NOTE FOR STOCK EXCHANGE AGREEMENT
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This Exchange Agreement is made as of this 19th day of November, 1997 by
and among The Eastwind Group, Inc., a Delaware corporation ("Eastwind") and The
D.A.R. Group, a New York corporation ("DAR").
WHEREAS, Eastwind is the holder and payee of the following obligations from
DAR: (i) a Note of which DAR is the maker dated April 16, 1997 in a principal
amount of $530,000; (ii) the obligation of DAR to pay $40,000 to Eastwind at the
date of the delivery of the April 16, 1997 Note, which amount was not paid; and
(iii) a Note of which DAR is the maker dated May 15, 1997 in a principal amount
of $42,000. Such notes and obligations, totaling a principal amount of
$612,000, are intended to be exchanged hereunder.
WHEREAS, contemporaneously with the delivery of this Exchange Agreement,
DAR has exercised additional common stock purchase warrants of Eastwind for a
total of 200,000 shares of Eastwind common stock at an exercise price of $2.50
per share, by the payment in cash of $350,000 and by an open obligation of DAR
to Eastwind of $150,000, which obligation together with the notes and
obligations already outstanding and referenced above, total $762,000 in
principal amount, and are all to be exchanged hereunder (hereafter referred to
collectively as the "DAR Obligations").
WHEREAS, DAR currently owns, among other shares, 125,000 shares of the
common stock of Jet Aviation Trading, Inc., a Florida corporation ("Jet
Aviation"), which stock is currently restricted stock, and which stock is to be
exchanged hereunder for the DAR Obligations (hereafter referred to as the "Jet
Aviation Shares").
WHEREAS, Jet Aviation is currently in the process of registering a number
of shares of its common stock, including the Jet Aviation Shares, in an initial
public offering with the Securities and Exchange Commission ("SEC") pursuant to
a Registration Statement on Form SB-2 (the "Registration Statement").
NOW, THEREFORE, the parties hereto agree as follows:
1. Exchange of DAR Obligations for Jet Aviation Shares.
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1.1 Eastwind wishes to exchange the DAR Obligations for the Jet
Aviation Shares and DAR wishes to exchange the Jet Aviation Shares for the DAR
Obligations.
1.2 The exchange of the DAR Obligations for the Jet Aviation
Shares shall occur at a Closing held at Eastwind as soon as reasonably
practicable following the date of execution and delivery of this Exchange
Agreement by the parties, but in no event later than January 31, 1998. It shall
be a condition to Closing for the benefit of Eastwind that DAR shall
have delivered all of the Jet Aviation Shares in exchange for the DAR
Obligations, including the other instruments and documents set forth herein. It
shall be a condition to Closing for the benefit of DAR that the DAR Obligations
shall be canceled as of the Closing resulting in no further obligations
thereunder by DAR for principal or interest, except only as otherwise provided
in this Exchange Agreement.
2. Representations and Warranties of Eastwind.
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2.1 Eastwind is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has all
requisite power and authority to enter into and perform this Exchange Agreement.
All corporate action on the part of Eastwind, its officers, directors and
stockholders necessary for the authorization, execution and delivery of this
Exchange Agreement, the performance of its obligations hereunder and the
authorization for the delivery of the DAR Obligations in exchange for the Jet
Aviation Shares has been taken prior to the execution and delivery of this
Exchange Agreement. This Exchange Agreement and any other instruments or
agreements to be entered into in connection with the transactions described
herein constitute the valid and legally binding obligations of Eastwind,
enforceable in accordance with their terms except (i) as enforceability may
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors' rights
generally, and (ii) as enforceability may be limited by laws relating to the
availability of specific performance, injunctive relief or other equitable
remedies.
2.3 No consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
federal, state, local or provincial governmental authority on the part of
Eastwind is required in connection with the consummation of the transactions
contemplated by this Exchange Agreement.
2.4 Eastwind owns title to the DAR Obligations free and clear of
all liens, charges and encumbrances.
3. Representations and Warranties of DAR.
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3.1 DAR is a corporation duly organized, validly existing and in
good standing under the laws of the State of New York and has all requisite
power and authority to enter into and perform this Exchange Agreement. All
corporate action on the part of DAR, its officers, directors and stockholders
necessary for the authorization, execution and delivery of this Exchange
Agreement, the performance of its obligations hereunder and the authorization
for the delivery of the Jet Aviation Shares and of the Default Note in exchange
for the DAR Obligations has been taken prior to the execution and delivery of
this Exchange Agreement. This Exchange Agreement and any other instruments or
agreements to be entered into in connection with the transactions described
herein constitute the valid and legally binding obligations of DAR, enforceable
in accordance with their terms except (i) as enforceability may limited by
applicable
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bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors' rights generally, and (ii) as
enforceability may be limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies.
3.2 No consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
federal, state, local or provincial governmental authority on the part of DAR is
required in connection with the consummation of the transactions contemplated by
this Exchange Agreement.
3.3 DAR owns title to the Jet Aviation Shares free and clear of
all liens, charges and encumbrances, and has full power and right to transfer
the Jet Aviation Shares to Eastwind hereunder, the fact that such Jet Aviation
Shares are restricted securities to the contrary notwithstanding.
3.4 DAR has delivered the most recently available draft of the
Registration Statement to Eastwind together with a status report on the progress
of the filing, and DAR has no knowledge of any facts or circumstances which
would render any of the statements made in such Registration Statement to be
untrue nor is it aware of any material omission to such Registration Statement.
3.5 To the best knowledge of DAR, the Jet Aviation Shares, when
delivered to Eastwind in accordance with the terms hereof and in exchange for
the DAR Obligations, will be duly and validly issued, fully paid and non-
assessable shares and will be transferred to Eastwind in compliance with all
applicable federal and state securities laws. Prior to such delivery to
Eastwind, and to the best knowledge of DAR, the Jet Aviation Shares were all
duly and validly authorized and issued, fully paid and non-assessable shares and
were issued to DAR in compliance with all applicable federal and state
securities laws.
3.6 There are no pending or threatened suits, claims or legal
proceedings to which DAR is or has been threatened to be made a party and which
could adversely affect the consummation of the transactions contemplated by this
Exchange Agreement.
3.7 DAR has fully provided Eastwind with all information which
Eastwind has reasonably requested in order to determine whether or not to accept
the Jet Aviation Shares in exchange for the DAR Obligations, including, without
limitation, a copy of Jet Aviation's most recent draft Registration Statement
relating to the Jet Aviation Shares as filed with the SEC. Neither this
Exchange Agreement nor any other information, statements or certificates
provided, made or delivered in connection herewith or in connection with
Eastwind's due diligence investigation conducted hereunder, contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements herein not misleading.
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4. Jet Aviation Shares.
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4.1 Eastwind understands that the Jet Aviation Shares are
presently characterized as "restricted securities" under the federal securities
laws in that they were acquired by DAR from Jet Aviation in a transaction not
involving a public offering, and that under such laws and applicable regulations
such securities may only be resold and transferred without registration under
the federal securities laws in certain limited circumstances. It is further
understood that the certificates evidencing the Jet Aviation Shares will bear a
restrictive legend in that regard.
4.2 DAR agrees to provide at the Closing evidence acceptable to
Eastwind and its counsel, either in the form of an appropriate opinion letter of
counsel or by other acceptable evidence from Jet Aviation's securities transfer
agent ("Transfer Agent") that the transfer and assignment of the Jet Aviation
Shares from DAR to Eastwind has been properly made in accordance with all
applicable federal and state securities laws and that when the certificates for
the Jet Aviation Shares are presented by Eastwind to the Transfer Agent in order
to have replacement certificates issued to register the Jet Aviation Shares in
the name of Eastwind, even if such securities remain "restricted securities" and
even if such securities bear restrictive legends, that the Transfer Agent will
issue such certificates and Eastwind will become the unrestricted owner of all
right, title and interest in and to the Jet Aviation Shares, free and clear of
all liens, restrictions, encumbrances, adverse rights or other obligations
(other than applicable federal and state securities laws) impairing the ability
of Eastwind to transfer the Jet Aviation Shares free and clear of any such
encumbrances to any third party.
4.3 DAR shall further provide evidence acceptable to Eastwind
and its counsel that Jet Aviation is currently pursuing a registration of the
Jet Aviation Shares pursuant to the Registration Statement, and shall either
deliver a registration agreement substantially in the form attached hereto as
Exhibit A from Jet Aviation agreeing to register the Jet Aviation Shares held by
Eastwind or shall provide evidence of a comparable registration agreement
already in effect as between Jet Aviation and DAR relating to the Jet Aviation
Shares and appropriate proof of a valid assignment of such registration
agreement, with the written consent of Jet Aviation to such assignment, in favor
of Eastwind.
4.4 DAR shall further provide evidence acceptable to Eastwind
and its counsel, in a form similar to that provided under Section 4.2, that
whether or not the Jet Aviation Shares become registered under the Securities
Act of 1933, as amended, Eastwind will be permitted to offer and transfer the
Jet Aviation Shares back to DAR, and in the event of its default, to the DAR
Principals, pursuant to Section 5 hereof, in such a manner that such transfers
shall not violate applicable federal and state securities laws and in such a
fashion that clear title to such shares may be transferred to DAR or the DAR
Principals, as the case may be.
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5. Put Option with respect to the Jet Aviation Shares.
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5.1 Following the date that the Registration Statement is
declared effective by the SEC, or following April 30, 1998 if the Registration
Statement has not been declared effective by such date (the first to occur
referred to herein as the "Option Date"), Eastwind may, but shall not be
required to, require DAR to repurchase all or any portion of the Jet Aviation
Shares (the "Option") at a price per share equal to the greater of (a) the fair
market value per share (as determined on any market upon which the same class of
securities as the Jet Aviation Shares then trade, or in the absence of such an
established market at the median between the bid and asked price per share, less
a discount of $2.00 per share, on the date of the repurchase notice, or (b)
$6.00 per share, by delivering written notice to DAR at any time within ninety
(90) days following the Option Date, which notice shall indicate the number of
shares of the Jet Aviation Shares which Eastwind is requiring DAR to repurchase
(the "Notice"). Promptly following receipt of such Notice by DAR from Eastwind,
and in no event later than fifteen (15) business days following receipt of such
Notice, DAR will be required to repurchase that number of Jet Aviation Shares
offered in such Notice by delivery to Eastwind of a certified or cashier's
check, or by wire transfer of funds, in the full amount of the aggregate
purchase price thereof.
5.2 If within the fifteen (15) business day period set forth
above in paragraph 5.1 DAR has not paid to Eastwind the full amount of the
repurchase price for the Jet Aviation Shares required to be repurchased by it
then DAR shall be in default of this Exchange Agreement within the meaning of
Section 6.1.
6. Default Provisions.
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6.1 If for any reason the full repurchase price for the Jet
Aviation Shares as determined pursuant to paragraph 5.1 above has not been paid
within the fifteen (15) day period by DAR, then DAR shall be in complete default
under this Agreement. If the repurchase price for some, but not all, of the Jet
Aviation Shares tendered for repurchase by Eastwind pursuant to 5.1 above, has
been paid, but a portion has not, then DAR shall be in partial default of this
Agreement in an amount of the full repurchase price determined under Section 5.1
less the amount of such partial repurchase price paid to Eastwind by DAR.
6.2 It shall also be an event of default under this Agreement by
DAR if (i) DAR is liquidated and dissolved, or (ii) DAR becomes insolvent,
applies for the appointment of a receiver, files a petition under any provision
of the federal bankruptcy law or such a petition is filed against it, or makes
an assignment for the benefit of creditors.
6.3 In the event that the repurchase proceeds determined under
Section 5.1 have not been paid in full, then all remaining Jet Aviation Shares
tendered for repurchase by Eastwind pursuant to Section 5.1 which have not been
fully paid for may be retained by Eastwind
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as security for offset against amounts owed to it by DAR as a consequence of its
default hereunder.
6.4 Upon the happening of an event of default under this Section
6, Eastwind shall be entitled to immediately confess judgment against DAR, and
DAR hereby authorizes and empowers upon an event of its default any attorney or
attorneys or the prothonotary or clerk of any court of record in the
Commonwealth of Pennsylvania or any other state to appear for and confess
judgment against DAR for such sums as shall have become due under this
Agreement, including the full amount required to be paid by it pursuant to
Section 5.1 hereof if the Option has been exercised by Eastwind, in either case
with or without declaration, with costs of suit, without stay of execution and
with the greater of 5% of such sums or $35,000 added as a reasonable attorneys
fee for collection. DAR hereby waives the right of inquisition on any real
estate levied on, voluntarily condemns the same, authorizes the said
prothonotary or clerk to enter upon the writ of execution said voluntary
condemnation and agrees that said real estate may be sold on a writ of
execution; and also waives and releases all relief from any and all
appraisement, stay or exemption law of any state now in force or hereinafter
enacted. DAR also hereby waives its right to object to and releases all
procedural errors in such proceedings. If a copy of this Agreement, verified by
affidavit of Eastwind or someone on its behalf, shall have been filed in such
action, it shall not be necessary to file the original agreement as a warrant of
attorney. Such authority and power to appear for and enter judgment against DAR
shall not be exhausted by any exercise thereof, and judgment may be confessed as
aforesaid from time to time as often as there is occasion therefor.
7. Indemnification.
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7.1 None of the representations and warranties of Eastwind or
DAR contained in this Exchange Agreement are intended to be extinguished or
otherwise terminated by reason of the Closing of the transactions hereunder, but
are expected to survive such Closing for all relevant statutes of limitation
periods. Whenever any representation has been made by either party hereunder
and is limited by reference to the term "knowledge" or any similar term, such
shall include those facts and circumstances known, or which should have been
known after reasonable investigation, by the officers of such party.
7.2 Each of the parties hereto agrees to indemnify the other and
each officer, director, stockholder, employee and affiliate of the other (the
"Indemnified Parties") for, and hold each Indemnified Party harmless from and
against: (a) any and all damages, losses and other liabilities of any kind,
including, without limitation, judgments and costs of settlement, and (b) any
and all out-of-pocket costs and expenses of any kind, including without
limitation, reasonable fees and disbursements of one counsel for such
Indemnified Parties (selected by Eastwind or DAR, as the case may be) (all of
which expenses shall be periodically reimbursed as incurred), in each case
suffered or incurred in connection with (A) any investigative, administrative or
judicial proceeding or claim (collectively, a "Claim") brought or threatened
relating to or arising out of this Exchange Agreement or the transactions
contemplated hereby or
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(B) any inaccuracy or alleged inaccuracy in any representation or warranty of
the indemnifying party ("Indemnitor") made or incorporated by reference in this
Exchange Agreement or by breach or alleged breach by Indemnitor of any covenant
or agreement made or incorporated by reference in this Exchange Agreement;
provided, however, that, without limiting any other remedy such Indemnified
Party may have, such Indemnified Party shall have no right to be indemnified or
held harmless under clause (A) of this section for its own gross negligence or
willful misconduct as finally determined by a court of competent jurisdiction
and provided further that with respect to a Claim referred to in clause (A)
above, (i) Indemnitor shall be entitled to control the defense of such Claim
with counsel reasonably acceptable to the Indemnified Parties (and to pay the
fees and expenses of counsel), unless counsel for either Indemnitor or an
Indemnified Party shall determine that a conflict of interest would occur as a
result of such joint defense, provided that with respect to any Claims in which
the Indemnified Parties are named, the Indemnified Parties shall be entitled to
participate in the defense thereof and shall be required to consent to any
settlement (such consent not to be unreasonably withheld), (ii) Indemnitor shall
not be required to pay any amounts incurred in settlement of any Claim unless it
has consented to such settlement (such consent not to be unreasonably withheld)
and (iii) the Indemnified party shall give Indemnitor notice of such Claim
provided that the failure to give such notice shall not relieve Indemnitor of
its obligation to indemnify hereunder except to the extent Indemnitor is
actually prejudiced thereby. The Indemnified Parties shall provide Indemnitor
with reasonable cooperation in the event of any Claim referred to in clause (A)
above.
8. Miscellaneous.
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8.1 Successors and Assigns.
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Neither party may, without the prior written consent of the
other, assign its rights under this Exchange Agreement, in whole or in part, and
the terms and conditions of this Exchange Agreement shall enure to the benefit
of and be binding upon the respective successors and assigns of the parties.
Nothing in this Exchange Agreement, express or implied, is intended to confer
upon any party other than the parties hereto or their respective successors and
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Exchange Agreement, except as otherwise expressly provided in this Exchange
Agreement.
8.2 Titles and Subtitles.
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The titles and subtitles used in this Exchange Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Exchange Agreement.
8.3 Notices.
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Unless otherwise provided, any notice required or permitted
under this Exchange Agreement shall be given in writing and shall be deemed
effectively given upon
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receipt by the party to be notified or upon deposit with the United States Post
Office, by registered or certified mail, postage prepaid and addressed to the
party to be notified:
If to Eastwind, at the following address:
The Eastwind Group, Inc.
100 Four Falls Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxxxxxxxxx, XX 00000
Attention: Xxxx X XxXxxxxx, CEO
If to DAR, at the following address:
The D.A.R. Group
43rd Floor - 00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: ______________________
8.4 Amendments and Waivers.
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Any term of this Exchange Agreement may be amended and the
observance of any term may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the parties hereto.
8.5 Severability.
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If one or more provisions of this Exchange Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Exchange Agreement and the balance of the Exchange Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
8.6 Governing Law.
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This Exchange Agreement shall be governed by and construed
under the laws of the Commonwealth of Pennsylvania without regard to the body of
law controlling conflicts of law.
8.7 Counterparts.
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This Exchange 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.
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IN WITNESS WHEREOF, the parties have executed this Exchange Agreement
as of the date first above written.
THE EASTWIND GROUP, INC.
By: ________________________________
THE D.A.R. GROUP
By: ________________________________
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