shall be
returned to the Purchaser. In the event the transactions contemplated by this
Agreement are consummated, the non-refundable Cash Deposit shall be delivered
to
the Sellers Representative and deducted from that part of the Purchase Price
to
be paid by Purchaser pursuant to Section 1, herein.
(ii) Contemporaneous
with the execution of this Agreement, the Selling Parties shall deliver to
the
Escrow Holder share certificates of the Company (the ”Certificates”)
representing all of the Selling Parties Shares as set forth and described in
the
Escrow Agreement annexed hereto as Exhibit A among the Escrow Holder, the
Selling Parties and the Purchaser. Pursuant to the Escrow Agreement, the
Certificates will be held in escrow until (A) the Closing at which time the
Escrow Holder shall deliver the Certificates to the Purchaser coincident with
the fulfillment of all of the obligations of the respective Parties hereto
at
the Closing; or (B) as otherwise provide in the Escrow Agreement.
(iii) At
the
Closing the Parties shall execute and deliver each and all of the agreements,
documents and instruments set forth and described in Section 12 herein; and
upon
delivery of the Cash Deposit and the Certificates, the Escrow Agreement shall
terminate.
| 6. |
Representations
and Warranties of the Selling Parties.
|
The
Selling Parties individually represent and warrant to the Purchaser that the
statements contained in this Section 6 are correct and complete as of the date
of this Agreement and will be correct and complete as of the Closing Date (as
though made then and as though the Closing Date were substituted for the date
of
this Agreement throughout this Section 6).
(a)
Each
of the Selling Parties has the power and authority to execute, deliver and
perform such Selling Parties obligations under this Agreement and to sell,
assign, transfer and deliver to the Purchaser his, her or its respective Sellers
Shares, as contemplated hereby. No permit, consent, approval or authorization
of, or declaration or registration with any governmental or regulatory authority
or consent of any third party is required in connection with the execution
and
delivery by any of the Selling Parties to this Agreement and the consummation
of
the transactions contemplated hereby.
(b)
Neither the execution and delivery of this Agreement, nor the consummation
of
the transactions contemplated hereby or compliance with the terms and conditions
hereof by any of the Selling Parties will violate or result in a breach of
any
term or provision of any agreement to which that Selling Party is bound or
is a
party, or be in conflict with or constitute a default under,
or
cause the acceleration of the maturity of that Selling Party’s obligations under
any existing agreement or violate any order, writ, injunction, decree, statute,
rule or regulation applicable to that Selling Party’s or any of the Selling
Party’s properties or assets.
(c)
This
Agreement has been duly and validly executed by each Selling Party, and
constitutes the valid and binding obligation of each Selling Party and the
Company, enforceable against each Selling Party and the Company in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency or other laws affecting creditors' rights generally or by
limitations, on the availability of equitable remedies.
(d)
Each
of the Sellers Shares are owned beneficially and of record by such Selling
Party
in the amounts specified on Schedule A and are validly issued and outstanding,
fully paid for and non-assessable with no personal liability attaching to the
ownership thereof, free and clear of all liens, charges, security interests,
encumbrances, claims of others, options, warrants, purchase rights, contracts,
commitments, equities or other claims or demands of any kind (collectively,
“Liens”), and upon delivery of the Sellers Shares to the Purchaser, the
Purchaser will acquire good, valid and marketable title thereto free and clear
of all Liens. None of the Selling Parties is a party to any option, warrant,
purchase right, or other contract or commitment that could require that Selling
Party to sell, transfer, or otherwise dispose of any capital stock of the
Company, other than pursuant to this Agreement. None of the Selling Parties
is a
party to any voting trust, proxy, or other agreement or understanding with
respect to the voting of any capital stock of the Company.
| 7. |
Representations
and Warranties of the Company.
|
(a) The
Company is a corporation in good standing duly incorporated in the State of
Delaware. The Company is duly authorized to conduct business and is in good
standing under the laws of each jurisdiction where such qualification is
required. The Company has full corporate power and authority and all licenses,
permits, and authorizations necessary to carry on its business. At the Closing,
the Company shall have no subsidiaries and shall not control any other
subsidiaries, directly or indirectly, or have any direct or indirect equity
participation in any other entity.
(b) Neither
the execution and delivery of this Agreement, nor the consummation of the
transactions contemplated hereby or compliance with the terms and conditions
hereof by the Company will violate or result in a breach of any term or
provision of any agreement to which the Company is bound or is a party, or
the
Company’s Certificate of Incorporation or By-Laws, or be in conflict with or
constitute a default under, or cause the acceleration of the maturity of any
obligation of the Company under any existing agreement or violate any order,
writ, injunction, decree, statute, rule or regulation applicable to the Company
or any of its properties or assets.
(c) This
Agreement has been duly and validly executed by the Company and constitutes
the
valid and binding obligation of the Company, enforceable against it in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or other laws affecting creditors' rights generally
or by
limitations, on the availability of equitable remedies.
(d) The
Company’s authorized capital stock, as of the date of this Agreement and as of
the Closing, consists of 98,800,000 shares of Common Stock, $0.0001 par value
per share, of which 2,277,922 shares are issued and outstanding and 1,200,000
shares of Preferred Stock $.0001 par value per share, none of which are issued
and outstanding. On March 9, 2007 ABL delivered an aggregate of 150,000 shares
of its Common Stock to the Company, and the Company delivered all of the shares
that it owned in A.B. Park & Fly, Inc., the Company’s wholly owned
subsidiary, to a newly organized wholly owned subsidiary of ABL. The Company
then delivered the said 150,000 shares of its Common Stock to its Transfer
Agent
for cancellation as outstanding shares of the Company. The Company has not
reserved any shares of its Common Stock for issuance upon the exercise of
options, warrants or any other securities that are exercisable or exchangeable
for, or convertible into, Common Stock.
All
of
the issued and outstanding shares of the Company’s Common Stock are validly
issued, fully paid and non-assessable and have been issued in compliance with
applicable laws, including, without limitation, applicable federal and state
securities laws.
There
are
no outstanding options, warrants or other rights of any kind to acquire any
additional shares of capital stock of the Company or securities exercisable
or
exchangeable for, or convertible into, capital stock of the Company, nor is
the
Company committed to issue any such option, warrant, right or security. Except
as otherwise provided for in this Agreement, there are no agreements relating
to
the voting, purchase or sale of capital stock (i) between or among the Company
and any of its stockholders, (ii) between or among any Selling Party and any
third party, or among the Selling Parties and any of the Company’s stockholders.
The Company is not a party to any agreement granting any stockholder of the
Company the right to cause the Company to register shares of the capital stock
of the Company held by such stockholder under the Securities Act. To the best
of
the Company’s knowledge, the stockholder list provided to the Purchaser is a
shareholder list generated by its transfer agent, as at the date set forth
therein, and such list reflects the issued and outstanding shares of the
Company’s Common Stock, as reported by the transfer agent.
(e) The
Company‘s Certificate of Incorporation or By-Laws do not have any restrictions
in place relative to its ability to implement any reverse split of its common
stock.
(f) Except
for the Receivable due from the Company to ABL, which shall be assigned to
the
Purchaser at the Closing, as of the date hereof and as of the Closing Date
the
Company will not have total Liabilities of more than One Thousand ($1,000.00)
Dollars, (except for accrued expenses incurred in connection with the within
transaction which Liabilities will be part of the debt due from the Company
to
ABL, and which will be paid off at or prior to the Closing and shall in no
event
become the Liability of the Purchaser or remain a Liability of the Company
following the Closing.
(g) There
is
no legal, administrative, investigatory, regulatory or similar action, suit,
claim or proceeding that is pending or, to any Selling Parties’ knowledge,
threatened against the Company.
(h) During
the period from April 30, 2002 through April 30, 2007, the Company has filed
or
furnished (i) all reports, schedules, forms, statements, prospectuses and other
documents required to be filed with, or furnished to, the Securities and
Exchange Commission (the “SEC”) by the Company (all such documents, as amended
or supplemented, are referred to collectively as, the “Company SEC Documents”)
and (ii) all certifications and statements required by (x) Rule 13a-14 or 15d-14
under the Exchange Act, or (y) 18 U.S.C. §1350 (Section 906 of the
Xxxxxxxx-Xxxxx act of 2002) with respect to any applicable Company SEC Document
(collectively, the “SOX Certifications”). The Company has made available to the
Purchaser all SOX Certifications and comment letters received by the Company
from the staff of the SEC and all responses to such comment letters by or on
behalf of the Company. Each of the audited financial statements and related
schedules and notes thereto and unaudited interim financial statements of the
Company (collectively, the “Company Financial Statements”) contained in the
Company SEC Documents (or incorporated therein by reference) were prepared
in
accordance with the standards of Public Company Accounting Oversight Board
(United States), as set forth in the Report of Independent Registered Public
Accounting Firm in the Company SEC Documents heretofore furnished to the
Purchaser (except in the case of interim unaudited financial statements) except
as noted therein, and fairly present in all respects the consolidated financial
position of the Company and its consolidated subsidiaries as of the dates
thereof and the consolidated results of their operations, cash flows and changes
in stockholders’ equity for the periods then ended, subject (in the case of
interim unaudited financial statements) to normal year-end audit adjustments
(the effect of which will not, individually or in the aggregate, be adverse)
and, such financial statements complied as to form as of their respective dates
in all respects with applicable rules and regulations of the SEC. To the best
of
the Company’s knowledge, no financial statements of any Person not already
included in such financial statements are required to be included in the
consolidated financial statements of the Company. As of their respective dates,
each of the Company SEC Documents was prepared in accordance with and complied
with the requirements of the Securities Act or the Exchange Act, as applicable,
and the rules and regulations thereunder. Neither the Company nor, to the
Company’s knowledge, any of its officers has received notice from the SEC or any
other governmental authority questioning or challenging the accuracy,
completeness, content, form or manner of filing or furnishing of the SOX
Certifications, which has not been adequately responded to.
(i)
The
Company has properly and timely filed all Federal, state and local tax returns
and has paid all taxes, assessments and penalties due and payable. All such
tax
returns were complete and correct in all respects as filed, and no claims have
been assessed with respect to such returns. There are no present, pending,
or
threatened audit, investigations, assessments or disputes as to taxes of any
nature payable by the Company or any of its subsidiaries, nor any tax liens
whether existing or inchoate on any of the assets of the Company or any of
its
subsidiaries, except for current year taxes not presently due and payable.
No
IRS or foreign, state, county or local tax audit is currently in progress.
Neither the Company nor any of its subsidiaries has waived the expiration of
the
statute of limitations with respect to any taxes. There are no outstanding
requests by the Company or any of its subsidiaries for any extension of time
within which to file any tax return or to pay taxes shown to be due on any
tax
return.
(j)
The
Company does not have any ongoing operations, does not employ any employees
and
does not maintain any employee benefit or stock option plans.
(k)
Except
as
set forth in Sections 7(d) and 11(b), since April 30, 2007, there has not been
any event or condition of any character which has adversely affected, or may
be
expected
to adversely affect, the Company’s business or prospects, including, but not
limited to any adverse change in the condition, assets, liabilities or business
of the Company from that shown in the financial statements of the Company
included in its annual report on Form 10-KSB filed for the fiscal year ended
October 31, 2006 and Form 10-QSB filed for the quarter ended January 31, 2007
and April 30, 2007.
(l)
The
Company has complied in all material respects with all applicable laws
(including rules, regulations, codes, plans, injunctions, judgments, orders,
decrees, rulings, and charges thereunder) of all governmental authorities,
and
no action, suit, proceeding, hearing, investigation, charge, complaint, claim,
demand, or notice has been filed or commenced against the Company alleging
any
failure so to comply. To the knowledge of each Selling Party, neither the
Company, nor any officer, director, employee, consultant or agent of the Company
has made, directly or indirectly, any payment or promise to pay, or gift or
promise to give or authorized such a promise or gift, of any money or anything
of value, directly or indirectly, to any governmental official, customer or
supplier for the purpose of influencing any official act or decision of such
official, customer or supplier or inducing him, her or it to use his, her or
its
influence to affect any act or decision of a governmental authority or customer,
under circumstances which could subject the Company or any officers, directors,
employees or consultants of the Company to administrative or criminal penalties
or sanctions.
(m)
No
representation or warranty by the Company in this Agreement, nor in any
certificate, schedule or exhibit delivered or to be delivered pursuant to this
Agreement contains or will contain any untrue statement of material fact, or
omits or will omit to state a material fact necessary to make the statements
herein or therein, in light of the circumstances under which they were made,
not
misleading.
| 8. |
Representations
and Warranties of the Purchaser.
|
Purchaser
represents and warrants to the Company and the Selling Parties, as
follows:
(a)
The
Purchaser is a corporation in good standing duly incorporated in the State
of
Delaware. The Purchaser
is duly authorized to conduct its business and is in good standing under the
laws of each jurisdiction where such qualification is required. The
Purchaser has full corporate power and authority and all licenses, permits,
and
authorizations necessary to carry on its business. The Purchaser has full power
and authority to enter into this Agreement and to carry out the transactions
contemplated hereby.
(b)
Neither the execution and delivery of this Agreement, nor the consummation
of
the transactions contemplated hereby, or compliance by the Purchaser with the
terms and conditions hereof will violate, or conflict with, or result in a
breach of any provision of, or constitute a default under or result in the
termination of, or accelerate the performance required by, or result in the
creation of any Lien upon any of the properties or assets of the Purchaser
under
any of the terms, conditions or provisions of any material note, bond,
indenture, mortgage, deed or trust, license, lease, agreement or other
instrument or obligation to which he is a party or by which he or any of his
properties or assets may be bound or affected or violate any material order,
writ, injunction, decree, statute, rule or regulation nor breach or violate
any
Laws, rules or regulations of the United States, and the rules and regulations
promulgated by the SEC, which may be applicable to Purchaser or any of its
properties or assets, except for such violations which,
in
the aggregate, are immaterial and do not have any material adverse financial
effect on Purchaser.
(c) This
Agreement has been duly and validly executed by the Purchaser and constitutes
a
valid and binding obligation of the Purchaser enforceable in accordance with
its
terms, except as the enforceability hereof may be limited by bankruptcy,
insolvency or similar laws affecting the enforceability of creditor's rights
generally or by limitations, on the availability of equitable remedies.
(d)
The
Purchaser is acquiring the Sellers Shares for its own account for investment
and
not for the account of any other person and not with a view to or for
distribution, assignment or resale in connection with any distribution within
the meaning of the Securities Act. Purchaser agrees not to sell or otherwise
transfer the Sellers Shares unless they are registered under the Securities
Act
and any applicable state securities laws, or an exemption or exemptions from
such registration are available and shall promptly file or cause to be filed
any
and all filings, forms, documents and instruments necessary for the Purchaser
to
be in compliance with all Federal and state Securities Acts, laws, rules and
regulations. The Purchaser has knowledge and experience in financial and
business matters such that it is capable of evaluating the merits and risks
of
acquiring the Sellers Shares and ABL’s Account Receivable.
(e) No
permit, consent, approval or authorization of, or declaration, filing or
registration with any governmental or regulatory authority or the consent of
any
third party is required in connection with the execution and delivery by the
Purchaser of this Agreement and the consummation of the transactions
contemplated hereby.
(f) The
Purchaser will have furnished to the Selling Parties a true and correct copy
of
its financial statements for the past three (3) fiscal years together with
a
Balance Sheet dated within thirty (30) days prior to the date hereof covering
the last prior fiscal quarter setting forth that the Purchaser has sufficient
net worth to consummate the transactions contemplated by this Agreement and
such
other financial statements as shall be necessary to comply with the filing
requirements under the Securities Act.
(g)
The
Purchaser is acquiring the Account Receivable from ABL for its own account
and
not with a view to or for distribution, assignment or resale in connection
with
any distribution within the meaning of the Securities Act.
(h) There
is
no legal, administrative, investigatory, regulatory or similar action, suit,
claim or proceeding that is pending or, to the Purchaser’s knowledge, threatened
against the Purchaser.
(i) The
Purchaser has properly and timely filed all Federal, state and local tax returns
and has paid all taxes, assessments and penalties due and payable. All such
tax
returns were complete and correct in all respects as filed, and no claims have
been assessed with respect to such returns. There are no present, pending,
or
threatened audit, investigations, assessments or disputes as to taxes of any
nature payable by the Purchaser or any of its subsidiaries, nor any tax liens
whether existing or inchoate on any of the assets of the Purchaser or any of
its
subsidiaries, except for current year taxes not presently due and payable.
No
IRS or foreign, state, county or local tax audit is currently in progress.
Neither the Purchaser nor any of its subsidiaries has waived the expiration
of
the statute of limitations with respect to any taxes. There are no outstanding
requests by the Purchaser or any of its subsidiaries for any extension of time
within which to file any tax return or to pay taxes shown to be due on any
tax
return.
(j) No
representation or warranty by the Purchaser in this Agreement, nor in any
certificate, schedule or exhibit delivered or to be delivered pursuant to this
Agreement contains or will contain any untrue statement of material fact, or
omits or will omit to state a material fact necessary to make the statements
herein or therein, in light of the circumstances under which they were made,
not
misleading.
| 9. |
Due
Diligence.
|
The
Purchaser has been furnished with Company documents and instruments and in
addition has conducted its own intensive due diligence investigation relative
to
the Company and the representations, warranties and covenants of the Selling
Parties and the Company. The Purchaser hereby acknowledges and agrees that
it
has received all requisite documents and instruments necessary for the Purchaser
to have completed its due diligence all of which has been furnished to Purchaser
to Purchaser’s complete satisfaction within the due diligence period and all Due
Diligence has been complied with.
| 10. |
Payments
at Closing; Brokers;
Finders.
|
There
are
no Brokers or Finders involved in this transaction and none of the Parties
shall
be responsible for the payment of any Brokers or finders’ fees other than as
specifically set forth herein. Other than the foregoing, none of the Selling
Parties nor the Company, nor any of their respective directors, officers or
agents on their behalf, have incurred any obligation or liability, contingent
or
otherwise, for brokerage or finders’ fees or agents’ commissions or financial
advisory services or other similar payment in connection with this Agreement.
The Purchaser has not engaged any Brokers or Finders in connection with this
transaction.
| 11. |
Pre-Closing
Covenants.
|
The
Parties agree as follows with respect to the period between the execution of
this Agreement and the Closing Date:
(a)
Each
of the Parties has used his or its best efforts to take all action and to do
all
things necessary, proper, or advisable in order to consummate and make effective
the transactions contemplated by this Agreement (including satisfaction, but
not
waiver, of the closing conditions set forth in Section 13 below).
(b)
Divestiture of Subsidiary. In March, 2007, the Company’s wholly owned
subsidiary, A.B. Park & Fly, Inc. (“ABPF”) was merged with and into a wholly
owned subsidiary of ABL, wherein the separate existence of ABPF ceased, in
consideration for which ABL delivered to the Company One Hundred Forty Thousand
(150,000) shares of the Company’s Common Stock, which the Company cancelled as
issued and outstanding shares. The Company filed a Form 8-K with the Securities
and Exchange Commission (the “SEC”) to reflect the transaction.
(c) Form
8-K
Filing; Notices and Consents.
(i)
Concurrent
with the execution of this Agreement, the Company shall cause a Form 8-K to
be
filed with the U.S. Securities and Exchange Commission with respect to its
having entered into this material definitive agreement and to disclose the
material terms set forth in this Agreement. Each of the Parties will (and the
Selling Parties will cooperate with the Company to) give any notices to, make
any filings with, and use its best efforts to obtain any authorizations,
consents, and approvals of governmental authorities necessary in order to
consummate the transactions contemplated hereby.
(ii) The
Purchaser acknowledges that it may be required to file documents, instruments,
financial statements and other disclosure documents in compliance with the
Securities Act in order to effect the transaction contemplated by this
Agreement.
(d)
The
Parties acknowledge that SEC Rule 14f-1 under the Securities Exchange Act may
require that an information statement containing certain specified disclosures
be filed with the Securities and Exchange Commission and mailed to the Company’s
shareholders at least 10 days before any person designated by the Purchaser
can
become a director of the Company. The Purchaser and the Selling Parties agree
to
cooperate fully with the Company in the preparation and filing of such
information statement and to provide all information therefor respectively
needed from them in a timely manner, so as not to cause undue delay in the
filing of the information statement or any amendment thereto. The Parties agree
that the filing and mailing to shareholders of Form 14f-1 shall occur on the
date following the signing of this Agreement or as soon thereafter as is
practicable, but no later than ten (10) days from the date hereof. If the
Purchaser fails or refuses to comply with the foregoing, the Sellers
Representative, acting on behalf of the Selling Parties, shall have the
immediate right to cancel this Agreement and direct the Escrow Holder to deliver
the Cash Deposit to the Sellers Representative for and on behalf of the Selling
Parties. If the Selling Parties fail or refuse to comply with the foregoing,
the
Purchaser shall have the immediate right to cancel this Agreement and direct
the
Escrow Holder to deliver the Cash Deposit to the Purchaser.
(e)
Operation of Business. The Selling Parties will not cause or permit the Company
to take any action, or enter into any transaction except for ministerial matters
necessary to maintain the Company in good standing and to arrange for the filing
of all necessary reports required under the Securities Exchange Act of 1934,
as
amended (the “Exchange Act”). Without limiting the generality of the foregoing,
the Selling Parties will not cause or permit the Company to (i) declare, set
aside, or pay any dividend or make any distribution with respect to its capital
stock or redeem, purchase, or otherwise acquire any of its capital stock except
as otherwise expressly specified herein, (ii) issue, sell, or otherwise dispose
of any of its capital stock, or grant any options, warrants, preemptive or
other
rights to purchase or obtain (including upon conversion, exchange, or exercise)
any of its capital stock, (iii) make any capital expenditures, loans, or incur
any other obligations or liabilities, (iv) enter into any agreements involving
expenditures individually, or in the aggregate, of more than $1,000 (other
than
agreements for professional services which will be paid in full at or prior
to
the Closing), (v) enter into any agreement or incur any other commitment or
(vi)
otherwise engage in any practice, take any action, or enter into any transaction
that is inconsistent with the transactions contemplated hereby.
(f)
Notice of Developments. The Selling Parties will give prompt written notice
to
the Purchaser of any material adverse development causing a breach of any of
the
representations and warranties in Sections 6 and 7, above. No disclosure by
any
Party pursuant to this Section 11, however, shall be deemed to amend or
supplement the disclosures contained in the Schedules hereto or to prevent
or
cure any misrepresentation, breach of warranty, or breach of
covenant.
(g) Exclusivity.
None of the Selling Parties or the Company shall, directly or indirectly, (i)
solicit, initiate, or encourage the submission of any proposal or offer from
any
person relating to the acquisition of any of the Selling Parties Shares or
any
capital stock or other voting securities, or any assets (including any
acquisition structured as a merger, consolidation, or share exchange) of the
Company or (ii) participate in any discussions or negotiations regarding,
furnish any information with respect to, assist or participate in, or facilitate
in any other manner any effort or attempt by any person to do or seek any of
the
foregoing. None of the Selling Parties will vote the shares of the Company’s
Common Stock held by them in favor of any such acquisition structured as a
merger, consolidation, or share exchange.
| 12 |
Documents
to be Delivered at the
Closing:
|
(a) As
to the Selling Parties and the Company:
(i)
The
Escrow Holder, acting on behalf of the Selling Parties, shall deliver to
Purchaser share certificates representing the Sellers Shares, duly endorsed
with
Medallion Guarantee affixed, together with a Xxxx of Sale evidencing the sale
to
Purchaser of One Million One Hundred Sixty Five Thousand Three Hundred Ninety
Seven (1,165,397) shares of Company Common Stock.
(ii) ABL
shall
deliver to the Purchaser an Account Receivable Assignment and Assumption
Agreement signed by ABL as the Assignor, the Purchaser as Assignee and the
Company acknowledging and accepting its obligation under the Assignment and
Assumption Agreement; together with a release signed by ABL evidencing payment
for the Assignment.
(iii) The
Selling Parties shall deliver the Certificate specified in Section 13 (a) (vi)
of this Agreement.
(iv) Special
Counsel to the Company shall deliver the opinion of counsel on behalf of the
Company, specified in Section 13 (a)(vii) herein.
(v) The
Company shall deliver resignations of Messrs. Xxxxxx X. Xxxxxxxx and Xxxxxxx
X.
Xxxxxxxx as Directors of the Company as specified in Section 13(a)(viii),
herein; and resignations of Xxxxxx X. Xxxxxxxx as President and Xxxxxxx X.
Xxxxxxxx as Secretary and Treasurer of the Company at the Closing
herein.
(vi) The
Company shall deliver a Secretary’s Certificate, annexed to which shall be a
true and correct copy of the Certificate of Incorporation and By-Laws of the
Company as at the Closing Date and a resolution of the Board of Directors
authorizing this Agreement and the transactions contemplated
thereby.
(vii) The
Company shall deliver the corporate Minute Books, the corporate seal and related
corporate documents and instruments contained in the minute books.
(viii) The
Company shall deliver certificates of good standing of the Company from the
Secretaries of State of the States of Delaware and New Jersey,
respectively.
(b) As
to the Purchaser:
(i)
The
Escrow Holder shall deliver the Cash Deposit to the Sellers Representative
in
the amount of Fifty Thousand ($50,000.00) Dollars as partial payment for the
amount due under subsection (ii), below.
(ii)
The
Purchaser shall deliver payment of the balance of the Purchase Price in the
amount of Sixty Six Thousand Five Hundred ($66,500.00) of the total Purchase
Price of One Hundred Sixteen Thousand Five Hundred ($116,500) Dollars payable
to
the Sellers Representative by way of a wire transfer or bank cashier’s check in
good Federal funds in payment for the One Million One Hundred Sixty Five
Thousand Three Hundred Ninety Seven(1,165,397) shares of Common Stock referred
to in the Section 12 (a)(i).
(iii) The
Purchaser shall deliver payment to ABL by way of a wire transfer or Bank
Cashier’s check in good Federal funds in the amount of Three Hundred Forty
($340,000) Dollars representing payment in full for the Account Receivable
due
and payable to ABL, which is being assigned to the Purchaser pursuant to the
Assignment Agreement.
(iv) The
Purchaser shall deliver payment to Sellers Representative by way of a wire
transfer or Bank Cashier’s check in good Federal funds in the amount of Forty
Three Thousand Five Hundred ($43,400) Dollars representing payment in full
for
the legal and accounting fees of the Selling Parties.
(v) The
Purchaser shall deliver to the Sellers Representative a Balance Sheet and such
other documents or instruments of the Purchaser reasonably requested by the
Sellers Representative, dated within thirty (30) days prior to the date of
this
Agreement, pursuant to Section 8 (e) of this Agreement.
(vi) Purchaser
shall deliver to Sellers Representative the documents and instruments required
by Sections 11 (c) (ii) and 11 (d) herein.
(vii) The
Purchaser shall deliver to the Sellers Representative a true and correct
Resolution
of the Board of Directors of the Purchaser authorizing this Agreement and the
transactions contemplated thereby.
| 13. |
Conditions
to Obligation to Close.
|
(a) Conditions
of Obligation of the Purchaser
The
obligation of the Purchaser to consummate the transactions to be performed
by
the Purchaser in connection with the Closing is subject to satisfaction of
the
following conditions:
(i)
the
representations and warranties set forth in Sections 6 and 7 above shall be
true
and correct in all material respects at and as of the Closing Date;
(ii) each
of
the Pre-Closing Covenants set forth in Section 11, above shall have been
satisfied;
(iii) the
Selling Parties shall have performed and complied with all of their covenants
hereunder in all material respects through the Closing;
(iv)
the
Company shall have procured all of the third party consents required in order
to
effect the Closing;
(v) no
action, suit, or proceeding shall be pending or threatened before any court
or
quasi-judicial or administrative agency of any federal, state, local, or foreign
jurisdiction or before any arbitrator wherein an unfavorable injunction,
judgment, order, decree, ruling, or charge would (A) prevent consummation of
the
transactions contemplated by this Agreement, (B) cause any of the transactions
contemplated by this Agreement to be rescinded following consummation, (C)
affect adversely the right of the Purchaser to own the Sellers Shares and to
control the Company, or (D) affect adversely the right of the Company to own
its
assets and to operate its businesses (and no such injunction, judgment, order,
decree, ruling, or charge shall be in effect);
(vi) the
Selling Parties shall have delivered to the Purchaser a certificate to the
effect that (A) each of the conditions specified above in Section 13(a)(i)-(v)
is satisfied in all aspects, and (B) as of the Closing, except as otherwise
provided in this Agreement, the Company has no Liabilities;
(vii) the
Purchaser shall have received an opinion of counsel customary for transactions
of this type that covers, among other things, that the Sellers Shares being
delivered pursuant to this Agreement were validly issued, are fully paid and
non-assessable and are being delivered to the Purchaser in a private transaction
not involving any public offering in compliance with applicable Federal and
state securities laws.
(viii)
the Purchaser shall have received the resignations, effective as of the Closing
Date, of each current director of the Company and the Purchaser shall have
received the resignations, effective as of the Closing Date, of each officer
of
the Company. The Board of Directors of the Purchaser shall direct that the
Designees specified by the Purchaser and named and described in Form 14f-1,
as
filed with the SEC shall be appointed as Directors of the Company and any
officers of the Company who may be lawfully appointed to the newly designated
Board of Directors of the Company shall be nominated and elected;
(ix)
Except as otherwise set forth in this Agreement, there shall not have been
any
occurrence, event, incident, action, failure to act, or transaction since
January 31, 2007 which has had or is reasonably likely to cause a material
adverse effect on the business, assets, properties, financial condition, results
of operations or prospects of the Company;
(x) The
Purchaser has fully completed its business, accounting and legal Due Diligence
review of the Company, and the results thereof are completely satisfactory
to
the Purchaser;
(xi) the
Purchaser shall have received such pay-off letters and releases relating to
Liabilities as they shall have requested and such pay-off letters shall be
in
form and substance satisfactory to the Purchaser;
(xii) the
Purchaser shall have conducted UCC, judgment lien and tax lien searches with
respect to the Company, the results of which indicate no liens on the assets
of
the Company;
(xiii) the
Company shall have delivered its Certificate of Incorporation and bylaws, both
as amended to the Closing Date, certified by the Secretary of the Company,
resolutions adopted by the Board of Directors of the Company authorizing this
Agreement and the transactions contemplated hereby and the Company shall have
delivered to the Purchaser the Company’s original minute book and corporate seal
and all other original corporate documents and agreements;
(xiv) the
Company shall deliver to the Purchaser a Certificate of Good Standing in respect
of the Company issued by the Delaware Secretary of State dated no earlier than
sixty (60) days prior to the Closing.
(xv) all
actions to be taken by the Selling Parties in connection with consummation
of
the transactions contemplated hereby and all certificates, opinions,
instruments, and other documents required to effect the transactions
contemplated hereby will be satisfactory in form and substance to the Purchaser;
and
(xvi)
At
the Closing, there shall be no more than 1,112,525 shares of the Company issued
and outstanding other than shares held by the Purchaser on a pro-forma basis
under this Agreement.
The
Purchaser may waive any condition specified in this Section 13(a) at or prior
to
the Closing in writing executed by the Purchaser.
(b)
Conditions
to Obligation of the Selling Parties.
The
obligations of the Selling Parties to consummate the transactions to be
performed by them in connection with the Closing are subject to satisfaction
of
the following conditions:
(i) the
representations and warranties set forth in Section 8 above shall be true and
correct in all material respects at and as of the Closing Date;
(ii) each
of
the Pre-Closing Covenants set forth in Section 11, above shall have been
satisfied;
(iii) the
Purchaser shall have performed and complied with all of its covenants hereunder
in all material respects through the Closing;
(iv)
no
action, suit, or proceeding shall be pending or threatened before any court
or
quasi-judicial or administrative agency of any federal, state, local, or foreign
jurisdiction or before any arbitrator wherein an unfavorable injunction,
judgment, order, decree, ruling, or charge would (A) prevent consummation of
any
of the transactions contemplated by this Agreement or (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation (and no such injunction, judgment, order, decree, ruling, or charge
shall be in effect);
(v)
the
Purchaser shall have delivered to the Sellers Representative a certificate
to
the effect that each of the conditions specified above in Section 13(b)(i)-(iv)
is satisfied in all respects;
(vi) all
actions to be taken by the Purchaser in connection with consummation of the
transactions contemplated hereby and all certificates, opinions, instruments,
and other documents required to effect the transactions contemplated hereby
will
be satisfactory in form and substance to the Sellers Representative.
(vii) The
Purchaser shall have purchased from the Sellers an aggregate of One Million
One
Hundred Sixty Five Thousand Three Hundred Ninety Seven (1,165,397) shares of
the
Company’s Common Stock for which Purchaser shall have paid One Hundred Sixteen
Thousand ($116,500) Dollars as provided for herein.
(viii)
The Purchaser shall have paid ABL Three Hundred Forty Thousand ($340,000.00)
Dollars and for which the Purchaser shall have acquired from ABL all of ABL’s
interest in the “Due to Affiliates” obligation payable by the Company to ABL as
provided for herein.
(ix)
The
Purchaser shall have paid the Selling Parties Forty Three Thousand Five Hundred
($43,500.00) Dollars for their legal and accounting fees.
(x) The
Purchaser shall have procured and delivered to the Sellers Representative all
of
the third party consents required in order to effect the Closing.
(xi)
There shall not have been any occurrence, event, incident, action, failure
to
act, or transaction that has had or is reasonably likely to cause a material
adverse effect on the business, assets, properties, financial condition, results
of operations or prospects of the Purchaser;
(xii) The
Purchaser shall have delivered resolutions adopted by the Board of Directors
of
the Purchaser authorizing this Agreement and the Designations required
hereunder;
(xiii) The
Purchaser shall deliver to the Company a Certificate of Good Standing in respect
of the Purchaser issued by the Delaware Secretary of State dated no earlier
than
sixty (60) days prior to the Closing.
(xiv) all
actions to be taken by the Purchaser in connection with consummation of the
transactions contemplated hereby and all certificates, opinions, instruments,
and other documents required to effect the transactions contemplated hereby
will
be satisfactory in form and substance to the Company and the Selling
Parties.
The
Company and/or the Selling Parties Representative may waive, on behalf of each
of the Selling Parties any condition specified in this Section 13(b) at or
prior
to the Closing in writing executed by the Company and/or the Selling Parties,
as
the case may be.
| 14. |
Remedies
for Breaches of This Agreement.
|
(a) Survival
of Representations and Warranties.
All of
the representations and warranties of the Parties shall survive the Closing
hereunder and continue in full force and effect for a period of one (1) year
thereafter.
(b)
Indemnification
Provisions for Benefit of the Purchaser.
(i)
The
Selling Parties shall indemnify the Purchaser from and against any and all
claims, liabilities, actions or matters which shall result in monetary damages
to the Company for any Federal, state or local taxes of the Company with respect
to any tax year or portion thereof ending prior to the Closing Date; and any
monetary damages to the Company for any actions by the Selling Parties from
the
end of the Company’s most recent fiscal year to the Closing Date, provided that
the Purchaser does not change the fiscal year of the Company at any time, or
cause any event to occur which would result in a change of accounting practices
or procedures or other circumstances so that the liability for any such actions
before or on the Closing Date or thereafter can not be readily determined in
which event Selling Parties or the Company shall not be liable for any damages
whatsoever.
(ii) The
Selling Parties shall indemnify the Purchaser from and against any claims,
liabilities, actions or matters which result in monetary damages to the Company
for actions brought by the SEC against the Selling Parties or any of them for
their violation of any laws, rules or regulation promulgated by the SEC which
occurred prior to the Closing Date.
(iii) If
any
third party shall commence an action relating to a Company matter that occurred
prior to the Closing, the Purchaser shall notify the Sellers Representative
on
behalf of each and all of the Selling Parties in writing, without delay, setting
forth the details of such claim and furnishing the Sellers Representative with
a
copy of any complaint or other moving papers relating thereto, to enable the
Selling Parties to defend and respond to such claim or action. The Selling
Parties shall indemnify and hold harmless the Purchaser from and against any
such claims, liabilities, actions or matters which result in monetary damages
against the Company, provided that such action directly relates solely to
matters that occurred prior to the Closing and were not caused by the action
or
inaction of the Purchaser.
(c)
Indemnification
Provisions for Benefit of each and all of the Selling
Parties.
(i)
The
Purchaser shall indemnify the Company and each and all of the Selling Parties
from and against any and all claims, liabilities, actions or matters which
shall
result in monetary damages to any or all of Selling Parties and/or the Company
(whether or not accrued or otherwise disclosed) for any Federal, state or local
taxes of the Company with respect to any tax year or portion thereof ending
subsequent to the Closing Date; and any monetary damages to any or all of the
Selling Parties, and/or the Company for any actions by the Purchaser subsequent
to the Closing Date.
(ii) The
Purchaser shall indemnify each and all of the Selling Parties and the Company
from and against any claims, liabilities, actions or matters which result in
monetary damages to any or all of them or to the Company for actions brought
by
the SEC against the Purchaser or the Company in violation of any laws, rules
or
regulation promulgated by the SEC that occur subsequent to the Closing Date
or
otherwise relating to Purchaser’s actions or inactions or failures of
disclosure.
(iii) If
any
third party shall commence an action relating to a Company matter that occurs
subsequent to the Closing, the Purchaser shall notify the Sellers Representative
for and on behalf of the Selling Parties in writing, without delay, setting
forth the details of such claim and furnishing the Sellers Representative with
a
copy of any complaint or other moving papers relating thereto, to enable the
Selling Parties to defend and respond to such claim or action if necessary.
The
Purchaser shall indemnify and hold harmless each and all of the Selling Parties
from and against any such claims, liabilities, actions or matters which result
in monetary damages to any or all of them, provided that such action relates
to
matters that occur subsequent to the Closing.
| 15. |
Post-Closing
Covenants.
|
The
Parties agree as follows with respect to the period following the
Closing.
(a) General.
In the event at any time after the Closing any further action is necessary
or
desirable to carry out the purposes of this Agreement, each of the Parties
will
take such further action (including the execution and delivery of such further
instruments and documents) as any of the other Parties may reasonably request,
all at the sole cost and expense of the requesting party. The Selling Parties
acknowledge and agree that from and after the Closing the Purchaser will be
entitled to possession of all reasonably available documents, books, records
(including tax records), agreements, and financial data of any sort relating
to
the Company.
(b) Litigation
Support. In the event and for so long as any Party actively is contesting or
defending against any action, suit, proceeding, hearing, investigation, charge,
complaint, claim, or demand in connection with (i) any transaction contemplated
under this Agreement or (ii) any fact, situation, circumstance, status,
condition, activity, practice, plan, occurrence, event, incident, action,
failure to act, or transaction on or prior to the Closing Date involving the
Company, the other Party will cooperate with him or it and his or its counsel
in
the contest or defense, make available their personnel, and provide such
testimony and access to their books and records as shall be necessary in
connection with the contest or defense, all at the sole cost and expense of
the
contesting or defending Party (unless the contesting or defending Party is
entitled to indemnification therefore under Section 14 herein).
(c) The
Purchaser covenants and agrees that on the Closing Date or promptly thereafter,
but no later than twenty (20) days after the Closing Date, it will cause the
Company to change its name to another unrelated name in the States of Delaware
and New Jersey and not to use the name “Air Brook” in any entity in any form nor
at any time hereafter, hereby acknowledging that the name “Air Brook” is owned
by and is the unconditional property right of ABL.
(d)
Operation of Business. Commencing on the date of this Agreement and up to and
including the Closing Date, the Purchaser and the Selling Parties shall not
cause or permit the Company to take any action, or enter into any transaction
except for ministerial matters necessary to maintain the Company in good
standing and to arrange for the filing of all necessary reports required under
the Securities Act and the Securities Exchange Act. Without limiting the
generality of the foregoing, the Purchaser and/or the Selling Parties will
not
cause or permit the Company to (i) declare, set aside, or pay any dividend
or
make any distribution with respect to its capital stock or redeem, purchase,
or
otherwise acquire any of its capital stock, (ii) issue, sell, or otherwise
dispose of any of its capital stock, or grant any options, warrants, preemptive
or other rights to purchase or obtain (including upon conversion, exchange,
or
exercise) any of its capital stock, (iii) make any capital expenditures, loans,
or incur any other obligations or liabilities, (iv) enter into any agreements
involving expenditures individually, or in the aggregate, of more than $1,000
(v) enter into any agreement or incur any other commitment (vi) otherwise engage
in any practice, take any action, or enter into any transaction that is
inconsistent with the transactions contemplated hereby, or (vii) assist any
person, or agree to assist any person, in taking the actions described in (i)
through (vi) of this Provision.
| 16. |
Termination.
|
Termination
of Agreement.
The
Parties may terminate this Agreement as provided below:
(a)
The
Purchaser, the Company and the Selling Parties may terminate this Agreement
by
mutual written agreement of all of the parties at any time prior to the Closing;
(b) The
Purchaser may terminate this Agreement by giving written notice to the Sellers
Representative at any time prior to the Closing if (A) the aggregate of the
Company’s Liabilities (except for the Receivable which is being acquired by the
Purchaser), or any liabilities incurred by or resulting from the actions of
the
Purchaser, or as a result of this Agreement is equal to, or exceeds $1,000;
(B)
in the event the Selling Parties have breached any material representation,
warranty, or covenant contained in this Agreement in any material respect and
the Purchaser has notified the Sellers Representative of the breach, and the
breach has continued without cure for a period of five (5) days after the notice
of breach; (C) if the Closing shall not have occurred by reason of the failure
of any condition precedent under Section 13 (a), hereof (unless the failure
results primarily from the Purchaser themselves breaching any representation,
warranty, or covenant contained in this Agreement).
(c) The
Company and/or the Selling Parties may terminate this Agreement by giving
written notice to the Purchaser at any time prior to the Closing (A) in the
event the Purchaser has breached any material representation, warranty, or
covenant contained in this Agreement in any material respect, and the Company,
the Selling Parties and/or ABL, as the case may be, have notified the Purchaser
of the breach, and the breach has continued without cure for a period of five
(5) days after the notice of breach; or (B) if the Closing shall not have
occurred by reason of the failure of any condition precedent under Section
13
(b), hereof (unless the failure results primarily from the Company, the Selling
Parties or ABL themselves breaching any representation, warranty, or covenant
contained in this Agreement). In any such event, the Selling Parties shall
be
entitled to and shall receive the Cash Deposit, as liquidated
damages.
(d)
Effect of Termination. Subject to the provisions of Section 15(d), above, the
Company and/or the Selling Parties shall not terminate this Agreement unless
prior to or accompanying any notice of termination delivered hereunder the
Company and/or the Selling Parties have instructed the Escrow Holder to release
the Cash Deposit to the Purchaser (unless the Termination is attributable to
any
breach of the Agreement by the Purchaser, or any actions or inaction of the
Purchaser). If the Purchaser validly terminates this Agreement pursuant to
Section 16 (b) herein, and such termination is not disputed by the Selling
Parties, then the Selling Parties shall immediately notify the Purchaser and
the
Escrow Holder in writing that the Cash Deposit, held in escrow, may released
to
the Purchaser. Except as aforesaid and subject to the provisions of Section
13
above, if this Agreement validly terminates pursuant to this Section 16, all
rights and obligations of the Parties hereunder shall terminate without any
Liability of any Party to any other Party, except for any Liability of a Party
that is then in breach.
(e)
Termination for Cause. In the event that the transaction would have closed
but
for the failure of the other party to close, then the party at fault shall
reimburse the party not at fault party for its documented reasonable legal
fees
and related out-of-pocket expenses it has incurred in connection with the
transaction not to exceed a maximum of $15,000.00. The parties agree that any
damages payable on account of any breach of this Agreement shall be expressly
limited to such amount. Notwithstanding the foregoing, the Fifty Thousand
($50,000.00) Dollar non-refundable Cash Deposit held by the Escrow Holder for
the benefit of the Selling Parties shall be delivered to the Sellers
Representative as liquidated damages, in the event or failure of the Purchaser
to timely close and shall not be included in the $15,000.00 referred to above.
| 17. |
Miscellaneous.
|
(a)
Facsimile
Execution and Delivery. Facsimile execution and delivery of this Agreement
is
legal, valid and binding execution and delivery for all purposes.
(b) Confidentiality;
Press Releases and Public Announcements. Except as and to the extent required
by
law, no Party will disclose or use and will direct its representatives not
to
disclose or use any information with respect to the transaction that is the
subject of this Agreement, without the consent of the other Parties; provided
however, that the Purchaser shall be permitted to disclose this Agreement and
such related information as is necessary, including information concerning
the
Company obtained through the Purchaser’s Due Diligence solely with its
investment bankers, attorneys and accountants, who are also involved on a
confidential basis. No Party shall issue any press release or make any public
announcement relating to the subject matter of this Agreement without the prior
written approval of the Purchaser and the Sellers Representative; provided,
however, that the Company may make any public disclosure it believes in good
faith is required by applicable law, rule or regulation or any listing or
trading agreement concerning its publicly-traded securities (in which case
the
Sellers Representative and the Company will use their best efforts to advise
the
other Parties prior to making the disclosure).
(c) No
Third-Party Beneficiaries. This Agreement shall not confer any rights or
remedies upon any person other than the Parties hereto and their respective
successors and permitted assigns.
(d)
Entire
Agreement. This Agreement (including the documents referred to herein)
constitutes the entire agreement among the Parties and supersedes any prior
understandings, agreements, or representations by or among the Parties, written
or oral, to the extent they related in any way to the subject matter
hereof.
(e)
Succession
and Assignment. This Agreement shall be binding upon and inure to the benefit
of
the Parties named herein and their respective successors and permitted assigns.
No Party may sell, assign or otherwise transfer or have a third party secure
a
present or future direct or indirect interest in either this Agreement or any
of
his or its rights, interests, or obligations hereunder without the prior written
approval of all of the Purchaser, the Company and the Selling
Parties.
(f)
Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original but all of which together will constitute
one and the same instrument effective as of the date first
above-written.
(g)
Headings. The Section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
(h)
Notices. All notices, requests, demands, claims, and other communications
hereunder will be in writing. Any notice, request, demand, claim, or other
communication hereunder shall be deemed duly given if (and then two business
days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set
forth
below:
|
If
to the Selling Parties
|
|
|
If
to the Company
|
|
|
If
to ABL
|
With
a Copy to:
|
|
Xxxxxx
X. Xxxxxxxx, Sellers Representative
|
Xxxxxxx
X. Xxxxxxxxx, Esq.
|
|
000
Xxxx Xxxxxxx Xxxxxx
|
0000
Xxxxxx Xxxxxx, Xxxxx 000
|
|
Xxxxxxxx
Xxxx, XX 00000
|
Xxxx
Xxx, Xxx Xxxxxx 00000
|
|
Telephone
No. (000) 000-0000 xxx.000
|
Telephone
No. (000) 000-0000
|
|
Telecopier
No. (000) 000-0000
|
Telecopier
No. (000) 000-0000
|
|
If
to the Purchaser:
|
With
a Copy to:
|
|
Lextra
Management Corp.
|
Xxx
Xxxxxxxx, Esq.
|
|
c/o
R. Xxxxxx Xxxx, Chief Executive Officer
|
Xxxxxx
& Xxxxxx, X.X.
|
|
000
Xxxxxxxxxxxxx Xxxxxxx, 0xx Xxxxx
|
0000
Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000
|
|
Xxxx
Xxxx, Xxxxxxx 00000
|
Xxxxx,
Xxxxxxx 00000
|
|
Telephone
No. (000) 000-0000
|
Telephone
No. (000) 000-0000
|
|
Telecopier
No.
|
Telecopier
No. (000) 000-0000
|
Any
Party
may send any notice, request, demand, claim, or other communication hereunder
to
the intended recipient at the address set forth above using any other means
(including personal delivery, expedited courier, messenger service, telecopy,
telex, ordinary mail, or electronic mail), but no such notice, request, demand,
claim, or other communication shall be deemed to have been duly given unless
and
until it actually is received by the intended recipient. Any Party may change
the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other Parties written
or electronic notice in the manner herein above set forth.
(i) Governing
Law. This Agreement shall be governed by and construed in accordance with the
domestic laws of the State of New Jersey without giving effect to any choice
or
conflict of law provision or rule (whether of the State of New Jersey or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New Jersey.
(j) Amendments
and Waivers. No amendment of any provision of this Agreement shall be valid
unless the same shall be in writing and signed by the Purchaser, the Company,
the Selling Parties (or the Sellers Representative, acting on their behalf.)
No
waiver by any Party of any default, misrepresentation, or breach of warranty
or
covenant hereunder, whether intentional or not, shall be valid unless written,
and shall not constitute a waiver of any prior or subsequent default,
misrepresentation, or breach of the same or any other warranty or covenant
hereunder, or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
(k)
Severability. Any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the validity
or enforceability of the remaining terms and provisions hereof or the validity
or enforceability of the offending term or provision in any other situation
or
in any other jurisdiction.
(l)
Expenses. Each of the Parties and the Company will bear his or its own costs
and
expenses (including legal fees and expenses) incurred in connection with this
Agreement and the transactions contemplated hereby. The Selling Parties agree
that the Company has not borne or will not bear any of the Selling Parties’
costs and expenses (including any of the Selling Parties legal fees and
expenses) in connection with this Agreement or any of the transactions
contemplated hereby.
(m)
Construction. The Parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent
or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions
of
this Agreement. Any reference to any Federal, state or local statute or law
shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. The word “including” shall
mean including without limitation. The Parties intend that each representation,
warranty, and covenant contained herein shall have independent significance.
If
any Party has breached any representation, warranty, or covenant contained
herein in any respect, the fact that there exists another representation,
warranty, or covenant relating to the same subject matter (regardless of the
relative levels of specificity) which the Party has not breached shall not
detract from or mitigate the fact that the Party is in breach of the first
representation, warranty, or covenant.
(n)
Incorporation of Exhibits and Schedules. The Exhibits and Schedules identified
in this Agreement are incorporated herein by reference and made a part
hereof.
(o) Submission
to Jurisdiction. Each of the Parties submits to the jurisdiction of any state
court sitting in Bergen County, New Jersey or Federal court sitting in Newark,
New Jersey in any action or proceeding arising out of or relating to this
Agreement and agrees that all claims in respect of the action or proceeding
may
be heard and determined in any such court. Each of the Parties waives any
defense of inconvenient forum to the maintenance of any action or proceeding
so
brought and waives any bond, surety, or other security that might be required
of
any other Party with respect thereto. Any Party may make service on any other
Party by sending or delivering a copy of the process to the Party to be served
at the address and in the manner provided for the giving of notices in Section
17 (h) above.
IN
WITNESS WHEREOF, each of the undersigned have duly executed this Agreement
the
date first above written.
| AIR BROOK AIRPORT EXPRESS, INC. | LEXTRA MANAGEMENT GROUP, INC. | ||
| By: | By: | ||
|
|
|
||
| Title: President | Title: Chief Executive Officer |
|
AIR
BROOK LIMOUSINE, INC.
|
||
| By: | ||
|
Xxxxxx
X. Xxxxxxxx, President
|
|
|
|
Xxxxxx
X. Xxxxxxxx, individually
|
||
|
Xxxxxxx
X. Xxxxxxxx, individually
|
||
|
Xxxxxxx
Xxxxxxxx, individually
|
SCHEDULE
A
|
Address
|
Number
of Company Shares Owned
|
|||
|
Xxxxxx
X. Xxxxxxxx
|
000
Xxxx Xxxxxxx Xxxxxx
|
1,010,000
Shares
|
||
|
Xxxxxxxx
Xxxx, XX 00000
|
||||
|
Air
Brook Limousine, Inc.
|
000
Xxxx Xxxxxxx Xxxxxx
|
127,422
Shares
|
||
|
Xxxxxxxx
Xxxx, XX 00000
|
||||
|
Xxxxxxx
X. Xxxxxxxx
|
000
Xxxx Xxxxxxx Xxxxxx
|
27,850
Shares
|
||
|
Xxxxxxxx
Xxxx, XX 00000
|
||||
|
Xxxxxxx
Xxxxxxxx
|
000
Xxxx Xxxxxxx Xxxxxx
|
125
Shares
|
||
|
Xxxxxxxx
Xxxx, XX 00000
|
||||
|
Total:
|
1,165,397
Shares
|
EXHIBIT
A
Escrow
Agreement
(See
Attached)
