EXHIBIT 10.1
PREFERRED STOCK PURCHASE AGREEMENT
----------------------------------
This Preferred Stock Purchase Agreement (this "Agreement") is dated
as of June 20, 2005 between Signature Combs, Inc., a Delaware corporation (f/k/a
AMR Combs, Inc.) (the "Seller"), and Aerospace Products International Inc., a
Delaware corporation (f/k/a Aircraft Parts International Combs, Inc.) (the
"Purchaser").
RECITALS
--------
WHEREAS, the Seller is the owner of 10,406.66 shares of Series A
Cumulative Convertible Preferred Stock, $0.001 par value (the "Preferred Stock")
issued by Purchaser to Seller pursuant to a Stock Purchase Agreement dated as of
March 5, 1997 (the "Stock Purchase Agreement"); and
WHEREAS, the Purchaser desires to purchase and the Seller desires to
sell all rights, title, and interest in the Preferred Stock, in accordance with
the terms and conditions set forth herein.
AGREEMENT
---------
NOW THEREFORE, in consideration of the mutual promises herein set
forth and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE PREFERRED STOCK
Section 1.1 Purchase and Sale.
(a) Subject to the terms and provisions set forth in this Agreement,
the Purchaser irrevocably purchases from Seller, and the Seller hereto
irrevocably sells, transfers, assigns and conveys to the Purchaser all of
the Seller's rights, title and interest in and to the Preferred Stock.
Section 1.2 Purchase Price and Payment of Purchase Price.
(a) Purchase Price. The aggregate purchase price for the Preferred
Stock is Five Hundred Thousand Dollars ($500,000) (the "Purchase Price").
(b) Payment of Purchase Price. The Purchase Price shall be paid to the
Seller at the Closing (as defined below), in immediately available funds
via bank wire transfer to the account of the Seller identified in Schedule
I.
Section 1.3 Closing Deliveries. At the Closing, the Seller shall
deliver to the Purchaser, duly executed copies of this Agreement, the original
Preferred Stock Certificate endorsed on the reverse side (or an Affidavit of
Lost Stock Certificate reasonably acceptable to Purchaser in the form of
Schedule IV), along with an executed Endorsement in the form of Schedule II, and
an Assignment with respect to the Preferred Stock shares in the form of Schedule
III to effectuate the transactions contemplated hereby. The Seller shall
immediately deliver to the Purchaser such Certificate (or Affidavit),
Endorsement and Assignment and take all such other actions as may be required to
fulfill the purposes of this Agreement. The Purchaser shall immediately deliver
to the Seller an executed copy of this Agreement and the Purchase Price and take
all such other actions as may be required to fulfill the purposes of this
Agreement.
Section 1.4 Closing. The closing of the transaction contemplated
hereby (the "Closing"), shall take place at the offices of First Aviation
Services Inc., 15 Riverside Avenue, Westport, CT 06880, on June 23, 2005, or at
such other place and time as may be mutually agreed upon by the parties hereto.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Section 2.1 Purchaser's Representations. The Purchaser hereby
represents and warrants to the Seller as follows:
(a) Organization. The Purchaser is duly formed, validly existing and
in good standing under the laws of the State of Delaware.
(b) Authority Enforceability. The Purchaser has the full power and
authority to enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated
hereby, including the purchase of the Preferred Stock, and has duly
executed and delivered this Agreement. All of the obligations of the
Purchaser hereunder constitute legal, valid and binding obligations of the
Purchaser, enforceable against it in accordance with their terms.
(c) Conflict with Existing Laws or Contracts. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby, and the performance of or compliance by the Purchaser
with the terms and conditions of this Agreement, will not (i) conflict with
or violate any provision of the certificate of incorporation, by-laws or
other organizational documents of the Purchaser, (ii) conflict with or
violate or result in a breach of any of the provisions of, or constitute a
default under, any agreement or instrument in which the Purchaser is a
party or by which the Purchaser or its property is bound, (iii) conflict
with or violate any judgment, order, writ, injunction or decree binding on
the Purchaser or its property or (iv) conflict with or violate any law,
rule, regulation, or ordinance applicable to the Purchaser or its property.
(d) No Approval or Consent Required. No approval, authorization,
order, license or consent of, or registration of filing with, any
governmental authority or regulatory body is required in connection with
the execution, delivery and performance of this Agreement by the Purchaser
and the consummation of the transactions contemplated hereby by the
Purchaser.
2
(e) Financial Statements. Purchaser has furnished Seller with
Purchaser's unaudited balance sheet as of January 31, 2005, and Purchaser's
related unaudited statements of income and cash flows for the year ended
January 31, 2005. Such financial statements are in accordance with the
books and records of Purchaser, fairly present the financial condition of
Purchaser at such dates and the results of its operations for the specified
periods, and were prepared in accordance with generally accepted accounting
principles applied on a basis consistent with prior accounting periods.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Section 3.1 Representations and Warranties by the Seller as to the
Seller. The Seller hereby represents and warrants as follows:
(a) Organization. The Seller is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) Authority; Binding on Seller; Enforceability. The Seller has the
full corporate power and authority to enter into and consummate all
transactions contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby, including the sale of the
Preferred Stock, and has duly executed and delivered this Agreement, and
all the obligations of the Seller hereunder constitute legal, valid and
binding obligations of the Seller, enforceable against the Seller in
accordance with their terms.
(c) Conflict with Existing Laws or Contracts. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby, and the performance of or compliance by the Seller
with the terms and conditions of this Agreement, will not (i) conflict with
or violate any provision of the Seller's organizational documents or
By-laws, (ii) conflict with or violate or result in a breach of any of the
provisions of, or constitute a default under, any agreement or instrument
to which the Seller is a party or by which it or any of its property is
bound, (iii) conflict with or violate any judgment, order, writ, injunction
or decree binding on the Seller or and of its property, or (iv) conflict
with or violate any law, rule, regulation or ordinance applicable to the
Seller or any of its property, except, with respect to clauses (ii) through
(iv) above, as they would not have a material adverse effect on the
Seller's ability to consummate the transactions contemplated hereby.
(d) No Approval or Consent Required. No approval, authorization,
order, license or consent of, or registration or filing with, any
governmental authority or regulatory body is required in connection with
the execution, delivery and performance by the Seller of this Agreement and
the consummation by the Seller of the transactions contemplated hereby.
3
Section 3.2 Representations and Warranties by the Seller as to the
Preferred Stock. The Seller has title to and is the sole owner and holder of the
Preferred Stock, free and clear of any assignment, charge, lien, pledge or
security interest in favor of another person.
ARTICLE IV
TERMINATION OF OBLIGATIONS UNDER PRIOR AGREEMENTS
Section 4.1 Termination of Obligations Under Prior Agreements. The
parties acknowledge and agree that the Preferred Stock was acquired by Seller in
connection with certain transactions involving the following agreements between
the parties hereto (the "Original Transaction Agreements"):
(a) Asset Purchase Agreement dated November 25, 1996;
(b) the Stock Purchase Agreement;
(c) Stockholders Agreement dated March 5, 1997;
(d) Aircraft Parts Purchase Agreement dated March 5, 1997; and
(e) Trade Name and Trademark License Agreement dated March 5, 1997.
The parties acknowledge and agree that, as of the Closing, Seller
will no longer own any of Purchaser's capital stock. As a result, it is agreed,
except as set forth herein below, that as of the Closing (i) the Stockholders
Agreement, Aircraft Parts Purchase Agreement and Tradename and Trademark License
Agreement shall all be considered terminated and of no further force or effect,
(ii) all of the parties' continuing obligations under the Stock Purchase
Agreement, if any, are hereby terminated and of no further force or effect, and
(iii) all of the parties' continuing obligations under the Asset Purchase
Agreement, including, but not limited to, Seller's covenants contained in
Article V of the Asset Purchase Agreement, are hereby terminated and of no
further force or effect. Notwithstanding the foregoing, the Seller's
Indemnification Obligations set forth in Article X, Section 10.01 (b) of the
Stock Purchase Agreement shall remain in full force and effect, but only with
respect to product liability claims asserting injury arising out of asbestosis
or other latent medical conditions. It is further agreed by Seller that
Purchaser has not waived and does not by reason of this Agreement or otherwise
waive any non-contractual common law or statutory claim for indemnity or
contribution which Purchaser might in the future assert against Seller arising
out of a product liability claim of any nature asserted against Purchaser
relating to products sold by Seller.
ARTICLE V
MISCELLANEOUS
Section 5.1 Notices. Unless otherwise provided for herein, all
notices and other communications required or permitted hereunder shall be in
writing and shall be deemed to have been duly given (a) when delivered, if sent
by registered or certified mail (return receipt requested), (b) when delivered
4
personally, (c) when transmitted if sent by facsimile if a confirmation of
transmission is produced by the sending machine (and a copy of each facsimile
shall be sent promptly thereafter by overnight courier, if sent by express mail
or overnight courier, in each case to the parties at the following addresses or
facsimile numbers (or at such other addresses or facsimile numbers as shall be
specified by like notice):
(a) If to Seller, at
BBA Aviation Services Group
201 South Orange Avenue, Suite 1425
Orlando, FL 32801
Attention: Mr. Robert Frese, VP
Telecopy: (407) 206-5357
with copies to:
BBA Aviation Shared Services, Inc.
201 South Orange Avenue, Suite 1209
Orlando, FL 32801
Attention: Joe Goldstein, Esq., General Counsel
Telecopy: (407) 648-7352
(b) If to the Purchaser, at:
First Aviation Services, Inc.
15 Riverside Avenue
Westport, CT 06880
Attention: Robert Costantini, SVP
Telecopy: (203) 291-7730
with copies to:
Weil Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention: Frederick Green, Esq.
Telecopy: (212) 310-8007
The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice.
Section 5.2 Severability. Each part of this Agreement is intended to
be severable. If any term, covenant, condition or provision hereof is unlawful,
invalid, or unenforceable for any reason whatsoever, and such illegality,
invalidity, or unenforceability does not affect the remaining parts of this
Agreement, then all such remaining parts hereof shall be valid and enforceable
and have full force and effect as if the invalid or unenforceable part had not
been included.
5
Section 5.3 Rights Cumulative; Waivers. The rights of each of the
parties under this Agreement are cumulative and may be exercised as often as any
party considers appropriate. The rights of each of the parties hereunder shall
not be capable of being waived or varied otherwise than by any express waiver or
variation in writing. Failure to exercise or any delay in exercising any of such
rights also shall not operate as a waiver or variation of that or any other such
right. Defective or partial exercise of any of such rights shall not preclude
any other or further exercise of that or any other such right. No act or course
of conduct or negotiation on the part of any party shall in any way preclude
such party from exercising any such right or constitute a suspension or any
variation of any such right.
Section 5.4 Headings. The headings contained in this Agreement are
inserted for convenience only and shall not affect the meaning or interpretation
of this Agreement or any provision hereof.
Section 5.5 Construction.
(a) The terms "hereby", hereof" hereto", "hereunder", and any similar
terms shall refer to this Agreement, and the terms "hereafter" shall mean
after, and the term "heretofore" shall mean before, the date of this
Agreement.
(b) Words of the masculine, feminine or neuter gender shall mean and
include the correlative words of other genders, and words importing the
singular numbers shall mean and include the plural number and vice versa.
(c) Words important persons shall include firms, associations,
partnerships, corporations and other legal entities, including public
bodies, as well as natural persons.
(d) The terms "include", including" and similar terms shall be
construed as if followed by the phrase "without limitation."
Section 5.6 Assignment. This Agreement and the terms, covenants,
conditions, provisions, obligations, undertakings, rights and benefits hereof,
including the Schedules hereto, shall be binding upon, and shall inure to the
benefit of the undersigned parties and their respective heirs, executors,
administrators, representatives, successors, and assigns.
Section 5.7 Prior Understandings; Integrated Agreement. This
Agreement supersedes any and all prior discussions and agreements between the
Seller and the Purchaser with respect to the purchase of the Preferred Stock and
other matters contained herein, and this Agreement (including the Schedules
hereto) contains the sole, final and complete expression and understanding
between the Seller and the Purchaser with respect to the transactions
contemplated herein. This Agreement shall not be altered or modified except by a
subsequent writing, signed by the Purchaser and the Seller.
Section 5.8 Counterparts; Facsimile Signature. This Agreement may be
executed in any number of counterparts, each of which shall constitute one and
the same instrument, and any party hereto may executed this Agreement by signing
any such counterpart. This Agreement may be executed by facsimile signature,
which shall be deemed to be on original signature.
6
Section 5.9 Survival. Each and every representation and warranty and
covenant hereinabove made by the Seller or the Purchaser shall survive the
Closing and shall not merge into any document executed as part of Closing, but
instead shall be independently enforceable except to the extent expressly
limited in this Agreement.
Section 5.10 Governing Law. This Agreement shall be construed, and
all the rights and obligations of the Seller and the Purchaser hereunder
determined, in accordance with the internal laws of the State of Delaware
without reference to conflicts of principles law as though made and performed
entirely within that state. Any lawsuit or claim arising out of or related to
the making or performance of this Agreement shall be resolved in the federal or
state courts in and of the State of Delaware; the parties each hereby agrees to
submit to the exclusive jurisdiction of such courts, and hereby waives any
defenses or motions based upon inconvenient or improper forum. Should any party
institute any action or proceeding to enforce this Agreement or any provision
hereof, or for damages by reason of any alleged breach of this Agreement or of
any provision hereof, or for a declaration of rights hereunder, the prevailing
party in any such action or proceeding shall be entitled to receive from the
other party all costs and expenses, including reasonable attorneys' fees,
incurred by the prevailing party in connection with each separate cause of
action asserted in such action or proceeding.
Section 5.11 No Third Party Beneficiaries. No person, firm or other
entity other than the parties hereto and their permitted successors and assigns
shall have any rights or claims under this Agreement.
Section 5.12. Mutual Releases.
(a) Release of Seller. Purchaser, for itself and its legal
representatives and assigns, hereby releases and forever discharges Seller,
and all of Seller's officers, directors, shareholders, employees, agents,
affiliates, successors and assigns, of and from all claims, demands,
actions and causes of action of any kind or nature at law or in equity,
based upon (i) Seller's status as a shareholder of Purchaser, or (ii) any
prior contracts or agreements between the parties relating to the Original
Transaction Agreements. This release applies to all past and existing
claims relating to such matters.
(b) Release of Purchaser. Seller, for itself and its legal
representatives and assigns, hereby releases and forever discharges
Purchaser, and all of Purchaser's officers, directors, shareholders,
employees, agents, affiliates, successors and assigns, of and from all
claims, demands, actions and causes of action of any kind or nature at law
or in equity, based upon (i) Seller's status as a shareholder of Purchaser,
or (ii) any prior contracts or agreements between the parties relating to
the Original Transaction Agreements. This release applies to all past and
existing claims relating to such matters.
Section 5.13 Indemnifications. Purchaser agrees to indemnify and hold
harmless Seller or Seller's successors or assigns for all losses, damages,
liabilities and claims, and all fees, costs and expenses of any kind (including,
without limitation, any and all attorneys' fees) related to, arising out of,
based upon or resulting from the falseness of any of its representations and
warranties contained in Article II. Seller agrees to indemnify and hold harmless
Purchaser or Purchaser's successors or assigns for all losses, damages,
liabilities and claims, and all fees, costs and expenses of any kind (including,
without limitation, any and all attorneys' fees) related to, arising out of,
based upon or resulting from the falseness of any of its representations and
warranties contained in Article III.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
SELLER:
SIGNATURE COMBS, INC.
(f/k/a AMR Combs, Inc.)
By: /s/ Elizabeth A. Haskins
-----------------------------------------
Name: Elizabeth A. Haskins
Title: President
PURCHASER:
AEROSPACE PRODUCTS INTERNATIONAL, INC.
(f/k/a Aircraft Parts International Combs, Inc.)
By: /s/ Michael C. Culver
-----------------------------------------
Name: Michael C. Culver
Title: Chairman of the Board
8
Schedule I
----------
WIRE TRANSFER INSTRUCTIONS
JPMorgan Chase Bank
4 New York Plaza
New York, New York 10015
To the account of Signature Flight Support Corporation
Account Number: 400932997
ABA: 021000021
Swift Code (International): CHASUS33
Schedule II
-----------
ENDORSEMENT
The undersigned, Signature Combs, Inc., a Delaware corporation (f/k/a AMR Combs,
Inc.), hereby surrenders to Aerospace Products International, Inc., a Delaware
corporation (f/k/a Aircraft Parts International Combs, Inc.) ("API") the
Preferred Stock Certificate Number [PA 2] issued to it on February 24, 1998 by
API in the amount of 10,406.66 shares, a copy of which is attached hereto.
Dated: June 20, 2005 SIGNATURE COMBS, INC.
By:
-------------------------------
Elizabeth A. Haskins, President
Schedule III
ASSIGNMENT
FOR VALUE RECEIVED, receipt of which is hereby acknowledge, the
undersigned hereby sells, assigns, and transfers unto the AEROSPACE PRODUCTS
INTERNATIONAL, INC., a Delaware corporation (f/k/a Aircraft Parts International
Combs, Inc.) ("API"), all of the rights of the undersigned to 10,406.66 shares
of Series A Cumulative Convertible Preferred Stock of API, which is represented
by API's Preferred Stock Certificate Number [PA 2].
The undersigned does hereby irrevocably constitute and appoint Robert
G. Costantini, Esq., Secretary of API, to make such transfer on the books of
API, maintained for that purpose, with full power of substitution in the
premises.
Dated: June 20, 2005 SIGNATURE COMBS, INC.
By:
-----------------------------------
Elizabeth A. Haskins, President
Schedule IV
-----------
AFFIDAVIT FOR LOST, STOLEN, DESTROYED
STOCK CERTIFICATE FORM
We hereby declare that we are the legal and beneficial owner of 10,406.66 shares
of preferred stock of Aerospace Products International Inc. represented by
certificate number PA 2, issued in the name of AMR Combs, Inc.
We are not in possession of the preferred stock certificate, cited above, and we
have no knowledge of its location. We have not assigned, hypothecated, pledged,
or in any other way disposed of either the stock certificates or our rights as a
stockholder, in whole or in part. We are entitled to full and exclusive
possession of said certificates.
We request that the Secretary of Aerospace Products International Inc., act as
our agent or attorney-in-fact, to cancel the above cited stock certificate and
for value received, we hereby sell, assign and transfer unto Aerospace Products
International Inc. the shares of capital stock represented by the certificate
cited above. If the original stock certificate is located we agree that it has
no value and to forward it to the Secretary of Aerospace Products International
Inc., for physical cancellation.
We agree to hold harmless Aerospace Products International Inc., for any future
liability regarding this action and to reimburse Aerospace Products
International Inc., for any and all monetary loss or expenses as a result of
this action.
Dated: June 20, 2005 SIGNATURE COMBS, INC.
By:
--------------------------------
Elizabeth A. Haskins, President
- --------------------------------------------------------------------------------
STATE OF______________________
COUNTY OF ____________________
Subscribed and sworn to before me, this _______ day of ______________, 2005,
by the personal appearance before me of: ______________________________________
_______________________________________ ___________________________
Notary Public My Commission Expires:
- --------------------------------------------------------------------------------