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EXHIBIT 2.4
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made and entered into as of the 19th
day of November, 1998 but to be made effective as of October 1, 1998, by and
among AMERICAN JET ENGINE SERVICES, INC., a Florida corporation (the
"Seller"),d/b/a "Amjet, Inc.," ANTON K. KHOURY and HANNA K. KHOURY (collectively
referred to as "Shareholders") and AMERICAN AIRCARRIERS SUPPORT ACQUISITION II
CORP. (the "Purchaser"), a Florida Subsidiary of AMERICAN AIRCARRIERS SUPPORT,
INCORPORATED, a Delaware corporation ("AASI").
W I T N E S S E T H:
WHEREAS, the Seller is engaged in the business of maintenance and
overhaul of aircraft parts and engines to commercial and cargo airlines, and
aircraft engine leasing and sales companies.
WHEREAS, the Shareholders own one hundred percent (100%) of the
outstanding shares of Seller.
WHEREAS, the Seller desires to sell and the Purchaser desires to
purchase substantially all the operating assets and properties used in the
business operations of Seller for cash and certain stock in AASI.
NOW, THEREFORE, the parties hereto agree that the purpose of this
Agreement is to set forth the terms and conditions upon which the Seller has
agreed to sell to the Purchaser certain of its business and assets; and the
Purchaser has agreed to purchase and pay for such business and assets; and
furthermore, the Seller and the Purchaser in consideration of the premises and
the mutual agreements contained herein, do hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
Section 1.1 Assets to be Purchased and Sold.
(a) Description of Assets. At the Closing (as defined in Section 1.2),
the Seller shall sell and convey to the Purchaser, and the Purchaser shall
purchase and acquire from the Seller, substantially all the business and assets
of the Seller existing and owned by the Seller or used by the Seller in Seller's
business
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on the Closing Date (as defined in Section 1.2) relating to Seller's business,
other than the Excluded Assets (as defined in Section 1.1(b)). The assets of the
Seller to be purchased hereunder (which shall not include the Excluded Assets)
are referred to herein as the "Subject Assets," and shall include without
limitation:
(i) all the Seller's inventory described on Exhibit 1.1(a)(i);
(ii) all the Seller's rights to prepaid license fees,
deposits, prepaid lease expenses and other rights acquired under any
leases, other than Excluded Assets (the "Prepaid Expenses"). The Seller
shall prepare a detailed listing of such Prepaid Expenses as of the
Closing Date which shall be included as Exhibit 1.1(a)(ii) hereto;
(iii) all furniture, fixtures, furnishings, tools, equipment,
supplies, parts, accessories, inventories, machinery, shelving,
computer equipment, signage, and other tangible personal property of
the Seller other than Excluded Assets (the "Tangible Property"),
including without limitation the items of Equipment and other Tangible
Property described on Exhibit 1.1(a)(iii) hereto and any additions or
accessions thereto or substitutions therefor or proceeds thereof;
(iv) all rights of the Seller under all contracts, service
agreements, advertising agreements, sales contracts, customer orders,
leases, licenses, and agreements other than Excluded Assets (the
"Contracts"), including without limitation the Seller's rights existing
on the Closing Date under the Contracts described or referred to in
Exhibit 1.1(a)(iv) hereto and Seller and Purchaser shall execute a bill
of sale and assignment and assumption agreement to this extent;
(v) (A) all rights of the Seller in the name "American Jet
Engine Services, Inc." or its d/b/a Amjet, Inc. and any trademarks,
tradenames or service marks, and all registrations thereof and pending
applications therefor, in connection therewith (the "Name"), and (B)
all other tradenames, trademarks, service marks, copyrights, licenses,
proprietary rights and technology, patents and registrations
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thereof or applications therefor, and trade secrets, secret processes
(whether or not patentable), supplies and vendor lists, customer lists,
software, inventions (whether or not patentable), formulae and other
property belonging to, used in or appertaining to the Seller's Subject
Assets, all as described on Exhibit 1.1(a)(v) hereto (collectively,
with the Name, the "Intellectual Property");
(vi) books, records, ledgers, files, documents,
correspondence, lists, prints, plans, drawings, and specifications,
creative materials, advertising and promotional materials, studies,
reports, and other printed or written materials directly related to
Seller's business other than Excluded Records (as defined in subsection
1.1(b)(ii) (the "Records");
(vii) all the Seller's federal, state and local governmental
permits, licenses, and approvals required for the conduct of its
business (or held with respect to the assets and operations of the
business of the Seller) shall be included on Exhibit 1.1(a)(vii)
hereto, and Seller shall make an assignment thereof to the Purchaser to
the extent such assignment is permitted by applicable law (the
"Licenses");
(viii) all the Seller's work-in-process; and
(ix) all accounts receivables owned by Seller at Closing and
listed on Exhibit 1.1(a)(ix).
(b) Excluded Assets. The assets to be purchased and sold hereunder, and
the term "Subject Assets" as used herein, shall not include the following assets
of the Seller existing on the Closing Date (the "Excluded Assets"):
(i) The Seller's cash balances as of Closing and any passive
investments of Seller as identified on Exhibit 1.1(b)(i).
(ii) The Seller's corporate minute books, stock records and
income tax records, and other records of the Seller relating
exclusively to Excluded Assets (the "Excluded Records"), however with
regard to tax return and financial statement information, Purchaser
shall have access to such
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information, including all accounting work papers, for the last three
(3) years to the extent the same are related to the Seller's business
being acquired hereunder as may be periodically requested;
(iii) The Seller's tax prepayments listed on Exhibit
1.1(b)(iii).
(iv) The personal property listed on Exhibit 1.1(b)(iv).
Section 1.2 Closing Date. The closing date (the "Closing Date") shall
be November 19, 1998, or such other date as may be mutually agreed to by the
parties. The closing of this transaction (the "Closing") shall be held at the
offices of Homer & Bonner, P.A., Miami, Florida, or such other place as the
parties may mutually agree. At the Closing, subject to the fulfillment or waiver
of the conditions set forth in Article V, the Seller shall convey the Subject
Assets to the Purchaser by appropriate instruments of transfer and the Purchaser
shall pay to the Seller the Purchase Price as provided in Sections 1.3 and 1.4.
Section 1.3 Purchase Price. The final purchase price, subject to any
working capital adjustments set forth on Exhibit 1.3, to be paid to the Seller
for the Subject Assets (the "Purchase Price") shall be an amount equal to Twelve
Million Four Hundred Fifty Thousand Dollars ($12,450,000.00).
Section 1.4 Payment of Purchase Price. The Purchase Price shall be
payable by the Purchaser in cash or cash equivalent as well as Purchaser's stock
at Closing. The cash/stock allocation shall be $8,700,000.00 and 625,000 shares
of AASI stock. Any stock received shall be subject to restraints on both timing
and quantities of shares to be sold as set forth on Exhibit 1.8.
Section 1.5 No Liabilities Assumed; Liabilities of the Purchaser After
Closing. The Purchaser is not assuming any of the Seller's liabilities or
obligations, whether known or unknown, contingent or realized, except all trade
and accounts payable as of the Closing. Exhibit 1.5(a) lists all trade and
accounts payable over $1,000 and other assumed liabilities. Provided, however,
all liabilities incurred after the Closing in connection with the Purchaser's
operations after the Closing shall be liabilities of the Purchaser. However,
Purchaser shall be responsible for payment
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of all premiums and deductibles under Purchaser's Aviation Products and
Grounding Liability Insurance as set forth in the policy attached hereto as
Exhibit 1.5(b), naming as beneficiaries the Seller and the Shareholders, in the
amount of $25,000,000 for any product liability claims that may occur. Purchaser
agrees to keep in place this policy or one similar in scope and monetary
coverage for 3 years. Seller and Shareholder agree to provide Purchaser with
reasonable assistence with any disputed assumed liabilities, including without
limitation numbers 1, 3, and 4 as listed on Exhibit 1.5.
Section 1.6 Allocation of Purchase Price. The Purchase Price described
in Section 1.3 above will be allocated among the Subject Assets as described on
Exhibit 1.6. The Purchaser and the Seller each agrees that it will adopt and
utilize the amounts so allocated on Exhibit 1.6 for purposes of all federal,
state and other tax returns filed by it and will not voluntarily take any
position inconsistent therewith upon examination of any such tax return, in any
claim, in any litigation or otherwise with respect to such tax returns.
Notwithstanding any other provisions of this Agreement, the foregoing
representation, warranty and agreement shall survive the Closing Date without
limitation.
Section 1.7 Status of Stock Issued. The shares of AASI stock to be
issued to the Seller will be "Restricted Stock" and will not have been
registered under the Securities Act of 1933, as amended, or under any laws of
any state, and will bear the following legend in addition to any other legends
required by state law or by other agreements executed contemporaneously
herewith:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR ANY
STATE SECURITIES ACT, AND ARE "RESTRICTED SECURITIES" WITHIN
THE MEANING OF SUCH ACTS. THE SHARES MAY NOT BE SOLD,
TRANSFERRED, HYPOTHECATED OR OTHERWISE DISTRIBUTED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION UNDER SUCH ACTS OR THE
RECEIPT OF AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER
THAT SUCH REGISTRATION IS NOT REQUIRED.
Section 1.8 Registration Rights. AASI shall file a Registration
Statement with the Securities and Exchange Commission registering the shares of
stock issued to the Seller upon request
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of the Seller after July 1, 1999, and shall use its best efforts to cause the
Registration Statement to be filed not more than six months after the date of
such request and to become effective as soon as practicable thereafter.
Furthermore, Purchaser shall maintain such effectiveness for a period of one
year or for such time-frame as is required before the shares have met all of the
Rule 144 holding periods in order to be freely transferable. Purchaser shall pay
all expenses incident to such Registration Statement, except for any commissions
or taxes related to the sale of the shares thereunder. Such registration rights
shall be in accordance with, and subject to, the terms and provisions of the
form of Registration Rights Agreement attached as Exhibit 1.8 hereto.
Notwithstanding anything in this paragraph to the contrary, any shares not sold
pursuant to a registration statement shall continue to have "piggy back" rights
set forth in Exhibit 1.8.
Section 1.9 Board of Directors of AASI. After November 19, 1998, AASI
shall create one seat on its Board of Directors for one of the shareholders and
will invite the non-director/shareholder to attend all Board of Director's
meetings as the Board of Directors' special guest. The Board of Directors will
support the nomination of one shareholder to the Board of Directors for a
two-year term, and will then nominate the non-director/shareholder to the Board
of Directors for the following two-year term, with such two-year rotation to
continue unless otherwise requested, in writing, by both shareholders. AASI will
first nominate Anton K. Khoury to the Board of Directors, and the two-year
rotation will begin as of AASI's annual meeting in June 1999.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER AND SHAREHOLDERS
To induce the Purchaser and AASI to enter into this Agreement and to
purchase the Subject Assets, the Seller and Shareholders, jointly and severally,
represent and warrant that the statements contained in this Article II are
correct and complete as of the Closing Date, except as set forth in the
disclosure schedule accompanying this Agreement and initialed by the Parties
(the "Disclosure Schedule").
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Section 2.1 Organization of the Seller. The Seller is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation. These representations and warranties shall
survive five (5) years from the date of the Closing.
Section 2.2 Subsidiaries and Foreign Qualification.
(a) Subsidiary. The Seller has no subsidiaries and no other equity
investments in any other corporation, partnership, joint ventures or other
business entity.
(b) Foreign Qualification. The Seller has qualified to transact
business as a foreign corporation in the following jurisdictions as indicated on
Exhibit 2.2, and the nature and location of the Seller's business and assets is
such that no further qualification is required. These representations and
warranties shall survive five (5) years from the date of the Closing.
Section 2.3 Authorization of Transaction. The Seller has full power and
authority (including full corporate power and authority) to execute and deliver
this Agreement and to perform its obligations hereunder. This Agreement
constitutes a valid and legally binding obligation of the Seller and
Shareholders, enforceable in accordance with its terms and conditions. These
representations and warranties shall survive five (5) years from the date of the
Closing.
Section 2.4 Noncontravention. Neither the execution and the delivery of
this Agreement, nor the consummation of the transactions contemplated hereby,
will (i) violate any statute, regulation, rule, judgment, order, decree,
stipulation, injunction, charge, or other restriction of any government,
governmental agency, or court to which the Seller is subject or any provision of
the charter or bylaws of the Seller or (ii) conflict with, result in a breach
of, constitute a default under, result in the acceleration of, create in any
party the right to accelerate, terminate, modify, or cancel, require any notice
under any contract, lease, sublease, license, sublicense, franchise, permit,
indenture, agreement or mortgage for borrowed money, instrument of indebtedness,
security interest, or other arrangements to which the
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Seller is a party or by which it is bound or to which any of its assets is
subject, except with respect to the required third party consents identified on
Section 2.4 of the Disclosure Schedule. Except as set forth in Section 2.16,
Seller does not need to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any governmental or governmental agency
in order for the parties to consummate the transactions contemplated by this
Agreement. These representations and warranties shall survive five (5) years
from the date of the Closing.
Section 2.5 Financial Statements; Books and Records. Seller has
delivered to Purchaser and AASI financial statements of Seller prepared by
Cherry Bekaert & Holland for the year ended December 31, 1997 and August 31,
1998 (together the "Financial Statements"). All of the information provided to
Cherry Bekaert & Holland used to prepare the financial statements is correct and
complete. The Financial Statements present fairly and materially the financial
position of Seller as at such dates and the results of operations for the
periods then ended, except that the Financial Statements are subject to normal
year-end adjustments. To the best of Seller's knowledge, the results of the
Seller, as indicated in the Financial Statements were not dependent in any way
upon, and the income shown therein is not greater than it would have been in the
absence of, any other business in which Seller has an interest and the transfer
of whose assets is not included herein, except for any intercompany transactions
that may have occurred with Global Air Spares, Inc. and Atlantic Airmotive,
Corp.
Except for Exhibit 2.5, none of the records, systems, data or
information of the Seller is recorded, stored, maintained, operated or
otherwise, wholly or partly, dependent on or held or accessible by any means
(including, but not limited to, an electronic, mechanical or photographic
process, computerized or not) which are not under the exclusive ownership and
direct control of the Seller.
The books of account, minute books and other material business
records of the Seller are complete and correct and have been
maintained in accordance with sound business practices. The Seller
has:
(a) made and kept its books, records and accounts, which, in reasonable
detail, accurately and fairly reflect the transactions and dispositions of its
assets, and
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(b) devised and maintained a system of internal accounting control
sufficient to provide reasonable assurances that:
(i) transactions are executed in accordance with
management's general or specific authorization;
(ii) transactions are recorded as necessary (A) to permit
preparation of financial statements in conformity with GAAP (if Seller
were to have used GAAP) or any other criteria applicable to such
statements, and (B) to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with
management's general or specific authorization;
(iv) the recorded accountability for assets as compared with
the existing assets at reasonable intervals and appropriate action is
taken with respect to any differences; and
(v) the accounts/trade payables set forth on Exhibit 1.5 were
incurred in the ordinary course of business and except as set forth on
Exhibit 2.5(b)(v), no disputes exist thereto.
Section 2.6 Absence of Certain Changes or Events . Since September 30,
1998, there has not been any material adverse change in the assets, Liabilities,
business, financial condition, operations, results of operations, or future
prospects of the Seller's business except as occurring in the ordinary course of
business. Without limiting the generality of the foregoing, since that date:
(a) the Seller has not sold, leased, transferred, or assigned any of
its assets, tangible or intangible, used in the business other than for a fair
consideration in the ordinary course of business;
(b) with respect to Seller's business, the Seller has not entered into
any contract lease, sublease, license, or sublicense (or series of related
contracts, leases, subleases, licenses, and sublicenses) either involving more
than $5,000 or outside the ordinary course of business;
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(c) except as set forth on Exhibit 2.6(c), with respect to Seller's
business, no party (including the Seller) has accelerated, terminated, modified,
or canceled any contract, lease, sublease, license, or sublicense (or series of
related contracts, leases, subleases, licenses, and sublicenses) involving more
than $5,000 to which the Seller is a party or by which it is bound subject to
the limitations set forth in section 2.12;
(d) the Seller has not imposed any security interest upon any of its
assets, tangible or intangible;
(e) with respect to Seller's business, the Seller has not made any
capital expenditure (or series of related capital expenditures) either involving
more than $5,000 or outside the ordinary course of business;
(f) with respect to Seller's business, the Seller has not made any
capital investment in, any loan to, or any acquisition of the securities or
assets of any other person (or series of related capital investments, loans, and
acquisitions) either involving more than $5,000 or outside the ordinary course
of business;
(g) with respect to Seller's business, the Seller has not created,
incurred, assumed, or guaranteed any indebtedness (including capitalized lease
obligations) either involving more than $5,000 or outside the ordinary course of
business;
(h) with respect to Seller's business, the Seller has not delayed or
postponed (beyond its normal practice) the payment of accounts payable and other
Liabilities;
(i) with respect to Seller's business, the Seller has not canceled,
compromised, waived, or released any right or claim (or series or related rights
and claims) either involving more than $5,000 or outside the ordinary course of
business;
(j) with respect to Seller's business, the Seller has not granted any
license or sublicense of any rights under or with respect to any Intellectual
Property;
(k) there has been no change made or authorized in the charter or
bylaws of the Seller other than those contemplated herein;
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(l) with respect to Seller's business, the Seller has not experienced
any damage, destruction, or loss (whether or not covered by insurance) to its
property;
(m) with respect to Seller's business, the Seller has not made any loan
to, or entered into any other transaction with, any of its directors, officers,
and employees outside the ordinary course of business giving rise to any claim
or right on its part against the person or on the part of the person against it;
(n) with respect to Seller's business, the Seller has not entered into
any employment contract or collective bargaining agreement, written or oral, or
modified the terms of any existing such contract or agreement;
(o) except as set forth in Exhibit 2.6(o), with respect to Seller's
business, the Seller has not granted any increase outside the ordinary course of
business in the base compensation of any of its directors, officers, and
employees;
(p) with respect to Seller's business, the Seller has not adopted any
(i) bonus, (ii) profit-sharing, (iii) incentive compensation, (iv) pension, (v)
retirement, (vi) medical, hospitalization, life, or other insurance, (vii)
severance, or (viii) other plan, contract, or commitment for any of its
directors, officers, and employees, or modified or terminated any existing such
plan, contract, or commitment;
(q) with respect to Seller's business, the Seller has not made or
pledged to make any charitable or other capital contribution outside the
ordinary course of business;
(r) with respect to Seller's business, the Seller has not delayed
payment of any amount to any third party with respect to any Liability or
obligation (including any costs and expenses the Seller has incurred or may
incur in connection with this Agreement or any of the transitions contemplated
hereby); and
(s) with respect to Seller's business, there has not been any other
occurrence, event, incident, action, failure to act, or transaction outside the
ordinary course of business involving the Seller.
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Section 2.7 Undisclosed Liabilities. Except as set forth on Exhibit
2.7, with respect to the Seller's business, the Seller has no Liability (and
there is no basis for any present or future charge, complaint, action, suit,
proceeding, hearing, investigation, claim or demand against any of them giving
rise to any Liability), except for (i) Liabilities set forth on the face of the
September 30, 1998 Balance Sheet and (ii) Liabilities which have arisen after
September 30, 1998 in the ordinary course of business (none of which relates to
any breach of contract, breach of warranty, tort, infringement, or violation of
law or arose out any charge, complaint, action, suit, proceeding, hearing,
investigation, claim, or demand).
Section 2.8 Tax Matters.
(a) The Seller has filed all tax returns that it was required to file.
All taxes owed by the Seller (whether or not shown on any tax return) have been
paid. The Seller currently is not the beneficiary of any extension of time
within which to file any tax return. No claim has ever been made by an authority
in a jurisdiction where the Seller does not file tax returns that it is or may
be subject to taxation by that jurisdiction. There are no security interests on
any of the assets of any of the Seller that arose in connection with any failure
(or alleged failure) to pay any tax.
(b) The Seller has withheld and paid all taxes required to have been
withheld and paid in connection with amounts paid or owing to any employee,
creditor, independent contractor, or other third party.
(c) No officer (or employee responsible for tax matters) of the Seller
expects any authority to assess any additional taxes for any period for which
tax returns have been filed. There is no dispute or claim concerning any tax
liability of the Seller either (i) claimed or raised by any authority in writing
or (ii) as to which any of officers (and employees responsible for tax matters)
of the Seller has knowledge based upon personal contact with any agent of such
authority.
(d) All ad valorem property taxes for 1998 and all years prior to 1998
imposed on the Seller with respect to, or which may become a lien on, the
Subject Assets have been paid in full.
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Section 2.9 Furniture, Equipment, Etc. The Seller has good and
marketable title to the Tangible Property, free and clear of all liens, charges,
security interests, easements, reservations, restrictions, encumbrances and
other defects in title (collectively, "Encumbrances"), has the right to convey
such Tangible Property to the Purchaser, at the Closing shall have conveyed to
the Purchaser good and marketable title to such Tangible Property free and clear
of all Encumbrances, and will warrant and defend the title to such Tangible
Property in the Purchaser against the lawful claims of all persons whomsoever.
Except as set forth in Section 2.9 of the Disclosure Schedule, none of
the Tangible Property is leased by the Seller from any other party. There is no
default under the leases described on Section 2.9 of the Disclosure Schedule and
such leases are valid and enforceable in accordance with their terms.
All Tangible Property is in good operating condition and repair,
ordinary wear and tear excepted.
The Purchaser has had reasonable opportunity to inspect all Tangible
Property and to conduct due diligence on the Tangible Property.
Section 2.10 Inventory. The Seller has good and marketable title to the
Inventory described on the September 30, 1998 Balance Sheet and listed on
Exhibit 1.1(a)(i), free and clear of all Encumbrances, has the right to convey
such Inventory to the Purchaser, at the Closing will convey to the Purchaser
good and marketable title to such Inventory, free and clear of all Encumbrances,
and will warrant and defend the title to such Inventory in Purchaser against the
lawful claims of all persons whomsoever.
The level of Inventory at Closing will not vary materially from that
shown on September 30, 1998 Balance Sheet and will not exceed normal inventory
levels necessary to conduct the Seller's business in the ordinary course of the
Seller's business. The Purchaser has had reasonable opportunity to inspect this
inventory and to conduct due diligence on this inventory.
Section 2.11 Intellectual Property. The Seller has exclusive
rights to use the Intellectual Property described on Exhibit 2.11
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in connection with its business as and where now conducted and the use of the
Intellectual Property by the Seller in its business as and where now conducted
does not violate or infringe the rights of any other person, nor is the Seller a
party to any agreement with any other person or entity with respect to the use
of the Intellectual Property.
Section 2.12 Contracts. With respect to Seller's business, Exhibit
1.1(a)(iv) lists the following contracts, agreements, and other written
arrangements to which the Seller is a party:
(a) any written arrangement for the lease of personal property from or
to third parties providing for lease payments;
(b) any written on-going arrangement for the purchase or sale of raw
materials, commodities, supplies, products, or other personal property or for
the furnishing or receipt of services;
(c) any written arrangement concerning a partnership or joint venture;
(d) any written arrangement under which it has created, incurred,
assumed, or guaranteed (or may create, incur, assume, or guarantee) indebtedness
(including capitalized lease obligations) or under which it has imposed (or may
impose) a security interest on any of its assets, tangible or intangible;
(e) any written arrangement concerning confidentiality or competition;
(f) any written arrangement involving any of the Seller's stockholders
and its affiliates;
(g) any written arrangement with any of its directors, officers, and
employees in the nature of a collective bargaining agreement, employment
agreement, or severance agreement;
(h) to the Seller's knowledge, any written arrangement under which the
consequences of a default or termination could have an adverse effect on the
assets, Liabilities, business, financial condition, operations, results of
operations, or future prospects of Seller's business; or
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(i) any other written arrangement either involving more than $5,000 or
not entered into in the ordinary course of business.
The Seller has delivered to the Purchaser and AASI a correct and
complete copy of each written arrangement listed in Exhibit 1.1(a)(iv). With
respect to each Contract: (i) the written arrangement is legal, valid, binding,
enforceable, and in full force and effect; (ii) the written arrangement will
continue to be legal, valid, binding, and enforceable and in full force and
effect on identical terms following the Closing; (iii) no party is in breach or
default, and no event has occurred which with notice or lapse of time would
constitute a breach or default or permit termination, modification, or
acceleration, under the written arrangement; and (iv) no party has repudiated
any provision of the written arrangement. The Seller is not a party to any
verbal contract, agreement, or other arrangement, which, if reduced to written
form, would be required to be listed in Exhibit 1.1(a)(iv) under terms of this
Section 2.12. The contracts and arrangements on Exhibit 1.1(a)(iv) constitute
all of the agreements, contracts, arrangements and rights necessary to conduct
the Seller's business as it is presently conducted and presently proposed to be
conducted. Seller discloses that all contracts for work-in-process are subject
to a hold at the direction of the customer; however, Seller represents that
Seller has not taken as a credit a deposit for work-in-process without having
completed the corresponding amount of work on the contract.
To Seller's knowledge, no filled customer order or commitment of the
Seller's business obligating the Seller to process, manufacture, or deliver
products or perform services will result in a loss to the Seller upon completion
of performance. No purchase order or commitment of the Seller with respect to
Seller's business is in excess of normal requirements, nor are prices provided
therein in excess of current market prices for the products or services to be
provided thereunder. To Seller's knowledge, no supplier of the Seller has
indicated within the past year that, with respect to Seller's business, it will
stop, or decrease the rate of, supplying materials, products, or services to
them and no customer of the Seller has indicated within the past year that it
will stop, or decrease the rate of, buying materials, products, or services from
it.
Section 2.13 Software and Information Systems.
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(a) Section 2.13 of the Disclosure Schedule sets forth an accurate and
complete list and summary description of all the software used in and related to
Seller's business ("Software"). The Software identified on Section 2.13 of the
Disclosure Schedule is all the software necessary for the operation of Seller's
business as it is presently conducted and as presently proposed to be conducted.
Section 2.13 of the Disclosure Schedule identifies or describes (i) Software
which is owned by the Seller and (ii) Software which is licensed to the Seller
by third parties.
(b) Seller does not sell, license, sublicense or otherwise market
Software to third parties and has not entered into any Contract that grants any
third party a license or sublicense in Software. Seller has not entered into any
Contract, other than those Contracts listed on Section 2.13(b) of the Disclosure
Schedule, that restricts Seller's use of Software or that obligates Seller to
maintain, enhance, protect or otherwise take any action with respect to
Software.
(c) Except as is set forth in Section 2.13(c) of the Disclosure
Schedule, all Software that Seller uses includes four digit format for the
indication of the relevant year and, at no additional costs to Purchaser, and
without human intervention, will correctly recognize and correctly process data
and formulas relating to the year 2000 and beyond and provide all such date-
related data and formulas used by other applications in a format that will
permit the correct recognition and processing of data by the other applications.
Seller, except as disclosed in this Section 2.13 is not aware of any year 2000
(Y2K) issues with any major customers and suppliers. However, Seller has not
conducted an independent investigation into such issues with respect to its
major customers and suppliers.
(d) To Seller's knowledge, except as set forth in Section 2.13(d) of
the Disclosure Schedule, there are no defects or errors in the Software, which
defects or errors could materially and adversely affect Purchaser's or any
licensee's use of the Software or the functioning of the Software in accordance
with the specifications for the Software.
Section 2.14 Real Property Leases. With respect to Seller's business,
Section 2.14 of the Disclosure Schedule lists and describes briefly all real
property leased or subleased to the
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Seller. The Seller has described, in sufficient detail, the terms of the leases
and subleases listed in Section 2.14 of the Disclosure Schedule. With respect to
each lease and sublease listed in Section 2.14 of the Disclosure Schedule:
(a) the lease or sublease is legal, valid, binding, enforceable, and in
full force and effect;
(b) no party to the lease or sublease is in breach or default, and no
event has occurred which, with notice or lapse of time, would constitute a
breach or default or permit termination, modification, or acceleration
thereunder;
(c) no party to the lease or sublease has repudiated any provision
thereof;
(d) there are no disputes, oral agreements, or forbearance programs in
effect as to the lease or sublease;
(e) with respect to each sublease, the representations and warranties
set forth in subsections (a) through (e) above are true and correct with respect
to the underlying lease;
(f) the Seller has not assigned, transferred, conveyed, mortgaged,
deeded in trust, or encumbered any interest in the leasehold or subleasehold;
(g) all facilities leased or subleased thereunder have received all
approvals of governmental authorities (including licenses and permits) required
in connection with the operation thereof and have been operated and maintained
in accordance with applicable laws, rules, and regulations; and
(h) all facilities leased or subleased thereunder have received all
approvals of governmental authorities (including licenses and permits) required
in connection with the operation thereof and have been operated and maintained
in accordance with applicable laws, rules, and regulations.
Section 2.15 Accounts Receivable. All accounts receivable of the Seller
with respect to Seller's business are reflected properly on its books and
records, are valid receivables subject to no setoffs or counterclaims, are
presently current and collectible,
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and will be collected in accordance with their terms at their recorded amounts,
subject only to the reserve for bad debts, which is $34,200, set forth on the
face of the September 30, 1998 Balance Sheet as adjusted for the passage of time
in accordance with the past custom and practice of the Seller. In the event that
180 days after Closing there is any account receivable overdue and outstanding
over and above the reserve for bad debt and indemnification limits of Article 6
for which Purchaser seeks indemnification from Seller, then Purchaser shall
notify Seller, in writing, of the specific account receivable and the specific
dollar amount of the deficiency. Seller shall promptly remit payment to
purchaser for the amount of the uncollected accounts receivable (less the
reserve for bad debt and indemnification limits of Article 6). Purchaser shall
then assign and transfer to Seller the uncollected accounts receivable by
execution of appropriate documents. After such assignment to Seller, Seller
shall be entitled to collect for their own account the accounts receivable
assigned by Purchaser to Seller and to take any action in connection with such
accounts receivable that Seller deems reasonable and appropriate, provided that
Seller keep Purchaser informed of Seller's actions, and if Purchaser receives
payment for any such assigned accounts receivable, Purchaser shall promptly
transfer such payments to Seller.
Section 2.16 Licenses. The rights of the Seller under the Licenses
described or referred to in Exhibit 1.1(a)(viii) are valid and enforceable by
the Seller in accordance with their respective terms. Neither the Seller nor the
other parties thereto are in default in any material respects (nor does any
circumstance exist which, with notice or the passage of time or both, would
result in such a default) under the Licenses. The parties further acknowledge
that subsequent to the closing of the instant agreement, Purchaser will be
required, pursuant to 14 C.F.R. ss.145.15 to apply for an amended certificate
pursuant to 14 C.F.R. ss.145.11. Prior to the grant of the amended certificate,
Seller and Purchaser shall act under the Seller's old certificate as may be
legally permissible to continue without interruption the operation of the
Seller. Seller does not make any representation as to the validity of such
arrangement or to the permissible term of such an arrangement.
Section 2.17 Litigation. Section 2.17 of the Disclosure Schedule sets
forth each instance in which the Seller or the
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Shareholders (i) are subject to any unsatisfied judgment, order, decree,
stipulation, injunction, or charge or (ii) are a party to the knowledge of any
officers (and employees with responsibility for litigation matters) of the
Seller or is threatened to be made a party to any charge, complaint, action,
suit, proceeding, hearing, or investigation of or in any court or quasi-judicial
or administrative agency of any federal, state, local, or foreign jurisdiction
or before any arbitrator. None of the charges, complaints, actions, suits,
proceedings, hearings, and investigations set forth in Section 2.17 of the
Disclosure Schedule could result in any adverse change in the assets,
liabilities, business, financial condition, operations, results of operations,
or future prospects of Seller's business. None of the officers or shareholders
(and employees with responsibility for litigation matters) of the Seller have
any reason to believe that any such charge, complaint, action, suit, proceeding,
hearing, or investigation may be brought or threatened against the Seller.
Section 2.18 Employees.
(a) Employee Census. Seller has furnished an accurate employee census,
detailing the Employee's date of hire, salary, benefits and other pertinent
information in Section 2.18 of the Disclosure Schedule. There shall have been no
material increase in any compensation paid or payable to the employees of Seller
unless otherwise disclosed and agreed to by Purchaser. Any increase in
compensation paid or payable to the employees of Seller from September 30, 1998
through Closing is set forth on Section 2.18(a) of the Disclosure Schedule.
(b) No Contracts or Future Contracts. To the Seller's knowledge, Seller
has no employment contracts that cannot be terminated without liability and
further, Seller will not contact any employees to work for Seller after closing
without first obtaining Purchaser's written permission.
(c) Restrictions on Employees. To the Seller's knowledge, no officer or
employee of the Seller is subject to any agreement with any other person or
entity which requires such officer or employee to assign any interest in
inventions or other intellectual property or keep confidential any trade
secrets, proprietary data, customer lists or other business information or which
restricts such officer
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or employee from engaging in competitive activities or solicitation of
customers.
(d) Retention of Employees. Seller has no employment contracts, written
or oral, with any employee of Seller that is not terminable at Seller's
discretion and with no commitment or obligation of severance pay or benefits
except as described in Section 2.18 of the Disclosure Schedule. Seller shall be
responsible for any severance or wrongful termination claims each of these
employees may have and agrees to indemnify Purchaser from the same occurring
prior to the Closing or resulting from any dispute as to a separation bonus with
the Seller. Purchaser shall be responsible for any severance or wrongful
termination claims each of these employees may have and agrees to indemnify
Seller from the same occurring subsequent to the Closing.
(e) Employee Benefits. Section 2.18 of the Disclosure Schedule lists
all employee benefit plans that the Seller maintains or to which the Seller
contributes for the benefit of any current or former employee of the Seller
("Employee Benefit Plan").
(f) ERISA Matters.
(i) Except as set forth on Section 2.18 of the Disclosure
Schedule, the Seller (or any person or entity under "common control"
with it ("ERISA Affiliates"), as "common control" is defined under the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")
does not maintain or contribute to, or has not maintained or
contributed to, any bonus, pension, profit sharing, deferred
compensation, retirement, hospitalization, medical or dental
reimbursement, severance pay, vacation pay, disability, death benefit,
insurance, and other similar plans, programs, or arrangements providing
benefits to the employees of the Seller (including but not limited to
"employee pension benefit plans" and "employee welfare benefit plans"
within the meaning of Section 3(1) and 3(2) of ERISA ("Pension Benefit
Plans") and Welfare Benefit Plans" respectively)). The Seller has
delivered to Purchaser true copies of all plans set forth in Section
2.18 of the Disclosure Schedule.
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(ii) Neither the Seller nor its ERISA Affiliates have or have
ever had an obligation to contribute to a "multiemployer plan" within
the meaning of Section 4001(a)(3) of ERISA.
(iii) Each Welfare Benefit Plan has been funded and will
continue to be funded in accordance with its terms through the Closing
Date, including the payment of applicable premiums, for coverage
through Closing Date, on any insurance contract funding a Welfare
Benefit Plan.
(iv) Each Welfare Benefit Plan which is a "group health plan,"
as defined in Section 607(1) of ERISA has been operated in material
compliance with the provisions of Part 6 of Title I of ERISA and
Section 4980B of the Code at all times. Section 2.18 of the Disclosure
Schedule has a complete and accurate list of all present and former
employees of the Seller and their respective beneficiaries who, as of
the date hereof, are receiving or who are eligible to elect to receive
benefits pursuant to such group health plans and the provisions of
ERISA and the Code as well as the current hourly pay or yearly salary.
Section 2.19 Environmental Matters.
(a) Except as set forth in Section 2.19(a) of the Disclosure Schedule,
the Seller and the property owned or used in its business are, and at all times
have been, in compliance with all applicable Federal, state and local statutes,
laws, ordinances, regulations and codes related in any way to Hazardous
Materials (as hereinafter defined) and underground storage tanks. As used
herein, Hazardous Materials shall mean solid waste (as that term is defined in
the Resource Conservation and Recovery Act, 42 U.S.C.A. ss.6901, et seq, and the
regulations adopted pursuant thereto), hazardous substances (as that term is
defined in the Comprehensive Environmental Response Compensation and Liability
Act, 42 U.S.C.A. ss.9601, et seq, and the regulations adopted pursuant thereto),
and other pollutants, including, without limitation, any solid, liquid, gaseous
or thermal irritant or contaminant, such as smoke, vapor, soot, fumes, acids,
alkaloids or chemicals.
(b) Except as set forth in Section 2.19(a) of the Disclosure Schedule,
during Seller's occupancy of the property used in its business, no Hazardous
Materials have been generated, treated,
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stored or disposed of at, or transported to or form, the Seller or the property
owned or used in the Seller's business at any time.
(c) Except as set forth in Section 2.19(c) of the Disclosure Schedule,
to Seller's knowledge no asbestos or materials containing asbestos have been
installed, used, treated, stored or disposed of by the Seller in or on property
owned or used by the Seller at any time.
(d) To Seller's knowledge, except as set forth in Section 2.19(d) of
the Disclosure Schedule, during Seller's occupancy of the property used in its
business, no polychlorinated biphenyls are located on or in the facilities of
the Seller or any property owned or used by the Seller at any time.
(e) Except as set forth in Section 2.19(e) of the Disclosure Schedule,
the Seller holds all necessary permits or licenses to enable it to comply with
all statutes, laws, ordinances, regulations and codes related in any way to
Hazardous Materials or underground storage tanks.
(f) Except as set forth in Section 2.19(f) of the Disclosure Schedule,
no notice has been served on the Seller or any of its directors, officers or
shareholders from any entity, governmental body or individual claiming violation
of any statute, law, ordinance, regulation or code related in any way to
Hazardous Materials or underground storage tanks, requiring compliance with any
statute, law, ordinance, regulation or code related in any way to Hazardous
Materials or underground storage tanks, or demanding payment of or contributions
for damage regarding the Seller or property owned or used by the Seller related
in any way to Hazardous Materials or underground storage tanks, including
without limitation, damages to the environment or natural resources.
Section 2.20 Legal Compliance.
(a) To the knowledge of the Seller, and with respect to Seller's
business, the Seller has complied with all laws (including rules and regulations
thereunder) of federal, state, local, and foreign governments (and all agencies
thereof), and no charge, complaint, action, suit, proceeding, hearing,
investigation, claim, demand, or notice has been filed or commenced against the
Seller alleging any failure to comply with any such law or regulation.
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(b) With respect to Seller's business, to Seller's knowledge the Seller
has complied with all applicable laws (including rules and regulations
thereunder) relating to the employment of labor, employee civil rights, and
equal employment opportunities.
(c) With respect to Seller's business, the Seller has not violated in
any respect or received a notice or charge asserting any violation of the
Sherman Act, the Clayton Act, The Robinson-Patman Act, or the Federal Trade
Commission Act, each as amended.
(d) With respect to Seller's business, the Seller has not:
(i) made or agreed to make any contribution, payment, or gift
of funds or property to any governmental official, employee, or agent
where either the contribution, payment, or gift or the purpose thereof
was illegal under the laws of any federal, state, local, or foreign
jurisdiction;
(ii) established or maintained any unrecorded operating asset
for any purpose; or
(iii) made or agreed to make any contribution, or reimbursed
any political gift or contribution made by any other person, to any
candidate for federal, state, local, or foreign public office.
(e) To Seller's knowledge, with respect to Seller's business, the
Seller has filed in a timely manner all reports, documents, and other materials
it was required to file (and the information contained therein was correct and
complete in all respects) under all applicable laws (including rules and
regulations thereunder).
(f) To Seller's knowledge, with respect to Seller's business, the
Seller has possession of all records and documents it was required to retain
under all applicable laws (including rules and regulations thereunder).
Section 2.21 Product Warranty. With respect to Seller's business, each
service provided, engine, overhauled parts and other parts and products
manufactured, sold, leased, or delivered by the Seller has been in conformity
with all applicable contractual commitments and all express and implied
warranties, and, with
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respect to Seller's business, the Seller has no liability (and to Seller's
knowledge there is no present or future charge, complaint, action, suit,
proceeding, hearing, investigation, claim, or demand against any service,
engine, overhauled parts or other parts and products giving rise to any
liability) for replacement or repair thereof or other damages in connection
therewith, except as is disclosed in Section 2.21 of the Disclosure Schedule.
With respect to Seller's business, no service, engine, overhauled parts or other
parts and products manufactured, sold, leased, or delivered by the Seller is
subject to any guaranty, warranty, or other indemnity beyond the applicable
standard terms and conditions of sale or lease. With respect to Seller's
business, Section 2.21 of the Disclosure Schedule includes copies of the
standard invoices (containing terms and conditions of services provided, terms
and conditions of sale or lease, applicable guaranty, warranty, and indemnity
provisions).
Upon receipt of a notice of supposed claim for warranty, after the
Closing other than any assumed liability as described in Exhibit 1.5, for
contracts completed by Seller prior to the Closing, Seller shall promptly
provide the details of the warranty claim to Purchaser. Purchaser then has the
right, in its sole discretion, to assume such warranty claim, and Purchaser
shall promptly notify Seller of its decision. In the event that Purchaser
assumes such warranty claim, then Seller shall have no further financial
obligation for such warranty claim set forth in Section 2.21. In the event that
Purchaser declines to assume such warranty claim, then Seller may, in its sole
discretion, determine whether such claim is a valid claim for warranty and
whether it will honor such claim. However, in no event is Seller responsible for
any warranty beyond that expressly stated in the standard warranty. In the event
that Seller determines to honor such warranty claim, then Purchaser agrees to
provide all labor for the warranty claim at no charge and to provide all parts,
in stock, at cost. In the event that Seller determines not to honor the warranty
claim for any reason, then Seller may take all steps that it deems reasonable
and necessary to defend against such claim.
Section 2.22 Product Liability; Product Safety. Except as set forth on
Section 2.22 of the Disclosure Schedule, the Seller has no liability (and to
Seller's knowledge there is no present of future charge, complaint, action,
suit, proceeding, hearing, investigation, claim, or demand against Seller giving
rise to any
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liability) arising out of any injury to persons or property as a result of a
service performed by Seller or as a result of the ownership, possession, or use
of any engine, overhauled part or other parts and products manufactured, sold,
leased, or delivered by the Seller.
Except as set forth on Section 2.22 of the Disclosure Schedule, the
Seller has not been required to file any notification or other report with or to
provide information to any product safety agency, commission, board or other
governmental authority of any jurisdiction concerning actual or potential
hazards with respect to any service Seller has provided or with respect to any
engine, overhauled parts or other parts and products manufactured or sold by
Seller. Each service performed by Seller, engine, overhauled part and other
parts and products manufactured, distributed or sold by Seller complies in all
material respects of all product safety standards or each applicable product
safety agency, commission, board or other governmental authority. The Seller has
not made any misrepresentation or furnished any information containing any
material omission to any products safety testing laboratory or a similar
organization. The Seller has not failed to obtain approval of any product,
component or process which is used, manufactured or licensed by the Seller in
the conduct of its business which is legally required to be approved by any
independent or government-sponsored testing laboratory, industry, trade
association or similar body agency or association.
Section 2.23 Insurance. Section 2.23 of the Disclosure Schedule lists
all policies of insurance owned by the Seller and now in effect insuring all its
business, assets and personnel, and sets forth for such policy the name of the
insurer, the type of coverage, the amount of coverage, the term thereof and the
annual premium.
Section 2.24 Disclosure. To the best of Seller's knowledge, none of the
representations or warranties of Seller contained herein, none of the
information contained in the Disclosure Schedule referred to in this Article II
and none of the other information or documents furnished to the Purchaser
pursuant to the terms of this Agreement is or will be false or misleading in any
material respect, or omits or will omit to state a fact herein or therein
necessary to make the statements herein or therein not misleading in any
material respect. To Seller's knowledge, there
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is no fact which adversely affects or in the future is likely to affect
adversely the Subject Assets or the Seller's business in any material respect
which has not been set forth or referred to in this Agreement, Exhibits or the
Schedules hereto.
Section 2.25 Other Representations and Warranties of Seller and
Shareholders.
(a) Knowledge Respecting Purchaser and AASI. Seller and Shareholders
(i) know or have had the opportunity to acquire all information concerning the
business affairs, financial condition, plans and prospects of Purchaser and AASI
that they deem relevant to make a fully informed decision respecting the
acquisition of the stock; (ii) have been encouraged and have had the opportunity
to rely upon the advice of their legal counsel and accountants and other
advisers with respect to the acquisition of the stock; and (iii) have had the
opportunity to ask such questions and receive such answers and information
respecting, among other things, the business, affairs, financial condition,
plans and prospects of Purchaser and AASI and the terms and conditions of the
acquisition of the stock as they have requested so as to more fully understand
their investment.
(b) Absence of Representations and Warranties. Seller and Shareholders
confirm that neither Purchaser and AASI nor anyone purportedly acting on behalf
of Purchaser and AASI has made any representations, warranties, agreements or
statements other than those contained herein respecting the business, affairs,
financial condition, plans or prospects of Purchaser and AASI nor have Seller
and Shareholders relied on any representations, warranties, agreements or
statements in the belief that they were made on behalf of the foregoing nor has
Seller or Shareholders relied on the absence of any such representations,
warranties, agreements or statements in reaching their decision to acquire the
stock.
(c) No Distribution. Seller and Shareholders are acquiring the stock
for their own account without a view to public distribution or resale, and they
have no contract, undertaking, agreement or arrangement to transfer, sell or
otherwise dispose of any of the stock or any interest therein to any other
person, except as provided herein. Further, Seller and Shareholders agree that
they shall make no attempted sales or transfers of any of the AASI stock prior
to July 1, 1999, except for distributions to
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Shareholders or unless registered under piggy-back rights as set forth in
Exhibit 1.8.
(d) Shares to be Restricted. Seller and Shareholders understand that
the stock will remain "restricted securities" within the meaning of Rule 144
under the Securities Act of 1933, as amended (the "1933 Act") until registered
or the holding period under Rule 144 is met.
(e) No Registration. Seller and Shareholders understand that the stock
will not be registered under the 1933 Act, state law and the securities laws of
any other jurisdiction and must be held indefinitely without any transfer, sale
or other disposition unless the stock is subsequently registered under the 1933
Act, state law and the securities laws of any other applicable jurisdictions
pursuant to any attaching "piggy-back" rights or, in the opinion of counsel for
Purchaser, registration is not required under such Acts or laws as the result of
an available exemption.
(f) Legend of Certificates. Seller and Shareholders understand that
there shall be endorsed on the certificates evidencing the stock a legend
substantially to the following effect:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR ANY
STATE SECURITIES ACT, AND ARE "RESTRICTED SECURITIES" WITHIN
THE MEANING OF SUCH ACTS. THE SHARES MAY NOT BE SOLD,
TRANSFERRED, HYPOTHECATED OR OTHERWISE DISTRIBUTED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION UNDER SUCH ACTS OR THE
RECEIPT OF AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER
THAT SUCH REGISTRATION IS NOT REQUIRED."
(g) Restrictions on Other Securities. Seller and Shareholders
understand that, except upon certain limited circumstances, the restrictions on
the sale, transfer and disposition of the stock will also apply to any and all
shares of capital stock or other securities issued or otherwise acquired with
respect to the stock including, without limitation, shares and securities issued
or acquired as a result of any stock dividend, stock split or exchange or any
distribution of shares or securities
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pursuant to any corporate reorganization, reclassification or similar event.
(h) Stop Orders. Seller and Shareholders understand that Purchaser and
AASI and its transfer agent may refuse to effect a transfer, sale or other
disposition of any of the stock by Seller or Shareholders' or their successors
or assigns otherwise than as contemplated hereby.
(i) No Governmental Approval. Seller and Shareholders understand that
no federal or state agency has approved or disapproved the stock, passed upon or
endorsed the merits of the offering of the stock, or made any finding or
determination as to the fairness of the stock for investment.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND AASI
To induce the Seller to enter into this Agreement and to sell the
Subject Assets, the Purchaser and AASI hereby represent and warrant that the
statements contained in this Article III are correct and complete as of the
Closing Date, except as set forth in the Disclosure Schedule.
Section 3.1 Organization of the Purchaser. The Purchaser and AASI are
corporations duly organized, validly existing, and in good standing under the
laws of the jurisdiction of their incorporation.
Section 3.2 Authorization of Transaction. The Purchaser and AASI have
full power and authority (including full corporate power and authority) to
execute and deliver this Agreement and to perform their obligations hereunder.
This Agreement constitutes the valid and legally binding obligation of the
Purchaser and AASI, enforceable in accordance with its terms and conditions.
Section 3.3 Noncontravention. Neither the execution and the delivery of
this Agreement, nor the consummation of the transactions contemplated hereby
(including the assignments and assumptions referred to herein), will (i) violate
any statute, regulation, rule, judgment, order, decree, stipulation, injunction,
charge, or other restriction of any government, governmental agency, or court to
which the Purchaser is subject or any provision
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of its charter or bylaws or (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any contract, lease, sublease, license, sublicense, franchise, permit,
indenture, agreement or mortgage for borrowed money, instrument of indebtedness,
security interest, or other arrangement to which the Purchaser and AASI is a
party or by which it is bound or to which any of its assets is subject. The
Purchaser and AASI do not need to give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any governmental agency in
order for the parties to consummate the transactions contemplated by this
Agreement (including the assignments and assumptions referred to herein). The
Purchaser and AASI warrant and represent that they have obtained all necessary
consents from NationsBank to obtain all funds necessary to complete the
transactions contemplated herein.
Section 3.4 Capital Structure. The capital structure of AASI has been
accurately disclosed in its public filings. To date, the stock options disclosed
in the 1998 Omnibus Stock Option Plan are the only stock options issued by AASI.
To date, the warrants issued to the underwriter described in AASI's registration
statement and prospectus are the only warrants issued and outstanding on AASI.
Section 3.5 No Material Misstatements or Omissions. None of the
representations and warranties of the Purchaser and AASI contained herein, and
none of the information or documents furnished to the Seller pursuant to the
terms of this Agreement is or will be false or misleading in any material
respect, or omits or will omit to state a fact herein or therein necessary to
make the statements herein or therein not misleading in any material respect. To
Purchaser's knowledge and without regard to any general stock market conditions
which may effect Seller's investment, there is no fact which adversely affects
or in the future is likely to affect adversely the Seller in any material
respect which has not been set forth or referred to in this Agreement, Exhibits
or the Schedules hereto. The transaction is exempt from the requirements of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976.
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Further, Purchaser and AASI (i) know or have had the opportunity to
acquire all information concerning the business affairs, financial condition,
plans and prospects of Seller that they deem relevant to make a fully informed
decision respecting the acquisition of the assets; (ii) have been encouraged and
have had the opportunity to rely upon the advice of their legal counsel and
accountants and other advisers with respect to the acquisition of the assets;
and (iii) have had the opportunity to ask such questions and receive such
answers and information respecting, among other things, the business, affairs,
financial condition, plans and prospects of Seller and the terms and conditions
of the acquisition of the assets as they have requested so as to more fully
understand this Agreement.
ARTICLE IV
CERTAIN COVENANTS AND AGREEMENTS
Section 4.1 Change of the Seller's Name. Promptly after the Closing,
and in no event later than thirty (30) days following the Closing, the Seller
will take all action necessary to discontinue use of the Name and to enable the
Purchaser exclusively to use the Name, and at the Closing shall deliver to the
Purchaser all documents necessary to accomplish the foregoing. Seller may remain
in existence for the sole purpose of completing the liquidation and distribution
of the assets of Seller for up to three (3) years. Notwithstanding the
foregoing, Shareholders may utilize Seller for effective tax planning.
Section 4.2 Maintenance of Records. Inasmuch as certain of the Seller's
books, records and documents are to be included as Subject Assets and sold to
the Purchaser hereunder, and certain other of the Seller's books, records and
documents are Excluded Assets to be retained by the Seller hereunder, and the
Purchaser or the Seller may have need to have access to the books, records and
documents held by the other after the Closing, the Purchaser and the Seller
agree that they shall each maintain for at least three years after the Closing
Date (or for such longer period as may be required by applicable law) the
respective books, records and documents sold or retained hereunder. During such
period, representatives of the Purchaser shall be permitted to inspect and make
copies of such books, records, accounting work papers and other documents
retained by the Seller during normal business hours
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and upon reasonable notice for purposes related to the continuation by the
Purchaser of the Seller's business; and representatives of the Seller shall be
permitted to inspect and make copies of the books, records and documents sold to
the Purchaser during normal business hours and upon reasonable notice for
purposes related to winding up its affairs.
Section 4.3 Further Assurances. The Seller, the Shareholders, the
Purchaser and AASI each hereby covenants and agrees with the other that at any
time and from time to time each will promptly execute and deliver to the other
such further assurances, instruments and documents and take such further action
as the other may reasonably request in order to carry out the full intent and
purpose of this Agreement.
Section 4.4 Fees and Expenses. The Seller, the Shareholders and the
Purchaser shall each bear their own expenses in connection with the negotiation
and preparation of this Agreement and their consummation of the transactions
contemplated hereby, including without limitation the fees and expenses of their
respective counsel, accountants and consultants. Purchaser shall pay for the
audits performed by Cherry Bekaert & Holland, CPA.
Section 4.5 No Brokers. The Seller, the Shareholders and the Purchaser
each represent and warrant to the other that no broker or finder has been
involved or engaged by it in connection with the transactions contemplated
hereby, and each hereby agrees to indemnify and save harmless the other from and
against any and all broker's or finder's fees, commissions or similar charges
incurred or alleged to have been incurred by the indemnifying party in
connection with the transactions contemplated hereby and any and all loss,
liability, cost or expense (including reasonable attorneys' fees) arising out of
any claim that the indemnifying party incurred any such fees, commissions or
charges.
Section 4.6 Bulk Transfer Compliance. Inasmuch as the Seller has agreed
to duly pay, perform and discharge any liabilities and obligations associated
with the Inventory, the Purchaser and the Seller hereby mutually agree to waive
compliance with the provisions of any bulk sales or similar law, if any. The
Seller covenants and agrees to indemnify and save harmless the Purchaser from
and against any and all loss, liability, cost and expense
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(including reasonable attorneys' fees) arising out of noncompliance with any
such laws.
ARTICLE V
CONDITIONS TO CLOSING
Section 5.1 Conditions to the Purchaser's Obligations. The obligations
of the Purchaser and AASI to complete the Closing are contingent upon the
fulfillment of each of the following conditions on or before the Closing Date,
except to the extent that the Purchaser may, in its absolute discretion, waive
any one or more thereof in whole or in part:
(a) Instruments of Transfer. The Seller shall have delivered to the
Purchaser such assignments, bills of sale, certificates of title and other
instruments of transfer, all in form reasonably satisfactory to the Purchaser,
as are necessary to fully and effectively convey to the Purchaser all of the
Subject Assets in accordance with the terms hereof.
(b) Consents. The consents described in the Disclosure Schedule hereto,
and all other consents required for the Seller to perform its obligations
hereunder, shall have been obtained in form reasonably satisfactory to the
Purchaser.
(c) Opinion of Seller's Counsel. The Purchaser shall have received from
counsel for the Seller an opinion dated as of the date of Closing in form and
substance satisfactory to the Purchaser and its counsel, to the effect that:
(i) Seller is a corporation duly organized, validly existing
and in good standing under the laws of Florida.
(ii) Seller is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction, if any, in
which the ownership or leasing of its properties and assets or the
conduct of its business requires such qualification, except where the
failure to be so qualified or be in good standing would not have a
material adverse effect on the condition (financial or otherwise),
earnings, operations, business or business prospects of Seller taken as
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a whole. Seller has all corporate power and authority necessary to
engage in the business in which it is presently engaged and to execute,
deliver and perform its obligations under this Agreement.
(iii) Execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary action, corporate or otherwise, by
Seller and Shareholders. This Agreement and the transactions
contemplated hereby are legal, valid and binding obligations of Seller
and Shareholders, enforceable against Seller and Shareholders in
accordance with their terms except as enforcement may be limited by
general equitable principles or bankruptcy, insolvency or similar laws
affecting creditors' rights generally. Seller has all requisite power
and authority to execute, deliver and perform this Agreement and the
transactions contemplated hereby. All necessary corporate proceedings
of Seller have been taken to authorize the execution, delivery and
performance by Seller of this Agreement and the transactions
contemplated hereby.
(iv) Seller has good and marketable title to the Subject
Assets transferred hereunder, free and clear of all liens, charges,
security interests, encumbrances and other defects in title, has the
right to convey such property to the Purchaser, and, at the Closing,
shall have conveyed to the Purchaser good and marketable title to such
property free from all Encumbrances;
(v) Except as is disclosed in this Agreement, the Disclosure
Schedule or Exhibits hereto, to the best knowledge of such counsel,
Seller is not in violation or default of any provision of its Articles
of Incorporation or ByLaws or of any provision of any instrument or
contract to which it is party or by which it is bound or, of any
provision of any federal, state or local judgment, writ, decree, order,
law, statute, rule or government regulation, applicable to it. To the
best knowledge of such counsel, the execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated
hereby will not result in any such violation or be in conflict with or
constitute, with or without the passage of time and giving of notice,
either a violation or default under any such provision or an event
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which results in the creation of any lien, charge of encumbrance upon
any asset of Seller. No consent, authorization, approval, order,
license, certificate, or permit of or from, or declaration or filing
with any federal, state, local or other governmental authority or any
court or other tribunal is required by Seller for the execution,
delivery or performance by Seller of this Agreement or the transactions
contemplated hereby. To the best knowledge of such counsel, no consent
of any party to any contract, agreement, instrument, lease, license,
arrangement or understanding to which Seller is a party, or to which
any of its properties or assets are subject, is required for the
execution, delivery or performance of this Agreement or the
transactions contemplated hereby.
(vi) Except as disclosed in this Agreement, the Disclosure
Schedule or the Exhibits hereto, such counsel is not aware of any
pending or threatened action, suit, proceeding or investigation before
any court or any public, regulatory, or governmental agency, authority
or body, involving Seller or any of its existing officers or directors
and such counsel do not know of any legal matter or government
proceedings regarding Seller.
In rendering such an opinion, counsel for Seller may rely (i) as to
matters of fact, to the extent they deem proper, on certificates of responsible
officers of Seller; and (ii) to the extent they deem proper, upon written
statements or certificates of officers of departments of various jurisdictions
having custody of documents respecting the corporate existence or good standing
of Seller, provided that copies of any such statements or certificates shall be
delivered to counsel for the Purchaser.
(d) No Material Adverse Change. On the date of Closing, there shall not
have occurred any event or condition materially and adversely affecting the
financial condition, results of operations or business prospects of the Seller
from those reflected on the enclosed Financial Statements, except for matters
resulting from adverse changes in economic conditions affecting businesses
generally.
(e) No Adverse Proceedings. No action, suit or proceeding before any
court or any governmental or regulatory authority shall
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have been commenced, no investigation by any governmental or regulatory
authority shall have been commenced, and no action, suit or proceeding by any
governmental or regulatory authority shall have been threatened against any of
the parties to this Agreement, or any of the principals, officers or directors
of any of them, or any of the Subject Assets seeking to restrain, prevent or
change the transactions contemplated hereby or questioning the validity or
legality of any of such transactions or seeking damages in connection with any
of such transactions.
(f) Articles of Incorporation, Bylaws, and Minutes. The Seller shall
have delivered to the Purchaser the Articles of Incorporation, the Bylaws, and
the corporate minutes of the Seller, along with a certificate, dated as of the
Closing Date, certifying as to the accuracy and completeness of such corporate
documents.
(g) Corporate Documents. The Seller shall deliver to the Purchaser at
the Closing the following:
(i) a good standing certificate issued by the Secretary of the
State of Florida with respect to the Seller;
(ii) certified copies of resolutions of the shareholders and
board of directors of the Seller authorizing the execution, delivery
and performance by the Seller of this Agreement, the conveyance of the
Subject Assets and the transactions contemplated hereby; and
(iii) a certificate of the Seller certifying that each of the
obligations of the Seller to be performed on or before the Closing
pursuant to this Agreement shall have been duly performed as of the
Closing.
(h) Other Assurances. The Seller shall have delivered to the Purchaser
such other and further certificates, assurances and documents as the Purchaser
or AASI may reasonably request in order to evidence the accuracy of the Seller's
representations and warranties, the performance of its covenants and agreements
to be performed at or prior to the Closing, and the fulfillment of the
conditions to the Purchaser's obligations.
Section 5.2 Conditions to the Seller's Obligations. The obligations of
the Seller to complete the Closing are contingent
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upon the fulfillment of each of the following conditions on or before the
Closing Date, except to the extent that the Seller may, in its absolute
discretion, waive any one or more thereof in whole or in part:
(a) Payment of Purchase Price and Delivery of Stock. The Purchaser and
AASI shall have paid to the Seller the Purchase Price at Closing and delivered
the shares of AASI stock, described in Section 1.3, within ten (10) business
days of the Closing.
(b) Employment Agreement. Purchaser shall enter into an employment
agreement with Anton K. Khoury and Hanna K. Khoury substantially in the form of
Exhibit 5.2(b) hereto.
(c) No Adverse Proceedings. No action, suit or proceeding before any
court or any governmental or regulatory authority shall have been commenced, no
investigation by any governmental or regulatory authority shall have been
commenced, and no action, suit or proceeding by any governmental or regulatory
authority shall have been threatened, against any of the parties to this
Agreement, or any of the principals, officers or directors of any of them, or
any of the Subject Assets, seeking to restrain, prevent or change the
transactions contemplated hereunder or questioning the validity or legality of
any of such transactions or seeking damages in connection with any of such
transactions.
(d) Other Assurances. The Purchaser shall have delivered to the Seller
such other and further certificates, assurances and documents as the Seller may
reasonably request in order to evidence the accuracy of the Purchaser's
representations and warranties, the performance of its covenants and agreements
to be performed at or prior to the Closing, and the fulfillment of the
conditions to the Seller's obligations.
(e) Opinion of the Purchaser's Counsel. The Purchaser shall have
furnished the Seller with an opinion, dated the date of Closing, of Gray,
Layton, Kersh, Solomon, Sigmon, Furr & Smith, P.A., counsel for the Purchaser
and AASI, in form and substance satisfactory to the Seller and its counsel, to
the effect that: (i) the Purchaser and AASI are corporations duly organized,
validly existing and in good standing under the laws of Florida and Delaware
respectively and has all requisite power and authority to execute and deliver
this Agreement and to perform their obligations
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under this Agreement; (ii) all corporate or other proceedings required by law,
the Articles of Incorporation and By-laws of Purchaser and AASI or by the
provisions of this Agreement to be taken by the Purchaser and AASI on or before
the date of Closing, in connection with the authorization, execution and
delivery of this Agreement and the consummation of the transaction contemplated
by this Agreement, have been duly and validly taken; (iii) the Purchaser and
AASI have the legal power and authority to consummate this transaction; and (iv)
this transaction is exempt from the requirements of the Hart-Scott-Rodino
Antitrust Improvements Act of 1976.
ARTICLE VI
INDEMNIFICATION
Section 6.1 Indemnification by the Seller and Shareholders. Subject to
the procedures and limitations set forth in this Article VI, the Seller and
Shareholders, jointly and severally, hereby agree to indemnify and save harmless
the Purchaser from and against any and all liabilities, losses, claims,
judgments, damages, expenses and costs (including, without limitation reasonable
counsel fees and costs and expenses incurred in connection therewith through
both trial and appellate proceedings) (a "Loss") incurred by the Purchaser or
AASI arising after the Closing out of any of the following:
(a) Breach of Warranty. The falsity or incorrectness of any
representation or warranty made by the Seller or Shareholders in this Agreement
or in any instrument or document delivered by the Seller or Shareholders to the
Purchaser pursuant to this Agreement;
(b) Breach of Covenants. The Seller's failure to duly perform any
covenant or agreement to be performed by it under this Agreement or under any
instrument or document delivered by the Seller to the Purchaser pursuant to this
Agreement;
(c) Excluded Liabilities. The Excluded Liabilities and any
other liability or obligations, or alleged liability or
obligations, of the Seller; or
(d) Claims Against Subject Assets. Any levy or other claim by any third
party against or with respect to the Subject Assets, or
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any other claim by any third party against the Purchaser, arising out of any act
or omission or alleged act or omission of the Seller or Shareholders prior to
the Closing.
The Purchaser shall not be entitled to assert any claim under this
Article VI until such cumulative Losses exceed Twenty-Five Thousand Dollars
($25,000.00), but Purchaser shall thereafter be entitled to recover the full
amount of such damages in accordance with the provisions of this Article VI.
To the extent that it has a material impact on the Purchaser, the
Purchaser shall have the right to be put in the same financial position as it
would have been (net of any benefits to the Purchaser, including tax benefits)
in had each of the representations and warranties of the Seller and Shareholders
been true and correct or had the Seller or Shareholders not breached any
representations, warranties, covenants or agreements.
Section 6.2 Survival of the Seller's and Shareholders' Warranties.
Unless otherwise expressly stated to the contrary herein, the representations
and warranties of the Seller and Shareholders made in this Agreement or in any
instrument or document delivered by the Seller or Shareholders to the Purchaser
pursuant to this Agreement shall survive three (3) years from the date of the
Closing.
Section 6.3 Indemnification by the Purchaser. After the Closing, the
Purchaser agrees that it will indemnify and save harmless the Seller from and
against any and all loss, liability, damages, cost or expense (including,
without limitation reasonable counsel fees and costs and expenses incurred in
connection therewith through both trial and appellate proceedings) incurred by
the Seller (net of any benefits to the Seller, including tax benefits) arising
out of the Purchaser's breach of any of its representations, warranties,
covenants and agreements in this Agreement or in any document delivered by the
Purchaser to the Seller hereunder.
The Seller shall not be entitled to assert any claim under this Article
VI until such cumulative losses exceed Twenty-Five Thousand Dollars
($25,000.00), but Seller shall thereafter be entitled to recover the full amount
of such damages in accordance with the provisions of this Article VI.
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Section 6.4 Matters Involving Third Parties. If any third party shall
notify any Party (the "Indemnified Party") with respect to any matter which may
give rise to a claim for indemnification against any other Party (the
"Indemnifying Party") under this Article, then the Indemnified Party shall
notify each Indemnifying Party thereof promptly; provided, however, that no
delay on the part of the Indemnified Party in notifying any Indemnifying Party
shall relieve the Indemnifying Party from any liability or obligation hereunder
unless (and then solely to the extent) the Indemnifying Party thereby is
damaged. Within 15 days after the Indemnified Party has given notice of the
matter the Indemnifying Party may notify the Indemnified Party that the
Indemnifying Party is going to cure the matter and release the Indemnified Party
from any and all liability with respect thereto. In the event any Indemnifying
Party notifies the Indemnified Party within 15 days after the Indemnified Party
has given notice of the matter that the Indemnifying Party is assuming the
defense thereof, (A) the Indemnifying Party will defend the Indemnified Party
against the matter with counsel of its choice reasonably satisfactory to the
Indemnified Party, (B) the Indemnified Party may retain separate co-counsel (at
its cost), (C) the Indemnified Party will not consent to the entry of any
judgment or enter into any settlement with respect to the matter without the
written consent of the Indemnifying Party (not to be withheld unreasonably), and
(D) the Indemnifying Party will not consent to the entry of any judgment with
respect to the matter, or enter into any settlement which does not include a
provision whereby the plaintiff or claimant in the matter releases the
Indemnified Party from all Liability with respect thereto, without the written
consent of the Indemnified Party (not to be withheld unreasonably). In the event
the Indemnifying Party fails to notify the Indemnified Party within 15 days
after the Indemnified Party has given notice of the matter, the Indemnified
Party may defend against, or enter into any settlement with respect to, the
matter in any manner it reasonably may deem appropriate. Under this
circumstance, the indemnified party is entitled to recover all costs and fees
incurred in the defense of the matter, if any.
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ARTICLE VII
MISCELLANEOUS
Section 7.1 Merger Clause. This Agreement contains the final, complete
and exclusive statement of the agreement between the parties with respect to the
transactions contemplated herein and all prior or contemporaneous written or
oral agreements with respect to the subject matter hereof are merged herein.
Section 7.2 Amendments. No change, amendment, qualification or
cancellation hereof shall be effective unless in writing and executed by each of
the parties hereto by their duly authorized officers.
Section 7.3 Press Releases and Announcements. No party shall issue any
press release or announcement relating to the subject matter of this Agreement
prior to the Closing without the prior written approval of the other party;
provided, however, that any party may make any public disclosure it believes in
good faith is required by law or regulation (in which case the disclosing party
will advise the other party prior to making the disclosure).
Section 7.4 Benefits and Binding Effect. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns.
Section 7.5 Notices. All notices, requests and demands and other
communications hereunder must be in writing and shall be deemed to have been
duly given when (i) personally delivered, (ii) when forwarded by Federal
Express, Airborne or another private carrier which maintains records showing
delivery information, (iii) when sent via facsimile transmission but only if a
written or facsimile acknowledge of receipt is received by the sending party, or
(iv) when placed in the United States Mails and forwarded by Registered or
Certified Mail, return receipt requested, postage prepaid, addressed to the
party to whom such notice is being given at the following addresses:
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AS TO THE SELLER: American Jet Engine Services, Inc.
ATTN: Mr. Anton K. Khoury
Mr. Hanna K. Khoury
13495 SW 139 Court
Miami, FL 33186
WITH COPY TO: R. Lawrence Bonner
Homer & Bonner, P.A.
3400 NationsBank Tower
100 Southeast 2nd Street
Miami, FL 33131
AS TO THE PURCHASER: American Aircarriers Support,
Incorporated
Attn: Karl F. Brown
P. O. Box 7566
Charlotte, NC 28241
WITH COPY TO: David M. Furr
Gray, Layton, Kersh, Solomon,
Sigmon, Furr & Smith, P.A.
P. O. Box 2636
Gastonia, NC 28053-2636
Any party may change the address(es) to which notices to it are to be sent by
giving notice of such change to the other parties in accordance with this
Section.
Section 7.5 Captions. The captions are for convenience of
reference only and shall not be construed as a part of this
Agreement.
Section 7.6 Governing Law. This Agreement shall be construed,
interpreted, enforced and governed by and under the laws of the
State of Florida.
Section 7.7 Submission to Jurisdiction. Each of the parties submits to
the jurisdiction of any state or federal court sitting in Miami/Miami-Dade
County, Florida in any action or proceeding arising out of or relating to this
Agreement, agrees that all claims in respect of the action or proceeding may be
heard and determined in any such court, and agrees not to bring any action or
proceeding arising out of or relating to this Agreement in any other court. Each
of the parties waives any defense of
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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 by suit on the judgment or in any other manner
provided by law.
Section 7.8 No Third-Party Beneficiaries. This Agreement is not
intended to be for the benefit of and shall not be enforceable by any person who
or which is not a party hereto (or a permitted assign or successor to such
party).
Section 7.9 Section, Exhibit and Schedule Reference. All of the
Exhibits and Schedules hereto referred to in this Agreement are hereby
incorporated herein by reference and shall be deemed and construed to be a part
of this Agreement for all purposes. The inclusion of an item in one Section,
Exhibit or Schedule shall be deemed to be inclusion of that item on each and
every Section, Exhibit or Schedule to which that item applies, whether or not
that item is specifically cross-referenced in the Exhibit or Schedule.
Section 7.10 Severability. The invalidity or unenforceability of any
one or more phrases, sentences, clauses or provisions of this Agreement shall
not affect the validity or enforceability of the remaining portions of this
Agreement or any part thereof.
Section 7.11 Counterparts. This Agreement may be executed in
any number of counterparts, all of which shall constitute one
and the same instrument.
IN WITNESS WHEREOF, the Seller and the Purchaser have each caused this
Agreement to be executed by their respective duly authorized officers under
seal, all as of the day and year first above written.
SELLER:
ATTEST: AMERICAN JET ENGINE SERVICES, INC.
\s\ Hanna K. Khoury By \s\ Anton K. Khoury
- ---------------------------------- --------------------------------------
Secretary President
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SHAREHOLDERS:
/s/ Anton K. Khoury (SEAL)
--------------------------------------
ANTON K. KHOURY
/s/ Hanna K. Khoury (SEAL)
--------------------------------------
HANNA K. KHOURY
PURCHASER:
ATTEST: AMERICAN AIRCARRIERS SUPPORT
ACQUISITION II CORP.
/s/ David M. Furr By /s/ Karl F. Brown
- ---------------------------------- --------------------------------------
Secretary President
ATTEST: AMERICAN AIRCARRIERS SUPPORT,
INCORPORATED
/s/ David M. Furr By /s/ Karl F. Brown
- ---------------------------------- --------------------------------------
Secretary President
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