Unassociated Document


    
      

        
          	
                  Dated
                    June 20, 2008

                
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	
                  Avantair,
                    Inc. (1)

                
	
                  as
                    Assignor

                
	 	 
	 	 
	 	 
	 	 
	 	 
	
                  Share
                    100 Holding Co., LLC(2)

                
	
                  as
                    Assignee

                
	 	 
	
                   

                    
Assignment
                    of Purchase Agreement VAE-180V/2006 

                    

                  

                


        

      

    

     

    
      
         

      

      
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    This
      Purchase Agreement Assignment (the “Assignment”), is dated June 20, 2008 (the
“Effective Date”) and made between Avantair Inc., having its principal place of
      business at 4311 General Howard Drive, Clearwater, Florida 33762 (the
“Assignor”), and Share 100 Holding Co., LLC, having its principal place of
      business at 2711 Centerville Road, Ste 400, Wilmington, Delaware 19808 (the
      “Assignee”).

     

    WHEREAS:

     

    
      	
              (A)

            	
              The
                Assignor and the Manufacturer (as hereinafter defined) are parties
                to the
                Purchase Agreement (as hereinafter defined) providing, among other
                things,
                for the manufacture and sale by the Manufacturer to the Assignor
                of
                certain Aircraft (as hereinafter
                defined);

            


    

     

    
      	
              (B)

            	
              The
                Assignee is a wholly-owned affiliate of Assignor and wishes to acquire
                all
                rights of Assignor under the Purchase Agreement, including the right
                to
                acquire the Aircraft from the Manufacturer, and the Assignor, on
                the terms
                and conditions hereinafter set forth, is willing to assign to the
                Assignee
                the Assignor’s rights, interests and obligations under the Purchase
                Agreement and to the Aircraft; 

            


    

     

    
      	
              (C)
                

            	
              The
                Assignee is willing to accept such assignment, as hereinafter set
                forth
                and the Manufacturer is willing to execute and deliver to Assignee
                a
                Consent and Agreement to the provisions hereof in substantially the
                form
                attached hereto as Annex 1; and

            


    

     

    
      	
              (D)

            	
              On
                or immediately following the Effective Date, the Assignor intends
                to
                transfer to Executive AirShare Corporation, a Kansas corporation
                with its
                principal place of Business at 1600 Airport Road, Mid-Continent Airport,
                Wichita, Kansas 67209 (“AirShare”) a majority ownership interest in
                Assignee.

            


    

     

    NOW,
      THEREFORE, in consideration of the mutual covenants herein contained, the
      parties hereto agree as follows:

     

    1. For
      all
      purposes of this Assignment, except as otherwise expressly provided or unless
      the context otherwise requires, the following terms shall have the following
      meanings:

     

    “Aircraft”:
      The
      Embraer PHENOM 100 aircraft to be delivered under the Purchase Agreement.


     

    “Business
      Day(s)”: shall
      mean a day on which banks are open for business in São José dos Campos, São
      Paulo in Brazil, New York, NY and Wilmington, DE, in the United
      States.

     

    
      
         

      

      
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    “Manufacturer”:
      Embraer - Empresa Brasileira de Aeronáutica S.A., a corporation organized and
      existing under the laws of Brazil, and its successors and assigns.

     

    “Purchase
      Agreement”:
      Purchase
      Agreement VAE- 180V/2006, dated as of September, 29th,
      2006 as
      the same has been amended, supplemented or otherwise modified by Amendment
      1 to
      Purchase Agreement VAE-180V/2006, dated June 20, 2008 (the “APA”), and that
      certain Letter of Agreement VAE-181V/2006, between Manufacturer and Assignor,
      dated September 29, 2006, as the same has been amended, supplemented or
      otherwise modified by Amendment 1 to Letter of Agreement VAE-181V/2006, dated
      June 20, 2008 (the “LOA”), a true and complete copy of the APA and LOA being
      attached hereto as Exhibit A.

     

    2. Subject
      to the terms and conditions of this Assignment, Assignor does hereby sell,
      assign, transfer and set over unto the Assignee all the Assignor’s rights,
      interest and obligations in and to the Purchase Agreement as and to the extent
      that the same relate to the Aircraft and the purchase thereof, including,
      without limitation, (a) the right to take title to and delivery of the Aircraft
      (b) all claims for damages in respect of the Aircraft as a result of any default
      by the Manufacturer under the Purchase Agreement, and (c) any and all rights
      of
      the Assignor to compel performance of the terms of the Purchase Agreement in
      respect of the Aircraft. The Assignee acknowledges that in exercising any rights
      hereunder, it shall at all times be subject to the provisions and limitations
      of
      the Purchase Agreement, as if originally named Buyer in the Purchase Agreement,
      including without limitation the US export control regulations or any other
      applicable law. The Assignee hereby accepts such assignment subject to the
      terms
      hereof. 

     

    3. It
      is
      expressly agreed that, anything herein contained to the contrary
      notwithstanding: (a) the Assignor shall at all times remain liable to the
      Manufacturer under the Purchase Agreement to perform all duties and obligations
      of the “Buyer” thereunder to the same extent as if this Assignment had not been
      executed; and (b) the exercise by the Assignee of any of the rights assigned
      hereunder shall not release the Assignor from any of its duties or obligations
      to the Manufacturer under the Purchase Agreement except to the extent that
      such
      exercise by the Assignee shall constitute performance of such duties and
      obligations.

     

    4. Nothing
      contained herein shall subject the Manufacturer to any liability to which it
      would not otherwise be subject under the Purchase Agreement or modify in any
      respect the Manufacturer’s contract rights thereunder or require the
      Manufacturer to divest itself of title to or possession of the Aircraft
      therefore until delivery thereof and payment therefore on the delivery date
      as
      provided therein.

     

    5.
      Without
      in any way releasing the Assignor from any of its duties or obligations under
      the Purchase Agreement, the Assignee hereby agrees, expressly for the benefit
      of
      the Manufacturer, that notwithstanding anything contained herein to the
      contrary, insofar as the provisions of the Purchase Agreement relate to the
      Aircraft accepted by Assignee under the Purchase Agreement, in exercising any
      rights under the Purchase Agreement, or in making any claim with respect to
      the
      Aircraft or other things (including without limitation data, documents and
      services) delivered or to be delivered pursuant to the Purchase Agreement,
      the
      terms and conditions of the Purchase Agreement, shall apply to and be binding
      upon Assignee to the same extent as if Assignee had been the original “Buyer”
thereunder. Assignee further agrees, expressly for the benefit of the
      Manufacturer, that at any time and from time to time upon the written request
      of
      the Manufacturer, Assignee shall promptly and duly execute and deliver any
      and
      all such further assurances, instruments and documents and take all such further
      action as the Manufacturer may reasonably request in order to obtain the full
      benefits of Assignee’s agreements set forth in this paragraph.

     

    
      
         

      

      
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    6.
      The
      Assignee hereby confirms that it shall be deemed for all purposes to have read
      and be familiar with the Purchase Agreement (as at the date hereof) and to
      thoroughly understand the terms and conditions thereof.

     

    7.
      The
      Assignor agrees that at any time and from time to time upon the written request
      of the Assignee, the Assignor will promptly and duly execute and deliver any
      and
      all such further instruments and documents and take such further action as
      the
      Assignee may reasonably request in order to obtain the full benefits of this
      Assignment and of the rights and powers herein granted.

     

    8.
      The
      Assignor and Assignee herein agree that all the amounts already paid by the
      Assignor to the Manufacturer under the Purchase Agreement will be applied
      towards the benefit of the Assignee under the Purchase Agreement, as if it
      was
      paid by the Assignee. In the event that Assignor assumes the Purchase Agreement
      from Assignee, all amounts paid by the Assignee pursuant to the Purchase
      Agreement, shall be applied towards the benefit of the Assignor under the
      Purchase Agreement, as if it was paid by Assignor. 

     

    9.
      Assignee
      hereby agrees to indemnify and hold harmless Assignor and its shareholders,
      as
      well as their respective directors, officers and employees from and against
      all
      liabilities, claims, demands, costs, losses or expenses (including reasonable
      legal fees and costs of defense) that the indemnified parties may face or incur
      in relation to this Assignment.

     

    10.The
      Assignor does hereby represent and warrant (a) that the Purchase Agreement
      is in
      full force and effect and is a legal, valid and binding obligation of Assignor,
      enforceable in accordance with its terms and that neither Assignor nor, to
      the
      knowledge of Assignor, Manufacturer, are in default thereunder; (b) that
      Assignor has not assigned, mortgaged, charged or pledged, and hereby covenants
      that it will not assign, mortgage, charge or pledge, so long as this Assignment
      shall remain in effect, the whole or any part of the rights hereby assigned
      or
      any of its rights with respect to the Aircraft under the Purchase Agreement
      not
      assigned hereby, to anyone other than the Assignee.

     

    11.
      (A)
      Each of Assignor and Assignee (and any and all of their respective affiliates)
      agrees that it will not disclose to any third party the terms of the Purchase
      Agreement (whether or not related to the Aircraft) or this Assignment, except
      (a) as required by applicable law, judicial proceeding or governmental
      regulation, (b) as required for the assignment of its rights under this
      Assignment in accordance with the provisions of Article 5.11 of the Purchase
      Agreement, or (c) an affiliate of Assignee to which the right to take delivery
      of any of the Aircraft may be assigned under the terms of the Purchase
      Agreement. Any disclosure as contemplated in (b) or (c) above shall include
      a
      requirement that the entity to which the information is disclosed be subject
      to
      obligations of nondisclosure with respect to such information substantially
      the
      same as those contained herein.

     

    
      
         

      

      
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    (B)
      Without
      limiting the foregoing, in the event either party (including any of their
      respective affiliates), is legally required to disclose the terms of this
      Assignment and/or the Purchase Agreement, each such party agrees it will
      immediately notify the other party and exert its reasonable best efforts to
      obtain confidential treatment of the clauses and conditions of this Assignment
      and/or the Purchase Agreement relevantly designated by either party as
      confidential. Without limiting its obligations pursuant to the preceding
      sentence, each of Assignee and/or Assignor (and their respective affiliates)
      agrees that (i) if it is required, in the opinion of counsel, to file publicly
      or otherwise disclose the terms of this Assignment and/or the Purchase Agreement
      under applicable federal and/or state securities or other laws, it shall
      promptly (but in no case less than seven (7) Business Days prior to the proposed
      filing in question, except for any SEC Form 8-K, which shall require no less
      than four (4) Business Days prior to the proposed filing in question) notify
      Manufacturer so that Manufacturer has a reasonable opportunity to contest or
      limit the scope of such required disclosure, and Assignee and/or Assignor (and
      their respective affiliates) shall request, and shall use their best reasonable
      efforts to obtain confidential treatment for such sections of this Assignment
      and/or Purchase Agreement as Manufacturer may designate; and (ii) it shall
      not
      under any circumstances file publicly or otherwise disclose the terms of this
      Assignment and/or the Purchase Agreement under applicable federal and/or state
      securities or other laws if it has not complied with its obligations pursuant
      to
      Subsection 11(B)(i). Each of Assignee and/or Assignor (and their respective
      affiliates) agree and acknowledge that Manufacturer shall have the right to
      terminate at any time the Purchase Agreement pursuant to Article 5.7.2 of the
      Purchase Agreement if either Assignee and/or Assignor (or any of their
      affiliates) fail to comply with their obligations pursuant to Subsection
      11(B)(i) and 11(B)(ii) above and Subsection 11 (C) below.

     

    (C)
      Each
      of
      Assignee and/or Assignor (and their respective affiliates) agree and acknowledge
      that prior to releasing any public announcement regarding this Assignment and/or
      the Purchase Agreement, it shall obtain the written consent from Manufacturer.
      To respond, either with a consent or rejection, Manufacturer shall have four
      (4)
      Business Days from Manufacturer’s receipt of the proposed Form 8-K filing and
      five (5) Business Days from Manufacturer’s receipt of other public disclosures
      from Assignee and/or Assignor.

     

    12.This
      Assignment may be executed by the parties hereto in any number of separate
      counterparts with the same effect as if the signatures thereto and hereto were
      upon the same instrument and all of which when taken together shall constitute
      one and the same instrument. 

     

    
      
         

      

      
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    13.THIS
      ASSIGNMENT SHALL IN ALL RESPECTS BE GOVERNED BY THE LAWS OF THE STATE OF NEW
      YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT
      GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS OTHER THAN SECTION 5-1401
      OF
      THE NEW YORK GENERAL OBLIGATIONS LAW.

     

    Each
      Party hereto hereby irrevocably agrees, accepts and submits to, for itself
      and
      in respect of any of its property, generally and unconditionally, the
      non-exclusive jurisdiction of the courts of the State of New York in the City
      and County of New York and of the United States for the Southern District of
      New
      York, in connection with any legal action, suit or proceeding with respect
      to
      any matter relating to or arising out of or in connection with this Assignment
      or any other operative agreement and fully waives any objection to the venue
      of
      such courts. Furthermore to the fullest extent permitted by applicable law,
      each
      Party hereby waives, and agrees not to assert, by way of motion, as a defense,
      or otherwise, in any such suit action or proceeding any claim that it is not
      personally subject to the jurisdiction of the above named courts, that the
      suit,
      action or proceeding is brought in an inconvenient forum, or that the venue
      of
      the suit, action or proceeding is improper. 

     

    EACH
      PARTY HERETO HEREBY EXPRESSLY WAIVES, TO THE FULLY EXTENT PERMITTED BY
      APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A JURY TRIAL IN RESPECT OF ANY
      LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
      THIS ASSIGNMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY

     

    IN
      WITNESS WHEREOF, the parties hereto have caused this Assignment to be duly
      executed as of the day and year first above written.

    

      
        	 
	
                Avantair,
                  Inc. 

              
	 	 	 
	
                By:

              	 	
                /s/
                  Steven F. Santo

              
	
                Name:

              	 	
                Steven
                  F. Santo

              
	
                Title:
                  

              	 	
                Chief
                  Executive Officer

              
	 	 	 
	
                Share
                  100 Holding Co., LLC

              
	 
	
                By:

              	 	
                /s/
                  Steven F. Santo

              
	
                Name:

              	 	
                Steven
                  F. Santo

              
	
                Title:
                  

              	 	
                Chief
                  Executive Officer of Managing Member, Avantair Inc.

              
	 	 	 


      

    

    

    

    Witnesses:

    

      
        	
                
                  /s/
                    Kevin McKamey

                

              	
                /s/
                  Richard Yokota

              
	
                Kevin
                  McKamey

              	
                Richard
                  Yokota

              
	
                Executive
                  Vice President, Avantair

              	
                Contracts
                  Manager, Embraer Executive
                  Jets

              


      

    

     

    
      
         

      

      
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