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EXHIBIT 4
EXECUTION COPY
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STOCK PURCHASE AGREEMENT
between
THE SHAREHOLDERS LISTED ON THE SIGNATURE PAGE
As Sellers
and
LUFTHANSA TECHNIK AG
As Buyer
DATED SEPTEMBER 20, 2000
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TABLE OF CONTENTS
1. Definitions..............................................................................1
2. Purchase and Sale of the HPAC Shares.....................................................1
3. Purchase Price...........................................................................1
4. Closing..................................................................................2
5. Representations and Warranties of the Sellers............................................2
6. Representations and Warranties Concerning Company........................................4
7. Representations and Warranties of Buyer..................................................4
8. Covenants................................................................................5
9. Conditions Precedent to Obligations of Sellers...........................................7
10. Conditions Precedent to Obligations of Buyer.............................................8
11. Indemnity; Survival......................................................................9
12. Dispute Resolution......................................................................11
13. Termination.............................................................................12
14. Miscellaneous...........................................................................12
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is made and executed on and
effective as of September 20, 2000 by and between LUFTHANSA TECHNIK AG,a company
organized under the laws of Germany ("Buyer") and the shareholders of Hawker
Pacific Aerospace, a California corporation ("Company") who are signatories to
this Agreement (individually, a "Seller;" collectively, the "Sellers"). (Buyer
and Sellers each individually a "Party" and collectively the "Parties").
RECITALS
A. Each Seller is the owner, beneficially and of record, of the
number of shares of the Company's common stock set forth opposite his or her
name on the signature page of this Agreement (the "HPAC Shares").
B. Buyer desires to purchase, and each Seller desires to sell,
the HPAC Shares, for the consideration and on the terms and conditions set forth
herein.
C. Buyer and Sellers understand and acknowledge that the Company
is not a party to this Agreement and is not bound hereby or required to take any
action hereunder and that any action requested of the Company will be subject to
the approval of Company's Board of Directors which will be free to take (or not
take) any requested action as it deems appropriate and in the best interests of
the Company and all of Company's shareholders.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties hereinafter contained and good and valuable
consideration, the parties agree as follows:
1. DEFINITIONS
For purposes of this Agreement, and except as otherwise expressly
provided herein or unless the context otherwise requires, capitalized terms
shall have the meaning ascribed to them in Annex I of this Agreement.
2. PURCHASE AND SALE OF THE HPAC SHARES
a. At the Closing, each Seller shall sell, assign, transfer and convey to
Buyer, and Buyer shall purchase and acquire from each Seller, all of
such Seller's right, title and interest in and to the HPAC Shares.
b. The HPAC Shares shall be transferred by the Sellers to Buyer free and
clear of any and all liens, encumbrances, rights, claims, and
restrictions of any and every kind and nature whatsoever ("Liens").
3. PURCHASE PRICE
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a. The Purchase Price for each HPAC Share ("Purchase Price") shall be
$4.12.
b. Upon every Seller's delivery at the Closing of the HPAC Shares together
with duly executed blank stock powers and subject to the other
conditions set forth in Section 10, the Purchase Price shall be paid by
Buyer to each Seller on the Closing Date in immediately available funds
paid to an account designated by Sellers. Wire transfer instructions
shall be provided by Sellers to Buyer not less than three (3) Business
Days prior to the Closing Date.
▇. ▇▇▇▇▇▇▇ acknowledge and agree that Buyer may purchase additional shares
for a price per share in excess of the Purchase Price and from any
source or by any means including, without limitation (i) purchases from
institutional shareholders; (ii) purchases through a tender offer; or
(iii) purchases of newly issued shares from HPAC.
4. CLOSING
The sale and purchase of the HPAC Shares shall be effected through a
Closing (the "Closing') at the offices of ▇▇▇▇ & ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ at 10:00 a.m. on September 20, 2000 (the "Closing
Date") or at such other time and place as the Parties may mutually agree in
writing.
5. REPRESENTATIONS AND WARRANTIES OF THE SELLERS
The Sellers hereby jointly and severally warrant and represent
to Buyer as follows:
a. Authority. Each Seller has the full power and authority to execute,
deliver and perform the transactions contemplated by this Agreement.
This Agreement has been duly and validly executed and delivered by each
Seller and (assuming this Agreement constitutes a legal, valid and
binding obligation of the Buyer) constitutes a valid and binding
agreement of each Seller, enforceable against each Seller in accordance
with its terms, subject to applicable bankruptcy, reorganization,
insolvency, moratorium and other laws affecting creditors' rights
generally from time to time in effect and to general equitable
principles. If the Seller is married and the HPAC Shares constitute
community property, this Agreement has been duly authorized, executed
and delivered by, and constitutes a valid and binding agreement of, the
Seller's spouse, enforceable against such person in accordance with its
terms subject to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting creditors' rights generally from
time to time in effect and to general equitable principles.
b. Consents and Approvals. No filing with, and no permit, authorization,
or other approval of any Government Entity is necessary for the
execution, delivery and performance of this Agreement or the other
documents contemplated hereby by the Sellers and the consummation by
the Sellers of the transactions contemplated by this Agreement.
c. No Conflict or Violation. The execution, delivery and performance of
this Agreement, the consummation of the transactions contemplated
hereby, and the compliance with any of the provisions hereof will not:
(i) conflict with, or result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or
give rise to
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any right of termination, cancellation, vesting, payment, exercise,
acceleration, suspension, revocation or modification) under, any of the
terms, conditions or provisions of any note, credit agreement, bond,
mortgage, deed of trust, security instrument, indenture, lease,
License, Contract, plan or other instrument or obligation to which any
Seller is a party or by which it or any of its respective properties or
assets may be bound or affected or (ii) violate any Applicable Law or
Order applicable to any Seller or any of its properties or assets. No
Seller has outstanding any Tax liabilities that will impair the ability
of such Seller to consummate the transactions contemplated by this
Agreement.
d. Litigation. There is no claim, Action or Proceeding (whether at law or
equity, before or by any Government Entity or before any arbitrator)
pending or, to the Knowledge of the Sellers, threatened against or
affecting any of the Sellers, the outcome of which would in any manner
impair the ability of any of the Sellers to perform its obligations
hereunder, or against the transactions contemplated by this Agreement.
e. Certain Fees. Except as set forth on Schedule 5(e), no Seller has
entered into, nor will enter into, during the term of this Agreement,
any agreement, arrangement or understanding with any Person that will
result in the obligation of Buyer to pay any finder's fee, brokerage
commission or similar payment in connection with the transactions
contemplated hereby.
f. Transfer of Title. Each Seller owns beneficially and of record and has
good and marketable title to the HPAC Shares which it has agreed to
sell to Buyer hereunder. The shares listed opposite each Seller's name
on the signature page hereto are the total shares of capital stock of
the Company held by such Seller and such Seller holds no options,
warrants or other rights to acquire any capital stock of the Company.
As of September 18, 2000, the total of all HPAC Shares listed on the
signature page equals 2,336,495 shares of Common Stock and constitutes
Thirty Eight and 40/100ths percent (38.4)% of 6,083,431 shares which is
the number of the total issued and outstanding capital stock of the
Company on a Fully Diluted Basis. Each Seller's HPAC Shares are duly
authorized, validly issued and nonassessable, free and clear of all
claims, Liens, pledges, options, preemptive rights and Liens or
encumbrances of any kind. None of the HPAC Shares are subject to any
voting trust, voting agreement, rights (contingent or otherwise),
options, warrants, calls, restrictions of any kind, nature or
description, or other agreements, commitments or understandings. Upon
delivery of the HPAC Shares in accordance with the terms of this
Agreement, Buyer shall acquire complete and absolute legal, marketable
and equitable title to the HPAC Shares, free and clear of all claims,
liens, pledges, options, preemptive rights and Liens or encumbrances of
any kind.
g. Pricing. Each Seller (i) is a sophisticated investor and has such
knowledge and experience in financial and business matters that he or
she is capable of evaluating the merits and risks of the transactions
contemplated by this Agreement, (ii) has received all the information
that such Seller and its counsel deem is necessary to understand and
enter into this Agreement, and (iii) understands and agrees with (and
has reviewed with counsel) all of the terms and conditions set forth in
this Agreement, including Article 3 (Purchase Price).
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h. No Public Solicitation. Sellers know of no public solicitation or
general advertisement of an offer that has been or will be used in
connection with the proposed sale of the HPAC Shares hereunder.
i. Disclosure. No representation or warranty by the Sellers in this
Agreement or any exhibit or schedule hereto, or any certificate
furnished or to be furnished by the Sellers in connection with this
Agreement, contains or will contain an untrue statement of material
fact, or omits or will omit to state a material fact necessary to make
the statements contained herein or therein, in light of the
circumstances in which they were made, not misleading.
6. REPRESENTATIONS AND WARRANTIES CONCERNING COMPANY
Each Seller represents and warrants to Buyer that:
a. To the Knowledge of such Seller, the copies of Organizational
Documents, minute books and other corporate records relating to
authorization and issuance of HPAC Shares that were provided to Buyer
are true, correct, and complete copies of those documents;
b. Except for the consents set forth on Schedule 6(b), the delivery of
which is a condition precedent to Closing hereunder pursuant to Section
10(f), to the Knowledge of Sellers, the execution, delivery and
performance of this Agreement and the Other Transaction Documents will
not result in the Company violating any agreement or the Organizational
Documents or incurring any penalty of which Seller is aware;
c. To the Knowledge of Seller, and based in part upon the Sellers'
reliance on advice of counsel to the Company, all reports, registration
statements and other filings that the Company has filed with the U.S.
Securities and Exchange Commission ("SEC Filings") were true, correct,
and complete in all material respects when filed;
d. Provided that each of the required consents listed on Schedule 6(b) is
obtained on or before the Closing Date, to the Knowledge of Sellers,
there is no fact, event, circumstance or agreement arising since filing
of the SEC Filings that has had or is likely to have a Material Adverse
Effect on the Company, its business, or its financial condition;
e. As of the Closing Date, the Company shall have taken all necessary
corporate action to waive and thereby render the Rights Agreement of no
force and effect with respect to (i) the transactions contemplated in
this Agreement and the Other Transaction Documents and (ii) the Buyer.
7. REPRESENTATIONS AND WARRANTIES OF BUYER.
The Buyer hereby represents and warrants to the Seller that:
a. Organization. It is duly organized, validly existing and in good
standing under the laws of Germany and has all the requisite power and
authority and all necessary Licenses to execute, deliver and perform
its obligations under this Agreement.
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b. Authority. The execution, delivery and performance of this Agreement by
the Buyer and the consummation by the Buyer of the transactions
contemplated hereby have been duly authorized by all necessary internal
proceedings, and no other internal proceedings on the part of the Buyer
are necessary to authorize this Agreement or the transactions
contemplated hereby. This Agreement has been duly and validly executed
and delivered by the Buyer and (assuming this Agreement constitutes a
valid and binding obligation of the Seller) constitutes a valid and
binding agreement of the Buyer, enforceable against the Buyer in
accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium and other laws affecting
creditors' rights generally from time to time in effect and to general
equitable principles.
c. Consents and Approvals. No filing with, and no permit, authorization,
or other approval of any Government Entity is necessary to be obtained
by the Buyer for the execution, delivery and performance of this
Agreement or the other documents contemplated hereby by the Buyer and
the consummation by the Buyer of the transactions contemplated by this
Agreement.
d. No Conflict or Violation. The execution, delivery and performance of
this Agreement, the consummation of the transactions contemplated
hereby, the fulfillment of the terms hereof, and the compliance with
any of the provisions hereof will not: (i) conflict with or result in a
breach or violation of the Organizational Documents of the Buyer; (ii)
conflict with, or result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, cancellation, vesting, payment,
exercise, acceleration, suspension, revocation or modification) under,
any of the terms, conditions or provisions of any note, credit
agreement, bond, mortgage, deed of trust, security instrument,
indenture, lease, License, Contract, plan or other instrument or
obligation to which the Buyer is a party or by which it or any of its
properties or assets may be bound or affected; or (iii) violate any
Order or Law applicable to the Buyer or any of its properties or
assets.
e. Certain Fees. The Buyer has not entered into, nor will enter into,
during the term of this Agreement, any agreement, arrangement or
understanding with any Person that will result in the obligation of the
Seller to pay any finder's fee, brokerage commission or similar payment
in connection with the transactions contemplated hereby.
f. Investment Representation. The Buyer acknowledges that the HPAC Shares
are not registered under the securities laws of any jurisdiction and
that it is acquiring the HPAC Shares for its own account for
investment, and not as a nominee and not with a view to the
distribution or resale thereof (other than to Affiliates of the Buyer).
8. COVENANTS
The Parties hereby covenant and agree to take the following actions
prior to, and as applicable following, the Closing:
a. Access and Due Diligence. The Sellers shall (A) afford Buyer and
Buyer's Representatives full access during normal business hours to all
books and records of the Sellers or other information with respect to
the Sellers (in connection with the HPAC Shares) and the HPAC Shares
the Buyer reasonably requests and (B) use reasonable efforts to assist
Buyer and Buyer's accountants, counsel and representatives to obtain
full
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access during normal business hours throughout the period prior to the
Closing Date (or the earlier termination of this Agreement pursuant to
Article 13) to all the Company's properties, books, contracts,
commitments and records (including, but not limited to, tax returns)
and, during such period, shall, upon request, furnish promptly to the
Buyer (i) a copy of each report, schedule and other document filed or
received by any of them pursuant to the requirements of federal or
state securities laws and (ii) all other information concerning the
Company's business, properties and personnel as the Buyer may
reasonably request; provided that no investigation or receipt of
information pursuant to this Section 8(a) shall affect any
representation or warranty of the Sellers.
b. Confidentiality.
i. Disclosure of Terms. The terms and conditions of this
Agreement (the "Terms"), including its existence, shall be considered
confidential information and shall not be disclosed by any party hereto to any
third party except in accordance with the provisions set forth below.
ii. Press Releases, Etc. Prior to the Closing Date,
Seller shall not issue any press releases or make any other public announcements
regarding this Agreement or the transactions contemplated hereby. Subsequent to
the Closing Date, Sellers and Buyer shall not issue any press releases or make
public statements or announcements regarding this Agreement or the transactions
contemplated hereby which would jeopardize or otherwise invalidate the exemption
from registration under the Securities Act of 1933, as amended (the "Securities
Act"). Sellers and Buyer have and shall make, or cause to be made, only limited
public statements or press releases which will be general in nature and remain
within the limited scope permitted by the Securities Act such that the exemption
from registration remains valid. In no event shall any press release or other
statement contain a hyperlink to any internet site.
iii. Permitted Disclosures. Notwithstanding the foregoing,
any party may disclose any of the Terms to its employees, investment bankers,
lenders, accountants and attorneys, in each case only where such persons or
entities are under appropriate nondisclosure obligations.
iv. Legally Compelled Disclosure. In the event that any
party is requested or becomes legally compelled (including without limitation,
pursuant to securities laws and regulations) to disclose the existence of this
Agreement, Other Transaction Documents or any of the Terms hereof in
contravention of the provisions of this Section 8, such party (the "Disclosing
Party") shall provide the other parties (the "Non-Disclosing Parties") with
prompt written notice of that fact so that the appropriate party may seek (with
the cooperation and reasonable efforts of the other parties) a protective order,
confidential treatment or other appropriate remedy. In such event, the
Disclosing Party shall furnish only that portion of the information which is
legally required and shall exercise reasonable efforts to obtain reliable
assurance that confidential treatment will be accorded such information to the
extent reasonably requested by any Non-Disclosing Party. Notwithstanding the
preceding, each Party acknowledges that the other Party shall be required to
make certain filings with SEC with respect to this Agreement or the Other
Transaction Documents; each Disclosing Party shall provide the Non-Disclosing
Party with prior notice of any such filings, and no such filing shall be made
without the prior written approval of the Non-Disclosing Party to the applicable
disclosures.
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c. Compliance with Conditions and Laws. Sellers and Buyer shall use
reasonable best efforts to cause all conditions precedent to the
obligations of Sellers and Buyer to be satisfied. Upon the terms and
subject to the conditions of this Agreement, Sellers and Buyer will use
reasonable best efforts to take, or cause to be taken, all action, and
to do, or cause to be done, all things necessary, proper or advisable
consistent with Applicable Law to consummate the transaction
contemplated herein and make effective in the most expeditious manner
practicable the sale and transfer of the HPAC Shares in accordance with
the terms of this Agreement.
d. HPAC Shares. Between the Effective Date and the Closing Date, Sellers
will not engage in any action or omit to take any action that would
have the effect of preventing or disabling the delivery of their
respective HPAC Shares or otherwise prevent them from performing their
respective obligations under this Agreement and cumulatively delivering
the total number of HPAC Shares and in the same percentage to total
issued and outstanding capital stock on a Fully Diluted Basis as set
forth in Section 5(f).
e. Resignation of Directors and Officers. Each of the following Sellers,
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, shall resign
from his position as a director of the Company, effective as of the
Closing Date and upon replacement pursuant to Section 10(m) hereof.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall resign from his position as Secretary of the
Company effective as of the Closing Date and upon replacement pursuant
to Section 10(m) hereof.
f. First Union. As set forth on Schedule 5(e), the Sellers shall promptly
pay directly to First Union any amount in excess of $250,000 necessary
to satisfy the amount negotiated in settlement of the costs and
expenses owed First Union.
9. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLERS
The obligations of Sellers under this Agreement (including,
without limitation, the obligation of Sellers, and each of them, to sell the
HPAC Shares to Buyer) are expressly subject to and conditioned upon the
fulfillment at or prior to the Closing of each and all of the following
conditions precedent:
a. No preliminary or permanent injunction or other order shall have been
issued by any federal or state court of competent jurisdiction in the
United States or by any Governmental Entity and no statute, rule,
regulation or executive order shall have been promulgated or enacted by
any Governmental Entity which restrains, enjoins or otherwise prohibits
in any material respects the transactions contemplated hereby.
b. The receipt of the Purchase Price in an aggregate amount of Nine
Million Six Hundred and Twenty Six Thousand Three Hundred and Fifty
Nine Dollars and Forty Cents ($9,626,359.40) in immediately available
funds wired to an account designated by Sellers.
c. The representations and warranties of Buyer contained in this Agreement
shall have been true and correct when made and as of the Closing Date.
d. Buyer has performed in all material respects all obligations and
agreements, and complied in all material respects with all covenants
and conditions contained in this
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Agreement, to be performed or complied with by it prior to or at the
Closing Date. Buyer shall have delivered an officer's certificate to
this effect.
e. Such other documents, instruments and writings as shall be requested by
Sellers to complete the transactions contemplated by this Agreement.
10. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
The obligations of Buyer under this Agreement (including,
without limitation, the obligation of Buyer to purchase the HPAC Shares from
Sellers) are expressly subject to and conditioned upon the fulfillment at or
prior to the Closing of each and all of the following conditions precedent:
a. Buyer's completion of its due diligence with respect to HPAC and the
HPAC Shares and Buyer's reasonable satisfaction with the results of
such due diligence.
b. No preliminary or permanent injunction or other order shall have been
issued by any federal or state court of competent jurisdiction in the
United States or by any Governmental Entity and no statute, rule,
regulation or executive order shall have been promulgated or enacted by
any Governmental Entity which restrains, enjoins or otherwise prohibits
in any material respects the transactions contemplated hereby.
c. The Company has duly executed and delivered the Loan Agreement and
Promissory Note.
d. The Company has duly executed and delivered the Warrant.
e. Each Shareholder and the Company has duly executed and delivered the
Shareholders Rights and Voting Agreement.
f. The receipt of written consents to the transactions contemplated by
this Agreement, in form reasonably acceptable to Buyer, from each of
the entities listed on Schedule 6(b) in connection with the applicable
agreement as set forth on Schedule 6(b).
g. The receipt of HPAC Shares registered in Buyer's name or in a name
designated by Buyer, free and clear of all Liens, encumbrances,
preemptive rights, or restrictions of any kind or nature, or duly
transferred to Buyer with blank stock powers signature guaranteed.
Simultaneously with and as a result of the Closing, the Buyer shall
have acquired HPAC Shares, representing Thirty Eight and 40/100ths
percent (38.4%) of the total issued and outstanding Common Stock of the
Company on a Fully Diluted Basis.
h. The representations and warranties of Sellers and the representations
concerning the Company contained in this Agreement shall have been true
and correct when made and as of the Closing Date.
i. Each Seller has performed in all material respects all obligations and
agreements, and complied in all material respects with all covenants
and conditions contained in this Agreement, to be performed or complied
with by it prior to or at the Closing Date. The Sellers shall have
delivered a certificate to this effect.
j. There shall have been obtained, or there shall have been made
arrangements reasonably satisfactory to the Buyer for obtaining all
regulatory, governmental, corporate, creditors', shareholders'
approvals, consents to the transactions contemplated herein, and other
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necessary Licenses (and there shall be no pending or threatened
proceedings to revoke such Licenses) for the operation of the Company,
the absence of which could be reasonably likely to have a Material
Adverse Effect on the Company.
k. Between the Effective Date and the Closing Date, the Company shall have
conducted its business in the ordinary and regular course in a manner
not inconsistent with past practices, and there shall not have been any
Material Adverse Effect, other than changes or effects resulting from
changes attributable to conditions affecting the applicable business
generally, changes in general economic conditions, cyclical changes
that are consistent with the past operating history of the Company's
business, or changes attributable to the announcement or pendency of
this transaction.
l. There shall have been no adverse affect on Seller's ownership of or the
condition of Seller's title to the HPAC Shares, including without
limitation that there shall have been no dilutive event which resulted
in a decrease in the percentage of issued and outstanding shares of
capital stock on a Fully Diluted Basis represented by the HPAC Shares
as set forth in Section 5(f).
m. The Company's Board of Directors shall have adopted a resolution
effective as of the Closing Date electing Buyer's nominees to fill the
vacancies on the Board created by the resignations in accordance with
Section 8(e) hereof, such elections shall establish Buyer's Board
Representation. The Board of Directors shall have adopted a resolution
electing a Secretary of the Company to fill the vacancy as of the
Closing Date created by the resignation of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ in
accordance with Section 8(e) hereof.
n. The Executive Board of the Buyer shall have approved the execution and
delivery of this Agreement and the Other Transaction Documents and the
performance by Buyer of the transactions contemplated in this Agreement
and the Other Transaction Documents;
o. The receipt of an opinion of counsel for the Sellers reasonably
satisfactory to Buyer.
p. Prior to the Closing Date, the Board of Directors of the Company shall
have adopted a resolution waiving and rendering the Rights Agreement of
no force and effect with respect to (i) the transactions contemplated
in this Agreement and the Other Transaction Documents and (ii) the
Buyer.
q. The Company has duly executed and delivered the Registration Rights
Agreement.
r. such other documents, instruments and writings as shall be requested by
Sellers to complete the transactions contemplated by this Agreement.
11. INDEMNITY; SURVIVAL.
a. Each Party agrees to protect, indemnify, hold harmless and defend the
other Party and its officers, directors, members, partners, employees,
agents, representatives and permitted assigns from and against (and pay
the full amount of) any and all losses, liabilities, Actions or
Proceedings, damages or injuries, claims, demands, judgments, costs or
expenses (including reasonable attorney's fees), including appeals
(individually, a "Loss," and collectively, "Losses"), which are
incurred by such Persons to third parties and which are caused by,
result from, arise out of or occur in connection with any breach of
warranty or inaccurate or erroneous representation made by such Party
pursuant to Articles 5, 6 or 7 or any breach by such Party of an
obligation arising under Article 8. The
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representations, warranties and covenants of the Seller and the Buyer
contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement and the Closing Date and,
except as otherwise specifically provided in this Agreement, shall
remain operative and in full force and effect for a period of two (2)
years following the Closing Date, except as to any matters with respect
to which a bona fide written claim shall have been made or an action at
law or in equity shall have commenced before such date, in which event
survival shall continue (but only with respect to, and to the extent
of, such claim) until the final resolution of such claim, including all
applicable periods for appeal; provided, however, that (i) the
representations, warranties, and covenants contained in Sections 5(a),
5(f), 5(h), 6(a), 6(b) and 6(c) hereof and this Article 11 shall
survive without time limit; and (ii) the representations, warranties
and covenants relating to Taxes shall survive until six (6) months
following the expiration of the applicable statutes of limitations
relating to claims with respect thereto (giving effect to any extension
thereof by waiver or otherwise). Indemnification Procedure. The
Party making a claim for indemnification under this Section 11 is
hereinafter referred to as the "Indemnified Party" and the Party
against whom such claim is asserted under this Article 11 is
hereinafter referred to as the "Indemnifying Party." All claims by an
Indemnified Party shall be asserted and resolved as provided for in
this Article 11.
ii. In the event that any Indemnified Party receives
notice of the commencement of any action or proceeding, the assertion of any
claim by a third party or the imposition of any penalty or assessment for which
indemnity may be sought pursuant to this Article 11 (a "Third Party Claim"), and
such Indemnified Party intends to seek indemnity pursuant to this Article 11,
such Indemnified Party shall promptly after receiving such notice provide the
Indemnifying Party with notice of such Third Party Claim.
iii. The Indemnifying Party shall, upon receipt of such
notice, be entitled to participate in or, at the Indemnifying Party's option,
assume the defense, appeal or settlement of such Third Party Claim with respect
to which such indemnity has been invoked with counsel of its own choosing, and
the Indemnified Party shall fully cooperate with the Indemnifying Party in
connection therewith including contesting such Third Party Claim or making any
counterclaim against the Person asserting such Third Party Claim; provided,
however, that the Indemnified Party shall be entitled to employ one counsel to
represent itself if an actual conflict of interest exists (provided that the
existence of the indemnity shall not be deemed to constitute a conflict) between
the Indemnifying Party and the Indemnified Party in respect of such Third Party
Claim and in that event the reasonable fees and expenses of such counsel shall
be paid by the Indemnifying Party; and provided further that any Indemnified
Party is hereby authorized prior to the date on which it receives written notice
from the Indemnifying Party that it intends to assume the defense, appeal or
settlement of such Third Party Claim, to file any motion, answer or other
pleading and take such other action which it shall reasonably deem necessary to
protect its interest or that of the Indemnifying Party until the date on which
the Indemnified Party receives such notice from the Indemnifying Party. In the
event that the Indemnifying Party fails to assume the defense, appeal or
settlement of such Third Party Claim within thirty (30) days after receipt of
notice thereof from the Indemnified Party, such Indemnified Party shall have the
right to undertake the defense or appeal of or settle or compromise such Third
Party Claim on behalf of and for the account and risk of the Indemnifying Party.
10
13
iv. No claim or demand may be settled without the consent
of the Indemnifying Party, which consent shall not be unreasonably withheld,
except as set forth in the last sentence of Section 11(c)(iii) above. Unless the
Indemnifying Party shall have agreed in writing that any and all damages to the
Indemnified Party related to a claim or demand are fully covered by the
indemnities provided herein, no such claim or demand may be settled by the
Indemnifying Party without the consent of the Indemnified Party, which consent
shall not be unreasonably withheld.
d. To the extent it shall subsequently be determined by an arbitration
tribunal that the Indemnified Party shall have no right pursuant to
this Section 11 to be indemnified by the Indemnifying Party, the
Indemnified Party shall promptly pay to the Indemnifying Party any
amounts previously paid or advanced by the Indemnifying Party to the
Indemnified Party with respect to such matters pursuant to this Section
11.
e. Tax Adjustments. The Parties will make appropriate adjustments for any
Tax benefits, Tax detriments or insurance proceeds in determining the
amount of any indemnification obligation under this Article 11.
12. DISPUTE RESOLUTION.
a. Disputes. Within fifteen (15) days of the written request of either
Party, the Parties shall meet to negotiate in good faith a resolution
of any dispute, claim, controversy or claim arising out of or relating
to this Agreement or the subject matter of this Agreement, or the
breach, termination or invalidity thereof (a "Dispute").
b. Arbitration. Any Dispute which cannot be resolved pursuant to Section
12(a) above within twenty (20) days of the written request provided
pursuant to Section 12(a), will be finally settled by arbitration
before a sole arbitrator in accordance with the Commercial Rules of
Arbitration of the American Arbitration Association in effect on the
date of this Agreement. The arbitrator shall be appointed in accordance
with the applicable rules of arbitration. The arbitrator shall be an
individual with significant experience in the aircraft maintenance
sector.
c. Timing and Location of Arbitration. The Parties agree that any
arbitration process related to this Agreement shall be structured to
the fullest extent possible in accordance with the applicable
arbitration rules in such a way as to enable a decision to be rendered
by the arbitrators within ninety (90) days of the date of the
commencement of such arbitration. The place of arbitration will be Salt
Lake City, Utah. By this agreement to arbitrate, the Parties waive
their right to any form of appeal or recourse to a court of law or
other judicial authority, to the fullest extent permitted by law,
provided that any judgment upon an award rendered by the arbitrator may
be entered in any court having jurisdiction therefor.
d. Confidentiality; Expenses.
i. The Parties shall keep the arbitration confidential
and shall not disclose to any Person, other than those necessary to the
proceedings, the existence of the arbitration, any document submitted or
exchanged in connection with it, any oral submissions or testimony, transcripts,
or any award unless disclosure is required by law or is necessary to challenge,
recognize or enforce an award. The arbitrator and any experts shall be required
to agree to comply with this confidentiality provision before accepting
appointment.
11
14
ii. All expenses of the arbitration procedure and
tribunal will be borne equally by the Parties, or as otherwise prescribed by the
applicable arbitration rules. Each Party's expenses with respect to the conduct
of the arbitration, including the fees of attorneys, accountants, or other
experts used in connection with the arbitration, will be borne by the
unsuccessful party in the arbitration, in whole or in part as determined by the
arbitration tribunal.
13. TERMINATION.
a. This Agreement may be terminated and the transactions contemplated
hereby may be abandoned at any time prior to the Closing Date, as set
forth below:
i. Mutual Consent. This Agreement may be terminated by
the mutual consent of the parties.
ii. Order or Decree. This Agreement may be terminated by
the Buyer or Sellers if any Governmental Entity shall have issued an Order,
decree, ruling or taken any other action restraining, enjoining or otherwise
prohibiting in any material respects the transactions contemplated hereby and
such order, decree, ruling or other action shall have become final and
nonappealable.
iii. Outside Date. This Agreement may be terminated by any
party (a) if the Closing shall not have occurred by September 27, 2000 (the
"Outside Date") or (b) if one or more conditions to such party's obligation to
consummate the transactions contemplated hereby cannot be satisfied by the
Outside Date; provided, however, that no party may exercise its rights under
this Section 12 if such party is in material breach or default under this
Agreement.
iv. No Material Adverse Change. This Agreement may be
terminated by the Buyer if an event described in Section 10(j) shall have
occurred with respect to the Company or the HPAC Shares.
v. Breach. This Agreement may be terminated by either
party if the other party shall have breached any of its material representations
or warranties or obligations under this Agreement.
vi. Diligence. The Buyer may terminate this Agreement
prior to the Closing Date as a result of its due diligence review prior to the
Closing Date.
b. Procedures Upon Termination. In the event of the termination of this
Agreement, written notice thereof shall be promptly given to the other
party hereto and this Agreement shall terminate, all further
obligations of the parties hereunder to satisfy the conditions
precedent to the Closing shall terminate, and the transactions
contemplated hereby shall be abandoned without further action by any of
the parties hereto. The provisions of Article 12, 13, and 14 shall
survive any termination.
c. Effect of Termination. Nothing in this Article 13, shall relieve any
party hereto of any liability for intentional or willful breach of this
Agreement, including the willful failure to fulfill a condition or to
perform a covenant. The parties shall have no liability for termination
of this Agreement for any reason other than an intentional or willful
breach of this Agreement.
14. MISCELLANEOUS.
12
15
a. Further Assurances. Each party agrees to take all such other and
further actions and to execute and deliver all such other and further
documents and instruments as shall be reasonably requested by the other
party to carry out the intent and purposes of this Agreement.
b. Entire Agreement. This Agreement constitutes the entire agreement
between the parties pertaining to the subject matter hereof and
supersedes all prior and contemporaneous agreements, understandings,
negotiations, and discussions, whether oral or written.
c. Amendment. This Agreement may not be modified or amended except by
written agreement specifically referring to this Agreement and executed
and delivered by the parties hereto.
d. Assignment; Binding Effect; No Third Party Beneficiaries. This
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, executors, administrators,
successors, and assigns. This Agreement and the transactions
contemplated hereby may not be assigned or otherwise transferred, in
whole or in part, by operation of law or otherwise, without the prior
written consent of the other party, except that Buyer may assign its
rights hereunder, in whole or in part, to an Affiliate. Nothing in this
Agreement, express or implied, is intended to confer upon any party
other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations, or liabilities under or by
reason of this Agreement.
e. Governing Law. This Agreement shall be governed by and construed and
enforced under and in accordance with the laws of the State of
California.
f. Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when so executed and delivered, shall be
deemed an original and all of which together shall constitute one
instrument.
g. Captions; Interpretation. The section and other headings contained in
this Agreement are for reference purposes only and shall not affect the
meaning or interpretation of this Agreement. All references to
sections, articles, Exhibits or Schedules shall mean the sections,
articles, Exhibits or Schedules of this Agreement. Terms used with
initial capital letters will have the meanings specified, applicable to
both singular and plural forms, for all purposes of this Agreement. The
words "include" and "exclude" and derivatives of those words are used
in this Agreement in an illustrative sense rather than a limiting
sense.
h. Notices. Any notice required or permitted by this Agreement shall be in
writing and shall be deemed sufficient on the date of delivery, when
delivered personally or by overnight courier or sent by telegram or
fax, or by certified or registered U.S. mail, and addressed to the
party to be notified at such party's address as set forth on Schedule
14(h) hereto.
i. Fees and Expenses. All fees and expenses incurred in connection with
the negotiation, preparation, execution and performance of this
Agreement shall be paid by the party incurring such expenses.
j. Severability. Any provision of this Agreement which is invalid or
unenforceable shall be ineffective to the extent of such invalidity or
unenforceability, provided, that such invalidity or unenforceability
does not deny any party the material benefits of the
13
16
transactions for which it has bargained and such invalidity or
unenforceability shall not affect in any way the remaining provisions
hereof.
k. Specific Performance. The Sellers hereby acknowledge and agree that the
failure of the Sellers to perform their respective obligations under
this Agreement to otherwise comply with such obligations will cause
irreparable injury to Buyer for which damages, even if available, will
not be adequate remedy. Accordingly, the Sellers hereby consent to the
issuance of injunctive relief to prevent breaches, and to the granting
by any such court of the remedy of specific performance of the terms
and provisions of this Agreement and the Other Transaction Documents.
l. Waivers. No waiver of a breach or default hereunder shall be considered
valid unless in writing and signed by the party giving such waiver, and
no such waiver shall be deemed a waiver of any subsequent breach or
default of the same or similar nature.
m. No Buyer Affiliate Liability. Each of the following is herein referred
to as a "Buyer Affiliate": (a) any direct or indirect holder of any
equity interests or securities of the Buyer (whether such holder is a
limited or general partner, member, stockholder or otherwise), (b) any
Affiliate of the Buyer, or (c) any director, officer, employee,
representative or agent of (i) Buyer, (ii) any Affiliate of Buyer, or
(iii) any such holder of equity interests or securities referred to in
clause (a) above. No Buyer Affiliate shall have any liability or
obligation of any nature whatsoever in connection with or under this
Agreement or any of the Other Transaction Documents or the transactions
contemplated hereby or thereby (whether or not such Buyer Affiliate has
called or received capital for contribution to Buyer), and the Sellers
hereby waive and release all claims related to any such liability or
obligation.
[Execution Page Follows]
14
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and effective as of the date first above written.
BUYER:
LUFTHANSA TECHNIK AG
By: /s/ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------
Title: GENERAL COUNSEL
---------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Title: GENERAL MANAGER
---------------------
SELLERS:
-------------------------------------------------------------------------------------------------------------------
Name Number of HPAC Shares
-------------------------------------------------------------------------------------------------------------------
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 961,252
-------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------------
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ 438,943
-------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------------
6,000
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, CUST FOR ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, cust for ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------------
287,060
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------------
324,120
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------------
319,120
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------------
TOTAL: 2,336,495
-------------------------------------------------------------------------------------------------------------------
18
ANNEX I
Definitions
"Action or Proceeding" means any action, suit, claim, arbitration, proceeding or
Government Entity investigation or audit.
"Affiliate" shall mean, with respect to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with such Person. For the purposes of this definition, a Person shall be
deemed to control another Person if it possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of such
other Person, whether through ownership of voting securities, by contract or
otherwise, or the power to elect at least 50% of the directors, managers,
general partners, or persons exercising similar authority with respect to such
Person.
"Agreement" means this Stock Purchase Agreement.
"Applicable Laws" means all laws, statutes, rules, regulations, ordinances and
other pronouncements having the effect of law in the United States of America,
Germany, or any state, province, county, municipality or other political
subdivision thereof, including without limitation all governmental permits,
licenses, franchises and authorizations required for any Person to conduct its
respective business as currently conducted.
"Board Representation" shall mean the election of 3 designees of Buyer to
Company's Board of Directors for a term equal to the remaining term of the
directors resigning pursuant to Section 8(e).
"Books and Records" means all titles, documents, instruments, papers, books and
records relating to the business and operations of a Person, including financial
statements, tax returns and related workpapers and letters from accountants,
budgets, pricing guidelines, ledgers, journals, deeds, title policies, minute
books, stock certificates, and books, stock transfer ledgers, contracts,
licenses, customer lists, computer files and programs, retrieval programs,
operating data and plans and environmental studies and plans.
"Business Day" means a day other than (i) Saturday, (ii) Sunday, or (iii) any
day on which banks located in New York, New York are generally closed.
"Buyer" shall have the meaning given it in the introductory paragraph.
"Closing" shall have the meaning given it in Article 4.
"Closing Date" shall have the meaning given it in Article 4.
19
"Company" has the meaning given it in the introductory statements of this
Agreement.
"Common Stock" shall mean the common stock of the Company, par value $0.01 per
share.
"Contract" means any contract, agreement, understanding or commitment.
"Deephaven Stock Purchase Agreement" means that certain Stock Purchase Agreement
by and among Buyer, Deephaven Private Placement Trading Ltd., and for limited
purposes set forth therein the Company.
"Disclosing Party" shall have the meaning given it in Section 8(b)(iv).
"Dispute" shall have the meaning given it in Section 12(a).
"Effective Date" shall mean the date of this Agreement written in the
introductory paragraph.
"Fully Diluted Basis" means with respect to any determination or calculation,
that such determination or calculation is performed on a fully diluted basis as
determined in accordance with GAAP.
"GAAP" shall mean the generally accepted accounting principles of the United
States consistently applied.
"Government Entity" means any court or tribunal or administrative, governmental
or regulatory body, agency, commission, division, department, public body or
other authority.
"▇▇▇▇▇▇ Financial Agreements" shall mean (i) that certain Junior Participation
Agreement by and between ▇▇▇▇▇▇ Financial Inc. and Buyer, (ii) that certain
Consent, Waiver and Amendment No. 5 to the Loan and Security Agreement by and
among the Company, Hawker Pacific Aerospace Limited, ▇▇▇▇▇▇ Financial Inc., and
NMB-▇▇▇▇▇▇ Limited, and (iii) that certain Subordination Agreement by and among
the Company, Buyer and ▇▇▇▇▇▇ Financial Inc.
"HPAC Shares" shall have the meaning given it in Recital A.
"Indebtedness" means, with respect to any Person, all obligations of such Person
(i) for borrowed money, (ii) evidenced by notes, bonds, debentures or similar
instruments, (iii) for the deferred purchase price of goods or services (other
than trade payables or accruals incurred in the ordinary course of business),
(iv) under lease agreements, including sale-lease back agreements, that are
required to be capitalized under GAAP consistently applied, (v) with respect to
Taxes relating to any period other than the current fiscal year of such Person
("Prior Period") (or to transactions effected in any such Prior Period),
including Taxes that are deemed to be owing by such Person as a result of any
Government Entity claim, Action or Proceeding contesting the validity or amount
of such Taxes, and (vi) in the nature of guarantees of the obligations described
in clauses (i) through (v) above of any other Person.
"Indemnified Party" shall have the meaning given it in Section 11(c).
20
"Indemnifying Party" shall have the meaning given it in Section 11(c).
"Knowledge" means, (i) with respect to any natural Person, the actual or
constructive knowledge of such Person and (ii) with respect to any non-natural
Person, that each member of the board of directors and senior management of such
Person has or should have after reasonable inquiry.
"Liabilities" means all Indebtedness, obligations, and other liabilities of a
Person (whether absolute, accrued, contingent, fixed or otherwise, or whether
due or to become due).
"Licenses" means all licenses, permits, certificates, approvals, registrations,
franchises and similar consents granted or issued by a Government Entity or any
other Person.
"Lien" means any mortgage, security interest, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or otherwise), charge,
preference, priority or other security agreement, option, warrant, attachment,
right of first refusal, preemptive, conversion, put, call or other claim or
right, restriction on transfer (other than restrictions imposed by applicable
securities Laws), or preferential arrangement of any kind or nature whatsoever
(including any restriction on the transfer of any assets), any conditional sale
or other title retention agreement, any financing lease involving substantially
the same economic effect as any of the foregoing and the filing of any financing
statement with the pertinent public or private registry.
"Loan Agreement" shall mean that certain agreement dated as of the Closing Date
between Buyer and the Company pursuant to which the Buyer shall lend to the
Company $9,300,000 in the form of subordinated debt and the Company shall issue
to Buyer the Promissory Note and the Warrant.
"Losses" has the meaning given it in Section 11(a).
"Material Adverse Effect" means, with respect to the Company, a material adverse
effect on the business, prospects, assets, liabilities, revenues, costs and
expenses, income before provision for income taxes, operations or condition,
financial or otherwise, of the Company. In determining whether any individual
event would result in a Material Adverse Effect, notwithstanding that such event
does not of itself have such effect, a Material Adverse Effect shall be deemed
to have occurred if the cumulative effect of such event and all other then
existing events could reasonably be expected to result in a Material Adverse
Effect.
"Non-Disclosing Party" shall have the meaning given it in Section 8(b)(iv).
"Order" means any writ, judgment, decree, injunction or similar order of any
Government Entity (in each case whether preliminary or final).
"Organizational Documents" means with respect to any Person, articles of
incorporation, certificates of incorporation, by-laws, partnership agreement,
operating agreement, articles of association, joint venture or other agreement,
instrument or documents, individually or
21
collectively, pursuant to which such Person is established or organized, and
that govern the internal affairs of such Person or such documents as they may be
amended from time to time.
"Other Transaction Documents" shall mean the Loan Agreement, the Promissory
Note, the Warrant, the Shareholders Rights and Voting Agreement, the
Registration Rights Agreement, the ▇▇▇▇▇▇ Financial Agreements, and the
Deephaven Stock Purchase Agreement.
"Outside Date" shall have the meaning given to it in Section 13(a).
"Parties" shall have the meaning given to it in the introductory statements of
this Agreement.
"Person" means and includes any individual, partnership, joint venture,
corporation, trust, limited liability company, joint stock company, an
unincorporated organization, a Government Entity or any political subdivision or
agency thereof, or any other entity.
"Promissory Note" shall mean that promissory note issued by the Company in favor
of the Buyer in connection with the Loan Agreement.
"Purchase Price" shall have the meaning given it in Section 3(a).
"Registration Rights Agreement" means that certain registration rights agreement
dated as of the Closing Date by and between the Company and Buyer pursuant to
which Buyer is entitled to certain registration rights.
"Representatives" shall mean as to any natural person, such person's financial
advisors, attorneys, accountants, agents and Affiliates, and, as to any entity,
such entity's officers, directors, managers, partners, employees, financial
advisors, attorneys, accountants, agents and Affiliates.
"Rights Agreement" means that rights plan dated as of March 10, 1999, as filed
with the Securities and Exchange Commission (the "SEC") on March 23, 1999, as
amended and filed with the SEC on April 7, 1999 and as amended on August 15,
2000.
"SEC Filings" shall have the meaning given it in Section 6(c).
"Securities Act" shall have the meaning given it in Section 8(b).
"Sellers" shall have the meaning given to it in the introductory paragraph.
"Shareholders" shall mean ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇
▇▇▇▇▇, all parties to the Shareholders Rights and Voting Agreement.
"Shareholders Rights and Voting Agreement" shall mean that certain shareholders
rights and voting agreement dated as of the Closing Date by and among the
Company, the Shareholders, and Buyer.
22
"Taxes" means (a) any and all taxes, levies or other like assessments, charges
or fees (including estimated taxes, charges and fees), including, without
limitation, income, corporation, add-on minimum, ad valorem, advance
corporation, gross receipts, transfer, excise, property, sales, use,
value-added, License, payroll, employment, severance, pay as you earn,
withholding on amounts paid by or to the relevant party, social security and
franchise or other governmental taxes or charges, imposed by the United States
of America, or any state, province, county, local or foreign government or
subdivision or agency thereof; and such term shall include any interest
(punitive or otherwise), penalties or additions to tax related or attributable
to such taxes; or (b) Liability for the payment of any amounts of the type
described in (a) as a result of any obligation to indemnify any other Person.
"Tax Return" means any report, return, statement or other written information
required to be supplied to a taxing authority in connection with Taxes.
"Terms" shall have the meaning given it in Section 8(b)(i).
"Third Party Claim" shall have the meaning given to it in Section 11(c).
"Warrant" shall mean the warrant issued to the Buyer in connection with the Loan
Agreement equal to 2,500,000 shares of Common Stock subject to shareholders'
approval.
23
SCHEDULE 5(e)
FINDER'S FEES
The Company is a party to that certain agreement (the "First
Union Agreement") dated October 1, 1999 by and between the Company and First
Union Securities, Inc. ("First Union"). No Seller is a party to or otherwise
bound by the First Union Agreement, however, the Sellers and the Company have
agreed to the following:
1. In consultation with the Company, the Sellers shall negotiate
with First Union for and on behalf of the Company and use their best efforts to
resolve any and all claims that First Union may have or assert against the
Company under the First Union Agreement; provided the Sellers shall not agree to
any settlement amount without the prior consent of the Company.
2. The Company shall be responsible for payment of fees and
expenses and the settlement payment up to an aggregate amount of $250,000.
3. To the extent that, as a result of such negotiations, the
costs and expenses of resolving the such claim or claims of First Union,
including the settlement amount and fees and expenses incurred in negotiating
the settlement, exceed the sum of $250,000, upon demand by the Company, the
Sellers shall promptly pay directly to First Union all amounts in excess of
$250,000 in accordance with that certain Indemnification Agreement by and
between Sellers and the Company dated of even date herewith.
24
SCHEDULE 6(b)
CONSENTS
1. ▇▇▇▇▇▇ Financial Inc.
a) Loan and Security Agreement dated as of December 22,
1998 by and among Hawker Pacific Aerospace Corporation and Hawker Pacific
Aerospace Limited, as Borrowers, ▇▇▇▇▇▇ Financial, Inc. as Lender and Agent for
Lenders and NMB-▇▇▇▇▇▇ Limited, as Funding Agent and as Collateral Agent, as
modified and amended by:
(b) Waiver and Amendment No. 1 to Loan and Security
Agreement dated as of October 21, 1999;
(c) Waiver and Amendment No. 2 to Loan and Security
Agreement dated as of December 10, 1999;
(d) Waiver and Amendment No. 3 to Loan and Security
Agreement dated as of February 16, 2000;
(e) Waiver and Amendment No. 4 to Loan and Security
Agreement dated as of March 27, 2000;
(a) - (e) collectively referred to as the ▇▇▇▇▇▇ Financial
Agreement.
2. American Airlines
B757-200 Landing Gear Exchange and Overhaul Contract by and
between Hawker Pacific Aerospace Corporation and American Airlines effective as
of September 29, 1997.
3. Federal Express Corporation
Bailment and Services Agreement (Contract No. 95-0102-002)
dated September 1, 1997 by and between Hawker Pacific, Inc. and Federal Express
Corporation.
4. British Airways PLC
Landing Gear Overhaul Services Agreement dated February 4,
1998 by and between British Airways PLC, Hawker Pacific Aerospace Limited and
Hawker Pacific Aerospace Corporation.
5. American International Companies
American International Companies, Directors, Officers and
Corporate Liability Insurance Policy, Policy No. ▇▇▇-▇▇-▇▇ (policy period
1-29-98 to 1-29-01).
25
6. Reliance Insurance Company of Illinois
Reliance Insurance Company of Illinois, Employment Practices
Liability Policy, Policy No. NGT 0160770 (policy period 1-29-00 to 1-29-01).
7. Leases
a. Standard Industrial Commercial Single-Tenant Lease
dated July 28, 1994 between Industrial Bowling Corp. (now Industrial Centers
Corp.) and Hawker Pacific, Inc. concerning ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇,
▇▇, as amended.
b. Standard Industrial Commercial Single-Tenant Lease
dated July 28, 1994 between Industrial Bowling Corp. (now Industrial Centers,
Corp.) and Hawker Pacific, Inc., concerning ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇,
as amended.
c. Standard Industrial Commercial Single-Tenant Lease
dated July 28, 1994 between Industrial Bowling Corp. (now Industrial Centers,
Corp.) and Hawker Pacific, Inc., concerning ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇ as
amended.
d. Standard Industrial Commercial Single-Tenant Lease
dated March 31, 1997 between Industrial Centers Corp. and Hawker Pacific, Inc.,
concerning ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇ as amended.
26
SCHEDULE 14(h)
ADDRESSES
If to Buyer:
Lufthansa Technik AG
Weg beim Jager 193
D-22335 Hamburg, GERMANY
Attn.: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax No.: ▇▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
With a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax No.: (202) 663 - 6363
If to Sellers:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
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27
With a copy to:
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Fax: ▇▇▇ ▇▇▇ ▇▇▇▇