EXHIBIT 2.4
INTANGIBLE ASSET PURCHASE AGREEMENT
by and among
AMERICAN AVIATION INCORPORATED
AMERICAN AVIATION L.L.C.
and
OMNI GEOPHYSICAL, L.L.C.
Dated as of July 1, 1997
THIS INTANGIBLE ASSET PURCHASE AGREEMENT (the "Agreement") is
made and entered into on the 6th day of August, 1997 (the "Closing
Date") but effective as of July 1, 1997 (the "Effective Date") by and
among AMERICAN AVIATION INCORPORATION (the "Seller"), AMERICAN
AVIATION L.L.C. (the "Purchaser") and OMNI GEOPHYSICAL, L.L.C.
("Omni"). Xxxxx Xxxxxxxxx, the President of the Seller ("Xxxxxxxxx"),
joins in the execution of this Agreement for the purposes of making
the representations and warranties set forth in Section 3 and agreeing
to be bound by the terms of Section 4.2.
RECITALS
1. The Seller, a Louisiana corporation, has been engaged
primarily in an aviation business based in Louisiana with operations
on the Gulf Coast (the "Business"). The Purchaser is a Missouri
single-member limited liability company, qualified to do business in
Louisiana, which is wholly owned by Omni, a Louisiana limited
liability company.
2. Seller desires to sell to Purchaser, and Purchaser desires
to purchase from Seller, the intangible assets of Seller listed and
more fully described on Schedule 1.1 of this Agreement.
3. The sale of the intangible assets by the Seller and the
purchase by the Purchaser are subject to the terms and conditions of
this Agreement.
In consideration of the foregoing and the mutual representations,
warranties, covenants, and agreements herein contained, the Seller,
the Purchaser and Omni agree as follows:
SECTION 1
PURCHASE AND SALE OF INTANGIBLE ASSETS
BY PURCHASER AND SELLER
1.1 Sale of the Intangible Assets. Subject to the terms and
conditions of this Agreement, on the Closing Date but effective as of
the Effective Date, the Seller hereby assigns, transfers, and delivers
to the Purchaser, free and clear of all title defects, objections,
liens, pledges, claims, rights of first refusal, options, charges,
security interests, mortgages, or other encumbrances of any nature
whatsoever (collectively, "Encumbrances"), the intangible assets
described on Schedule 1.1 (collectively, the "Assets").
1
1.2 Conveyance Instruments. In order to effect the purchase and
sale of the Assets as contemplated by this Section 1, the Seller has,
or will hereafter, execute and deliver, or cause to be executed and
delivered, all such documents or instruments of assignment, transfer,
or conveyance, in each case dated as of the Effective Date
(collectively, the "Conveyance Instruments"), as the parties and their
respective counsel shall reasonably deem necessary or appropriate to
vest in or confer title to the Assets to the Purchaser.
1.3 Purchase Price. The total consideration for the purchase of
the Assets (the "Purchase Price") is as follows:
(a) Five Hundred Thousand and no/100 dollars ($500,000.00) cash,
to be paid at the Closing; plus
(b) A promissory note bearing interest at the rate of 8% per
annum, in the form attached hereto as Exhibit 1.3(b) (the "Promissory
Note") in a principal amount of One Million dollars ($1,000,000.00).
Omni will guarantee payment of the Promissory Note.
1.4 Allocation of Purchase Price. The Seller and Purchaser
hereby agree that the Purchase Price described in Section 1.3 hereof
shall be allocated among the Assets in accordance with an allocation
set forth in a document to be annexed hereto as Schedule 1.4.
SECTION 2
EVENTS OCCURRING ON THE CLOSING DATE
2.1 Deliveries by the Seller. Simultaneously with the execution
hereof, the Seller has delivered to the Purchaser the following:
(a) The Conveyance Instruments to effect the sale of the Assets
to the Purchaser, such Conveyance Instruments to be those reasonably
deemed necessary by, and in form and substance satisfactory to,
counsel to the Purchaser;
(b) An opinion of legal counsel to the Seller as to the due
incorporation, existence and good standing of the Seller, its
qualification to do business in Louisiana and any Material
Jurisdictions (as defined in Section 3.3 hereof), its power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, and such other matters as shall be
reasonably requested by the Purchaser.
2.2 Deliveries by the Purchaser. Simultaneously with the
execution hereof, the Purchaser has delivered to the Seller the
following:
2
(a) The cash portion of the Purchase Price by wire transfer of
immediately available funds to the account of American Aviation, Inc.,
c/o First National Bank of Commerce, New Orleans, LA, ABA #000000000,
Credit: FNB Lafayette, Further Credit: American Aviation Incorporated,
Account # __________;
(b) The Promissory Note;
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE SELLER AND XXXXXXXXX
In consideration of the receipt of the Purchase Price and the
other covenants undertaken by Purchaser under this Agreement, the
Seller and Xxxxxxxxx hereby jointly and severally represent and
warrant to the Purchaser that:
3.1 Capitalization and Ownership. The authorized capital stock
of the Seller consists of 1,000 shares of common stock, no par value
per share, of which 1,000 shares are issued and outstanding. All of
the issued and outstanding shares of such common stock have been duly
authorized and are duly and validly issued and outstanding, fully paid
and non-assessable; and 900 shares are owned by Xxxxx X. Xxxxxxxxx and
100 shares are owned by R. Xxxxxxx Xxxxxx, free and clear of all
liens, encumbrances, pledges, adverse claims or defects in title.
There are no outstanding warrants, options, rights, calls or other
commitments of any nature relating to any share of capital stock of
the Seller, and there are no outstanding securities or debt
obligations of the Seller convertible into shares of capital stock of
the Seller.
3.2 Organization.
(a) The Seller is a corporation duly organized, validly
existing, and in good standing under the laws of the State of
Louisiana, with the corporate power and authority to own, lease, and
operate its properties and to carry on its business as now being
conducted.
(b) The copy of the Articles of Incorporation and all amendments
thereto of the Seller, as certified by the Secretary of State of the
State of Louisiana, and the Bylaws, as amended to date, of the Seller,
as certified by its Secretary and delivered to the Purchaser, are
true, complete, and correct copies of the respective Articles of
Incorporation and Bylaws, as amended and currently in effect, of the
Seller.
3.3 Qualification. The Seller is licensed or qualified to do
business as a foreign corporation and is in good standing in the
jurisdictions in which it conducts its business (except where the
failure to so qualify would not have a material adverse effect on the
business or financial condition of the Business taken as a whole) (the
"Material Jurisdictions"). There are no such Material Jurisdictions.
3
3.4 Authority. The Seller has the corporate power and authority
to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery by the
Seller of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by the Board of
Directors and shareholders of the Seller; no other corporate
proceedings on the part of the Seller or any other person or entity,
whether pursuant to the Articles of Incorporation or Bylaws of the
Seller or by law or otherwise, are necessary to authorize the Seller
to enter into this Agreement, or to consummate the transactions
contemplated hereby; and this Agreement is the legal, valid, and
binding obligation of the Seller (and Xxxxxxxxx, as the case may be).
This Agreement has been duly executed and delivered by the Seller and
Xxxxxxxxx and constitutes a valid and binding obligation of the Seller
and Xxxxxxxxx, enforceable against both the Seller and Xxxxxxxxx in
accordance with its terms, except that (i) such enforcement may be
subject to bankruptcy, insolvency, moratorium or similar laws
affecting creditors' rights generally, (ii) the remedy of specific
performance and injunctive relief are subject to certain equitable
defenses and to the discretion of the court before which any
proceedings therefor may be brought, and (iii) rights to
indemnification hereunder may be limited under applicable securities
laws.
3.5 No Violations. Neither the execution or delivery of this
Agreement nor the consummation of the transactions contemplated
hereby:
(a) Requires any filing or registration with, or consent,
authorization, approval, or Permit (as defined in Schedule 1.1 of this
Agreement) of, any governmental or regulatory authority on the part of
the Seller;
(b) Violates or will violate (i) any order, writ, injunction,
judgment, decree, or award of any court or governmental or regulatory
authority or (ii) to the knowledge of the Seller, violates or will
violate any laws (statutory or otherwise), ordinances, rules,
regulations, bylaws, and codes of any governmental and regulatory
authorities, whether federal, state, or local, to which the Seller or
any of its properties or assets are subject;
(c) Violates or will violate, or conflicts with or will conflict
with, any provision of, or constitutes a default under, the Articles
of Incorporation or Bylaws of the Seller; or
(d) (i) violates or breaches or constitutes a default (or an
event that, with notice or lapse of time or both, would constitute a
default) under, or give rise to a right to terminate, any mortgage,
contract, agreement, deed of trust, license, lease, or other
instrument, arrangement, commitment, obligation, understanding, or
restriction of any kind to which the Seller is a party or by which its
properties may be bound, or (ii) will cause, or give any person
grounds to cause, to be accelerated (with notice or lapse of time or
both) the maturity of, or will increase, any liability or obligation
of the Seller.
4
3.6 Title to Properties; Encumbrances.
(a) The Seller has good and marketable title to all of the
Assets, free and clear of all Encumbrances. As a result of the
delivery to the Purchaser of the Conveyance Instruments, all of the
Assets are owned by the Purchaser free and clear of all Encumbrances,
except encumbrances created by the Purchaser (whether or not arising
from the transactions contemplated hereby).
(b) The Seller has incurred no indebtedness or liabilities which
may bear against the Assets.
3.7 Leases.
(a) The Seller has delivered or made available to the Purchaser
a copy of each lease pursuant to which the Seller leases real or
personal property (collectively, the "Leases"), each of which is true
and complete. Each of the Leases is transferable, and all of the
Seller's rights under any such Leases are hereby transferred to the
Purchaser, free and clear of all Encumbrances.
(b) Each of the Leases is in full force and effect in accordance
with its terms, no Lease has been modified or amended in writing, and
the Seller has not received any written notice of any breach or
default with respect to a Lease.
3.8 Patents, Trademarks, and Similar Rights.
(a) (i) American has the sole and exclusive right to use the
Intangible Property (as defined in Schedule 1.1 of this Agreement),
and the consummation of the transactions contemplated by this
Agreement and the Intangible Asset Purchase Agreement will not alter
or impair any such rights and will result in the Purchaser having the
sole and exclusive right to use all such Intangible Property used in
the Business;
(ii) American has the right to use all Intangible Property
which is currently used by the Seller in connection with the Business
either as provided in clause (i) above or as licensed or authorized by
others, and the consummation of the transactions contemplated by this
Agreement will not alter or impair any such rights and will result in
the Purchaser having the right to use all such Intangible Property to
the same extent it is currently used in the Business;
(iii) No claims have been asserted by any person or entity
for the use of any such Intangible Property or challenging or
questioning the validity or effectiveness of any such license or
agreement, and the Seller has no knowledge of any valid basis for any
such claim;
(iv) To the knowledge of the Seller, the use of such
Intangible Property by the Seller does not infringe on the rights of
any person or entity and no proceedings have been instituted, are
pending, or, to the best of the Seller's knowledge, have been
threatened that challenge the rights of the Seller in respect thereof;
and
5
(v) None of the Seller's Intangible Property rights, to
the best of the Seller's knowledge, are being infringed by the
products, activities, operations, trade names, trademarks, service
marks, trade dress rights or copyrights of any other person or persons
and none are subject to any outstanding order, judgment, decree,
stipulation or agreement restricting the use thereof.
3.9 Personnel. The Seller's relationship with its respective
employees is good and the Seller has no knowledge of any facts which
would indicate that the Seller's employees will not continue in its
employ on a basis acceptable to the Purchaser following the Closing.
The Seller's workforce is well trained and experienced in the
Business.
3.10 Customers and Suppliers. Since January 1, 1997, there has
not been any adverse change in the business relationship of the Seller
with any customer, distributor, or supplier that is material to the
business or financial condition of the Business taken as a whole. To
the knowledge of the Seller, no customer or supplier of the Seller
will cease to do business with the Business after the consummation of
the transactions contemplated hereby, which cessation would have a
material adverse effect on the business, operations or financial
condition of the Business. The Seller has not experienced any
difficulties in obtaining any inventory, supplies, equipment or other
items necessary to the operation of its business, and, to the
knowledge of the Seller, no such shortage of supply of inventory,
supplies, equipment or other items is threatened or pending.
3.11 No Breach. The Seller is not in breach of, and there does
not exist any default or event (including the execution and delivery
of this Agreement and the consummation of the transactions
contemplated hereby) which, with the giving of notice or the lapse of
time or both, would become a breach or default, and there is no basis
for any valid claim of a default in any respect with regard to any
contracts or agreements which may be affected by the execution of this
Agreement, and the Seller has used its best efforts to secure the
consents (where such consents are necessary) of the other parties to
any agreements affected hereby, to the consummation of the
transactions contemplated by this Agreement.
3.12 Consents, Permits, Etc. No consent, approval, governmental
filing, authorization, or Permit from any person or entity, including
any court, administrative agency, or other governmental authority, is
necessary to the consummation of the transactions contemplated by this
Agreement, except for the approval of the Federal Aviation
Administration ("FAA") of the transfer of the Certificate as defined
in Schedule 1.1 of this Agreement.
3.13 Assets Necessary to Business. As a result of the
transactions effected hereby and the transactions effected pursuant to
the Exchange Agreement, dated as of even date herewith, between the
Purchaser, the Seller and Omni, the Purchaser (a) will have title to,
or a valid leasehold interest in, all assets and properties relating
to the Business; (b) will possess valid consents, authorizations,
approvals, and Permits relating to the Business; and (c) will be party
to all agreements, in each case necessary to permit the Purchaser to
continue to carry on the Business substantially as currently
conducted, specifically including without limitation any required
consents, authorizations, approvals or Permits of the FAA relating to
the Business.
6
SECTION 4
COVENANTS; REPRESENTATIONS; INDEMNIFICATION
4.1 Consents, Permits, Etc.
(a) The Seller (i) has maintained in full force and effect and
renewed, when required, all Permits, and (ii) has obtained all
consents, approvals, governmental filings, authorizations, and Permits
necessary to (A) the consummation of the transactions contemplated by
this Agreement, and (B) the continued conduct of the Business by the
Purchaser after the Closing Date as it is currently conducted by the
Seller, and delivers herewith to the Purchaser copies of each such
consent, approval, governmental filing, authorization, and Permit,
including any required required consents, authorizations, approvals or
Permits of the FAA relating to the Business.
(b) In the event and to the extent that any of the contracts,
leases, agreements, Permits, plans, commitments, purchase orders, or
other binding arrangements relating to the Assets (in this Section
4.1(b) called "Commitments") cannot be assumed by or assigned to the
Purchaser (pursuant to the Exchange Agreement) or sold to the
Purchaser (pursuant to this Agreement) without the consent of another
party, and such consent has not been obtained as of the Closing Date,
the Seller and the Purchaser each agrees to cooperate with the other
in any reasonable arrangement designed to enable the Seller to perform
its obligations under, and to provide for the Purchaser the benefits
of, any such Commitments as of the Effective Date, including
enforcement at any cost, and for the account of the Purchaser, of any
and all rights of the Seller against the other party thereto arising
out of the breach or cancellation thereof by such other party or
otherwise. The Seller will promptly pay to the Purchaser when received
all monies received by the Seller under any such Commitments.
(c) In the event and to the extent that any of the contracts,
leases, agreements, Permits, plans, commitments, purchase orders, or
other binding arrangements relating to the Assets (in this Section
4.1(c) called "Licenses") cannot be assumed by or assigned to the
Purchaser (pursuant to the Exchange Agreement) or sold to the
Purchaser (pursuant to this Agreement) without the consent of a court,
administrative agency, or other governmental authority, specifically
including without limitation the FAA, and such consent has not been
obtained as of the Closing Date, the Seller and the Purchaser each
agrees to cooperate with the other in any reasonable arrangement
designed to enable the Seller to continue to operate and perform
under, and to provide for the Purchaser the benefits of, any such
Licenses and the operations thereunder as of the Effective Date, at no
cost to the Purchaser and for the account of the Purchaser, until such
time as the consent to the transfer of such Licenses to the Purchaser
and the Purchaser's right to operate thereunder can be obtained. The
Seller will promptly pay to the Purchaser when received all monies
received by the Seller from its operations under any such Licenses.
7
4.2 Survival; Indemnification.
(a) The representations and warranties of the parties hereto
contained herein or in any certificate or other writing delivered
pursuant hereto or in connection herewith shall survive the Closing
Date and shall extend without limit as to time. The covenants and
agreements of the parties hereto contained herein or in any
certificate or other writing delivered pursuant hereto or in
connection herewith shall survive the Closing Date in accordance with
their terms.
(b) The Seller and Xxxxxxxxx and their successors and assigns
(each an "Indemnitor"), jointly and severally, hereby agree to
indemnify each the Purchaser and Omni against and agree to hold it
harmless from any and all damage, loss, liability, and expense
(including, without limitation, reasonable expenses of investigation
and attorney's fees and expenses in connection with any action, suit,
proceeding, claim, investigation, or other loss) (a "Loss") incurred
or suffered by the Purchaser or Omni arising out of or relating to:
(i) Any breach of any covenant or agreement or any
inaccuracy or omission in any representation or warranty made by the
Seller or Xxxxxxxxx pursuant to this Agreement;
(ii) Claims by third parties in connection with the sale
by the Seller of the Assets to the Purchaser; and
SECTION 5
MISCELLANEOUS PROVISIONS
5.1 Amendment and Modification. This Agreement may be amended,
modified, or supplemented only by written agreement of the parties
hereto.
5.2 Waiver of Compliance; Consents. Any failure of a party to
comply with any obligation, covenant, agreement, or condition herein
may be waived by the other party; provided, however, that any such
waiver may be made only by a written Instrument signed by the party
granting such waiver, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement, or condition
shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure. Whenever this Agreement requires or
permits consent by or on behalf of any party hereto, such consent
shall be given in writing in a manner consistent with the requirements
for a waiver of compliance as set forth in this Section 6.2, with
appropriate notice in accordance with Section 5.9 of this Agreement.
5.3 Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. Any party may
assign any of its rights hereunder, but no such assignment shall
relieve it of its obligations hereunder. Nothing in this Agreement,
expressed or implied, is intended or shall be construed to confer upon
any person other than the parties, any successors and permitted
assigns,
8
any rights, remedy, or claim under or by reason of this Agreement or
any provisions herein contained.
5.4 Expenses, Transfer Taxes, Etc. Whether or not the
transactions contemplated by this Agreement shall be consummated, all
fees and expenses (including all fees of counsel, actuaries,
accountants and other experts) incurred by any party in connection
with the negotiation and execution of this Agreement shall be borne by
such party.
5.5 Further Assurances. From time to time, at the request of the
Seller or the Purchaser and without further consideration, each party,
at its own expense, will execute and deliver such other documents, and
take such other action, as the Seller or the Purchaser may reasonably
request in order to consummate more effectively the transactions
contemplated hereby and to vest in the Purchaser good and marketable
title to the Assets. The Seller hereby constitutes and appoints,
effective as of the Effective Date, the Purchaser and its successors
and permitted assigns as the true and lawful attorney of the Seller
with full power of substitution in the name of the Purchaser or in the
name of the Seller, but for the benefit of the Purchaser, to collect
for the account of the Purchaser any items of Assets and to institute
and prosecute all proceedings that the Purchaser may in its reasonable
discretion deem proper in order to assert or enforce any right, title,
or interest in, to, or under the Assets, and to defend or compromise
any and all action, suits, or proceedings in respect of the Assets.
The Purchaser shall be entitled to retain for its own account any
amounts collected pursuant to the foregoing powers, including any
amounts payable as interest in respect thereof.
5.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Louisiana
(without regard to its conflicts of law doctrines).
5.7 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument and shall
become a binding Agreement when one or more of the counterparts have
been signed by each of the parties and delivered to the other party.
5.8 Publicity. Neither of the parties will make any disclosure
of the transactions contemplated by this Agreement, or any discussions
in connection therewith, without the prior written consent of each of
the other parties. The preceding sentence shall not apply to any
disclosure required to be made by Law or the regulations of any stock
exchange(s) as reasonably determined by counsel to the party
determining that such disclosure is required, except that such party,
whenever practicable, shall be required to consult with the other
party concerning the timing and content of such disclosure before
making it.
5.9 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed by registered or certified mail (return
receipt requested) to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
9
If to the Seller:
American Aviation Incorporated
000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx, President
with a copy to:
Xxx X. Xxxx, Esq.
X.X. Xxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
If to the Purchaser:
American Aviation L.L.C.
0000 Xxxxxxxxxx 00, Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
If to Omni:
Omni Geophysical, L.L.C.
0000 Xxxxxxxxxx 00, Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxx, Manager
with a copy to:
Advantage Capital Companies
000 Xxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
5.10 Specific Performance. Each of the parties acknowledge that
money damages would not be a sufficient remedy for any breach of this
Agreement and that irreparable harm would result if this Agreement
were not specifically enforced. Therefore, the rights and obligations
of the parties under this Agreement shall be enforceable by a decree
of specific performance issued by any court of competent jurisdiction,
and appropriate injunctive relief may be applied for and granted in
10
connection therewith. A party's right to specific performance shall be
in addition to all other legal or equitable remedies available to such
party.
5.11 Headings. The article and section headings contained in this
Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
5.12 Entire Agreement. This Agreement, including the exhibits,
schedules, and other documents and instruments referred to herein,
embodies the entire agreement and understanding of the parties hereto
in respect of the subject matter contained herein. This Agreement
supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
5.13 Severability. If any one or more provisions contained in
this Agreement shall, for any reason, be held to be invalid, illegal,
or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if such invalid,
illegal, or unenforceable provision had never been contained herein.
5.14 Schedules and Exhibits. All Schedules and Exhibits attached
hereto are hereby incorporated in and made a part as if set forth in
full herein.
[Remainder of this page left blank intentionally]
11
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
AMERICAN AVIATION, INC.
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Xxxxx Xxxxxxxxx, President
AMERICAN AVIATION L.L.C.
By: OMNI GEOPHYSICAL, L.L.C.
Its Sole Member
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Xxxxx Xxxxxxxxx, Manager
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx, Manager
OMNI GEOPHYSICAL, L.L.C.
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Xxxxx Xxxxxxxxx, Manager
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx, Manager
/s/ Xxxxx Xxxxxxxxx
-----------------------------------------
Xxxxx Xxxxxxxxx, individually (joining in
the execution of this Agreement for the
purposes set forth in the first paragraph
hereof)
12
