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Exhibit 10.1
PREFERRED STOCK PURCHASE AGREEMENT
This Preferred Stock Purchase Agreement (the "Agreement") is made and
entered into as of the 1st day of March, 2000, by and between GLOBAL LEISURE
TRAVEL, INC., a Washington corporation (the "Company"), AVIATION GROUP, INC., a
Texas corporation (the "Investor"), and each of the shareholders of the Company
(the "Shareholders").
1. AUTHORIZATION AND SALE OF THE SHARES; OTHER AGREEMENTS.
1.1 Authorization of the Shares. The Company shall, as of the Closing
(as defined below), adopt and file with the Secretary of State of the State of
Washington, the Certificate of Designation (the "Certificate"), substantially in
the form attached hereto as Exhibit A so as to establish and designate 1,500,000
shares of Series B Preferred Stock (the "Series B Stock") having the rights,
restrictions, privileges, redemption rights and preferences, as set forth in the
Certificate.
1.2 Sale of the Shares. Subject to the terms and conditions hereof, the
Investor agrees to purchase at the Initial Closing (as defined below), and the
Company agrees to sell and issue to the Investor at the Initial Closing, 200,000
shares of the Series B Stock for an aggregate purchase price of $2,000,000.
The purchase price represents $10.00 per share (the "Per Share Price").
1.3 Additional Sales of Shares. Subject to the terms and conditions
hereof, the Investor agrees to purchase at one or more Subsequent Closings (as
defined below), and the Company agrees to sell and issue to the Investor at such
Subsequent Closing, additional shares of the Series B Stock at a purchase price
per share equal to the Per Share Price. Such purchases shall occur from time to
time when the Investor and the Company mutually agree that additional funds are
needed by the Company to pay its matured indebtedness or to fund its
operations, but only to the extent additional funds are made available to the
Investor by Travelbyus under the Travelbyus Agreement or by the Bridge Financing
(as defined below). The maximum aggregate purchase price payable by the
Investor for all Series B Stock purchased under this Agreement, (i) using cash
proceeds from the purchase by Travelbyus of Investor Stock, shall in no event
exceed $10,000,000 and (ii) using cash proceeds from purchases of Investor Stock
in the Bridge Financing, shall in no event exceed $15,000,000.
1.4 Travelbyus.com, Ltd. Agreement.
(a) In connection with this Agreement, the Investor is entering into a
preferred Stock Purchase Agreement (the "Travelbyus Agreement") with
Travelbyus.com, Ltd., an Ontario corporation ("Travelbyus"), pursuant to which
Travelbyus is purchasing shares of Investor's Series B Preferred Stock (the
"Investor Stock"). The parties hereto acknowledge that the Company is in need of
funds to finance repayment of matured debt and for working capital purposes. It
is the intent of the parties to this Agreement that the proceeds of sale by the
Investor
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of the Investor Stock will be used to purchase the Series B Stock, except to the
extent of $500,000 thereof which Investor may retain for use in accordance with
the requirements of the Travelbyus Agreement. Accordingly, the Initial Closing
of this Agreement is conditioned on, and will occur simultaneously with, the
initial consummation under the Travelbyus Agreement.
(b) The parties hereto agree that the Series B Stock purchased at the
Initial Closing by the Investor will represent a control voting equity position
in the Company so that the Investor will be able thereafter to elect all of the
Board of Directors of the Company and to fully approve the Merger (as defined
below) for the shareholders of the Company. The Company, the Shareholders and
the Investor agree that the sole directors of the Company following the Initial
Closing shall be Bill Kirby, Richard Morgan and Jon Snyder, and the Shareholders
and the Investor agree to vote or execute consents with respect to their shares
of Common Stock and Series B Stock to so elect such directors from time to time.
1.5 Planned Merger of the Investor and the Company.
(a) The Company and the Shareholders understand and agree that this
Agreement is the first step in the acquisition by the Investor of 100% of the
equity ownership in the Company and all of the Company's outstanding corporate
indebtedness. The parties hereto are in the process of negotiating an Agreement
and Plan of Merger (the "Merger Agreement") pursuant to which a wholly owned
subsidiary of the Investor will merge with and into the Company ("Merger").
Because of the Investor's pressing need for capital, however, the Company and
the Investor have been unable to complete such negotiations. Pursuant to the
terms of the Merger, the Investor will issue to the holders of all of the
Company's outstanding Common Stock and rights to purchase Common Stock in full
cancellation of such Common Stock and rights, warrants (the "Equity Warrants")
to purchase 3.5 million shares of common stock of the Investor (the "Investor
Common Stock"). Notwithstanding the fact that the Merger may become effective,
the issuance of the Equity Warrants will be subject to the amendment of
Investor's articles of incorporation to increase its authorized number of
shares of Investor Common Stock to such amount as may be necessary to permit the
issuance of the Equity Warrants by the Investor, after taking into account all
of the other transactions contemplated by the parties hereto and Travelbyus.
The Shareholders acknowledge that the Equity Warrants will be the sole
consideration received by them in the Merger for their shares of outstanding
Common Stock and rights to purchase Common Stock. The Company, the Shareholders
and the Investor agree to negotiate in good faith the terms of the Merger
Agreement and to use reasonable efforts to execute the Merger Agreement and
consummate the Merger as soon as practicable but in no event later than March
10, 2000.
(b) The consummation of the Merger will be conditioned on the simultaneous
exchange of the then outstanding corporate indebtedness of the Company by the
holders thereof for the issuance by the Investor to the holders of such
indebtedness of (a) shares of the Investor's Series A Convertible Preferred
Stock (the "Series A Preferred Stock") with an initial aggregate liquidation
preference equal to the principal amount of such indebtedness (the "Principal
Amount") and (b) warrants (the "Exchange Warrants") to purchase 750,000 shares
of Investor Common Stock. The terms of the Equity Warrants and the Exchange
Warrants are set forth in more detail on Exhibit B attached hereto. The terms
of the Series A Preferred Stock are set forth
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in more detail on Exhibit C attached hereto. The Company and the Shareholders
agree to cooperate to facilitate the negotiation and execution of an appropriate
exchange agreement between the Investor and the holders of the Company's
indebtedness so that the exchange transaction can be consummated as soon as
practicable but no later than the consummation of the Merger.
(c) Each Shareholder will vote or cause to be voted (including by written
consent, if applicable) all of such Shareholder's shares of Common Stock in
favor of adoption of the Merger Agreement and against any action which is
intended or could reasonably be expected to hinder, delay or result in the
failure of the Merger to occur. In addition, each Shareholder will vote or
cause to be voted (including by written consent, if applicable) all of such
Shareholder's shares of Common Stock in favor of election to the Board of
Directors of the Company any nominees for director designated by the Investor.
1.6 Bridge Financing.
(a) Subject to the execution of definitive subscription documents
reasonably acceptable to Investor, Doerge Capital Management ("DCM"), together
with other broker/dealers selected by DCM with the concurrence of Travelbyus and
the Company in compliance with applicable securities laws, will be using its
commercially reasonable best efforts to sell up to US $15,000,000 of Investor
Stock and US $3,000,000 of Investor Common Stock to further finance the Merger,
the Travelbyus Merger, Global's operations and the Investor. To the extent the
amount of new cash proceeds from such Bridge Financing exceeds the aggregate
liquidation preference of any Investor Stock held by Travelbyus, such excess
will be used to redeem outstanding Investor Stock from Travelbyus at a per share
redemption price equal to the Per Share Price. Except as set forth in the
immediately preceding sentence, the Bridge Financing may also be effected by the
transfer by the holders of existing indebtedness of the Company of such
indebtedness to the Investor, in which case any guarantees of such indebtedness
shall be released by Investor. The purchasers of the Investor Stock in the
Bridge Financing, whether by cash or by transfer of existing indebtedness of the
Company, shall be issued by the Investor warrants (the "Bridge Warrants") to
purchase 750,000 shares of Investor Common Stock for each US $100,000 in
liquidation preference of the Investor Stock. The Bridge Warrants will be
transferable only with the Investor Stock prior to closing of the Travelbyus
Merger.
(b) Subject to and solely upon the consummation of at least US $7,500,000
in new cash proceeds from the Bridge Financing to be arranged by DCM, the
proceeds of such financing will be used by the Investor to purchase additional
shares of Series B Stock under this Agreement. The proceeds of such sale shall
be used by the Company to repay the remaining institutional indebtedness of the
Company due March 31, 2000 in the approximate amount of US $7,500,000 as more
particularly described on Schedule 3.12 of the Company Schedules. In the event
insufficient proceeds of the Bridge Financing are raised, the Company and
Shareholders shall use commercially reasonably efforts to cause the remaining
portion of such US $7,500,000 of institutional indebtedness to be transferred
to the Investor in exchange for issuance by Investor of additional Investor
Stock and Bridge Warrants, in which case any guarantees of such indebtedness
shall be released by the Investor.
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2. CLOSINGS; DELIVERIES.
2.1 Closings. The initial closing (the "Initial Closing") of the
purchase and sale of the Series B Stock hereunder shall be held at the offices
of Jenkens & Gilchrist, a Professional Corporation, 1445 Ross Avenue, Suite
3200, Dallas, Texas 75202 on March 1, 1999 or such other time and place as
agreed to by the Company and the Investor (the date of the Initial Closing is
hereinafter referred to as the "Initial Closing Date"). Each subsequent closing
("Subsequent Closing") of the purchase and sale of additional shares of the
Series B Stock shall be held at such time as agreed to by the Company and the
Investor at the offices of Jenkens & Gilchrist, a Professional Corporation, or
at such other place as agreed to by the Company and the Investor (the date of
each Subsequent Closing is hereinafter referred to as a "Subsequent Closing
Date").
2.2 Series B Stock Certificate. At each of the Closings, the Company
will deliver to the Investor a legended certificate, registered in the
Investor's name, representing the Series B Stock to be purchased by the Investor
at the Closing upon payment by the Investor of the purchase price therefor by
federal wire transfer of immediately available funds to an account designated by
the Company.
2.3 Initial Closing Documents. At the Initial Closing, the Company and
the Shareholders shall deliver, in addition to the stock certificate required by
Section 2.2, the following:
(i) the Certificate, in the form attached hereto as Exhibit A, together
with a Certificate from the Secretary of State of Washington evidencing the
filing thereof;
(ii) an opinion of Nida & Maloney, LLP, counsel to the Company, in the
form attached hereto as Exhibit D;
(iii) a certificate dated as of the Closing Date by the secretary or
other officer of the Company certifying as to the incumbency of the Company's
officers and the authenticity of the Certificate, the Articles of Incorporation
of the Company (the "Articles"), the Bylaws, and Board of Director and
shareholder resolutions approving the transactions contemplated hereby;
(iv) a certificate of existence as to the existence and the good standing
of the Company, dated as of a recent date, from the Secretary of State of the
State of Washington;
(v) a certificate of qualification from each state set forth on Schedule
3.1 of the Company Schedules, showing qualification of the Company to do
business in such state;
(vi) the resignations, effective as of the Closing Date, of each director
of the Company, other than those whom the Investor shall have specified in
writing at least five (5) days prior to the Closing;
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(vii) a unanimous written consent of the Shareholders electing the
Investor Nominees as directors of the Company, and
(viii) any other documents or certificates as may be reasonably requested
by the Investor.
3. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS AND COMPANY.
Except as disclosed in writing in a disclosure letter referring specifically to
the representations and warranties in this Agreement that specifically
identifies the section and subsection to which such disclosure relates and that
is delivered to the Investor by the Company and the Shareholders and certified
by a duly authorized officer of the Company and by the Shareholders within five
business days after the date of this Agreement (the "Company Schedules"), each
of the Shareholders and the Company, jointly and severally, hereby represent and
warrant to the Investor as follows:
3.1 Organization and Standing. The Company is a corporation duly
organized and existing under, and by virtue of, the laws of the State of
Washington and is in good standing under such laws. Except as set forth on
Schedule 3.1 of the Company Schedules, the Company is not required to be
qualified to do business as a foreign corporation in any other jurisdiction,
except where the failure to be so qualified would not have a material adverse
effect on the Company. The Company has the requisite corporate power to own and
operate its properties and assets and to carry on its business as presently
conducted and as proposed to be conducted. True and accurate copies of the
Company's Articles and Bylaws, as presently in effect, have been delivered to
the Investor. Schedule 3.1 of the Company Schedules is a true and complete list
of all jurisdictions in which the Company is qualified to do business as a
foreign corporation.
3.2 Corporate Power. The Company has all requisite legal and corporate
power (i) to execute and deliver this Agreement and the agreements contemplated
hereby; (ii) (when the Certificate has been adopted and filed), to issue and
sell the Series B Stock; and (iii) to carry out and perform its other
obligations under the terms of this Agreement and the agreements contemplated
hereby.
3.3 Subsidiaries. Except as described on Schedule 3.3 of the Company
Schedules, the Company does not own or control, directly or indirectly, any
interest or investment in any corporation, association, partnership, or other
business entity.
3.4 Capitalization. The authorized capital of the Company consists, or
will consist immediately prior to the Closing of:
(a) Preferred Stock. 5,000,000 shares of Preferred Stock, par value
$0.01, of which 1,500,000 have been designated Series B Preferred Stock and none
of which are isssued and outstanding. The rights, privileges and preferences of
the Series B Stock will be as stated in the Certificate.
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(b) Common Stock. 20,000,000 shares of common stock, no par value
("Common Stock"), of which 4,000,000 shares are issued and outstanding.
(c) The outstanding shares of Common Stock are owned by the
Shareholders and in the number specified in Schedule 3.4 of the Company
Schedules.
(d) The outstanding shares of Common Stock are all duly authorized
and validly issued, fully paid and nonassessable, and were issued in accordance
with the registration or qualification provisions of the Securities Act of 1933,
as amended (the "Act"), and any relevant state securities laws, or pursuant to
valid exemptions therefrom.
(e) Except as set forth on Schedule 3.4 of the Company Schedules,
there are not outstanding any options, warrants, rights (including conversion or
preemptive rights) or agreements for the purchase or acquisition from the
Company of any shares of its capital stock. Except as set forth on Schedule 3.4
of the Company Schedules, the Company is not a party or subject to any agreement
or understanding, and, to the best of the Company's knowledge, there is no
agreement or understanding between any persons and/or entities, which affects or
relates to the voting or giving of written consents with respect to any security
or by a director of the Company.
(f) The Company has not declared or paid any dividends or authorized
or made any distribution upon or with respect to any class or series of its
capital stock.
3.5 Authorization. All corporate action on the part of the Company and
its directors, officers and stockholders necessary for the authorization,
execution, delivery and performance of all obligations of the Company under this
Agreement and the agreements contemplated hereby has been (or will be) taken
prior to the Closing. This Agreement constitutes the valid and binding
obligation of the Company and is enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency or other laws
affecting the enforcement of creditors' rights generally, and except that the
availability of the remedy of specific performance or other equitable relief is
subject to the discretion of the court before which any proceeding therefor may
be brought.
3.6 Validity of Stock. The Series B Stock, when issued in compliance
with the provisions of this Agreement, will be validly issued, fully paid and
nonassessable, will be free of any liens or encumbrances, and shall not be
subject to any preemptive rights, rights of first refusal or redemption rights,
other than as provided herein or in the Certificate.
3.7 Disclosure. No representation or warranty by the Company in this
Agreement or in any written statement, business plan or certificate furnished to
the Investor pursuant to this Agreement or in connection with the transactions
contemplated by this Agreement, contains any untrue statement of a material fact
or omits or will omit to state a material fact necessary to make the statements
made not misleading in light of the circumstances under which they were made.
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3.8 Compliance with Other Instruments; None Burdensome, etc. The Company
is not in violation of any term of (i) its Articles or its Bylaws, (ii) any
provision of any mortgage, indenture, contract, agreement or instrument to which
the Company is a party or by which it is bound, (iii) any judgment, decree or
order binding upon the Company or any statute, rule or regulation applicable to
the Company. The execution, delivery and performance of and compliance with this
Agreement, and the issuance of the Series B Stock will not result in any such
violation or be in conflict with or constitute a default under any such term, or
result in the creation of any mortgage, pledge, lien, encumbrance or charge upon
any of the properties or assets of the Company pursuant to any such term. There
is no such term that materially and adversely affects, or in the future may
materially and adversely affect, the business, prospects, condition, affairs,
operations, properties or assets of the Company.
3.9 Litigation, etc. There are no actions, proceedings or investigations
pending or, to the knowledge of the Company, threatened against the Company, its
properties or its stockholders which, either in any case or in the aggregate,
might result in any material adverse change in the business or financial
condition of the Company or any of its properties or assets or in any material
impairment of the right or ability of the Company to carry on its business as
now conducted or as proposed to be conducted, or in any material liability on
the part of the Company, and none of which challenges the validity of this
Agreement or any action taken or to be taken in connection herewith.
3.10 Governmental Consents, etc. No consent, approval or authorization
of, or registration, declaration, designation, qualification or filing with, any
governmental authority on the part of the Company is required in connection with
the valid execution and delivery of this Agreement, the offer, sale or issuance
of the Series B Stock or the consummation of any other transaction contemplated
hereby, except for filings which have been made or will be timely made, as
appropriate.
3.11 Title to Property and Assets. The Company has good and marketable
title to its properties and assets, and has good title to all its leasehold
interests, in each case subject to no mortgage, pledge, lien, lease, encumbrance
or charge.
3.12 Contracts.
(a) True, correct and complete copies of each contract, agreement or
instrument with an obligation to or from the Company in excess of $50,000 has
been made available to the Investor (the "Contracts"), and are listed on
Schedule 3.12 of the Company Schedules.
(b) Expect as set forth on Schedule 3.12 of the Company Schedules,
the Company has not (i) incurred any indebtedness for money borrowed, (ii)
incurred any liabilities (other than indebtedness for money borrowed)
individually in excess of $50,000 or, in the case of liabilities individually
less than $50,000, in excess of $250,000 in the aggregate, (ii) made any loans
or advances to any person, other than ordinary advances for travel expenses, or
(iii) sold, exchanged or otherwise disposed of any of its assets or rights,
other than the sale of its inventory in the ordinary course of business. For the
purposes of this
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subsection (b), all indebtedness, liabilities, agreements, understandings,
instruments, contracts and proposed transactions involving the same person or
entity (including persons or entities the Company has reason to believe are
affiliates therewith) shall be aggregated for the purpose of meeting the
individual minimum dollar mounts of such subsections.
3.13 Intellectual Property.
(a) Ownership. The Company owns all patents, trademarks, service
marks, and copyrights, if any, necessary to conduct its business, or possesses
adequate licenses or other rights, if any, therefor, where the failure to have
such would have a material adverse effect on the Company. Set forth in Schedule
3.13 of the Company Schedules is a true and correct description of all
Proprietary Rights. "Proprietary Rights" shall mean (i) all trademarks,
tradenames, service marks and other trade designations, including common law
rights, registrations and applications therefor, and all patents, copyrights and
applications therefor currently owned, in whole or in part, by the Company with
respect to the business of the Company, and all licenses, royalties, assignments
and other similar agreements relating to the foregoing to which the Company is a
party; and (ii) all agreements relating to technology, know-how or processes
that the Company is licensed or is authorized to use by others, or which it
licenses or authorizes others to use.
(b) Conflicting Rights of Third Parties. The Company has the right to
use the Proprietary Rights (including, to the Company's knowledge, all patent
rights) without infringing or violating the rights of any third parties and the
use of the Proprietary Rights (including, to the Company's knowledge, all patent
rights) does not require the consent of any other person that has not been
obtained (all of such consents being set forth in Schedule 3.13 of the Company
Schedules) and the Proprietary Rights held by the Company are freely
transferable, other than those set forth in Schedule 3.13 of the Company
Schedules. No claim has been asserted by any person to the ownership of or right
to use any Proprietary Right or challenging or questioning the validity or
effectiveness of any license or agreement constituting a part of any Proprietary
Right, and the Company knows of no valid basis for any such claim. Each of the
material Proprietary Rights is valid and subsisting, has not been canceled,
abandoned or otherwise terminated and, if applicable, has been duly issued or
filed.
(c) Claims of Other Persons. The Company has no knowledge of any
claim that, or inquiry as to whether, any product, activity or operation of the
Company infringes upon or involves, or has resulted in the infringement of, any
proprietary right of any other person, corporation or other entity, and no
proceedings have been instituted, are pending or, to the best knowledge of the
Company, are threatened that challenge the rights of the Company with respect
thereto. Any agreement of indemnification by the Company for any Proprietary
Right as to any license granted by it or any property manufactured, used or sold
by it is set forth in Schedule 3.13 of the Company Schedules.
(d) Trade Secrets and Customer Lists. The Company has the right to
use, free and clear of any claims or rights of others except claims or rights
specifically set forth in Schedule 3.13 of the Company Schedules, all trade
secrets, customer lists and proprietary
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information required for the marketing of all merchandise and services formerly
or presently sold or marketed by the Company. The Company is not using or in any
way making use of any confidential information or trade secrets of any third
party, including, without limitation, any past or present employee of the
Company, except under valid and existing license agreements (all such license
agreements being set forth in Schedule 3.13 of the Company Schedules).
3.14 Registration Rights. The Company has not granted or agreed to grant
any registration rights to any person or entity with respect to any of its
securities.
3.15 No Conflict of Interest. Except as set forth on Schedule 3.15 of the
Company Schedules, the Company is not indebted, directly or indirectly, to any
of its officers or directors or to their respective spouses or children, in any
amount whatsoever other than in connection with accrued and unpaid salaries,
expenses or advances of expenses incurred in the ordinary course of business or
relocation expenses of employees. None of the Company's officers or directors,
or any members of their immediate families are, directly or indirectly, indebted
to the Company (other than in connection with purchases of the Company's stock)
or to the Company's knowledge have any direct or indirect ownership interest in
any firm or corporation with which the Company is affiliated or with which the
Company has a business relationship, or any firm or corporation that competes
with the Company, except that officers, directors and/or stockholders of the
Company may own stock in (but not exceeding two percent of the outstanding
capital stock of) any publicly traded company that may compete with the Company.
Except as set forth on Schedule 3.15 of the Company Schedules, none of the
Company's officers or directors or any member of their immediate families are,
directly or indirectly, interested in any material contract with the Company.
The Company is not a guarantor or indemnitor of any indebtedness of any other
person, firm or corporation.
3.16 Voting Rights. None of the Shareholders of the Company have entered
into any agreements with respect to the voting of capital shares of the Company.
3.17 Private Placement. Subject in part to the truth and accuracy of the
Investor's representations set forth herein, the offer, sale and issuance of the
Series B Stock as contemplated herein is exempt from the registration
requirements of the Act, and neither the Company nor any authorized agent acting
on its behalf will take any action hereafter that would cause the loss of such
exemption.
3.18 Employee Benefits. The Company currently maintains those employee
benefit plans identified on Schedule 3.18 of the Company Schedules and such
plans are in compliance with applicable federal and state laws in all material
respects.
3.19 Tax Returns, Payments and Elections. The Company has filed all tax
returns and reports as required by law. These returns and reports are true and
correct in all material respects. The Company has never had any tax deficiency
proposed or assessed against it and has not executed any waiver of any statute
of limitations on the assessment or collection of any tax or governmental
charge. None of the Company's federal income tax returns and none of
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its state income or franchise tax or sales or use tax returns has ever been
audited by governmental authorities. Since the date of the Financial Statements,
the Company has not incurred any taxes, assessments or governmental charges
other than in the ordinary course of business and the Company has made adequate
provisions on it books of account for all taxes, assessments and governmental
charges with respect to its business, properties and operations for such period.
The Company has withheld or collected from each payment made to each of its
employees, the amount of all taxes (including, but not limited to, federal
income taxes, Federal Insurance Contribution Act taxes and Federal Unemployment
Tax Act Taxes) required to be withheld or collected therefrom, and has paid the
same to the proper tax receiving officers or authorized depositories.
3.20 Labor Agreements and Actions. The Company is not bound by or subject
to (and none of its assets or properties is bound by or subject to) any written
or oral, express or implied, contract, commitment or arrangement with any labor
union, and no labor union has requested or, to the knowledge of the Company, has
sought to represent any of the employees, representatives or agents of the
Company. There is no strike or other labor dispute involving the Company
pending, or to the knowledge of the Company threatened, which could have a
material adverse effect on the assets, properties, financial condition,
operating results, or business of the Company (as such business is presently
conducted and as it is proposed to be conducted), nor is the Company aware of
any labor organization activity involving its employees. The Company has not
entered into any employment agreements other than with the persons listed on
Schedule 3.20 of the Company Schedules. Copies of the employment agreements
with such persons have been provided to counsel to the Investor. Except as set
forth on Schedule 3.20 of the Company Schedules, the employment of each officer
and employee of the Company is terminable at the will of the Company. The
Company has complied in all material respects with all applicable state and
federal equal employment opportunity laws and with other laws related to
employment.
3.21 Financial Statements. The Company has provided to the Investor its
unaudited financial statements (including balance sheet and income statement)
for the period from January 1, 1999 to October 31, 1999 (the "Financial
Statements"). The Financial Statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods indicated. The Financial Statements fairly present the
financial condition and operating results of the Company as of the dates, and
for the periods indicated therein, subject to normal year-end audit adjustments
and the financial statements do not contain any footnotes required under
generally accepted accounting principles. Except as set forth in the Financial
Statements, the Company has no material liabilities, contingent or otherwise,
other than (i) liabilities incurred in the ordinary course of business
subsequent to October 31, 1999 and (ii) obligations under contracts and
commitments incurred in the ordinary course of business and not required under
generally accepted accounting principles to be reflected in the Financial
Statements, which, in both cases, individually or in the aggregate are not
material to the financial condition or operating results of the Company and do
not exceed $50,000 in value. Except as disclosed in the Financial Statements,
the Company is not a guarantor or indemnitor of any indebtedness of any other
person, firm or corporation. The
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Company maintains and will continue to maintain a standard system of accounting
established and administered in accordance with generally accepted accounting
principles.
3.22 Changes. The parties acknowledge that since October 31, 1999, there
has been a significant decline of sales due to a delay of payments of
commissions to travel agents due to the Company's working capital needs. Except
as set forth on Schedule 3.23 of the Company Schedules, since October 31, 1999
there has not been, to the best of the Company's knowledge, any event or
condition of any character that might materially and adversely affect the
business, properties, prospects or financial condition of the Company (as such
business is presently conducted and as it is proposed to be conducted).
3.23 Legal Compliance. Except as set forth on Schedule 3.24 of the Company
Schedules, (a) the Company has all franchises, permits, licenses and other
rights and privileges necessary to permit it to own its properties and to
conduct its business as presently conducted (all of which such items are set
forth on Schedule 3.24 of the Company Schedules) except where the failure to
have such will not have a material adverse effect on the Company's business
prospects, results of operations or financial condition and (b) the Company, and
the business and operations of the Company, have been and are being conducted in
all material respects in accordance with all applicable laws, rules and
regulations, and the Company is not in violation of any judgment, order or
decree.
3.24 Brokerage or Finder's Fees. The Company has not incurred any
obligation or liability for brokerage commissions, finder's fees or similar
compensation in connection with the transactions contemplated by this Agreement
based on any arrangement or agreement made by the Company.
3.25 Material Contracts. Attached as Schedule 3.25 of the Company
Schedules is a true and complete listing of the material contracts and
commitments of the Company ("Material Contracts") other than indebtedness
reflected on other Company Schedules. The Material Contracts are enforceable by
the Company in accordance with their terms, and the Company is not in default or
breach of any of the Material Contracts, except as listed on Schedule 3.25 of
the Company Schedules. There are no other contracts or commitments of the
Company that are not listed on any Company Schedule and that could have a
material adverse effect on the financial condition, results of operation,
prospects or business of the Company.
4. INVESTOR'S REPRESENTATIONS. The Investor hereby represents and warrants as
follows:
4.1 Authorization. Such Investor has full power and authority to enter
into this Agreement and all other agreements, documents or instruments
contemplated by this Agreement and this Agreement constitutes its valid and
legally binding obligation, enforceable in accordance with its terms, except as
may be limited by (a) applicable bankruptcy, insolvency, reorganization or other
laws of general application relating to or affecting the enforcement of
creditors' rights generally and (b) the effect of rules of law governing the
availability of equitable remedies.
11
<PAGE>
4.2 Purchase Entirely for Own Account. The Series B Stock to be received
by such Investor will be acquired for investment for such Investor's own
account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and such Investor has no present intention of
selling, granting any participation in, or otherwise distributing the same.
4.3 Disclosure of Information. Such Investor has had an opportunity to ask
questions and receive answers from the Company regarding the terms and
conditions of the offering of the Series B Stock. The foregoing, however, does
not limit or modify the representations and warranties of the Company in Section
3 of this Agreement or the right of such Investor to rely thereon.
4.4 Investment Experience. Such Investor is an experienced investor in
securities and acknowledges that it is able to fend for itself, can bear the
economic risk of its investment and has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits and
risks of the investment in the Series B Stock. Such Investor also represents it
is an "accredited investor" within the meaning of Rule 501(a) promulgated under
the Act.
4.5 Restricted Securities. Such Investor understands that the shares of
Series B Stock it is purchasing are characterized as "restricted securities"
under the federal securities laws inasmuch as they are being acquired from the
Company in a transaction not involving a public offering and that under such
laws and applicable regulations such securities may not be resold without
registration under the Act and applicable state securities laws, except in
certain limited circumstances. In this connection, such Investor represents
that it is familiar with Rule 144 under the Act, as presently in effect, and
understands the resale limitations imposed thereby and by the Act. Such
Investor agrees that in no event will it make a transfer or disposition of any
of the Series B Stock unless and until, if requested by the Company, it shall
have furnished to the Company (at the expense of the Investor or transferee) an
opinion of counsel or other evidence, reasonably satisfactory to the Company, to
the effect that such transfer may be made without restrictions under the Act.
Such Investor understands that the Company is under no obligation to register
any of the securities sold hereunder. Such Investor understands that no public
market now exists for the Series B Stock and that it is uncertain whether a
public market will ever exist for the Series B Stock.
4.6 Legends. It is understood that the certificates evidencing the
Company's Series B Stock shall bear the following legend, as well as any other
legend as may be required by applicable federal and state securities laws:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF
ANY STATE. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND
RESALE AND MAY NOT BE TRANSFERRED, RESOLD, PLEDGED OR OTHERWISE DISPOSED OF
EXCEPT AS
12
<PAGE>
PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM."
4.7 Brokerage or Finder's Fees. Such Investor has not incurred any
obligation or liability for brokerage commissions, finder's fees or similar
compensation in connection with the transactions contemplated by this Agreement
based on any arrangement or agreement made by such Investor.
5. SHAREHOLDER'S REPRESENTATIONS. Each Shareholder hereby represents and
warrants as follows:
5.1 Authorization. Such Shareholder has full power and authority to enter
into this Agreement and all other agreements, documents or instruments
contemplated by this Agreement and this Agreement constitutes the Shareholder's
valid and legally binding obligation, enforceable in accordance with its terms,
except as may be limited by (a) applicable bankruptcy, insolvency,
reorganization or other laws of general application relating to or affecting the
enforcement of creditors' rights generally and (b) the effect of rules of law
governing the availability of equitable remedies.
5.2 Purchase Entirely for Own Account. The Equity Warrants (and the
underlying Investor Common Stock) to be received by the Shareholder pursuant to
the Merger will be acquired for investment for such Shareholder's own account,
not as a nominee or agent, and not with a view to the resale or distribution of
any part thereof, and such Shareholder has no present intention of selling,
granting any participation in, or otherwise distributing the same.
5.3 Disclosure of Information. Such Shareholder has had an opportunity to
ask questions and receive answers from the Investor regarding the financial
condition, business and circumstances of the Investor and terms and conditions
of the Merger and the Equity Warrants. The foregoing, however, does not limit
or modify the representations and warranties of the Investor in Section 4 of
this Agreement or the right of such Shareholder to rely thereon.
5.4 Investment Experience. Such Shareholder is an experienced investor in
securities and acknowledges that it is able to fend for itself, can bear the
economic risk of its investment and has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits and
risks of the investment in the Equity Warrants (and the underlying Investor
Common Stock). Such Shareholder also represents it is an "accredited investor"
within the meaning of Rule 501(a) promulgated under the Act.
5.5 Restricted Securities. Such Shareholder understands that the Equity
Warrants (or underlying Common Stock) that it receives in the Merger are
characterized as "restricted securities" under the federal securities laws
inasmuch as they will be acquired from the Investor in a transaction not
involving a public offering and that under such laws and applicable regulations
such securities may not be resold without registration under the Act and
applicable state securities laws, except in certain limited circumstances. In
this connection,
13
<PAGE>
such Shareholder represents that the Shareholder is familiar with Rule 144 under
the Act, as presently in effect, and understands the resale limitations imposed
thereby and by the Act. Such Shareholder agrees that in no event will the
Shareholder make a transfer or disposition of any of the Equity Warrants (or
underlying Common Stock) unless and until, if requested by the Investor, it
shall have furnished to the Investor (at the expense of the Shareholder or
transferee) an opinion of counsel or other evidence, reasonably satisfactory to
the Investor, to the effect that such transfer may be made without restrictions
under the Act. Such Shareholder understands that the Investor is under no
obligation to register any of such securities. Such Shareholder understands that
no public market now exists for the Equity Warrants and that it is uncertain
whether a public market will ever exist for the Equity Warrants.
5.6 Legends. It is understood that the certificates evidencing the Equity
Warrants shall bear the following legend, as well as any other legend as may be
required by applicable federal and state securities laws:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF
ANY STATE. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND
RESALE AND MAY NOT BE TRANSFERRED, RESOLD, PLEDGED OR OTHERWISE DISPOSED OF
EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS,
PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM."
6. COVENANTS.
6.1 Use of Proceeds. The Company shall use all the proceeds from the sale
of the Series B Stock to the repay indebtedness of the Company more particularly
described on Exhibit E attached hereto.
6.2 Company Schedules. As soon as practicable, but in no event later than
five business days after the date of this Agreement, the Company and the
Shareholders shall deliver the completed Company Schedules to the Investor. In
the event that the completed Company Schedules are not delivered to the Investor
on or prior to the fifth business day after the date of this Agreement or are
not satisfactory to the Investor, in the Investor's sole discretion, the Company
shall promptly return the full purchase price paid by the Investor to the
Company for the Series B Stock in exchange for the return of the Series B Stock.
7. MISCELLANEOUS.
7.1 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Texas, without regard to the State's conflicts of
law rules.
14
<PAGE>
7.2 Survival. The representations and warranties of the parties made
herein shall survive the Closing for a period of two (2) years; the covenants
and agreements of the parties made herein shall continue so long as any shares
of the Series B Stock remain outstanding.
7.3 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the permitted successors, assigns, heirs, executors and administrators of
the Investor. The Investor may assign its rights and obligations hereunder.
The Company may not assign its rights and obligations hereunder.
7.4 Entire Agreement; Amendment. This Agreement and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement among the parties with regard to the subjects hereof and thereof.
This Agreement may be amended, waived, discharged or terminated only pursuant to
an affirmative vote or written consent of the holders of at least a majority of
the shares of the Series B Stock and the Company and such amendment or waiver
shall be binding upon all such holders.
7.5 Brokerage and Finder's Fees. The Company, on the one hand, and the
Investor, on the other hand, will be responsible for, and will indemnify and
hold harmless the other party for, any brokerage commissions, finder's fees or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by the Company, on the one
hand, or by the Investor, on the other hand.
7.6 Notices, etc. All notices and other communications required or
permitted hereunder shall be given in writing and shall be deemed effectively
given upon personal delivery or three (3) business days after deposit with the
United States Postal Service, by certified mail, return receipt requested,
postage prepaid, or otherwise delivered by hand or by messenger, addressed (a)
if to the Investor, to Aviation Group, Inc., 700 North Pearl Street, Suite 2170,
Dallas, Texas 75201, Attention President, or to such other address as such
Investor shall have furnished to the Company in writing, or (b) if to the
Company, to Global Leisure Travel, Inc., 100 W. Harrison Street, South Tower,
Suite 350, Seattle, Washington 78119, Attention President, or at such other
address as the Company shall have furnished to the Investor in writing.
7.7 Expense of Transaction. Each party hereto shall bear its own expenses
in connection with the transactions described herein.
7.8 Titles and Subtitles. The titles of the Sections, paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
7.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
7.10 Timely Performance. Time is of the essence as to the performance of
the obligations required of the respective parties under this Agreement.
15
<PAGE>
7.11 Attorney's Fees. If any action at law or in equity (including
arbitration) is necessary to enforce or interpret the terms of this Agreement,
the prevailing party shall be entitled to reasonable attorney's fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled.
7.12 Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, the parties agree to renegotiate such
provision in good faith. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of this
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of this Agreement shall be enforceable in accordance with its terms.
[The remainder of this page is intentionally left blank,
signature page follows.]
16
<PAGE>
IN WITNESS WHEREOF, the Company, the Investor and the Shareholders have
executed and delivered this Agreement as of the day and year first above
written.
THE COMPANY:
GLOBAL LEISURE TRAVEL, INC.
By: /s/ Ramy Y. El-Batrawi
-----------------------
Name: Ramy Y. El-Batrawi
Title: Chairman
INVESTOR:
AVIATION GROUP, INC.
By: /s/ Richard L. Morgan
----------------------
Name: Richard L. Morgan
Title: Executive Vice President
SHAREHOLDERS:
/s/ Michael B. Lavigne
-----------------------
Name: Michael B. Lavigne
/s/ Ramy Y. El-Batrawi
-----------------------
Name: Ramy Y. El-Batrawi
17
17
<PAGE>
EXHIBIT A
Form of Articles of Amendment Establishing Series of Shares
<PAGE>
EXHIBIT B
Terms of Warrants
Series The Exchange Warrants and the Equity Warrants
(together, the "Warrants") shall be issued in
different series. The Exchange Warrants shall be
issued as Series A Warrants and the Equity
Warrants shall be designated as Series B Warrants.
Term Each series shall have a term of two years from
the date the securities issuable upon their
exercise are freely tradable under the Securities
Act of 1933, as amended, and the rules and
regulations thereunder.
Exercise Price Series A: The Series A Warrants shall have an
exercise price of US$4.00 per share. Series B: The
Series B Warrants shall have an exercise price of
US$3.00 per share.
<PAGE>
EXHIBIT C
Terms of Series A Preferred Stock
<TABLE>
<S> <C>
Liquidation Preference The initial liquidation preference (the
"Series A Liquidation Preference") of the
Series A Preferred Stock shall be Principal
Amount. The Series A Liquidation Preference
shall be increased by any accrued but unpaid
dividends, which shall be prorated in the
event of any redemption or conversion.
Dividends Each holder of Series A Preferred Stock will
be entitled to receive cumulative monthly
dividends if and when declared by the board
of directors, at an annual rate equal to 9%
(the "Series A Dividend Rate") of the Series
A Liquidation Preference of the Series A
Preferred Stock held by such holder.
Conversion at the Option of the The Series A Preferred Stock may be converted
Surviving Corporation at the option of the Investor into Investor
Common Stock at any time after its issuance,
provided that there shall not have been
effected a common stock, preferred stock or
debt financing for the Investor with gross
cash proceeds of at least US$25 million on
terms reasonably acceptable to the Investor
after or in connection with the Travelbyus
Merger. If the Investor elects to effect
such a conversion, it shall give notice
thereof to the holders of the Series A
Preferred Stock (the date of delivery of such
notice the "Conversion Date") and the Series
A Preferred Stock shall automatically be
converted into a number of shares of the
Investor Common Stock equal to the quotient
obtained by dividing (i) the Series A
Liquidation Preference on the Conversion Date
by (ii) the arithmetic mean of closing bid
prices of the Investor Common Stock as
reported by Bloomberg, L.P. for the 21
trading days preceding the Conversion Date
(the "Conversion Rate").
Rank The Series A Preferred Stock will rank junior
in rights to dividends and liquidation
preference to the Investor's Series B
Preferred Stock.
Redemption The Series A Preferred Stock will be
redeemable at the option of the Investor at
any time on or prior to September 30, 2000 at
a price per share equal to the Series A
Liquidation Preference (the "Redemption
Price"). Notice of redemption shall be given
at least 30 days in advance, during which
time it may be converted at the holder's
election.
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Voting Rights After the earlier of September 30, 2000 or
the consummation of the Travelbyus Merger,
the Series A Preferred Stock shall vote on
all matter submitted to a vote of the
holders of Investor Common Stock on an
as-converted basis. The Series A Preferred
Stock will have no voting rights prior to
that date.
Optional Conversion in the Event Not In the event the Series A Preferred Stock has
Redeemed or Converted Within 13 Months not been redeemed or converted on or before
October 31, 2000, the Series A Preferred
Stock may be converted at the option of the
holders into Investor Common Stock at the
Conversion Rate.
</TABLE>
2
<PAGE>
FIRST AMENDMENT TO PREFERRED STOCK PURCHASE AGREEMENT
This First Amendment to Preferred Stock Purchase Agreement (the "Amendment")
is made and entered into as of the 17th day of March, 2000, by and among GLOBAL
LEISURE TRAVEL, INC., a Washington corporation (the "Company"), AVIATION GROUP,
INC., a Texas corporation (the "Investor"), Michael B. Lavigne, an individual,
and Ramy Y. El-Batrawi, an individual (together with Mr. Lavigne, the
"Principals"), and GLOBAL LEISURE, INC., a Washington corporation ("GLI") and
GENESIS DIVERSIFIED INVESTMENTS, INC., a Florida corporation ("GDI", and
together with GLI, the "Shareholders").
W I T N E S S E T H:
WHEREAS, the Company, the Investor and the Principals have previously entered
into that certain Preferred Stock Purchase Agreement, dated as of March 1, 2000
(the "Purchase Agreement");
WHEREAS, contrary to the representations set forth in the Purchase Agreement,
the Shareholders, and not the Principals, directly own all of the issued and
outstanding common stock of the Company;
WHEREAS, the parties to the Purchase Agreement intended for the Shareholders
of the Company to be parties to the Purchase Agreement rather than the
individual Principals; and
WHEREAS, the Company, the Investor, the Principals and the Shareholders now
desire to make the Shareholders parties to the Purchase Agreement in place of
the Principals and to amend the Purchase Agreement as set forth below.
NOW THEREFORE, in consideration of the mutual representations, warranties and
covenants herein contained, and on the terms and subject to the conditions
herein set forth, the parties agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms used
herein shall have the meanings, if any, assigned to them in the Purchase
Agreement.
2. Amendments to the Purchase Agreement.
(a) The term "Shareholders" used in the Purchase Agreement is hereby
amended to mean Global Leisure, Inc., a Washington corporation, and Genesis
Diversified Investments, Inc., a Florida corporation.
(b) The term "Company" used in the Purchase Agreement is hereby
amended to include all of the Company's subsidiaries set forth on Schedule 3.3
of the Company Schedules for purposes of Sections 3.8, 3.9, 3.10, 3.11, 3.12,
3.13, 3.15, 3.18, 3.19, 3.20, 3.22, 3.23, 3.24 and 3.25 of the Purchase
Agreement.
3
<PAGE>
(c) In Section 1.1 of the Purchase Agreement, the number "1,500,000"
shall be amended to read "2,000,000".
(d) In Section 1.3 of the Purchase Agreement, the dollar amount
"$15,000,000" shall be amended to read "$20,000,000".
(e) Section 1.4(b) shall be amended to correct the spelling of the
name "Kirby" to read "Kerby".
(f) Section 1.5(a) shall be amended and restated in its entirety to
read as follows:
"(a) The Company and the Shareholders understand and agree that this
Agreement is the first step in the acquisition by the Investor of 100% of the
equity ownership in the Company and all of the Company's outstanding corporate
indebtedness. The parties hereto are in the process of negotiating an Agreement
and Plan of Merger (the "Merger Agreement") pursuant to which a wholly owned
subsidiary of the Investor will merge with and into the Company ("Merger").
Because of the Investor's pressing need for capital, however, the Company and
the Investor have been unable to complete such negotiations. Pursuant to the
terms of the Merger, the Investor will issue to the holders of all of the
Company's rights to purchase Common Stock in full cancellation of such rights,
warrants (the "Debt Warrants") to purchase 3.5 million shares of common stock of
the Investor (the "Investor Common Stock"). Notwithstanding the fact that the
Merger may become effective, the issuance of the Debt Warrants will be subject
to the amendment of Investor's articles of incorporation to increase its
authorized number of shares of Investor Common Stock to such amount as may be
necessary to permit the issuance of the Debt Warrants by the Investor, after
taking into account all of the other transactions contemplated by the parties
hereto and Travelbyus. The Shareholders acknowledge that the Debt Warrants will
be the sole consideration received by them in the Merger for their shares of
outstanding Common Stock and rights to purchase Common Stock. The Company, the
Shareholders and the Investor agree to negotiate in good faith the terms of the
Merger Agreement and to use reasonable efforts to execute the Merger Agreement
and consummate the Merger as soon as practicable but in no event later than
April 7, 2000."
(g) Section 1.5(b) of the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"(b) The consummation of the Merger will be conditioned on the
simultaneous exchange of the then outstanding corporate indebtedness and Common
Stock of the Company by the holders thereof for the issuance by the Investor to
the holders of such indebtedness and Common Stock of (a) shares of the
Investor's Series A Convertible Preferred Stock (the "Series A Preferred Stock")
with an initial aggregate liquidation preference equal to the principal amount
of such indebtedness (the "Principal Amount") and (b) warrants (the "Exchange
Warrants") to purchase 750,000 shares of Investor Common Stock. The Exchange
Warrants shall be issued as follows: warrants to purchase 500,000 shares of
Investor Common Stock shall be issued to Genesis Diversified Investments, Inc.,
or its nominee, and warrants to purchase 250,000 shares of Investor Common Stock
shall be issued to Global Leisure, Inc., or its nominee. The terms of
4
<PAGE>
the Debt Warrants and the Exchange Warrants are set forth in more detail on
Exhibit B attached hereto. The terms of the Series A Preferred Stock are set
forth in more detail on Exhibit C attached hereto. The Company and the
Shareholders agree to cooperate to facilitate the negotiation and execution of
an appropriate exchange agreement between the Investor and the holders of the
Company's indebtedness so that the exchange transaction can be consummated as
soon as practicable but no later than the consummation of the Merger."
(h) Section 1.6 (a) of the Purchase Agreement is hereby amended by
changing "US$15,000,000" in the first sentence of such section to
"US$20,000,000", and by changing "US$3,000,000" in the first sentence of such
section to "US$2,000,000".
(i) Section 1.6(a) of the Purchase Agreement is hereby amended by
changing "750,000" in the next to last sentence of such section to "7,500".
(j) Section 3.4(b) of the Purchase Agreement is hereby amended by
adding the number 4,000,000 in the blank to reflect that 4,000,000 shares of the
Company's Common Stock are issued and outstanding.
(k) Section 3.9 of the Purchase Agreement is hereby amended by adding
the phrase "Except as listed in Schedule 3.9" at the beginning of the text of
Section 3.9.
(l) Section 3.22 of the Purchase Agreement is hereby amended by
changing the reference to Schedule 3.23 of the Company Schedules to Schedule
3.22.
(m) Section 3.23 of the Purchase Agreement is hereby amended by
changing the references to Schedule 3.24 of the Company Schedules to Schedule
3.23.
(n) Section 5.1 of the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"5.1 Authorization. Such Shareholder has all requisite legal and
corporate power and authority to enter into this Agreement and all other
agreements, documents or instruments contemplated by this Agreement. All
corporate action on the part of such Shareholder and its directors, officers and
stockholders necessary for the authorization, execution, delivery and
performance of all obligations of such Shareholder under this Agreement has been
taken as of the Initial Closing Date. This Agreement constitutes the
Shareholder's valid and legally binding obligation, enforceable in accordance
with its terms, except as may be limited by (a) applicable bankruptcy,
insolvency, reorganization or other laws of general application relating to or
affecting the enforcement of creditors' rights generally and (b) the effect of
rules of law governing the availability of equitable remedies."
(o) A new Section 5.7 shall be and hereby is added to Article V of the
Purchase Agreement to read as follows:
"5.7 Organization and Standing. Such Shareholder is a corporation
duly organized and existing under, and by virtue of, the laws of the
jurisdiction of its organization and is in
5
<PAGE>
good standing under such laws. True and accurate copies of such Shareholder's
Articles of Incorporation and Bylaws, as presently in effect, have been
delivered to the Investor."
(p) The term "Equity Warrant" used in the Purchase Agreement is hereby
amended to read "Debt Warrant" throughout the Purchase Agreement.
(q) Exhibit B to the Purchase Agreement is hereby amended and restated
in its entirety to read as set forth on Exhibit B attached to this Amendment.
(r) Exhibit C to the Purchase Agreement is hereby amended and restated
in its entirety to read as set forth on Exhibit C attached to this Amendment.
3. Guaranty By Principals. Each of the Principals hereby guarantees
the performance by the Shareholder controlled by such Principal of the
Shareholder's obligations under the Purchase Agreement, as amended hereby. Mr.
Lavigne represents that he controls GLI. Mr. El-Batrawi represents that he
controls GDI.
4. Effective Date. This Amendment will become effective upon the
execution hereof by each of the parties set forth on the signature page hereto.
5. Miscellaneous.
(a) Except as expressly amended or waived herein, all terms, covenants
and provisions of the Purchase Agreement shall remain in full force and effect.
(b) This Amendment shall be binding upon and inure to the benefit of
the parties hereto and the successors, assigns, heirs, executors and
administrators of the Investor. The Investor may assign its rights and
obligations hereunder. The Company and the Shareholders may not assign their
respective rights and obligations hereunder.
(c) This Amendment shall be governed by and construed under the laws
of the State of Texas without regard to the State's conflict of law rules.
(d) This Amendment, together with the Purchase Agreement, as amended,
constitutes the full and entire understanding and agreement among the parties
with regard to the subjects hereof and thereof.
(e) This Amendment may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. A telecopy or facsimile transmission of a signed
counterpart of this Amendment shall be sufficient to bind the party or parties
whose signature(s) appear(s) hereon.
[The remainder of this page is intentionally left blank,
signature pages follow.]
6
<PAGE>
IN WITNESS WHEREOF, the Company, the Investor, the Principals and the
Shareholders have executed and delivered this Amendment as of the day and year
first above written.
THE COMPANY:
GLOBAL LEISURE TRAVEL, INC.
By: /s/ Ramy Y. El-Batrawi
-----------------------
Name: Ramy Y. El-Batrawi
Title: President and CEO
INVESTOR:
AVIATION GROUP, INC.
By: /s/ Richard L. Morgan
----------------------
Name: Richard L. Morgan
Title: Executive Vice President
PRINCIPALS:
/s/ Michael B. Lavigne
----------------------
Name: Michael B. Lavigne
/s/ Ramy Y. El-Batrawi
----------------------
Name: Ramy Y. El-Batrawi
<PAGE>
SHAREHOLDERS:
GLOBAL LEISURE, INC.
By: /s/ Michael B. Lavigne
-----------------------
Name: Michael B. Lavigne
Title: President
GENESIS DIVERSIFIED INVESTMENTS, INC.
By: /s/ Ramy Y. El-Batrawi
-----------------------
Name: Ramy Y. El-Batrawi
Title: Chairman
