Republic Airways Holdings Exhibit 10.1




EXHIBIT
10.1

 

STOCK
PURCHASE AGREEMENT

 

THIS
STOCK PURCHASE AGREEMENT (this
“Agreement”) is
made as of this 6th day of
May, 2005, by and among Shuttle America Corporation, an Indiana corporation (the
“Company”),
Shuttle Acquisition LLC, a Delaware limited liability company and the parent of
the Company (“Seller”) and
Republic Airways Holdings, Inc., a Delaware corporation (“Buyer”),


 

WHEREAS, Seller
owns all of the issued and outstanding shares of common stock of the Company
(“Company
Shares”); and


 

WHEREAS, Buyer
wishes to purchase the Company Shares from Seller and Seller desires to sell the
Company Shares to Buyer upon the terms and subject to the conditions set forth
herein; and

 

WHEREAS, the
parties wish to set forth certain other agreements among them; and

 

NOW
THEREFORE, in
consideration of the mutual covenants of the parties set forth in this Agreement
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:

 

 

ARTICLE
I  

 

PURCHASE
AND SALE




 

1.1  Shares. On the
terms and subject to the conditions set forth in this Agreement, at the Closing
(as defined in Section 6.1 hereof) and upon the basis of the representations,
warranties, covenants and agreements contained herein, Seller shall sell,
convey, transfer and deliver to Buyer, and Buyer shall purchase from Seller, all
of the Seller’s right, title and interest in and to the Company Shares, free and
clear of any Liens (as defined in Section 3.2 hereof) in consideration for the
payment to Seller of One Million Dollars ($1,000,000) (the “Purchase
Price”). Buyer
and Seller agree that the Purchase Price shall be payable at the Closing by the
execution and delivery of a promissory note of Buyer (the “Purchase
Note”), made
payable to Seller, in the aggregate principal amount of $1,000,000, bearing
interest at a rate of 8.0% per annum, with the interest thereunder becoming due
payable monthly and 100% of the principal payable on the date which is the
second anniversary of the Closing Date (as defined in Section 6.1).

 



 


ARTICLE
II  

 

MANNER
OF EXCHANGE




 

2.1  Exchange
of Shares. At the
Closing, Seller shall deliver to Buyer a certificate or certificates
representing all of the Company Shares, accompanied by a stock power or powers
duly executed in blank, with all necessary stock transfer and other documentary
stamps attached, and Buyer shall deliver to Seller the Purchase
Note.

 

 







1












ARTICLE
III  

 

REPRESENTATIONS
AND WARRANTIES OF SELLER AND THE COMPANY




 

Each of
Seller and the Company, jointly and severally, represent and warrant to Buyer as
follows:

 

3.1  Organization
and Qualification; Subsidiaries. The
Company is duly organized, validly existing and, to the extent applicable, in
good standing under the laws of the jurisdiction in which it is organized (if
such jurisdiction recognizes good standing) and has the requisite power and
authority to carry on its business as now being conducted. The Company is duly
qualified or licensed to do business and, if such jurisdiction recognizes good
standing, is in good standing, in each jurisdiction in which the nature of its
business or the ownership or leasing of its properties makes such qualification
or licensing necessary, other than in such jurisdictions where the failure to be
so qualified or licensed (individually or in the aggregate) would not reasonably
be expected to have a material adverse effect on the Company. The Company has
made available to Buyer complete and correct copies of its certificate of
incorporation and by-laws, in each case as amended to the date hereof.


 

3.2  Capitalization. (a) The
authorized capital stock of the Company consists of 1,000 shares of common
stock, $0.01 par value per share. As of the date hereof there are outstanding
100 shares of common stock, all of which are owned by Seller free and clear of
all liens, claims, mortgages, charges, security interests, pledges or other
encumbrances or adverse claims or interests of any nature, except for the
restrictions imposed by applicable securities laws (collectively, “Liens”). All
of the Company Shares outstanding as of the date hereof have been duly
authorized and validly issued and are fully paid and nonassessable.


 

(b)  Except as
described above, there are no outstanding (i) shares of capital stock or voting
securities of the Company, (ii) securities of the Company convertible into or
exchangeable for shares of capital stock or voting securities of the Company or
(iii) options or other rights to acquire from Seller or the Company, or any
other obligation of Seller or the Company, to issue, any capital stock, voting
securities or securities convertible into or exchangeable for capital stock or
voting securities of the Company (the items in clauses (i), (ii) and (iii) being
referred to collectively as the “Company
Securities”).


 

3.3  Corporate
Authorization. Each of
Seller and the Company has all the requisite corporate (or limited liability
company, as the case may be) power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by each of Seller and the Company and the
consummation by each of Seller and the Company of the transactions contemplated
hereby have been duly authorized by all necessary corporate (or limited
liability company, as the case may be) action on the part of each of Seller and
the Company. This Agreement has been duly executed and delivered by each of
Seller and the Company and (assuming that this Agreement constitutes a valid and
binding agreement of Buyer) constitutes a valid and binding obligation of each
of Seller and the Company, enforceable against each of Seller and the Company in
accordance with its terms, except that such enforceability (i) may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting or relating
to the enforcement of creditors’ rights generally and (ii) is subject to general
principles of equity.

 

3.4  Non-contravention. The
execution and delivery of this Agreement by the Company and by Seller does not
and, the consummation of the transactions contemplated hereby will not (a)
contravene, conflict with, or result in any violation or breach of any provision
of the certificate of incorporation or by-laws (or certificate of formation or
limited liability company operating agreement, as the case may be) of each of
Seller and the Company, (b) contravene, conflict with, or result in a violation
or breach of any provision of any applicable law, regulation, judgment,
injunction, order or decree, (c) require any consent or other action by any
individual or trust, estate, partnership, corporation or other entity under
(except as has already been obtained or taken), constitute a default under, or
cause or permit the termination, cancellation, acceleration or other change of
any right or obligation or the loss of any benefit to which the Company is
entitled under any provision of any agreement or other instrument binding upon
the Company, or any license, franchise, permit, certificate, approval or other
similar authorization affecting, or relating in any way to, the assets or
business of the Company or (d) result in the creation or imposition of any Lien
on any asset of the Company.


 

3.5  Licenses
and Permits.
(a)The
Company has in effect all federal, state, local and foreign governmental
approvals, authorizations, certificates, filings, franchises, licenses, notices,
permits and rights (“Permits”)
necessary for it to own, lease and operate its properties and assets and to
carry on its business as now conducted. The Company is not in default under any
Permit.

 

(b) The
Company’s certificate of public convenience and necessity issued by the U.S.
Department of Transportation (the “DOT”) and
the Air Carrier Certificate issued by the Federal Aviation Administration (the
“FAA”)
(collectively, the “Certificates”) are valid and effective. 

 

(c) The
consummation of the transactions contemplated hereby shall not invalidate the
Permits or the Certificates.

 

3.6  Liabilities.
As of the
Closing, the Company shall not have any liabilities, costs, expenses, claims,
losses or other obligations whether actual or contingent, matured or unmatured,
liquidated or unliquidated, known or unknown, including without limitation tax
liabilities or any liabililty contemplated by Section 5.1(e) hereof
(individually a “Liability” and
collectively, “Liabilities”) other
than those Liabilities set forth in Schedule 3.6 hereof plus up to an additional
$500,000 of such Liabilities.

 

3.7  Financial
Statements.
The
Company has delivered to Buyer true, correct and complete copies of the
unaudited balance sheet and related unaudited statement of income of the Company
for the year ended December 31, 2004 (collectively, the (Financial
Statements”). The
Financial Statements have been prepared from the books and records of the
Company as prepared in the ordinary course of the business and in accordance
with generally accepted accounting principals in the United States of America.
The Financial Statements fairly present, the assets, liabilities and financial
condition of the Company as of their date and the results of operations of the
Company for the same period. As of
the Closing, the Company’s current assets minus its current liabilities
(“Working
Capital”) shall
not be less than Working Capital” as of February 28, 2005 less
$500,000.

 

 







2












ARTICLE
IV  

 

REPRESENTATIONS
AND WARRANTIES OF BUYER




 

Buyer
represents and warrants to Seller and the Company that:

 

4.1  Organization,
Standing and Corporate Power. Buyer is
a corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction in which it is incorporated and has the requisite
corporate power and authority to carry on its business as now being conducted.
Buyer is duly qualified or licensed to do business and is in good standing in
each jurisdiction in which the nature of its business or the ownership or
leasing of its properties makes such qualification or licensing necessary, other
than in such jurisdictions where the failure to be so qualified or licensed
(individually or in the aggregate) would not reasonably be expected to have a
material adverse effect on Buyer

 

4.2  Corporate
Authorization. Buyer
has all requisite corporate power and authority to enter into this Agreement and
to consummate the transactions contemplated hereby. The execution and delivery
of this Agreement, and the consummation of such transactions contemplated
hereby, by Buyer has been duly authorized by all necessary corporate action on
the part of Buyer. This Agreement has been duly executed and delivered by Buyer
and (assuming that this Agreement constitutes a valid and binding agreement of
Seller and the Company) constitutes a valid and binding obligation of Buyer,
enforceable against such party in accordance with its terms, except that such
enforceability (i) may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting or relating to the enforcement of creditors’ rights
generally and (ii) is subject to general principles of equity.

 

4.3  Non-contravention. The
execution and delivery of this Agreement by the Buyer does not and, the
consummation of the transactions contemplated hereby will not (a) contravene,
conflict with, or result in any violation or breach of any provision of the
certificate of incorporation or by-laws of Buyer, (b) contravene, conflict with,
or result in a violation or breach of any provision of any applicable law,
regulation, judgment, injunction, order or decree or (c) contravene, conflict
with, or result in a breach of any agreement, lease, instrument of indebtedness,
license or other obligation of Buyer.

 

 

ARTICLE
V  

 

CONDITIONS
PRECEDENT TO THE CLOSING




 

5.1  Conditions
Precedent to Obligations of Buyer. The
obligations of Buyer under this Agreement to consummate the transactions
contemplated hereby will be subject to the satisfaction, at or prior to the
Closing (as hereinafter defined), of all of the following conditions, any one or
more of which may be waived at the option of Buyer:

 

(a)  True
and Correct Representations and Warranties. The
representations and warranties of Seller and the Company contained in this
Agreement shall be true and correct as of the Closing. 

 

(b)  The
Company shall have satisfied in full, and shall have no further obligation under
or relating to:

 

(i)  that
certain promissory note of the Company in favor of Chautauqua Airlines, Inc.
dated as of January 2, 2002 and assigned to Imprimis Investors, LLC, on March 8,
2004, for the aggregate principal amount outstanding of $9,421,808 (the
“Imprimis
Note”);

 

(ii)  those
certain promissory notes of the Company in favor of Seller, for the aggregate
principal amounts of $5,000,000 and $10,000,000 respectively (the “Seller
Notes”) and
any other indebtednesses incurred by the Company to the Seller (the Seller Notes
and the Imprimis Note collectively have accrued to $26.165MM set forth on the
unaudited February 28, 2005 balance sheet of the Company); and

 

(iii)  any
Liability other than those set forth in Schedule 3.6 hereof.

 

(c)  Delivery
of Documents. Buyer
shall have received all documents and other items to be delivered under Section
6.2.

 

(d)  No
Material Adverse Effect. From
the date hereof until the Closing, there shall have been no material adverse
effect on the properties, assets, condition (financial or otherwise), operating
results, employee, customer or supplier relations, business activities or
business prospects of the Company.

 

(e)  Indebtedness. Buyer
shall be satisfied that as a result of the cancellation of indebtedness pursuant
to Sections 5(b)(i) and (ii) above that neither the Company nor Buyer shall
incur any cost or expense (including, without limitation, any cancellation of
indebtedness income for federal and state law tax purposes), which would result
in a material adverse effect on the business of the Company or Buyer after the
consummation of the transactions contemplated hereby.

 

(f)  DOT
Authorization. The
authorization from the DOT for the Company, upon its acquisition by the Buyer,
to utilize aircraft with sixty (60) seats or more in the Company’s business
shall not have been revoked by the DOT.

 

(g)  Approvals. Buyer
shall be satisfied that the transactions contemplated hereby shall not
invalidate the Certificates.

 

5.2  Conditions
Precedent to Obligations of Seller and the Company. The
obligations of Seller and the Company under this Agreement to consummate the
transactions contemplated hereby will be subject to the satisfaction, at or
prior to the Closing, of all the following conditions, any one or more of which
may be waived at the option of Seller and the Company:

 

(a)  No
Breach of Covenants; True and Correct Representations and
Warranties. The
representations and warranties of Buyer contained in this Agreement shall be
true and correct as of the Closing.

 

(b)  Delivery
of Documents. Seller
and the Company shall have received all documents and other items to be
delivered by Buyer under Section 6.3.

 

 







3












ARTICLE
VI  

 

CLOSING




 

6.1  Closing. The
consummation of the transactions that are the subject of this Agreement shall be
closed (the “Closing”) at the
offices of Fulbright & Jaworski L.L.P., 666 Fifth Avenue, New
York, NY 10103, at 10:00 a.m. Eastern Standard Time on May 6, 2005, or at such
other time or place as the parties may mutually agree (the “Closing
Date”).


 

6.2  Deliveries
by Seller and the Company. At the
Closing, Seller and the Company shall deliver or cause to be delivered to
Buyer:

 

(a)  Stock
Certificates and Instruments of Conveyance.
Certificates for all of the Company Shares, accompanied by stock powers duly
executed in blank, with all necessary stock transfer and other documentary
stamps attached;

 

(b)  Corporate
Documents. The
certificate of incorporation of the Company certified by an appropriate official
of its jurisdiction of incorporation as being in effect as of a recent date, and
the Company’s bylaws certified by an appropriate officer of the Company as in
effect at the Closing; 

 

(c)  Resignations.
Resignations of all of the directors and officers of the Company, effective as
of the Closing;

 

(d)  Corporate
Records. All
minutes books and stock record books of the Company; 

 

(e)  Evidence
of Satisfaction of Debt.
Evidence, in form and substance satisfactory to Buyer, of the full and complete
satisfaction of the Company’s obligations under (i) the Imprimis Note and (ii)
the Seller Note.

 

(f)  Licenses
and Permits. Copies
of each of the Permits held or owned by the Company and each of the Certificates
held or owned by the Company;

 

(g)  Other
Documents. Such
other documents and instruments as Buyer reasonably shall deem necessary to
consummate the transactions contemplated hereby.

 

All
documents delivered to Buyer shall be in form and substance reasonably
satisfactory to counsel for Buyer.

 

6.3  Deliveries
by Buyer. At the
Closing, Buyer will deliver to Seller simultaneously with delivery of the items
referred to in Section 6.2 above:

 

(a)  The
Purchase Note;


 

(b)  Other
Documents. Such
other documents and instruments as Seller reasonably shall deem necessary to
consummate the transactions contemplated hereby.

 

 

ARTICLE
VII  

 

OTHER
AGREEMENTS




 

7.1  Survival
of Representation and Warranties; Covenants.
All of
the representations and warranties set forth in this Agreement shall survive the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby, regardless of any investigation, inquiry
or examination made for or on behalf of or any knowledge of Buyer, Seller or the
Company or any of their respective officers, directors, employees, agents, or
representatives, until the date which is the nine month anniversary of the
Closing Date. 

 

7.2  Cooperation
After the Closing. Buyer,
Seller and the Company will, at any time, and from time to time, after the
Closing Date, execute and deliver such further instruments of conveyance and
transfer and take such additional action as may be reasonably necessary to
effect, consummate, confirm or evidence the transactions contemplated by this
Agreement. 

 




 







4












 

ARTICLE
VIII  

 

INDEMNIFICATION




 

8.1  Indemnification
by Seller. From and
after the Closing, Seller agrees to indemnify, defend and save Buyer, the
Company, and each of their respective officers, directors, employees, or agents
(each, an “Indemnified
Buyer Party”),
harmless from and against, and to promptly pay to an Indemnified Buyer Party or
reimburse an Indemnified Buyer Party for, any and all liabilities (whether
contingent, fixed or unfixed, liquidated or unliquidated, or otherwise),
obligations, deficiencies, demands, claims, suits, actions, or causes of action,
assessments, losses, costs, expenses, interest, fines, penalties, actual or
punitive damages or costs or expenses of any and all proceedings, judgments,
settlements and compromises (including reasonable fees and expenses of
attorneys, accountants and other experts incurred by any indemnified party in
any action or proceeding between such indemnified party and the indemnitor or
between any indemnified party and any third party or otherwise) (individually a
“Loss” and
collectively, the “Losses”)
sustained or incurred by any Indemnified Buyer Party relating to, resulting
from, arising out of or otherwise by virtue of any misrepresentation or breach
of a representation, warranty or covenant made herein by Seller or the
Company.

 

8.2  Indemnification
by Buyer.
From and
after the Closing, Buyer agrees to indemnify, defend and save Seller and its
officers, directors, employees or agents (each, an “Indemnified
Seller Party”)
harmless from and against, and to promptly pay to an Indemnified Seller Party or
reimburse an Indemnified Seller Party for, any and all Losses sustained or
incurred by any Indemnified Seller Party relating to, resulting from, arising
out of or otherwise by virtue of any misrepresentation or breach of a
representation, warranty or covenant made herein by Buyer.

 

8.3  Procedure
for Indemnification.
The
following procedure shall apply to the foregoing agreements to indemnify and
hold harmless:

 

(a)  The party
who is seeking indemnification (the “Claimant”) shall
give written notice to the party from whom indemnification is sought (the
“Indemnitor”)
promptly after the Claimant learns of the claim or proceeding, provided that the
failure to give such notice shall not relieve the Indemnitor of its obligations
hereunder except to the extent it is actually damaged thereby.

 

(b)  With
respect to any third-party claims or proceedings as to which the Claimant is
entitled to indemnification, the Indemnitor shall have the right to select and
employ counsel of its own choosing to defend against any such claim or
proceeding, to assume control of the defense of such claim or proceeding, and to
compromise, settle or otherwise dispose of the same, if the Indemnitor deems it
advisable to do so, all at the expense of the Indemnitor. The parties will fully
cooperate in any such action, and shall make available to each other any books
or records useful for the defense of any such claim or proceeding. The Claimant
may elect to participate in the defense of any such third party claim, and may,
at its sole expense, retain separate counsel in connection therewith. Subject to
the foregoing (i) the Claimant shall not settle or compromise any such third
party claim without the prior written consent of the Indemnitor and (ii) the
Indemnitor shall not settle or compromise any such third party claim without the
prior written consent of the Claimant, in each case of (i) and (ii) which
consent shall not be unreasonably withheld.

 

8.4  Limitation
on Indemnification Rights.

 

(a)  It is
understood and agreed that no claim for recovery of indemnifiable damages may be
asserted based on a representation, warranty or applicable portion thereof set
forth in this Agreement after it has been extinguished in accordance with
Section 7.1 hereof.

 

(b)  No claim
for indemnification may be made hereunder unless the aggregate amount of claims
exceeds $250,000 and then only for claims in excess of $250,000.

 

(c)  The
indemnification obligations of either Seller or the Buyer under Sections 8.1 and
8.2 hereof shall not exceed the Purchase Price (the “Indemnification
Cap”).


 

 

ARTICLE
IX  

 

MISCELLANEOUS




 

9.1  Severability. The
unenforceability or invalidity of any provision of this Agreement shall not
affect the enforceability or validity of any other provision which shall remain
in full force and effect and be enforceable to the fullest extent permitted by
law.

 

9.2  Amendment
and Waiver. This
Agreement may not be amended orally. The waiver by any party hereto of a breach
of any provision of this Agreement shall not operate or be construed as a waiver
of any other breach. The failure of any party to enforce any provision of this
Agreement shall not operate as a waiver by such party of such
provision.

 

9.3  Documents. Each
party will execute all documents and take such other actions as any other party
may reasonably request in order to consummate the transactions provided for
herein and to accomplish the purposes of this Agreement.

 

9.4  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
agreement. 

 

9.5  Expenses. Whether
or not the Closing occurs, all transaction expenses incurred by any party hereto
shall be paid by such party.

 

9.6  Governing
Law; Jurisdiction. This
Agreement shall be construed and enforced in accordance with, and all questions
concerning the construction, validity, interpretation and performance of this
Agreement shall be governed by, the laws of the State of New York, without
giving effect to provisions thereof regarding conflicts of law. 

 

9.7  Assignment. This
Agreement will be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Neither this Agreement nor any of
the rights, interests or obligations hereunder may be assigned or delegated by
any party hereto in any manner whatsoever, whether directly or by operation of
law or otherwise, without the prior written consent of the other parties hereto.
 

 




 








	 	 	 






 






5
















IN
WITNESS WHEREOF, the
parties have executed this Agreement as of the date first above
written.


	 	 	 
	 	BUYER
	 	 
	 	REPUBLIC
      AIRWAYS HOLDINGS INC.
	 		 
	 	By:  	/s/ Robert H. Cooper    
	 	
      

      Name:
      Robert H. Cooper
	 	Title: Executive Vice President
      and Chief Financial Officer



 

 





	 	 	 
	 	SELLER
	 	 
	 	SHUTTLE
      ACQUISITION LLC
	 
 	 
 	 
 
		By:  	/s/ Arthur Amron
	 	
      

      Name:
      Arthur Amron
	 	Title: Vice President and Assistant
Secretary







	 	 	 
	 	COMPANY
	 	 
	 	SHUTTLE
      AMERICA CORPORATION
	 
 	 
 	 
 
		By:  	/s/ Arthur Amron
	 	
      

      Name:
      Arthur Amron
	 	Title: Vice President and Assistant
Secretary







 

 

Wexford
Special Situations 1997 LP, which owns a controlling interest in Seller, hereby
guarantees Seller’s obligations under Article VIII hereof for a period of nine
months from the date hereof.

 


	 	 	 
	 	WEXFORD SPECIAL
      SITUATIONS 1997 LP
	 	 By:
      Wexford 97 Advisors LLC, its General Partner
	 
 	 
 	 
 
		By:  	/s/ Arthur Amron
	 	
      

      Name:
      Arthur Amron
	 	Title: Vice President and
      Assistant Secretary