Exhibit 10.1


 





FIRST
AMENDMENT TO AGREEMENT AND PLAN OF MERGER 


 


THIS
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this “Amendment”) is made and entered into as of March
20, 2015 by and among: (i) Tempus Applied Solutions, LLC, a Delaware limited liability company (the “Company”);
(ii) each of the Persons set forth on Annex A to the Merger Agreement (as defined below) (the “Members”,
and, together with the Company, the “Seller Parties”); (iii) Benjamin Scott Terry and John G. Gulbin III,
together in their capacity as Members’ Representative solely for purposes specified in the Merger Agreement (the “Members’
Representative”); (iv) Chart Acquisition Corp., a Delaware corporation (“Parent”); (v) Tempus Applied
Solutions Holdings, Inc., a Delaware corporation (“Pubco”); (vi) Chart Merger Sub Inc., a Delaware corporation
(“Parent Merger Sub”); (vii) TAS Merger Sub LLC, a Delaware limited liability company (“Company Merger
Sub” and together with Parent Merger Sub, the “Merger Subs”); (viii) Chart Acquisition Group LLC,
in its capacity as the representative for the equity holders of Parent and Pubco (other than the Members and their successors
and assigns) in accordance with the terms and conditions of the Merger Agreement (the “Chart Representative”);
and (ix) Chart Acquisition Group LLC, Mr. Joseph Wright and Cowen Investments LLC (together, the “Warrant Offerors”),
solely for the purposes specified in the Merger Agreement. The Company, the Members, the Members’ Representative, Parent,
Pubco, Parent Merger Sub, Company Merger Sub and the Chart Representative (and for the limited purposes indicated in the Merger
Agreement, the Warrant Offerors) are referred to herein individually as a “Party” and collectively as the “Parties”.
Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to such terms in the Merger
Agreement.


 


RECITALS


 


WHEREAS,
the Parties have entered into the Agreement and Plan of Merger, dated as of January 5, 2015, by and among the Parties (as amended,
including by this Amendment, the “Merger Agreement”), which sets forth the Parties’ rights and obligations
with respect to the Transactions; and


 


WHEREAS,
the Parties desire to amend the Merger Agreement to reflect the revised agreement among the Parties with respect to the Transactions.


 


NOW,
THEREFORE, in consideration of the premises and the mutual promises herein made, and in consideration of the representations,
warranties and covenants herein contained, and intending to be legally bound hereby, the Parties agree as follows:


 


1.Amendment
to Definition of Base Company Value. Appendix A to the Merger Agreement is hereby amended to replace the amount “Fifty-Two
Million Five Hundred Thousand U.S. Dollars ($52,500,000)” in the definition of “Base Company Value” with
the amount “Thirty-Seven Million U.S. Dollars ($37,000,000)”.


 


2.Amendment
to Earnout. Section 1.16 of the Merger Agreement is hereby amended as follows:


 


(a)the
date “June 30, 2016” in clause (i) of Section 1.16(a) of the Merger Agreement is hereby deleted and replaced with
the date “December 31, 2017”;


 






    	 



    	 



    

 


(b)the
following is hereby added immediately prior to clause (i) in Section 1.16(b) of the Merger Agreement: “(i) 1,550,000 Earnout
Shares if the Adjusted TTM EBITDA as of the end of any two (2) consecutive fiscal quarters of Pubco during the Earnout Period
is greater than $14,100,000 for each such fiscal quarter,”;


 


(c)the
number “4,750,000” in clause (ii) of Section 1.16(b) of the Merger Agreement is hereby deleted and replaced with the
number “6,300,000”; and


 


(d)the
sequential numbering of clauses (i) and (ii) in Section 1.16(b) of the Merger Agreement prior to giving effect to this Amendment
is hereby amended to make them clauses (ii) and (iii).


 


3.Amendment
to Deductible. Section 9.4(a) of the Merger Agreement is hereby amended to replace the amount of “Five Hundred Thousand
Dollars ($500,000)” in the first sentence thereof with the amount “Three Hundred Fifty Thousand Dollars ($350,000)”.


 


4.Nasdaq
Requirements. The Parties hereby acknowledge that Parent is no longer listed on Nasdaq, and waive (i) any requirements under
the Merger Agreement for Parent or Pubco to be listed on Nasdaq or comply with Nasdaq’s requirements and (ii) any breach
of the Merger Agreement for Parent or Pubco failing to so be listed or to comply. Without limiting the foregoing, the Merger Agreement
is hereby amended as follows:


 


(a)Section
5.5(d) of the Merger Agreement is hereby amended to delete the following phrase at the end of such Section: “including,
without limitation, with respect to Parent, any rules or regulations of Nasdaq”.


 


(b)Section
5.6 of the Merger Agreement is hereby amended to delete the second sentence thereof in its entirety.


 


(c)Section
6.23 of the Merger Agreement is hereby deleted in its entirety and replaced with the following: “[Reserved].


 


5.Miscellaneous.
Except as expressly provided in this Amendment, all of the terms and provisions in the Merger Agreement and the other Transaction
Documents are and shall remain in full force and effect, on the terms and subject to the conditions set forth therein. This Amendment
does not constitute, directly or by implication, an amendment or waiver of any provision of the Merger Agreement or any other
Transaction Document, or any other right, remedy, power or privilege of any Party, except as expressly set forth herein. Any reference
to the Merger Agreement in the Merger Agreement or any other agreement, document, instrument or certificate entered into or issued
in connection therewith shall hereinafter mean the Merger Agreement, as amended by this Amendment (or as the Merger Agreement
may be further amended or modified after the date hereof in accordance with the terms thereof). Sections 12.1 through 12.7 and
12.9 through 12.16 of the Merger Agreement are hereby incorporated herein by reference and apply to this Amendment as if all references
to the “Agreement” contained therein were instead references to this Amendment.


 


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IN
WITNESS WHEREOF, each party hereto has signed or has caused to be signed by its officer thereunto duly authorized this First
Amendment to Agreement and Plan of Merger as of the date first above written.


 


	 	PARENT:
	 	 
	 	CHART
    ACQUISITION CORP.
	 	 
	 	By:	/s/
    Christopher D. Brady
	 	 	Name:  Christopher
    D. Brady
	 	 	Title:  President
	 	 	 
	 	PUBCO:
	 	 
	 	TEMPUS
    APPLIED SOLUTIONS HOLDINGS, INC.
	 	 
	 	By:	/s/
    Christopher D. Brady
	 	 	Name:  Christopher
    D. Brady
	 	 	Title:  President
	 	 	 
	 	MERGER
    SUBS:
	 	 
	 	CHART
    MERGER SUB INC.
	 	 	 
	 	By:	/s/
    Christopher D. Brady
	 	 	Name:  Christopher
    D. Brady
	 	 	Title:  President
	 	 	 
	 	TAS
    MERGER SUB LLC
	 	 	 
	 	By:	/s/
    Christopher D. Brady
	 	 	Name:  Christopher
    D. Brady
	 	 	Title:  President


 


[SIGNATURES
CONTINUE ON FOLLOWING PAGE]


 


[Signature
Page to First Amendment to Agreement and Plan of Merger]


 




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	 	CHART REPRESENTATIVE:
	 	 	 
	 	CHART ACQUISITION GROUP LLC
	 	 	 
	 	By: The Chart Group L.P.
	 	 	 	 
	 	 	By:	/s/ Christopher D. Brady
	 	 	 	Name:  Christopher D. Brady
	 	 	 	Title:  Manager
	 	 	 	 
	 	WARRANT OFFERORS:
	 	 	 	 
	 	CHART ACQUISITION GROUP LLC
	 	 	 
	 	By: The Chart Group L.P.
	 	 	 	 
	 	 	By:	/s/ Christopher D. Brady
	 	 	 	Name:  Christopher D. Brady
	 	 	 	Title:  Manager
	 	 	 	 
	 	/s/ Joseph Wright
	 	Joseph Wright
	 	 	 	 
	 	COWEN INVESTMENTS LLC
	 	 	 	 
	 	By:	/s/
John Holmes
	 	 	Name: John Holmes
	 	 	Title: Chief Operating Officer




   


[SIGNATURES
CONTINUE ON FOLLOWING PAGE]


  


[Signature
Page to First Amendment to Agreement and Plan of Merger]


 






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	 	COMPANY:
	 	 
	 	TEMPUS
    APPLIED SOLUTIONS, LLC
	 	 	 
	 	By:	/s/
    Benjamin Scott Terry
	 	 	Name:
    Benjamin Scott Terry
	 	 	Title:  Manager
	 	 	 
	 	MEMBERS’
    REPRESENTATIVE:
	 	 	 
	 	/s/
    Benjamin Scott Terry
	 	Benjamin
    Scott Terry
	 	 	 
	 	/s/
    John G. Gulbin III
	 	John
    G. Gulbin III
	 	 	 
	 	MEMBERS:
	 	 
	 	/s/
    Benjamin Scott Terry
	 	Benjamin
    Scott Terry
	 	 
	 	/s/
    John     G. Gulbin III
	 	John
    G. Gulbin III
	 	 
	 	/s/
    Joshua     Paul Allen
	 	Joshua
    Paul Allen
	 	 	 
	 	EARLY
    VENTURES, LLC
	 	 	 
	 	By:	/s/
    Sheldon Early
	 	 	Name:  Sheldon
    Early
	 	 	Title:  President
	 	 	 
	 	/s/
    Rober Lee Priest, Jr.
	 	Robert
    Lee Priest, Jr.


  


[Signature Page to First Amendment to
Agreement and Plan of Merger]




 


 




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