Exhibit 2.1
AMENDMENT NO. 3 TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 3 TO ASSET PURCHASE AGREEMENT, dated as of the 15th day
of December, 2006 (the "Amendment") by the below executing parties, hereby
amends the Asset Purchase Agreement (as amended from time to time, the
"Agreement") dated as of July 14, 2006, entered into by and among Tactical Air
Defense Services, Inc. ("Parent"), Genesis Aviation Acquisition Inc., Resource
Financial Aviation Holdings Inc., and OneSource Aviation Acquisition Inc. each a
Nevada corporation and wholly owned subsidiary of Parent (each a "Subsidiary",
the Subsidiaries and Parent are each sometimes referred to herein as a
"Purchaser") as Purchasers and AeroGroup Incorporated, a Utah corporation
("AeroGroup") and its wholly owned subsidiaries, Genesis Acquisition, Inc.,
Resource Financial Holdings Acquisition, Inc., and OneSource Acquisition, Inc.,
each a Delaware corporation, as sellers (each individually a "Seller
Subsidiary", the Seller Subsidiaries and AeroGroup each being sometimes referred
to herein as a "Seller"), which Agreement was amended by the parties on August
22, 2006 ("Amendment No. 1"), and on October 3, 2006 ("Amendment No. 2"). All
capitalized terms not otherwise defined herein shall have the meanings set forth
in the Agreement.
WHEREAS, the parties originally agreed that the Parent would assume
certain indebtedness of AeroGroup and warrants to purchase common stock of
AeroGroup as provided in Section 1(d) of the Agreement as a condition to
closing; and
WHEREAS, AeroGroup has, since the date of the Agreement raised additional
capital in which financing has been consummated in October of 2006 (the "October
Financing"), which financing was necessary for the operations of AeroGroup and
for AeroGroup to negotiate certain contracts and develop its aircraft parts and
certification program, all of which are or will be necessary in connection with
the business of the Purchasers; and
WHEREAS, AeroGroup's auditors and creditors have discovered and verified
additional indebtedness owed to certain creditors; and
WHEREAS, the Parent has agreed, as a condition to closing of the
acquisition relating to the Agreement, to assume certain indebtedness of
AeroGroup; and
WHEREAS, the Parent has agreed to assume the indebtedness owed the
creditors and warrant holders of AeroGroup as specifically provided in the
Agreement and to assume all of the obligations of AeroGroup to issue shares upon
conversion therefore without requiring the convertible note holders or warrant
holders to consent thereto;
WHEREAS, the Purchasers each believe that increasing the amount of assumed
liabilities and assumed Investor Warrants as set forth hereto, is fair and
reasonable consideration in light of the value of the assets being acquired by
AeroGroup; and
NOW THEREFORE, it is agreed:
1. Section 1.(d)(ii) of the Agreement is hereby amended to correct a
typographical error and is amended and revised to be and read as follows:
"(ii) Secured Xxxxxxx Debt. The convertible debt in
the initial amount of $1,100,000 (the "Secured Xxxxxxx Note") owed to
Xxxx X. Xxxxxxx ("Xxxxxxx"), which shall be secured by a first priority
lien on the assets of the Purchasers and becoming convertible into
Common Stock at a conversion price of $.50 of principal and interest
converted for each share of Common Stock."
2. Schedule 1(d)(iii) reflecting all of the Investor Notes and
Schedule 1(d)(iv) reflecting all of the Investor Warrants, are and shall hereby
by amended and restated in their entirety in the form as annexed hereto as
Exhibit A and as reflected on the Current Report in Form 8-K relating to the
transaction. Purchasers hereby ratify and accept the issuances by AeroGroup of
the notes and warrants in connection with the October Financing.
3. The Purchasers and Sellers hereby each waive any requirement
incumbent upon one another that note holders and warrant holders counter execute
any form of Agreement of Assumption. Additionally, Section 8(f) is hereby
amended and restated in its entirety to be and read:
(f) An Agreement of Assumption shall have been executed by Parent in
favor of all of the convertible note holders and warrant holders described in
Section 1(d).
In lieu thereof, the Parent shall issue to each of the note holders and
warrant holders set forth in the Agreement and Schedules thereto, an Agreement
of Assumption agreeing to assume the indebtedness of AeroGroup, to be bound by
said promissory notes or warrants, and agreeing to issue, upon conversion
thereof or exercise of the warrants, such number of shares of Common Stock as is
set forth in the Agreement of Assumption which, for the avoidance of doubt,
shall be as set forth in the Agreement (including the Schedules thereto), as
amended to date.
4. The Agreement is and shall remain and continue in full force and
effect in all other respects, without prejudice.
5. This Amendment may be signed in one or more counterparts.
[Signature Pages Follow]
COUNTERPART SIGNATURE PAGE TO AMENDMENT TO ASSET PURCHASE AGREEMENT, DATED AS OF
DECEMBER 15, 2006
IN WITNESS WHEREOF, the parties hereto, intending to be bound
hereby, have caused this Amendment to Asset Purchase Agreement to be executed
the day and year first above written.
SELLERS:
AEROGROUP INCORPORATED
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: President
GENESIS ACQUISITION, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
RESOURCE FINANCIAL HOLDINGS
ACQUISITION, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
ONESOURCE ACQUISITION, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
COUNTERPART SIGNATURE PAGE TO AMENDMENT TO ASSET PURCHASE AGREEMENT, DATED AS OF
DECEMBER 15, 2006.
IN WITNESS WHEREOF, the parties hereto, intending to be bound
hereby, have caused this Amendment to Asset Purchase Agreement to be executed
the day and year first above written.
PURCHASERS:
TACTICAL AIR DEFENSE SERVICES, INC.
By: /s/ Xxxx Xxxxx Xxxxxx
---------------------------------------------
Name: Xxxx Xxxxx Xxxxxx
Title: Vice President, Chief Financial
Officer
GENESIS AVIATION ACQUISITION INC.
By: /s/ Xxxx Xxxxx Xxxxxx
---------------------------------------------
Name: Xxxx Xxxxx Xxxxxx
Title: Vice President, Chief Financial
Officer
RESOURCE FINANCIAL AVIATION
HOLDINGS INC.
By: /s/ Xxxx Xxxxx Xxxxxx
---------------------------------------------
Name: Xxxx Xxxxx Xxxxxx
Title: Vice President, Chief Financial
Officer
ONESOURCE AVIATION
ACQUISITION INC.
By: /s/ Xxxx Xxxxx Xxxxxx
---------------------------------------------
Name: Xxxx Xxxxx Xxxxxx
Title: Vice President, Chief Financial
Officer
Consented and agreed to on behalf of the
foregoing entities:
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
