Attached files
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EX-99.9 - FORM OF JHC A&R BYLAWS - AEROCENTURY CORP | exh999jhcbylaws.htm |
EX-99.8 - FORM OF JHC A&R ARTICLES - AEROCENTURY CORP | exh998jhcarticlesofincorp.htm |
EX-99.7 - FORM OF SERIES B SPA - AEROCENTURY CORP | exh997seriesbpsa.htm |
EX-99.6 - FORM OF SERIES A SPA - AEROCENTURY CORP | exh996seriesapsa.htm |
EX-99.5 - FORM OF COMMON STOCK PA - AEROCENTURY CORP | exh995jhccommonstockpurch.htm |
EX-99.4 - FORM OF ACY A&R BYLAWS - AEROCENTURY CORP | exh994amendedandrestatedb.htm |
EX-99.3 - FORM OF ACY A&R ARTICLES - AEROCENTURY CORP | exh993acyamendedandrestat.htm |
EX-99.1 - FORM OF PLAN SPONSOR AGREEMENT - AEROCENTURY CORP | exh991plansponsoragreemen.htm |
8-K - ACY REPORT ON FORM 8-K AUG 16, 2021 - AEROCENTURY CORP | a8kPSAfiled.htm |
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR REGISTERED OR QUALIFIED UNDER THE SECURITIES LAWS
OF ANY STATE OR FOREIGN JURISDICTION OR APPROVED OR DISAPPROVED BY
THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION (THE
“SEC”) OR ANY STATE SECURITIES COMMISSION OR OTHER
REGULATORY AUTHORITY OF ANY JURISDICTION, NOR HAS THE SEC OR ANY
SUCH STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY PASSED
UPON THE MERITS OF THIS OFFERING, NOR IS IT INTENDED THAT THEY
WILL. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
THE SECURITIES OFFERED HEREBY CANNOT BE OFFERED OR SOLD IN THE
UNITED STATES OR TO “U.S. PERSONS” (AS SUCH TERM IS
DEFINED IN REGULATION S, PROMULGATED UNDER THE SECURITIES ACT)
UNLESS THE SECURITIES ARE REGISTERED UNDER THE SECURITIES ACT, OR
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT IS AVAILABLE.
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE
AGREEMENT (this
“Agreement”)
dated August __, 2021 (the “Effective
Date”), by and between
Aerocentury Corp., a Delaware corporation (the
“Company”),
the persons listed on the signature page(s) of this Agreement (the
“Investors”),
and Yucheng Hu, in the capacity as the representative for the
Investors in accordance with the terms and conditions of this
Agreement (the “Investor
Representative”).
RECITALS:
WHEREAS, on March 29, 2021, AeroCentury
Corp., JetFleet Holding Corp., and JetFleet Management Corp.
(collectively, the “Debtors”)
commenced voluntary cases under chapter 11 of title 11 of the
United States Code, 11 U.S.C. §§ 101 et seq. (the “Bankruptcy
Code”), which are being jointly administered under the
caption In re Aerocentury
Corp., et al., Case No. 21-10636 (JTD) (the
“Chapter
11 Cases”) in the United States Bankruptcy Court for
the District of Delaware (the “Bankruptcy
Court”);
WHEREAS, the Debtors filed a Combined
Disclosure Statement and Joint Chapter 11 Plan of AeroCentury
Corp., and its Affiliated Debtors dated July 14, 2021 (the
“Plan,” as it
may be altered, amended, modified, or supplemented from time to
time including in accordance with any documents submitted in
support thereof and the Bankruptcy Code or the Bankruptcy Rules)
[Docket No. 225];
WHEREAS, the Bankruptcy Court approved
the Plan on an interim basis for solicitation purposes only
pursuant to the Solicitation Procedures Order [Docket No.
222];
WHEREAS, the Plan consists of a toggle
between (i) the Sponsored Plan, which, pursuant to the terms of the
Plan Sponsor Agreement, the Debtors and the Plan Sponsor will agree
to a restructuring of the Debtors’ businesses that will be
implemented through the Sponsored Plan (collectively, the
“Restructuring
Transactions”) and (ii) the Stand-Alone Plan, whereby
the Debtors’ remaining Assets will vest in the Post-Effective
Date Debtors and be monetized by the Plan
Administrator;
WHEREAS, the Debtors filed a Notice of
Selection of Plan Sponsor on August 9, 2021 [Docket No. 254], which
included as Exhibit A an Investment Term Sheet between AeroCentury
and Plan Sponsor dated as of August 9, 2021 (the
“Term
Sheet”) setting forth the principal terms of an
investment by Plan Sponsor into AeroCentury to be implemented
pursuant to the Plan;
WHEREAS, the Company and each Investor
are executing and delivering this Agreement in reliance upon the
exemption from registration afforded by one or more of Section
4(a)(2) of the Securities Act of 1933, as amended (the
“Securities
Act”), Rule 506 of Regulation D (“Regulation
D”), and Regulation S (“Regulation S”)
as promulgated by the United States Securities and Exchange
Commission (the “SEC”) under
the Securities Act;
WHEREAS, each Investor, severally and
not jointly, wishes to purchase, and the Company wishes to sell,
upon the terms and conditions stated in this Agreement, that
aggregate number of shares of the common stock, par value $0.001
per share, of the Company (the “Common
Stock”), set forth opposite each Investor’s name
on Exhibit A hereto
(which aggregate amount for all Investors together shall
collectively be referred to herein as the “Securities”);
and
WHEREAS, each Investor shall pay $3.85
hereunder for each of the Securities, with an aggregate amount to
be paid for all Securities of approximately $11,053,068.95 (the
“Purchase
Price”).
NOW,
THEREFORE, in consideration of
the mutual promises and covenants contained herein, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. SALE OF COMMON STOCK
1.1 Authorization.
The Company has authorized the sale and issuance of Securities to
the Investors in the amounts set forth opposite each
Investor’s name on Exhibit A
hereto of an aggregate of 2,870,927
Securities, which represents approximately 65% of the outstanding
shares of Common Stock immediately following the
Closing.
1.2 Sale
and Issuance of the Securities.
Subject to the terms and conditions set forth in this Agreement,
the Company will issue and sell to the Investors and the Investors
will buy from the Company the Securities at a per share purchase
price of $3.85.
1.3 Escrow.
On August __, 2021, the Investors deposited the aggregate sum of
$1,650,000 (the “Escrow
Deposit”) with Young
Conaway Stargatt & Taylor, LLP (“Escrow
Agent”) to be held and
distributed in accordance with the terms of this Agreement, the
Plan Sponsor Agreement, dated as of August __, 2021, bay and among
the Debtors and the Investors, and the Escrow Agreement attached
hereto as Exhibit B
(the “Escrow
Agreement”).
SECTION 2. CLOSING DATE; DELIVERY.
2.1 Closing
Date. Subject to the
satisfaction or waiver of the conditions set forth in
Sections
5, 6 and 7, the Closing, of the
purchase and sale of the Securities shall take place at the offices
of Young Conaway Stargatt & Taylor, LLP, 1000 N. King Street,
Wilmington, DE 19801, at ____ a.m. local time, on September 30,
2021, or at such other location, date, and time as may be agreed
upon between the Investors and the Company (such closing being
called the “Closing”
and such date and time being called the “Closing
Date”) but in any event
not later than _____, 2021 so long as all of the conditions
of Sections 5, 6 and
7 have been satisfied (or
otherwise waived in accordance with this
Agreement).
2.2 Delivery
and Payment. At the Closing,
the Company will deliver, or cause its transfer agent and registrar
to deliver, to the Investors, through book-entry delivery with
appropriate restrictive legends, registered in each
Investor’s name, representing the number of Securities to be
purchased by each Investor at the Closing, against payment by the
Purchase Price by the Escrow Agent and the Investors, by (i) a
certified or official bank check payable to the Company, (ii) by
wire transfer per the Company’s instructions, or (iii) by any
combination of (i) and (ii) above. The Company shall not be
obligated to issue and sell any Securities unless and until it
receives the entirety of the Purchase Price.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE
COMPANY.
Except
as set forth in the disclosure schedules delivered by the Company
to the Investors on the date hereof (the “Company Disclosure
Schedules”), the Section numbers of which are numbered
to correspond to the Section numbers of this Agreement to which
they refer, the Company represents and warrants to the Investors,
as of the date hereof and as of the Closing as
follows:
3.1 Organization
and Standing; Certificate Of Incorporation and
Bylaws. The Company is a
corporation duly organized and validly existing in good standing
under the laws of the State of Delaware. The Company has requisite
corporate power and authority to own its assets and to carry on its
business as now conducted and proposed to be conducted and is duly
qualified as a foreign corporation in each jurisdiction in which
such qualification is necessary. Copies of the Certificate of
Incorporation and Bylaws of the Company have been provided to
Investors. Said copies remain true, correct and complete and
reflect all amendments as of the Closing.
3.2 Corporate
Power. Subject to entry of an
order of the Bankruptcy Court approving the Plan and the
Company’s entry into this Agreement, the Company has all
requisite legal and corporate power and authority to execute and
deliver this Agreement, and to carry out and perform its
obligations under the terms of this Agreement.
3.3 Subsidiaries.
The Company owns or controls, directly or indirectly, all of the
capital stock or comparable equity interests of each subsidiary
free and clear of any liens or encumbrances, and all issued and
outstanding shares of capital stock or comparable equity interest
of each subsidiary are validly issued and are fully paid,
non-assessable and free of preemptive and similar rights; and the
Company owns or controls, directly or indirectly, only the
following corporations and limited liability
companies:
ACY
E-175 LLC, a Delaware limited liability company
ACY
SN 15129 LLC, a Delaware limited liability company
ACY
SN 19002 Limited, an English limited liability company
ACY
SN 19003 Limited, an English limited liability company
JetFleet
Holding Corp., a California corporation
JetFleet
Management Corp., a California corporation
1314401
Alberta Inc., d/b/a JetFleet Canada, an Alberta, Canada
corporation
3.4 Capitalization.
The authorized capital stock of the Company consists of 10,000,000
shares of Common Stock, $0.001 par value
(“Common
Stock”), of which
1,545,884 shares are and will be issued and outstanding immediately
prior to the Closing, and 2,000,000 shares of Preferred Stock,
$0.001 par value (“Preferred
Stock”), of which none
are or will be issued and outstanding immediately prior to the
Closing. There are no outstanding options, warrants, rights
(including conversion or preemptive rights and rights of first
refusal or similar rights), or agreements, orally or in writing, to
purchase or acquire from the Company any shares of Common Stock, or
any securities convertible into or exchangeable for shares of
Common Stock. No person, other than the Investors pursuant to this
Agreement, has any right to purchase any portion of the Securities
covered by this Agreement. All issued and outstanding shares of
Common Stock of the Company have been duly authorized and validly
issued, are fully paid and nonassessable, and have been offered,
issued, sold and delivered by the Company in compliance with
applicable federal and state securities laws. The Company holds no
Common Stock in its treasury.
3.5 Authorization.
All corporate action on the part of the Company and its board of
directors and all action on the part of the officers of the Company
necessary for the authorization, execution, delivery and
performance of this Agreement by the Company, the authorization,
sale, issuance and delivery of the Securities and the performance
of the Company’s obligations under this Agreement has been
taken or will be taken prior to the Closing. No action of the
Company’s stockholders is necessary for any of the foregoing
actions. This Agreement constitutes the valid and binding
obligation of the Company, enforceable in accordance with its
terms.
3.6 Private
Offering; Valid Issuance.
(a) The
Securities, when issued in compliance with the provisions of this
Agreement, will be validly issued, fully paid and nonassessable and
will be free of any liens or encumbrances other than restrictions
under pertinent federal and state securities laws, rules and
regulations.
(b) The
Company has taken all necessary action on its part to ensure that,
subject to the accuracy of the Investors’ representations
in Section 4
hereof, the offer, sale and issuance
of the Securities will constitute transactions exempt from the
registration requirements of Section 5 of the Securities Act of
1933, as amended (the “Securities
Act”), and the Securities
will be issued in compliance with all applicable federal and state
securities laws.
(c) No
“bad actor” disqualifying event described in Rule
506(d)(1)(i)-(viii) (a “Disqualification
Event”) promulgated under
the Securities Act, is applicable to the Company or, to the
Company’s knowledge, any person listed in the first paragraph
of Rule 506(d)(1), except for a Disqualification Event as to which
Rule 506(d)(2)(ii–iv) or (d)(3), is
applicable.
3.7 No
Registration, Voting or Liquidation Rights. The Company is not under any contractual
obligation to register under the Securities Act any of its
outstanding securities or any of its securities which may hereafter
be issued. To the Company’s knowledge, no stockholder of the
Company is party to any agreement with any party other than one or
more Investors relating to the voting of capital shares of the
Company. The Company is not under any contractual obligation to
wind-up, liquidate or dissolve whether or not conditioned upon the
occurrence of certain events, lapse of certain periods, or upon
notice or election by one or more persons (other than by its
stockholders in accordance with the requirements of applicable law)
and any such past obligations.
3.8 Governmental
Consent, Etc. No consent,
approval, order or authorization of, or registration,
qualification, designation, declaration, or filing with any
governmental authority on the part of the Company (except the
filing of a Schedule 14f-1 with the U.S. Securities and Exchange
Commission (“SEC”)
under the Securities Exchange Act of 1934 (the
“Exchange
Act”) and the rules and
regulations of the SEC promulgated thereunder) is required in
connection with the valid execution and delivery of this Agreement
or the offer, sale, or issuance of the Securities or other
transactions contemplated hereby, except as set forth on Schedule
3.8 and the filings pursuant to Regulation D of the Securities Act,
applicable state securities laws, NYSE Amex Additional Listing
Application, which filings, if required, will be accomplished by
the Company, at its expense, in a timely
manner.
3.9 Actions.
Except for the Cash Dividend (as defined below), (i) the Company
has not declared or paid any dividends, or authorized or made any
distribution upon or with respect to any class or series of its
capital stock or (ii) sold, exchanged or otherwise disposed of any
of its assets or rights.
For
the purposes of (a) and (b) of this
3.10 Certain
Transactions. Except as
disclosed in the Company’s filings with the SEC, and other
than pursuant to this Agreement, no officer, director or employee
of the Company, or any member of the immediate family of any such
officer, director or employee, or any entity in which any of such
persons owns any beneficial interest (other than any publicly-held
corporation whose stock is traded on a national securities exchange
or in the over-the-counter market and less than one percent of the
stock of which is beneficially owned by any of such persons)
(collectively, the “Company
Insiders”), has any
agreement with the Company (other than customary at-will employment
arrangements) or any interest in any property, real, personal or
mixed, tangible or intangible, used in or pertaining to the
business of the Company (other than ownership of capital stock of
the Company). The Company is not indebted to any Company Insider
(except for amounts due as normal salaries and bonuses and in
reimbursement of ordinary business expenses) and no Company Insider
is indebted to the Company except for cash advances for ordinary
business expenses). To the Company’s knowledge, information,
and belief, none of the Company Insiders has any direct or indirect
interest in any person from whom or to whom the Company leases any
property, or in any other person with whom the Company transacts
business of any nature. For purposes of this Section
3.10, the members of the
immediate family of an officer, director or employee shall consist
of the spouse, parents, children and siblings of such officer,
director or employee.
3.11 [Reserved].
3.12 Compliance
With Other Instruments. The
Company is not in violation of (i) any provisions of its
Certificate of Incorporation or Bylaws, (ii) any instrument,
judgment, order, writ, or decree, or (iii) any material provision
of federal or state statute, rule, or regulation applicable to the
Company. The execution, delivery, and performance of this
Agreement, and the consummation of the transactions contemplated
hereby, including the issuance of the Securities, have not resulted
and will not result in any violation of, or conflict with, or
constitute a default under any such term or provision, or result in
the creation of, any mortgage, pledge, lien, encumbrance or charge
upon any of the assets of the Company; and there is no such
violation or default or event that, with the passage of time or
giving of notice or both, would constitute a violation or default
that would adversely affect the business of the Company or any of
its assets.
3.13 SEC
Reports. The Company has filed all forms,
reports, schedules, statements, registration statements,
prospectuses and other documents required to be filed or furnished
by the Company with the SEC under the Securities Act and the
Exchange Act, as applicable, together with any amendments,
restatements or supplements thereto, and will file all such forms,
reports, schedules, statements and other documents required to be
filed subsequent to the date of this Agreement. Except to the
extent available on the SEC’s web site through EDGAR, the
Company has made available to the Investors copies in the form
filed with the SEC of all of the following: (i) the Company’s
Annual Reports on Form 10-K for each fiscal year of the Company
beginning with the first year the Investor was required to file
such a form, (ii) the Company’s Quarterly Reports on Form
10-Q for each fiscal quarter that the Investor filed such reports
to disclose its quarterly financial results in each of the fiscal
years of the Company referred to in clause (i) above, (iii) all
other forms, reports, registration statements, prospectuses and
other documents (other than preliminary materials) filed by the
Company with the SEC since the beginning of the first fiscal year
referred to in clause (i) above (the forms, reports, registration
statements, prospectuses and other documents referred to in clauses
(i), (ii) and (iii) above, whether or not available through EDGAR,
are, collectively, the “SEC Reports”)
and (iv) all certifications and statements required by (A) Rules
13a-14 or 15d-14 under the Exchange Act, and (B) 18 U.S.C.
§1350 (Section 906 of the Sarbanes-Oxley Act of 2002, as
amended) with respect to any report referred to in clause (i)
above. The SEC Reports (x) were prepared in all material respects
in accordance with the requirements of the Securities Act and the
Exchange Act, as the case may be, and the rules and regulations
thereunder and (y) did not, as of their respective effective dates
(in the case of SEC Reports that are registration statements filed
pursuant to the requirements of the Securities Act) and at the time
they were filed with the SEC (in the case of all other SEC Reports)
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order
to make the statements made therein, in the light of the
circumstances under which they were made, not misleading. The
certifications and statements referenced in clause (iv) above are
each true as of their respective dates of filing. As used in this
Section 3.13, the
term “file” shall be broadly construed to include any
manner permitted by SEC rules and regulations in which a document
or information is furnished, supplied or otherwise made available
to the SEC. As of the date of this Agreement, (A) the Securities is
listed on NYSE American (“NYSE Amex”),
(B) the Company has not received any written deficiency notice from
NYSE AMEX relating to the continued listing requirements of such
Securities, and (C) there are no Actions pending or, to the
Knowledge of the Company, threatened against the Company by the New
York Stock Exchange (“NYSE”) and/or
Financial Industry Regulatory Authority (“FINRA”) with
respect to any intention by such entity to suspend, prohibit or
terminate the quoting of such Securities on NYSE Amex. For purposes
of this Agreement, the term “Knowledge of the
Company” shall mean the actual knowledge of Harold
Lyons.
3.14 Compliance
with NYSE American Continued Listing
Requirements. The Company is,
and has no reason to believe that it shall not, upon the issuance
of the Securities hereunder, continue to be, in compliance with the
listing and maintenance requirements for continued listing on NYSE
Amex in all material respects. Assuming the representations and
warranties of the Investors set forth in Section 4
are true and correct in all material
respects, the consummation of the transactions contemplated by the
Plan does not contravene the rules and regulations of NYSE Amex.
Except as set forth in the SEC Reports, there are no proceedings
pending or threatened against the Company relating to the continued
listing of the Securities on NYSE Amex and the Company has not
received any notice of the delisting of the Securities from NYSE
Amex.
In a telephone conversation with NYSE Amex
representatives on August 9, 2021, NYSE Amex representatives
informed the Company that the approval of the plan of
reorganization by the Bankruptcy Court, after a vote on the plan of
reorganization in which a majority of the stockholders who voted on
the reorganization plan voted in favor of the plan, was a
sufficient substitute for the Company seeking stockholder approval
of the issuance of the Securities pursuant to NYSE Amex Rule 713,
but until NYSE Amex approves an Additional Listing Application
covering the Securities, the Company cannot provide any assurance
that NYSE Amex will not change its position and require a further
stockholder approval of the issuance of Securities in compliance
with NYSE Amex Rule 713. Reference is made to the Company’s
public disclosure of receipt of notice from NYSE Amex of the
Company’s non-compliance with NYSE Amex’s
stockholders’ equity continued listing standards set forth in
NYSE American Company Guide Section 1003(a)(ii); the Company has
not received any notice from NYSE Amex either suspending,
discontinuing, or indicating NYSE’s Amex’s intent to
suspend or discontinue the listing of the Company’s stock as
a result of such non-compliance. Reference
is made to Section 1002 of the NYSE American Company Guide
(“Company
Guide”) and the ability
of NYSE Amex to suspend or discontinue the listing of an
issuer’s shares based on events set forth such Section 1002
of the Company Guide; the Company has not received any notice from
NYSE Amex’s intent to suspend or discontinue the listing of
the Company’s stock based on Section 1002 of the Company
Guide.
3.15 Not
An Investment Company. The
Company is not, and as a result of the sale of the Securities to
the Investors will not be, required to register under the U.S.
Investment Company Act of 1940, as amended.
3.16 DWAC
Eligible. The Company’s
Common Stock is currently eligible at the Depository Trust Company
(“DTC”)
for services pursuant to DTC’s operational arrangements, and
the Company has not received any notice from DTC of its intent to
discontinue such services.
3.17 [Reserved].
3.18 Foreign
Corrupt Practices. Neither the
Company, nor, to the Knowledge of the Company, any director,
officer, agent, employee, or other person associated with or acting
on behalf of the Company has (A) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (B) made any direct or
indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (C) violated or is in
violation of any provision of the Foreign Corrupt Practices Act of
1977; or (D) made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
3.19 Books
And Records. The books of
account, minute books, stock record books, and other records of the
Company, have been made available to Investors, have been properly
kept and contain no inaccuracies except for inaccuracies that would
not, individually or in the aggregate, reasonably be expected to
have a material adverse effect on the Company.
3.20 [Reserved].
3.21 Absence
of Certain Changes or Events.
Since the date of the balance sheet included in the most recent
financials filed with the SEC (the “Latest
Balance Sheet Date”), the
Company has:
(a) not
waived or compromised any valuable right or material debt owed to
it;
(b) not
incurred any material obligation, liability or commitment (fixed or
contingent), except trade obligations in the ordinary course of
business; and
(c) not
declared , set aside, or paid any distribution in respect of any of
the Company’s capital stock, or made any direct or indirect
redemption, purchase, or other acquisition of any of such
stock.
3.22 Tax
Matters.
(a) To
the Company’s knowledge: (i) the Company has timely filed all
returns, declarations, reports, estimates, information returns, and
statements, including any schedules and amendments to such
documents (“Company
Returns”), that were due
and required to be filed in respect of any Taxes by any taxing
authority having jurisdiction; (ii) all such Company Returns are
complete and accurate in all material respects; (iii) to the extent
not precluded as a result of the filing of the Chapter 11 Cases,
the Company has timely and properly paid all Taxes required to be
paid by it; (iv) the Company has established , in accordance with
GAAP, reserves that are adequate for the payment of any Taxes not
yet due and payable; and (v) the Company has complied with all
applicable laws, rules, and regulations relating to the collection
or withholding of Taxes from third parties, including without
limitation employees, and the payment thereof (including
withholding of Taxes under Internal Revenue Code of 1986
(“Code”)
Sections 1441 and 1442).
(b) For
all purposes of this Agreement, the terms
“Tax”
and “Taxes”
shall mean any federal, state, local or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, property or windfall profits taxes,
environmental taxes, customs duties, capital stock, franchise,
employees’ income withholding, foreign or domestic
withholding, social security, unemployment, disability,
workers’ compensation, employment-related insurance, real
property, personal property, sales, use, transfer, value added,
alternative or add-on minimum or other governmental tax, fee,
assessment or charge of any kind whatsoever including any interest,
penalties or additions to any Tax or additional amounts in respect
of the foregoing.
(c) There
have been made available to the Investors true and complete copies
of all Company tax returns with respect to taxes based on net
income and any other Company tax returns requested by the Investors
that may be relevant to the Company or its respective business,
assets, or operations for any and all taxable periods ending before
the date hereof and for any other taxable periods that remain
subject to audit or investigation by any tax
authority.
(d) The
Company is a corporation or association taxable as a corporation
for federal income tax purposes.
3.23 Brokers
or Finders. Except as set forth
on Schedule 3.23, neither the Investors nor the Company have nor
will incur, directly, or indirectly, as a result of any action
taken by or on behalf of the Company, any liability for brokerage
or finders’ fees in connection with the transactions
contemplated hereby.1
3.24 Disclosure.
Neither this Agreement, nor any other written statement furnished
to the Investors or their counsel in connection with the offer and
sale of the Securities contains or will contain any untrue
statement of a material fact or omits or will omit to state a
material fact necessary in order to make the statements contained
therein or herein not misleading in the light of the circumstances
under which they were made. There is no fact which the Company has
not disclosed to the Investors in writing that, to the knowledge of
the Company, materially adversely affects, the ability of the
Company to perform this Agreement or the other actions contemplated
herein.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE
PURCHASERS.
The
Investors, severally and not jointly, hereby represent and warrant
to the Company, as of the date hereof and as of the Closing, as
follows:
4.1 Business
and Financial Experience. Each
Investor is an accredited investor within the meaning of Rule 501
of Regulation D promulgated under the Securities Act and has such
knowledge and experience in financial and business matters that
each Investor is capable of evaluating the merits and risks of the
Investor’s purchase of Securities as contemplated by this
Agreement. Each Investor’s financial situation is such that
such Investor can afford to bear the economic risk of holding the
Securities for an indefinite period of time and suffer complete
loss of such Investor’s investment.
4.2 Non-U.S.
Person. Each Investor is not a “U.S. Person” as
defined by Regulation S and is not acquiring the Securities for the
account or benefit of a U.S. Person. Each Investor acknowledges
that the Investor was not in the United States at the time the
offer to purchase the Securities was received from the Company and
that all substantive negotiations and communications between the
Investors and the Company have occurred outside the United States.
Each Investor agrees not to engage in hedging transactions with
regard to the Securities unless in compliance with the Securities
Act.
4.3 Investment
Intent; Blue Sky. Each Investor
is acquiring the Securities for investment for such
Investor’s own account, not as a nominee or agent, and not
with a view to or for resale in connection with any distribution
thereof. Each Investor understands that the issuance of the
Securities has not been, and will not be, registered under the
Securities Act by reason of a specific exemption from the
registration provisions of the Securities Act, the availability of
which depends upon, among other things, the bona fide nature of the
Investor’s true and correct state of domicile, upon which the
Company may rely for the purpose of complying with applicable Blue
Sky laws.
4.4 Rule
144. Each Investor acknowledges
that the Securities must be held indefinitely unless subsequently
registered under the Securities Act or unless an exemption from
such registration is available. Each Investor is aware of the
provisions of Rule 144 promulgated under the Securities Act that
permit limited resale of shares purchased in a private placement
subject to the satisfaction of certain conditions, including, among
other things, cessation of status as a “shell company”
as defined pursuant to the Securities Act, the existence of a
public market for the shares, the availability of certain current
public information about the Company, required holding periods, the
sale being effected through a “broker’s
transaction” or in a transaction directly with a
“market maker”, and applicable volume limitations. The
Company makes no representation as to the future availability of
any exemption from such registration
requirements.
4.5 Restrictions
on Transfer; Restrictive Legends. Each Investor understands that the transfer of
the Securities, if applicable, is restricted by applicable state
and federal securities laws, and that the certificates representing
the Securities will be imprinted with legends restricting transfer
except in compliance therewith.
4.6 Access
To Company Information. Each
Investor has had an opportunity to review and discuss the
Company’s business, management, and financial affairs with
the Company’s management. Each Investor understands that such
discussions, as well as any written information issued by the
Company, were intended to describe the material aspects of the
Company’s business. Each Investor has also had an opportunity
to review all materials provided to them by the Company in
connection with this Agreement and to ask questions of the officers
of the Company.
4.7 Authorization.
All action on the part of each Investor necessary for the
authorization, execution, delivery, and performance of this
Agreement by the Investor, the purchase of and payment for the
Securities and the performance of all of such Investor’s
obligations under this Agreement has been taken or will be taken
prior to the Closing. This Agreement, when executed and delivered
by each Investor, shall constitute the valid and binding obligation
of each Investor, enforceable in accordance with its terms, subject
to laws of general application relating to bankruptcy, insolvency,
and the relief of debtors and rules of law governing specific
performance, injunctive relief, or other equitable remedies. The
execution of this Agreement and consummation by Investors of the
transactions on their part contemplated herein will not breach or
violate any order or judgment of any court or governmental agency
or any contract or agreement to which any of the Investors is a
party or may be bound.
4.8 Brokers
or Finders. The Company has not
and will not incur, directly or indirectly, as a result of any
action taken by any Investor, any liability for brokerage or
finders’ fees or agents’ commissions or any similar
charges in connection with this Agreement or the transactions
contemplated hereby. Without limiting generality of the foregoing,
the Investors shall pay and be solely responsible for, and shall
indemnify and hold the Company harmless firm and against any claim
relating to, any fees, compensation or remuneration due or owing to
the Breckenridge Group and Robert G. Oliver.
4.9 No
Violations, Etc. None of the
Investors has had a criminal conviction; been the subject of any
regulatory enforcement action or any civil order or judgment
involving financial fraud or wrongdoing; or been denied or had
revoked any license or permit involving securities or any financial
business.
SECTION 5. CONDITIONS TO EACH PARTY’S
OBLIGATIONS.
The
obligations of each Party to consummate the transactions described
herein shall be subject to the satisfaction or written waiver
(where permissible) by the Company and the Investor Representative
of the following conditions:
5.1 Required
Bankruptcy Court Approval. The Bankruptcy Court shall have
entered an order confirming the Plan.
5.2 Plan
Effective Date. The date on which all conditions
to effectiveness of the Plan have been satisfied and the
effectiveness of the Plan has been declared by the Company, in
consultation with the Investor Representative, (the
“Plan
Effective Date”) is on or before September 30,
2021.
5.3 No
Objection. NYSE Amex shall have raised no objection to the
consummation of the transactions contemplated by the Plan and the
publicly traded shares of Common Stock shall not have been delisted
from NYSE Amex.
5.4 No
Stop Order. No stop order or suspension of trading shall
have been imposed by NYSE Amex, the SEC, or any other governmental
or regulatory body with respect to public trading in the publicly
traded shares of Common Stock.
5.5 Additional
Listing. The Company shall have filed the NYSE Amex
Additional Listing Application with NYSE for the listing of the
Securities, a copy of which have been provided to the Investor
Representative.
5.6 Securities
Registration. The Securities are registered under Section
12(b) of the Exchange Act, and the Company has not taken any action
designed to or likely to have the effect of termination the
registration of the Securities under the Exchange Act.
SECTION 6. CONDITIONS TO CLOSING OF THE PURCHASERS.
The
Investors obligation to purchase the Securities is, unless waived
in writing by the Investor Representative, subject to the
fulfillment as of the Closing Date of the following
conditions:
6.1 Representations
and Warranties Correct. The
representations and warranties made by the Company in
Section
3 hereof shall be true and
correct in all material respects as of the Closing
Date.
6.2 Covenants.
All covenants, agreements and conditions contained in this
Agreement to be performed or complied with by the Company have been
performed or complied with in all material
respects.
6.3 Compliance
Certificate. The Company shall
have delivered to the Investors a certificate of the Company
executed by the President and Chief Executive Officer of the
Company, dated as of the Closing Date certifying to the fulfillment
of the conditions specified in Sections 6.1 and
6.2 of this
Agreement.
6.4
Certificate of
Incorporation. The Amended and
Restated Certificate of Incorporation, substantially in the form
of Exhibit C
attached hereto
(“Restated
Certificate”), shall have
been filed with the Secretary of State of
Delaware.
6.5
Bylaws.
The Amended and Restated Bylaws, substantially in the form
of Exhibit D
attached hereto
(“Restated
Bylaws”), shall have been
adopted by the bylaws for the Company.
6.6
Stockholders.
As of the Plan Effective Date, the existing holders of the Common
Stock shall be entitled retain all interests in such Common Stock
without impairment or cancellation.
6.7
UK
Subsidiaries. ACY SN 19002
Limited and ACY 19003 Limited (collectively, the
“UK
Entities”) shall have
remitted any cash, including the full amount of the tax refunds
received by UK Entities prior to the Plan Effective Date, to
JetFleet Holding Corp., a California corporation
(“JHC”),
and concurrent with the Plan Effective Date, the Company shall
transfer to JHC 100% of the ownership interests of the ACY E-175
LLC, a Delaware limited liability company ACY SN 15129 LLC, a
Delaware limited liability company, JetFleet Management Corp., a
California corporation, 1314401 Alberta Inc., d/b/a JetFleet
Canada, an Alberta, Canada corporation, and the UK
Entities.
6.8 Board
of Directors. The Company shall
have taken all actions necessary to establish the total number of
directors constituting the Board of Directors of the Company as
five (5) directors and ________, _________, ___________, ________,
and _________ shall have been appointed or elected, as applicable,
to serve as directors of the Company effective as of the
Closing.
6.9 Employment
Agreements. All of the
Company’s employment agreements or relationships, written or
oral, shall have been cancelled as of the Closing
Date.
6.10 Required
Notice. The Company shall have
properly prepared, filed with the SEC and dispatched to
stockholders the Form 14f-1 and the 10-day period required by Rule
14f-1 shall have elapsed. Notwithstanding the foregoing, the
Investors shall bear the costs and expenses of drafting, printing,
mailing and filing the Form 14f-1.
6.11 Resignations
and Terminations. Each of the
Company’s officers and employees shall have resigned or been
terminated in writing (and provided a full release of any and all
liabilities against the Company) by the Company effective as of the
Closing, and all existing members of the Board of Directors shall
have delivered their written resignations from the Board of
Directors, effective as of the Closing.
6.12 Share
and Warrant Certificates. The
Company (or its authorized transfer agent and registrar) shall have
issued and delivered to the Investors certificates representing the
Securities in accordance with this Agreement.
6.13 [Reserved].
6.14 Proceedings.
On or before the Closing Date, all actions, proceedings,
instruments and documents required by, or on behalf of, the Company
to execute, deliver and carry out this Agreement, and all
agreements incidental hereto, and all other related legal matters,
shall be reasonably satisfactory to the Investors and their
counsel.
6.15 No
Material Event. The Investors
shall not have discovered any material error in, misstatement of or
omission to disclose any material fact relating to the
Company.
6.16 Reports
and Returns. The Company shall
have timely filed its Form 10-Q for the quarter ended June 30, 2021
and such other periodic reports as may be required to be filed with
the SEC and shall have filed federal and state tax returns for such
fiscal year to the extent required to be filed prior to the
Closing.
SECTION 7. CONDITIONS TO CLOSING OF THE COMPANY.
The
Company’s obligation to issue and sell and issue the
Securities is, unless waived in writing by the Company, subject to
the fulfillment as of the Closing Date of the following
conditions:
7.1 Representations
and Warranties Correct. The
representations and warranties made by the Investors in
Section
4 hereof shall be true and
correct in all material respects as of the Closing
Date.
7.2 Covenants.
All covenants, agreements, and conditions contained in this
Agreement to be performed or complied with by the Investors on or
prior to the Closing Date shall have been performed or complied
with in all material respects.
7.3 Compliance
Certificate. The Investors
shall have delivered to the Company a certificate executed by each
of the Investors dated as of the Closing Date certifying to the
fulfillment of the conditions specified in Sections 7.1 and
7.2.
7.4 Required
Notice. The Company shall have
properly prepared, filed with the SEC and dispatched to
stockholders the Form 14f-1 and the 10-day period required by Rule
14f-1 shall have elapsed.
SECTION 8. COVENANTS OF THE COMPANY.
8.1 Other
Offers. Pending consummation of
the transactions contemplated herein, the Company shall not seek or
solicit other purchasers of the Company or any equity interest in
the Company or otherwise entertain any proposal therefor, subject,
however, to the fiduciary responsibility of the Company’s
Board of Directors.
8.2 Regulatory
Reports. As soon as practicable
on or after the Effective Date, the Company shall file with the SEC
and dispatch to its stockholders an information statement (the
“Form
14f-1”) satisfying all of
the requirements of Section 14(f) of the Exchange Act and Rule
14f-1 promulgated thereunder with respect to this Agreement and the
transactions contemplated hereby. The Company shall prepare and
file timely with the SEC, state securities departments and other
applicable regulatory authorities, including FINRA, such other
reports or other filings as may be required in connection with the
transactions contemplated herein.
8.3 Disclosure
Review. The Company will
furnish to the Investors copies of all documents disclosing this
Agreement, the transactions contemplated herein and other of the
matters discussed herein that the Company proposes to file with the
SEC, including all amendments, supplements or exhibits thereto. All
such copies must be provided sufficiently in advance to provide a
reasonable opportunity to review such document and comment thereon.
The Company agrees not to file any document described in
this Section 8.3
if an Investor has expressed its
objection to such filing or the substance thereof. Notwithstanding
this Section
8.3, if (i) no Investor has
communicated an objection and (ii) three business days have elapsed
since the date on which all Investors received a copy of a proposed
filing, then the Company may file such document with the
SEC.
8.4 Dividend.
As promptly as practicable following the Plan Effective Date, the
Company will make a cash dividend distribution to Legacy ACY
Shareholders (as defined below) in the aggregate amount of
$1,000,000 (“Cash
Dividend”). For the
purpose of this agreement “Legacy ACY
Shareholders” means any
holder of Common Stock as the day prior to the Plan Effective
Date.
8.5 JHC
Series B Preferred Stock.
Concurrent with the Closing, the Company will enter into a Series B
Preferred Stock Purchase Agreement with JHC, substantially in the
form of Exhibit E
attached hereto, for the purchase of
104,082 shares of Series A Preferred Stock of JHC for an aggregate
purchase price of $2,000,000.
SECTION 9. INVESTOR REPRESENTATIVE.
9.1 By
the execution and delivery of this Agreement, each Investor, on
behalf of itself and its successors and assigns, hereby irrevocably
constitutes and appoints Yucheng Hu in his capacity as the Investor
Representative, as the true and lawful agent and attorney-in-fact
of such Investor with full powers of substitution to act in the
name, place and stead of thereof with respect to the performance on
behalf of such Investor under the terms and provisions of this
Agreement and the Escrow Agreement to which the Investor
Representative is a party, as the same may be from time to time
amended, and to do or refrain from doing all such further acts and
things, and to execute all such documents on behalf of such
Investor, if any, as the Investor Representative will deem
necessary or appropriate in connection with any of the transactions
contemplated under this Agreement or Escrow Agreement, including:
(i) acting on behalf of such Investor under the Escrow Agreement;
(ii) terminating, amending or waiving on behalf of such Investor
any provision of this Agreement or the Escrow Agreement to which
the Investor Representative is a party (provided, that any such
action, if material to the rights and obligations of Investors in
the reasonable judgment of the Investor Representative, will be
taken in the same manner with respect to all Investors unless
otherwise agreed by each Investor who is subject to any disparate
treatment of a potentially material and adverse nature); (iii)
signing on behalf of such Investor any releases or other documents
with respect to any dispute or remedy arising under this Agreement
or Escrow Agreement; (iv) employing and obtaining the advice of
legal counsel, accountants and other professional advisors as the
Investor Representative, in its reasonable discretion, deems
necessary or advisable in the performance of its duties as the
Investor Representative and to rely on their advice and counsel;
(v) incurring and paying reasonable out-of-pocket costs and
expenses, including fees of brokers, attorneys and accountants
incurred pursuant to the transactions contemplated hereby, and any
other reasonable out-of-pocket fees and expenses allocable or in
any way relating to such transaction, whether incurred prior or
subsequent to Closing; (vi) receiving all or any portion of the
Escrow Deposit provided to the Investors under the Escrow Agreement
and to distribute the same to the Investors as applicable; and
(vii) otherwise enforcing the rights and obligations of any such
Investors under this Agreement and the Escrow Agreement, including
giving and receiving all notices and communications hereunder or
thereunder on behalf of such Investor. All decisions and actions by
the Investor Representative, including any agreement between the
Investor Representative and the Company related to this Agreement
and the Escrow Agreement, shall be binding upon the Investors and
their respective successors and assigns, and neither they nor any
other Party shall have the right to object, dissent, protest or
otherwise contest the same. The provisions of this Section 9.1 are irrevocable and
coupled with an interest. The Investor Representative hereby
accepts its appointment and authorization as the Investor
Representative under this Agreement
9.2 The
Company and the Escrow Agent may conclusively and absolutely rely,
without inquiry, upon any actions of the Investor Representative as
the acts of the Investors hereunder or the Escrow Agreement. The
Company and the Escrow Agent shall not have any liability to any
Investors for any allocation or distribution among the Investors by
the Investor Representative of payments made to or at the direction
of the Investor Representative. All notices or other communications
required to be made or delivered to an Investor under this
Agreement or the Escrow Agreement shall be made to the Investor
Representative for the benefit of such Investor, and any notices so
made shall discharge in full all notice requirements of the other
parties hereto or thereto to such Investor with respect thereto.
All notices or other communications required to be made or
delivered by an Investor shall be made by the Investor
Representative (except for a notice under Section 9.4 of the replacement
of the Investor Representative).
9.3 The
Investor Representative will act for the Investors on all of the
matters set forth in this Agreement in the manner the Investor
Representative believes to be in the best interest of the
Investors, but the Investor Representative will not be responsible
to the Investors for any losses that any Investor may suffer by
reason of the performance by the Investor Representative of the
Investor Representative’s duties under this Agreement, other
than Losses arising from the bad faith, gross negligence or willful
misconduct by the Investor Representative in the performance of its
duties under this Agreement. The Investors do hereby jointly and
severally agree to indemnify, defend and hold the Investor
Representative harmless from and against any and all losses
reasonably incurred or suffered as a result of the performance of
the Investor Representative’s duties under this Agreement,
except for any such liability arising out of the bad faith, gross
negligence or willful misconduct of the Investor Representative. In
no event shall the Investor Representative in such capacity be
liable to the Investors hereunder or in connection herewith for any
indirect, punitive, special or consequential damages. The Investor
Representative shall not be liable for any act done or omitted
under this Agreement or the Escrow Agreement as the Investor
Representative while acting in good faith and without willful
misconduct or gross negligence, and any act done or omitted
pursuant to the advice of counsel shall be conclusive evidence of
such good faith. The Investor Representative shall be fully
protected in relying upon any written notice, demand, certificate
or document that it in good faith believes to be genuine, including
facsimiles or copies thereof. In connection with the performance of
its rights and obligations hereunder, the Investor Representative
shall have the right at any time and from time to time to select
and engage, at the reasonable cost and expense of the Investors,
attorneys, accountants, investment bankers, advisors, consultants
and clerical personnel and obtain such other professional and
expert assistance, maintain such records and incur other reasonable
out-of-pocket expenses, as the Investor Representative may
reasonably deem necessary or appropriate from time to time, but the
Investor Representative will not be entitled to any fee, commission
or other compensation for the performance of its services
hereunder. All of the indemnities, immunities, releases and powers
granted to the Investor Representative under this Section 9.3 shall survive the
Closing and continue indefinitely.
9.4 If
the Investor Representative shall die, become disabled, resign, or
otherwise be unable or unwilling to fulfill his responsibilities as
representative and agent of Investors, then the Investors shall,
within ten (10) days after such death, disability, resignation, or
other event, appoint a successor Investor Representative (by vote
or written consent of the Investors), and promptly thereafter (but
in any event within two (2) business days after such appointment)
notify the Company in writing of the identity of such successor.
Any such successor so appointed shall become the
“Investor
Representative” for purposes of this
Agreement.
SECTION
10.
MISCELLANEOUS.
10.1 Governing
Law. This Agreement shall be
governed by and construed and enforced in accordance with the
internal laws of the State of Delaware without giving effect to
conflict of laws provisions.
10.2 Entire
Agreement; Amendment. This
Agreement, and any other documents delivered pursuant hereto,
including exhibits or schedules hereto constitute the full and
entire understanding and agreement among the parties with regard to
the subject hereof and no party shall be liable or bound to any
other party in any manner by any warranties, representations or
covenants except as specifically set forth herein or therein.
Except as expressly provided herein, neither this Agreement nor any
term hereof may be amended, waived, discharged or terminated other
than by a written instrument signed by the Company and the Investor
Representative.
10.3 Notices,
Etc. All notices and other
communications required or permitted hereunder shall be in writing
and shall be mailed by registered or certified mail, postage
prepaid, or otherwise delivered by electronic mail, facsimile
transmission, by hand or by messenger or overnight express,
addressed:
(a) if
to any Investors to be delivered in care of the Investor
Representative.
(b) if
to the Investor Representative, to:
Yucheng
Hu
Floor
7 Suite AB, Yuanyang Guangha
International
Chaoyang District
Beijing,
China
Email:
huyucheng@me.com
or at such other address as the Investor Representative shall have
furnished to the Company with a copy to (which copy shall not
constitute notice):
Lewis
Brisbois Bisgaard & Smith LLP
2020
West El Camino Avenue, Suite 700
Sacramento,
CA 95833
Attn:
John P. Yung
Facsimile:
916.564.5444
Email: John.yung@lewisbrisbois.com
(c) if
to the Company, to:
AeroCentury
Corp., et al.
1440
Chapin Avenue, Suite 310
Burlingame,
California 92618
Attention:
Harold M. Lyons
Email:
hal.lyons@aerocentury.com
or at such other address as the Company shall have furnished to the
Investor Representative with a copy to (which copy shall not
constitute notice):
Young
Conaway Stargatt & Taylor, LLP
Rodney
Square
1000
N. King Street
Wilmington,
DE 19801
Attention:
Joseph Barry, Craig D. Grear, and Joseph Mulvihill
Facsimile:
(302)576-3296
Email:
jbarry@ycst.com
cgrear@ycst.com
jmulvihill@ycst.com
Each such notice or other communication shall for all purposes of
this Agreement be treated as effective or having been given when
received if delivered personally, if sent by electronic mail or
facsimile, the first business day after the date of confirmation
that the electronic mail or facsimile, as applicable, has been
successfully transmitted to the email address or facsimile number,
as applicable, for the party notified, or, if sent by mail, at the
earlier of its receipt and seventy-two (72) hours after the same
has been deposited in a regularly maintained receptacle for the
deposit of the United States mail, addressed and mailed as
aforesaid.
10.4 Delays
or Omissions. Except as
expressly provided herein, no delay or omission to exercise any
right, power or remedy accruing to any party, upon any breach or
default of another party under this Agreement, shall impair any
such right, power, or remedy of such party nor shall it be
construed to be a waiver of any such breach or default, or an
acquiescence therein, or of any similar breach or default
thereafter occurring; nor shall nay waiver of any single breach or
default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent,
or approval of any kind or character on the part of any party of
any breach or default under this Agreement, or any waiver on the
part of any party of any provisions or conditions of this
Agreement, must be in writing and shall be effective only to the
extent specifically set forth in such writing. All remedies, either
under this Agreement or by law or otherwise afforded to any party,
shall be cumulative and not alternative.
10.5 Expenses.
Each party will pay all of their expenses, including without
limitation counsel or other professional fees and disbursements but
excluding any brokerage or finders’ fees or agents’
commissions or any similar charges, reasonably incurred in
connection with the negotiation and preparation of this Agreement
and the transactions contemplated herein.
10.6 Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be an original, and all of which together shall
constitute one instrument.
10.7 Severability.
In the event that any provision of this Agreement becomes or is
declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force
and effect without said provision, which shall be replaced with an
enforceable provision closest in intent and economic effect as the
severed provision; provided that no such severability shall be
effective if it materially changes the economic benefit of this
Agreement to any party.
10.8 Title
and Subtitles. The titles and
subtitles used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this
Agreement.
10.9 Knowledge
Convention. For all purposes of
this Agreement, the term “knowledge” means, with
respect to an individual, that such individual is actually aware of
a particular fact or other matter, with no obligation to conduct
any inquiry or other investigation to determine the accuracy of
such fact or other matter. A person other than an individual shall
be deemed to have knowledge of a particular fact or other matter if
the officers, directors or other management personnel of such
person had knowledge of such fact or other
matter.
10.10 Survival
of Warranties. The
representations and warranties of the Company and the Investors
contained in or made pursuant to this Agreement shall survive
execution and delivery of this Agreement and the Closing for a
period of two years and shall in no way be affected by any
investigation of the subject matter thereof made by or on behalf of
the Investors or the Company.
10.11 Successors
and Assigns. Except as
otherwise expressly provided herein, the provisions hereof shall
inure to the benefit of, and be binding upon, the successors,
assigns, heirs, executors and administrators of the parties hereto,
as the case may be.
10.12 Further
Assurances. Each party hereto
agrees to do all acts and things, and to make, execute and delivery
such written instruments, as shall from time to time be reasonably
required to carry out the terms and provisions of this
Agreement.
[Signatures
on Following Page]
4812-3131-1094.2
IN
WITNESS WHEREOF, the parties hereto have executed this Securities
Purchase Agreement as of the day and year first above
written.
The
Company:
Aerocentury
Corp.
By:
Name:
Title:
Investors:
Yucheng
Hu
TongTong
Ma
Qiang
Zhang
Yanhua
Li
Yiyi
Huang
Yu
Wang
Hao
Yang
Jing
Li
Yeh
Cheng
Investor
Representative:
Yucheng
Hu
4812-3131-1094.2 [Signature Page to Securities
Purchase Agreement]
Exhibit A
SCHEDULE OF INVESTORS
Name and Address of Purchaser
|
Shares
|
Investment
|
Yucheng
Hu
Group
7,Yantai Village, Liaoye Town,
Yingshan,
Sichuan, China 637700
|
1,598,201
|
$
6,153,073.85
|
TongTong
Ma
4-3-8
Guofeng Community, Congtai District, Handan, Hebei, China
056000
|
181,818
|
$
699,999.30
|
Qiang
Zhang
Group
6,Yantai Village, Liaoye Town,
Yingshan,
Sichuan, China 637700
|
207,792
|
$
799,999.20
|
Yanhua
Li
58
Litao Hutong, Fusan Village, Dianshang, Handan, Hebei, China
057350
|
194,805
|
$
749,999.25
|
Yiyi
Huang
Huoli
Kangcheng Community, Houjiatang Street, Yuhua District, Changsha,
Hunan, China 410000
|
168,831
|
$
649,999.35
|
Yu
Wang
D1988
Jindi Sanqianfu, Leifeng Road, Wangcheng, Changsha, Hunan, China
410000
|
51,948
|
$
199,999.80
|
Hao
Yang
G2-102
Xinchengshijia, Renmin East Road 398, Changsha, Hunan, China
410000
|
207,792
|
$
799,999.20
|
Jing
Li
6
Floor, Sigma Plaza, No. 49 Zhichun Road, Haidian District, Beijing,
China 100000
|
181,818
|
$
699,999.30
|
Yeh
Cheng
World
Trade Apartment, Building B,
Apartment
5e, Beijing,China 100001
|
77,922
|
$
299,999.70
|
4812-3131-1094.2
Exhibit B
ESCROW AGREEMENT
4812-3131-1094.2
Exhibit C
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
4812-3131-1094.2
Exhibit D
AMENDED AND RESTATED
BYLAWS
4812-3131-1094.2
Exhibit E
SERIES B PREFERRED STOCK PURCHASE AGREEMENT
28486733.2
4812-3131-1094.2