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EXHIBIT 4.2
STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT, dated as of November 19, 1997 among Kitty
Hawk, Inc., a Delaware corporation (the "Company"), M. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇▇▇▇▇") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("Kalitta").
WHEREAS, this Agreement is being executed and delivered by and among
the parties hereto pursuant to, and in satisfaction of certain conditions
precedent set forth in, that certain Agreement and Plan of Merger dated as of
September 22, 1997, as amended (the "Merger Agreement") by and among the
Company, certain subsidiaries of the Company, ▇▇▇▇▇▇▇▇▇▇▇, Kalitta, American
International Airways, Inc. ("AIA"), American International Travel, Inc.,
Flight One Logistics, Inc., Kalitta Flying Services, Inc., and O.K. Turbines,
Inc. (the "Kalitta Companies");
WHEREAS, at the time the transactions contemplated by the Merger
Agreement are consummated, each of ▇▇▇▇▇▇▇▇▇▇▇ and Kalitta will be the record
and Beneficial Owner of the number of issued and outstanding shares of Common
Stock of the Company set forth opposite such person's name on Schedule 1
hereto;
WHEREAS, ▇▇▇▇▇▇▇▇▇▇▇ and Kalitta desire to provide herein for certain
matters relating to the control and operation of the Company;
WHEREAS, the Company desires to grant to ▇▇▇▇▇▇▇▇▇▇▇ and Kalitta
certain incidental registration rights with respect to the shares of Common
Stock of the Company now owned or hereafter acquired by either of them;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
Article I - Definitions
1. General. When used in this Agreement, the terms set forth in
this Article I shall have the meanings ascribed to them herein.
1.1 Definitions.
"Affiliate" means, with respect to a specified person, another
person that directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, the person
specified.
"Agreement" or "this Agreement" means this Stockholders'
Agreement and the Schedule hereto, each as it may be amended from time to time
as permitted herein.
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"Beneficial Owner" means a "beneficial owner", as defined in
Regulation Section 240.13d-3 under the Exchange Act and the terms "Beneficially
Owns" and "Beneficially Owned" have meanings correlative thereto.
"▇▇▇▇▇▇▇▇▇▇▇ Stockholder" shall mean ▇▇▇▇▇▇▇▇▇▇▇ and each
Permitted Transferee who receives a Transfer of Common Stock from ▇▇▇▇▇▇▇▇▇▇▇
or another ▇▇▇▇▇▇▇▇▇▇▇ Stockholder and each person who receives an Exempt
Transfer of Common Stock from ▇▇▇▇▇▇▇▇▇▇▇ or another ▇▇▇▇▇▇▇▇▇▇▇ Stockholder.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the common stock, par value $0.01 per
share, of the Company including with respect to which a Stockholder is or at
any time during the Term becomes a Beneficial Owner, whether as a result of
purchase or dividend or upon an increase, reduction, substitution,
reorganization or reclassification of the shares of Common Stock of the
Company, or otherwise, including upon the exercise of options or other rights
convertible into or exchangeable for, with or without the payment of
consideration, shares of Common Stock. Common Stock shall also include all
classes of preferred stock of the Company now or hereafter issued and
securities issued to any of the Stockholders upon any merger, consolidation,
sale of assets or other business disposition involving the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exempt Transfer" means any Transfer of Common Stock to any
marital trust, non-marital trust, family trust or beneficiary pursuant to the
terms of the applicable trust agreement on the death of the grantor or
otherwise by will or the laws of descent and distribution, it being agreed that
prior to the making of an Exempt Transfer, the Stockholder proposing the Exempt
Transfer shall notify the Company in writing and the proposed transferee shall
deliver to the Company a written instrument pursuant to which the proposed
transferee becomes a party to this Agreement and agrees to be bound by the
terms and conditions hereof to the same extent as if an original signatory
hereto.
"Family Member" means the spouse or the natural or adopted
sibling, ancestor or descendent of a Stockholder or any spouse or descendant of
any such ancestor, descendant or sibling.
"Kalitta Stockholder" shall mean Kalitta and each Permitted
Transferee who receives a Transfer of Common Stock from Kalitta or another
Kalitta Stockholder or a person who receives an Exempt Transfer of Common Stock
from Kalitta or another Kalitta Stockholder.
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"Permitted Transferee" means any Family Member of such
Stockholder or a trustee of a trust for the sole benefit of such Stockholder
and/or any Family Member of such Stockholder or any partnership, corporation or
other entity which is controlled by such Stockholder and/or any Family Member,
it being agreed that prior to the making of a Transfer of Common Stock to a
Permitted Transferee, the Stockholder proposing the Transfer shall notify the
Company in writing and the proposed transferee shall deliver to the Company a
written instrument pursuant to which the proposed transferee becomes a party to
this Agreement and agrees to be bound by the terms and conditions hereof to the
same extent as if an original signatory hereto.
"person" means any individual, corporation, association,
partnership, proprietorship, joint venture, trust or other entity.
"Pro Rata" means, with respect to the shares of Common Stock
held by a Stockholder to be excluded from an underwritten public offering as
provided in Article VI of this Agreement, the number which bears the same
proportion as the total number of shares of Common Stock proposed to be offered
by such Stockholder bears to the number of share of Common Stock proposed to be
offered by all of the Stockholders in such underwritten public offering.
"Registration Expenses" means all expenses incident to the
Company's performance of, or compliance with, its obligations pursuant to
Article VI of this Agreement and the completion of transactions relating
thereto including, without limitation, all registration and filing fees, all
fees and expenses in complying with securities or blue sky laws, all printing
expenses, the fees and disbursements of the Company's independent public
accountants, including the expenses of any special audits, reviews,
compilations or other reports or information required by or incident to such
performance and compliance, and any fees or expenses of counsel for the Company
but excluding (i) any fees or expenses of special counsel to represent the
holders on whose behalf any Common Stock is being registered (the "Selling
Stockholders"), (ii) any allocation of personnel or other general overhead
expenses of the Company or of any Selling Stockholder or other expenses for the
preparation of financial statements or other data, other than financial
statements or other data normally prepared by the Company in the ordinary
course of its business, which in all cases shall be borne by the party causing
such expenses to be incurred and (iii) any underwriting discounts and
commissions relating to the Common Stock being sold by the Selling Stockholder.
"Registrable Securities" means shares of Common Stock now or
hereafter Beneficially Owned by a Stockholder; provided that Registrable
Securities shall cease to be Registrable Securities when (i) a registration
statement with respect to the same of such shares of Common Stock shall have
become effective under the Securities Act and such shares of Common Stock have
been disposed of by a Stockholder in accordance with such registration
statement,
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(ii) such shares of Common Stock shall have been sold pursuant to Rule 144 or
Rule 145 (or any successor provisions) under the Securities Act or (iii) such
shares of Common Stock shall have been otherwise transferred, new certificates
therefor not bearing a legend restricting further transfer shall have been
delivered by the Company and subsequent disposition of such shares of Common
Stock shall not require the registration or qualification of such shares of
Common Stock under the Securities Act or any similar state law then in effect.
"Requisite ▇▇▇▇▇▇▇▇▇▇▇ Stockholders" means ▇▇▇▇▇▇▇▇▇▇▇
Stockholders beneficially owning at least a majority of the Common Stock owned
by all ▇▇▇▇▇▇▇▇▇▇▇ Stockholders.
"Requisite Kalitta Stockholders" means Kalitta Stockholders
beneficially owning at least a majority of the Common Stock owned by all
Kalitta Stockholders.
"Securities Act" means the Securities Act of 1933, as amended.
"Selling Stockholder" means a Stockholder who has any shares
of Registrable Securities registered by the Company pursuant to Article VI
hereof.
"Stockholder" means, (i) each Kalitta Stockholder and each
▇▇▇▇▇▇▇▇▇▇▇ Stockholder, and (ii) "Stockholders" means collectively, all of the
foregoing Stockholders.
"Subsidiary" means any corporation fifty percent (50%) of the
voting stock of which is owned, directly or indirectly, through one or more
subsidiaries, by the Company.
"Term" shall have the meaning set forth in Article II.
"Transfer" means any sale, assignment, transfer, gift or other
disposition of any of the shares of Common Stock by any Stockholder.
1.2 Rules of Construction. Unless the context otherwise
requires, (i) a term shall have the meaning assigned to it in Section 1.1, (ii)
"or" shall not be exclusive, (iii) words in the singular shall include the
plural, and vice versa and (iv) words in the masculine gender shall include the
feminine and neuter, and vice versa.
1.3 Other Definitions. To the extent not otherwise
defined herein, capitalized terms have the meanings ascribed to them in the
Merger Agreement.
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Article II - Term
2. Term. Unless sooner terminated as provided in Section 8.10,
the term of this Agreement (the "Term") shall commence on the date hereof and
continue until the third anniversary of the date of this Agreement; provided,
however, that the provisions of Articles VI, VII and VIII shall terminate ten
(10) years from the date hereof.
Article III - Certain Governance Matters
3. Nomination and Election of Directors; Election of Chairman of
the Board and CEO and Other Matters.
3.1 General. During the Term, but subject to
Section 3.1.5 below, and in each case except as may be agreed in writing by the
Requisite Kalitta Stockholders and the Requisite ▇▇▇▇▇▇▇▇▇▇▇ Stockholders, each
of the Stockholders agrees to, and to cause each of their Affiliates to, vote
(or act by written consent with respect to) all shares of Common Stock and all
other Company voting securities Beneficially Owned by such Stockholder and such
Affiliates, and otherwise to take such actions as may be appropriate in their
capacities as stockholders:
(a) to implement the agreements set forth below in this Article III
with respect to the nomination, election and filling of vacancies of directors
of the Company, and the election of the Chairman of the Board and Chief
Executive Officer and Vice Chairman of the Company and the President of AIA;
(b) to not amend or repeal any of the provisions of the Bylaws of the
Company described in this Article III;
(c) to not change the Certificate of Incorporation of the Company in
any respect that would have the effect of conflicting with any of the
provisions of the Bylaws of the Company described in this Article III or that
would amend or repeal the provisions of the Certificate of Incorporation of the
Company as to the removal of directors without cause as defined therein;
(d) for the nomination and election as directors of the Company of the
▇▇▇▇▇▇▇▇▇▇▇ Designees, the Kalitta Designees and the Joint Designees and
against their removal except for cause as defined in the Certificate of
Incorporation of the Company;
(e) during the period ending on the first anniversary of the date of
this Agreement, for the election of ▇▇▇▇▇▇▇▇▇▇▇ as Chairman of the Board and
Chief Executive Officer of the Company and for the election of Kalitta as the
Vice Chairman of the Company and as the President of AIA and against their
removal from such offices except for cause (as defined in the Certificate of
Incorporation of the Company or the Articles of Incorporation of AIA, as
applicable); and
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(f) during the period ending on the first anniversary of the date of
this Agreement, against any change in the Articles of Incorporation or Bylaws
of AIA that would have the effect of changing the governance provisions
described in this Article III below.
3.1.1 Election of the Initial Board. At or prior to the
date hereof, (a) the Company's Bylaws have been amended to provide that the
number of directors comprising the full Board of Directors of the Company as of
the date hereof is seven (7) and shall be comprised of ▇▇▇▇▇▇▇▇▇▇▇ and two (2)
▇▇▇▇▇▇▇▇▇▇▇ Designees, Kalitta and two (2) Kalitta Designees and a Joint
Designee; (b) the persons named in Schedule 2 have been duly elected to the
Board of Directors of the Company to serve in the classes as indicated in
Schedule 2 and Schedule 2 identifies the ▇▇▇▇▇▇▇▇▇▇▇ Designees, the Kalitta
Designees and the Joint Designee; and (c) the Bylaws of the Company have been
amended to provide that the Bylaw provisions concerning the number and
classification of directors and the other provisions described above in this
Section 3.1.1 may be amended or repealed prior to the end of the Term only by
the affirmative vote of 70% of the members of the entire Board of Directors or
the holders of 75% of the outstanding Common Stock.
3.1.2 Nominating Committees.
(a) At or prior to the date of this Agreement, the Bylaws of the
Company have been amended to provide that:
(i) a Joint Nominating Committee, a ▇▇▇▇▇▇▇▇▇▇▇ Nominating
Committee and a Kalitta Nominating Committee of the Board of Directors
of the Company shall be created for the period beginning on the date
of this Agreement and expiring at the end of the Term;
(ii) the Joint Nominating Committee shall consist of
▇▇▇▇▇▇▇▇▇▇▇ and Kalitta for so long as each is a director of the
Company;
(iii) the ▇▇▇▇▇▇▇▇▇▇▇ Nominating Committee shall consist of
▇▇▇▇▇▇▇▇▇▇▇ for so long as he is a director of the Company;
(iv) the Kalitta Nominating Committee shall consist of Kalitta
for so long as he is a director of the Company;
(v) each such Nominating Committee shall have the powers and
duties described in, and be subject to the applicable provisions
concerning notice, quorum, membership and resolution of deadlock and
related provisions of, Sections 3.1.2 and 3.1.3; and
(vi) such Bylaw provisions and the Bylaw provisions described
below in this Section 3.1.2 may be amended or
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repealed only by the affirmative vote of 70% of the members of the
entire Board of Directors or the holders of 75% of the outstanding
Common Stock.
(b) The Bylaws of the Company have been further amended at or
prior to the date of this Agreement to provide that (i) the Joint Nominating
Committee shall have the exclusive power on behalf of the Board of Directors to
nominate a person for election as a director of the Company as a Joint Designee
and to fill any vacancy of the Joint Designee on the Board of Directors of the
Company; (ii) the ▇▇▇▇▇▇▇▇▇▇▇ Nominating Committee shall have the exclusive
power on behalf of the Board of Directors of the Company to nominate
▇▇▇▇▇▇▇▇▇▇▇ and persons for election as directors of the Company as ▇▇▇▇▇▇▇▇▇▇▇
Designees and to fill vacancies on the Board of Directors vacated by
▇▇▇▇▇▇▇▇▇▇▇ Designees; and (iii) the Kalitta Nominating Committee shall have
the exclusive power on behalf of the Board of Directors to nominate Kalitta and
persons for election as directors of the Company as Kalitta Designees and to
fill vacancies on the Board of Directors vacated by the Kalitta Designees.
(c) During the Term, but subject to Section 3.1.5, and except as
otherwise agreed in writing by the Requisite ▇▇▇▇▇▇▇▇▇▇▇ Stockholders and the
Requisite Kalitta Stockholders, each of the Stockholders shall, and shall cause
each of such Stockholder's Affiliates to, (i) vote (or act by written consent
with respect to) any shares of Common Stock and other Company voting securities
each Beneficially Owns (x) for the nominee of the Joint Nominating Committee
for election as a director of the Company as a Joint Designee (or the nominee
as a Joint Designee of the entire Board of Directors in accordance with the
Bylaws if the Joint Nominating Committee cannot agree within ten (10) days as
contemplated in Section 3.1.3 below) and against his removal except for cause,
(y) for ▇▇▇▇▇▇▇▇▇▇▇ and each of the nominees of the ▇▇▇▇▇▇▇▇▇▇▇ Nominating
Committee for election as a director of the Company as a ▇▇▇▇▇▇▇▇▇▇▇ Designee
and against their removal except for cause and (z) for Kalitta and each of the
nominees of the Kalitta Nominating Committee for election as a director of the
Company as a Kalitta Designee and against their removal except for cause and
(ii) not vote (or act by written consent with respect to) any shares of Common
Stock or other Company voting securities each Beneficially Owns in favor of any
person to serve as a director of the Company unless such person has been so
nominated.
(d) The Bylaws have been amended at or prior to the date of this
Agreement to provide that the Joint Nominating Committee, the ▇▇▇▇▇▇▇▇▇▇▇
Nominating Committee and the Kalitta Nominating Committee (as applicable) shall
nominate the persons named on Schedule 2 for re-election when their terms
expire unless such person is unable or unwilling to serve or if such person has
been removed for cause. For purposes of this Section 3.1.2, "cause" shall have
the meaning set forth in the Certificate of Incorporation of the Company.
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(e) The Bylaws have been amended at or prior to the date of this
Agreement to provide that in the case of the Joint Nominating Committee, the
presence, either telephonically or in person, of both members of the Joint
Nominating Committee shall constitute a quorum for the transaction of business
and meetings may be called on two days' written notice given in accordance with
the Bylaws of the Company by either member.
3.1.3 Deadlock Resolution at the Joint Nominating
Committee. The Bylaws of the Company have been amended at or prior to the date
of this Agreement to provide that if the Joint Nominating Committee does not
agree on the selection of (a) a nominee to serve as a member of the Board of
Directors as a Joint Designee to be elected at a meeting of the stockholders of
the Company or (b) an individual to fill a vacancy on the Board of Directors as
a Joint Designee then either member of the Joint Nominating Committee may by
written notice to the other member require such nominee or vacancy to be
selected or filled, respectively, at a meeting of the Board of Directors called
by such member in accordance with the Bylaws of the Company at any time after
the tenth day following the receipt of notice of the first meeting of the Joint
Nominating Committee called for the express purpose of selecting such nominee
or filing such vacancy. The Bylaws have been amended at or prior to the date
of this Agreement to provide that any individual selected by the Board of
Directors to serve as a member of the Board of Directors as a Joint Designee,
if the Joint Nominating Committee is unable to agree upon a nominee or a person
to fill a vacancy, must (i) not be a Family Member of either ▇▇▇▇▇▇▇▇▇▇▇ or
Kalitta, (ii) not be a former or current employee of any Kalitta Company or
American International Cargo, a Michigan co-partnership, the Company, the Subs
or the Subsidiaries, (iii) have within the preceding sixty (60) months been a
director, chief financial officer, or chief executive officer of a company
listed on the New York Stock Exchange or the American Stock Exchange or quoted
on the NASDAQ Stock Market's National Market System and (iv) be a citizen of
the United States. The Bylaws have been amended at or prior to the date of
this Agreement to provide that if the person so chosen by the Board of
Directors declines or is unable to serve, then either member of the Joint
Nominating Committee may call a meeting of the Nominating Committee to choose
another person to serve as a director of the Company (in which case all of the
provisions of this Section 3.1.3 shall again apply).
3.1.4 Officers.
(a) The Bylaws of the Company have been amended at or prior to the
date of this Agreement to provide (i) that, until the first anniversary of the
date of this Agreement, the Chairman of the Board and Chief Executive Officer
shall be elected exclusively by the holders of Common Stock and shall serve as
the chief executive officer of the Company and, subject to the supervision of
the Board of Directors, shall have the general management and control of the
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Company and its subsidiaries (including the right to vote (except as provided
in clause (ii) below solely for the one year period commencing on the date of
this Agreement) the voting securities of the subsidiaries of the Company held
by the Company on its behalf) and (ii) for the additional office of Vice
Chairman who until the first anniversary of the date of this Agreement, shall
be elected exclusively by the holders of Common Stock and shall serve as an
officer of the Company and shall have the right to vote the voting securities
of AIA until the first anniversary of the date of this Agreement solely for the
purpose of electing the President of AIA and against his removal except for
cause. Until the first anniversary of the date of this Agreement, each
Stockholder hereby agrees to vote (or to act by written consent with respect
to), and to cause each of such Stockholder's Affiliates to vote (or so act by
written consent), all shares of Common Stock and other Company voting
securities Beneficially Owned by each of them in favor of ▇▇▇▇▇▇▇▇▇▇▇ as
Chairman of the Board and Chief Executive Officer of the Company and Kalitta as
Vice Chairman and against their removal except for cause.
(b) The Amended and Restated Articles of Incorporation and Bylaws of
AIA in effect as of the date of this Agreement provide that, until the first
anniversary of the date of this Agreement, the person serving as the President
of AIA shall serve as the chief executive officer of AIA and shall have the
general management and control of AIA subject only to supervision of the
Chairman of the Board and Chief Executive Officer of the Company. Until the
first anniversary of the date of this Agreement, the Company hereby agrees to
vote and to cause each of its Affiliates to vote (or act by written consent),
all shares of common stock of AIA and any other AIA voting securities
Beneficially Owned by the Company and its Affiliates for Kalitta as President
of AIA and against any removal of Kalitta as President of AIA except for cause
as defined in the Articles of Incorporation of AIA until the first anniversary
of the date of this Agreement and to refrain from changing any provisions of
the Articles of Incorporation or Bylaws of AIA described in this Section
3.1.4(b). The Bylaws of the Company further provide that the President of AIA
is to report only to the Chairman of the Board and Chief Executive Officer.
(c) The Bylaws of the Company have been amended to provide that
the provisions of such Bylaws described in this Section 3.1.4 may be amended
only by the affirmative vote of 70% of the members of the entire board of
Directors of holders of 75% of the outstanding Common Stock.
3.1.5 Termination of Governance Obligations. The rights and
obligations of the parties set forth in this Article III shall terminate upon
the earlier of (a) the expiration of the Term, (b) the death, Disability, or
voluntary resignation as a director of Kitty Hawk of, either ▇▇▇▇▇▇▇▇▇▇▇ or
Kalitta or (c) the sale of all shares Beneficially Owned by all Stockholders;
provided, that in the event of the voluntary resignation of Kalitta as a
director of
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Kitty Hawk, the Kalitta Stockholders shall remain subject to all obligations to
vote Common Stock and other Company voting securities as provided in this
Article III; and, provided further, that in the event of the voluntary
resignation of ▇▇▇▇▇▇▇▇▇▇▇ as a director of Kitty ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ and Kitty
Hawk shall remain subject to all of their and its obligations to vote AIA
common stock and other voting securities of AIA as provided in this Article III
and the ▇▇▇▇▇▇▇▇▇▇▇ Stockholders shall remain subject to all of his obligations
to vote Common Stock and other Company voting securities as provided in this
Article III.
Article IV - Restrictions on Transfer of Common Stock
4. Restrictions on Transfers. Each of the Stockholders hereby
agrees that from the date hereof until the conclusion of the Term no Transfers
of any shares of Common Stock shall be made by such Stockholder to Permitted
Transferees or pursuant to an Exempt Transfer unless the Stockholder proposing
the Transfer shall notify the Company in writing and the proposed transferee
shall deliver to the Company a written instrument pursuant to which the
proposed transferee becomes a party to this Agreement and agrees to be bound by
the terms and conditions hereof to the same extent as if an original signatory
hereto.
Article V - Legend
5. Restrictive Legend.
5.1 Restrictive Legend. Each certificate evidencing
shares of Common Stock held by a Stockholder shall conspicuously contain a
restrictive legend substantially as follows:
"The sale, assignment, transfer, pledge, encumbrance, or other
disposition of the shares evidenced by this certificate, or any
interest in such shares, is restricted by the terms of a Stockholders'
Agreement dated as of November 19, 1997, a copy of which is on file at
the principal office of the corporation. No such sale, assignment,
transfer, pledge, encumbrance or other disposition shall be effective
unless and until the terms and conditions of the aforesaid
Stockholders' Agreement shall have been complied with in full."
5.2 Removal of Restrictive Legend. The Company shall, or
shall cause its transfer agent to, remove such legend so that shares can be
transferred free of the legend upon the earlier to occur of (a) the third
anniversary date of this Agreement, (b) the termination of this Agreement or
(c) receipt of a written certification of a Stockholder that the shares in
question are being Transferred to person other than a Permitted Transferee or
to a person other than pursuant to an Exempt Transfer.
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Article VI - Registration of Common Stock
6. Registration of Common Stock.
6.1 Incidental Registration. If, at any time during the
Term, the Company proposes to register any of its securities under the
Securities Act, whether or not for sale for its own account, on a form and in
a manner which would permit registration of Registrable Securities for sale to
the public under the Securities Act (other than pursuant to a registration
statement filed pursuant to Rule 415 under the Securities Act), it will each
such time give prompt notice to all Stockholders who then hold Registrable
Securities of its intention to do so, describing such securities and specifying
the form and manner and the other relevant facts involved in such proposed
registration, and upon the request of any Stockholder delivered to the Company
within thirty (30) days after the giving of any such notice (which request
shall specify the Registrable Securities intended to be disposed of by such
Stockholder, which shall not be less than the greater of (x) fifty thousand
(50,000) shares of Registrable Securities (as such minimum number may be
adjusted pursuant to Section 6.1(iii) below) or (y) the number of shares of
Registrable Securities then owned by such Stockholder, and the intended method
of disposition thereof), the Company will use its commercially reasonable
efforts to effect the registration under the Securities Act of all Registrable
Securities which the Company has been so requested to register by the
Stockholder, to the extent requisite to permit the disposition (in accordance
with the intended methods thereof as aforesaid) of the Registrable Securities
so to be registered, provided that:
(i) if, at any time after giving such notice of
its intention to register any of its securities and prior to the
effective date of the registration statement filed in connection with
such registration, the Company shall determine for any reason not to
register such securities, the Company may, at its election, give
notice of such determination to each Selling Stockholder and thereupon
shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its
obligation to pay the Registration Expenses in connection therewith);
and
(ii) if the registration so proposed by the
Company involves an underwritten offering of the securities so being
registered, whether or not for sale for the account of the Company, to
be distributed (on a firm commitment basis) by or through one or more
underwriters of recognized standing under underwriting terms
appropriate for such a transaction, and the managing underwriter of
such underwritten offering shall advise the Company by letter that, in
its opinion, the distribution of all or a specified portion of the
Registrable Securities which the Selling Stockholders have requested
the Company to register in accordance with this Section 6.1
concurrently with the securities being distributed by such
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underwriters could adversely affect the distribution of such
securities by such underwriters (such letter to state the reasons
therefor), then the Company will promptly furnish each Selling
Stockholder with a copy of such letter and the Company may deny, by
notice to each Selling Stockholder accompanying such letter, the
registration of all or a specified portion of such Registrable
Securities (in case of a denial as to a portion of such Registrable
Securities, such portion to be allocated Pro Rata among the Selling
Stockholders); and
(iii) the minimum number of shares specified in
Section 6.1(x) above shall be appropriately adjusted in the event
that, subsequent to September 22, 1997 the outstanding shares of
Common Stock of the Company shall have been increased, decreased,
changed into or exchanged for a different number or kind of shares or
securities through a reorganization, recapitalization, stock split,
reverse stock split or other similar change in the Company's
capitalization;
(iv) if a Stockholder decides not to include all
of its Registrable Securities in any registration statement filed by
the Company pursuant to this Article VI, such Stockholder shall
nevertheless continue to have the right to include any Registrable
Securities in any subsequent registration statement(s) as may be filed
by the Company with respect to offerings of securities, all upon the
terms and conditions set forth herein.
The Company will pay all Registration Expenses in connection
with each registration of Registrable Securities requested pursuant to this
Section 6.1.
6.2 Registration Procedures. If and whenever the Company
is required to use its commercially reasonable efforts to effect the
registration of any Registrable Securities under the Securities Act as provided
in Section 6.1, the Company will as expeditiously as possible:
(i) prepare and promptly file with the Commission
a registration statement with respect to such Registrable Securities
and use its commercially reasonable efforts to cause such registration
statement to become effective as promptly as practicable;
(ii) prepare and file with the Commission such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep
such registration statement effective and to comply with the
provisions of the Securities Act with respect to the disposition of
all Registrable Securities and other securities covered by such
registration statement until the earlier of such time as all of such
Registrable Securities and other securities have been disposed of in
accordance with the
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intended methods of disposition thereof set forth in such registration
statement or the expiration of thirty (30) days after such
registration statement becomes effective;
(iii) furnish to each Selling Stockholder, without
charge, such number of conformed copies of such registration statement
and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus
included in such registration statement (including each preliminary
prospectus and any summary prospectus), in conformity with the
requirements of the Securities Act, such documents incorporated by
reference in such registration statement or prospectus, and such other
documents, as such Selling Stockholder may reasonably request;
(iv) use its commercially reasonable efforts to
register or qualify all Registrable Securities and other securities
covered by such registration statement under the securities or blue
sky laws of such jurisdictions as each Selling Stockholder (or in an
underwritten offering, the managing underwriter) shall reasonably
request, and do any and all other acts and things which may be
necessary or advisable to enable such Selling Stockholder to
consummate the disposition in such jurisdictions of his or its
Registrable Securities covered by such registration statement, except
that the Company shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any jurisdiction
wherein it is not so qualified, or to subject itself to taxation in
any such jurisdiction, or to consent to general service of process in
any such jurisdiction;
(v) furnish to each Selling Stockholder a signed
counterpart, addressed to such Selling Stockholder, of (A) an opinion
of counsel for the Company, dated the effective date of such
registration statement (or, if such registration includes an
underwritten public offering, dated the date of the closing under the
underwriting agreement speaking both as of the effective date of the
registration statement and the date of the closing under the
underwriting agreement) and (B) a "cold comfort" letter dated the
effective date of such registration statement (and, if such
registration statement includes an underwritten public offering, dated
the date of the closing under the underwriting agreement) signed by
the independent public accountants who have certified the Company's
financial statements included in such registration statements,
covering substantially the same matters with respect to such
registration statement (and the prospectus included therein), and, in
the case of such accountants' letter, with respect to events
subsequent to the date of such financial statements, as are
customarily covered in opinions of issuer's counsel and in
accountants' letters delivered to underwriters in underwritten public
offerings of securities
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and, in the case of the accountants' letter, such other financial
matters, as such Selling Stockholder may reasonably request;
(vi) immediately notify each Selling Stockholder,
at any time when a prospectus relating to such Selling Stockholders'
Registrable Securities is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing, and at the request of any such Selling Stockholder prepare
and furnish to such Selling Stockholder a reasonable number of copies
of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
Registrable Securities or other securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing;
(vii) otherwise use its commercially reasonable
efforts to comply with all applicable rules and regulations of the
Commission, and make available to its securities holders, as soon as
reasonably practicable, an earnings statement covering the period of
at least twelve (12) months, but not more than eighteen (18) months,
beginning with the first month of the first fiscal quarter after the
effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act; and
(viii) use its commercially reasonable efforts to
have such securities listed on the New York Stock Exchange or included
for quotation on the Nasdaq National Market or listed on each
securities exchange on which the securities of the Company are then
listed or quoted, if such securities are not already so listed or
quoted and if such quotation or listing is then permitted under the
rules of such self-regulatory association or exchange, and, if
necessary, provide a transfer agent and registrar for such securities
not later than the effective date of such registration statement.
The Company may require each Selling Stockholder to furnish to
the Company such information regarding such Selling Stockholder and the
distribution of such securities as the Company may from time to time reasonably
request and as shall be required by law or by the Commission in connection
therewith.
6.3 Stockholder Undertakings. Each Stockholder covenants
with the Company as follows:
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(a) No Stabilization. No Stockholder shall effect any
stabilization transactions or engage in any stabilization activity proscribed
by Regulation M under the Exchange Act in connection with any securities of the
Company during the period of any distribution of the Registrable Securities by
Selling Stockholders pursuant to any Registration Statement.
(b) Brokers. Each Selling Stockholder (i) shall
furnish each broker through whom such Selling Stockholder offers the
Registrable Securities such number of copies of any Prospectus and any
supplements thereto or amendments thereof which such broker may require
(provided that the Company has provided such Selling Stockholder with such
Prospectus, supplements and amendments), (ii) shall inform such broker as to
the number of Registrable Securities offered through such broker, that such
Registrable Securities are part of a distribution and that such broker is
subject to the provisions of Regulation M under the Exchange Act until such
time as such broker has completed the sale of all such Registrable Securities,
and (iii) shall notify such broker when distribution of the sale of all such
Registrable Securities, and (iii) shall notify such broker when distribution of
the Registrable Securities by such Selling Stockholder pursuant to any
registration statement has been completed or any registration statement is no
longer effective or is withdrawn.
(c) Amendments and Supplements. Each Selling
Stockholder shall promptly furnish to each person (including each broker) to
whom such Selling Stockholder has delivered copies of the prospectus an
equivalent number of copies of any amendment thereof or supplement thereto
(provided that the Company has provided such Selling Stockholder with such
amendment or supplement).
(d) Transaction Information. Each Selling Stockholder
shall report promptly to the Company upon any disposition of Registrable
Securities by such Selling Stockholder and upon completion of the distribution
of such Selling Stockholder's Registrable Securities pursuant to any
registration statement.
(e) Exchange Act Compliance. Each Selling Stockholder
shall, at any time such Selling Stockholder is engaged in a distribution of the
Registrable Securities under any registration statement, comply to the extent
required with Rules 10b-5 and Regulation M (as currently in effect or as
amended or any successor or similar provisions) promulgated under the Exchange
Act and shall distribute the Registrable Securities solely in the manner
described in any registration statement, and shall not do any of the following
during the period from the effective date of any Registration Statement until
the completion of any offering of the Registrable Securities by such Selling
Stockholder pursuant to such registration statement:
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(i) Bid for or purchase, for any account
in which such Selling Stockholder or any affiliate of such Selling Stockholder
has a beneficial interest, any securities of the Company other than in
transactions permitted by Regulation M under the Exchange Act;
(ii) Attempt to induce any person to
purchase any securities of the Company other than in transactions permitted by
Regulation M under the Exchange Act; and
(iii) pay or offer or agree to pay to anyone,
directly or indirectly, any compensation for soliciting another to purchase any
securities of the Company on a national securities exchange or automated
quotation system or pay or offer of agree to pay to anyone any compensation for
purchasing securities of the Company on a national securities exchange or
automated quotation system other than those securities offered by such Selling
Stockholder.
(f) Publicity; Selling Efforts. Each Selling
Stockholder shall not, during the period of any offering by such Selling
Stockholder of any Registrable Securities under any registration statement, use
or disseminate any information concerning the Company other than the prospectus
(or any amendment thereof or supplement thereto furnished by the Company) and
may not undertake any form of publicity with respect to the Company or engage
in any similar activities that may be deemed to be an unlawful selling effort
within the meaning of Section 10 of the Exchange Act.
(g) Brokerage Commissions. Except as disclosed
in the prospectus, a Selling Stockholder will not pay unusual or special
brokerage commissions (other than ordinary brokerage arrangements) on any sales
effected through a broker, and no selling arrangement will have been entered
into between a Selling Stockholder and any securities dealer or broker.
(h) Intentionally Omitted.
(i) Conditions to Inclusion. As a condition to
each Selling Stockholder's right to include Registrable Securities in a
registration pursuant to this Article VI, such Selling Stockholder shall if
requested by the Company in connection with such registration, (i) agree to
sell such Registrable Securities to be included in such registration on the
basis applicable to other selling security holders as provided in any
underwriting arrangements entered into by the Company in connection therewith,
(ii) complete and execute all questionnaires, powers of attorney, underwriting
agreements and other documents that are reasonably requested and are customary
under such arrangements (and as are required of all other selling security
holders) and (iii) promptly provide any information reasonably requested by the
Company
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concerning such Selling Stockholder's specified plan of distribution and other
information.
6.4 Underwriters. If the Company at any time proposes to
register any of its securities under the Securities Act whether or not for sale
or for its own account, and such securities are to be distributed by or through
one or more underwriters, the Company will use commercially reasonable efforts,
if requested by a Selling Stockholder who requests incidental registration of
Registrable Securities in connection therewith pursuant to Section 6.1, to
arrange for such underwriters to include such Registrable Securities among
those securities to be distributed by or through such underwriters; provided
that, without limitation, neither the Company nor any other holder of the
securities proposed to be distributed by or through such underwriters shall be
required or obligated to reduce the amount or sale price of such securities
proposed to be so distributed. The Selling Stockholders on whose behalf
Registrable Securities are to be distributed by such underwriters shall be
parties to any such underwriting agreement and the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters, shall also be made to and for the benefit of
such holders of Registrable Securities. If the Company at any time proposes to
register any of its securities under the Securities Act for sale of its own
account and such securities are to be distributed by or through one or more
underwriters, the managing underwriter shall be selected by the Company. If
any registration pursuant to Section 6.1 shall be in connection with any
underwritten public offering, each holder of Registrable Securities agrees, if
so required by the managing underwriters, not to effect any public sale or
distribution of Registrable Securities (other than as part of such underwritten
public offering) within the period of time between seven (7) days prior to the
effective date of such registration statement and 180 days after the effective
date of such registration statement.
6.5 Preparation; Reasonable Investigation. In connection
with the preparation and filing of such registration statement registering
Registrable Securities under the Securities Act, the Company will give the
Selling Stockholders on whose behalf such Registrable Securities are to be so
registered and their underwriters, if any, and their respective counsel and
accountants, reasonable opportunity to review and comment upon such
registration statement, each prospectus included therein or filed with the
Commission, and each amendment thereof or supplement thereto, and will give
each of them reasonable access to its books and records and reasonable
opportunity to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary, in the reasonable opinion of such holders and such
underwriters or their respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act. Notwithstanding anything herein to
the contrary, the Company shall have the sole right to determine
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the content of any registration statement, prospectus, supplement thereto or
amendment thereof, provided such determination is in accordance with the
applicable requirements of the Securities Act.
6.6 Company's Indemnification. In the event of any
registration of any securities of the Company under the Securities Act, the
Company will, and hereby does, indemnify and hold harmless in the case of any
registration statement filed pursuant to Section 6.1, each Selling Stockholder
of any Registrable Securities covered by such registration statement, each
officer and director of each underwriter and each Selling Stockholder, each
other person who participates as an underwriter in the offering or sale of such
securities and each other person, if any, who controls any Selling Stockholder
or any such underwriter within the meaning of the Securities Act against any
losses, claims, damages, liabilities and expenses, joint or several, to which
any such Selling Stockholder or any such director or officer or participating
or controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions or
proceedings or investigations in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary prospectus (unless any
such statement is corrected in a subsequent prospectus and Selling Stockholder
(and the underwriters, if any) is given the opportunity to circulate the
corrected prospectus to all persons receiving the preliminary prospectus),
final prospectus or summary prospectus included therein, or any amendment or
supplement thereto, or any document incorporated by reference therein, or (ii)
any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or (iii) any
violation by the Company of any securities laws, and the Company will reimburse
each such Selling Stockholder and each such director, officer, participating
person and controlling person for any legal or any other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, liability, action or proceeding; provided, however, that the Company
shall not be liable to any Selling Stockholder, director, officer,
participating person or controlling person in any such case to the extent that
any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished to the Company in an instrument executed by
or under the direction of such seller, director, officer, participating person
or controlling person for use in the preparation thereof, which information was
expressly provided for use in the registration statement, preliminary
prospectus, final prospectus, summary prospectus,
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amendment or supplement. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of any such Selling
Stockholder or any such director, officer, participating person or controlling
person and shall survive the transfer of such securities by such seller. The
Company shall agree to provide for a customary contribution provision relating
to such indemnity if requested by any Selling Stockholder or the underwriters.
6.7 Selling Stockholders Indemnification. The Company
may require, as a condition to including any Registrable Securities in any
registration statement filed pursuant to Section 6.1, that the Company shall
have received an agreement reasonably satisfactory to it from each of the
prospective Selling Stockholders of such Registrable Securities and their
underwriters, to indemnify and hold harmless (in the same manner and to the
same extent as set forth in Section 6.6) the Company, each director of the
Company, each officer of the Company who shall sign such registration statement
and each other person, if any, who controls the Company within the meaning of
the Securities Act, with respect to any statement in or omission from such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus included therein, or any amendment or supplement thereto, but only
if such statement or omission was made in reliance upon and in conformity with
written information furnished to the Company through an instrument duly
executed or provided by such Selling Stockholder (or in the case of
indemnification by the underwriters, by such underwriters) which specifically
states or otherwise identifies it as being expressly for use in the preparation
of such registration statement, preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
the Company or any such director, officer or controlling person and shall
survive the transfer of such Registrable Securities by such Selling
Stockholders.
6.8 Indemnification; Contribution Mechanism. Promptly
after receipt by an indemnified party of notice of the commencement of any
action or proceeding involving a claim referred to in either Section 6.6 or
6.7, such indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action; provided, however, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under Section 6.6 or 6.7, as is
applicable, except to the extent that the indemnifying party's liabilities and
obligations are increased as a result of such failure to give notice. In case
any such action is brought against an indemnified party, the indemnifying party
shall be entitled to participate in and to assume the defense thereof, jointly
with any other indemnifying party similarly notified, to the extent that it may
wish, with counsel reasonably satisfactory to such indemnified party. After
notice from the indemnifying party to such
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indemnified party to its election so as to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof unless (i) the indemnifying party shall have failed to
retain counsel for the indemnified party as aforesaid, (ii) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel, (iii) representation of such indemnified party by the counsel
retained by the indemnified party would be inappropriate due to actual or
potential differing interests between such indemnified party and any other
person represented by such counsel in such proceeding or (iv) the indemnified
party shall have reasonably concluded that there may be legal defenses
available to it which are different from or additional to those available to
the indemnifying party (in which case the indemnifying party shall not have the
right to direct the defense of such action on behalf of the indemnified party).
No indemnifying party will consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation. The indemnifying party shall
not be liable for any settlement of any proceeding effected without the written
consent of such indemnifying party, but if settled with such consent or if
there shall be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify each indemnified party from and against any loss or
liability by reason of such settlement or judgment.
6.9 Other Indemnification. Indemnification similar to
that specified in Section 6.6 and Section 6.7 (with appropriate modifications)
shall be given by the Company and each Selling Stockholder of Registrable
Securities with respect to any required registration or other qualification of
such Registrable Securities under any state securities law or regulation.
Article VII - Representations
7. Representations and Warranties.
7.1 Stockholders' Representations and Warranties. Each
Stockholder hereby represents and warrants to the Company and to the other
Stockholder as follows:
(i) Such Stockholder has the requisite capacity,
power and authority to enter into and perform such Stockholder's
obligations under this Agreement.
(ii) The execution, delivery and performance of
this Agreement has been duly authorized by all requisite action by
such Stockholder. This Agreement has been duly executed and delivered
by such Stockholder and constitutes the legal, valid and binding
obligation of such Stockholder enforceable in accordance with its
terms, except as such enforcement may be
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limited be general principles of equity, whether applied in a court of
law or a court of equity, and bankruptcy, insolvency and similar laws
affecting creditors' rights and remedies generally.
(iii) Neither the execution or delivery of this
Agreement nor the consummation of the transactions contemplated
hereby, nor compliance with the terms and provisions hereof, will
conflict with, or result in a breach of, the terms, conditions or
provisions of, or constitute a default under, any applicable law, or
of any order, writ, injunction or decree of any court, administrator
or arbitrator, or of any agreement or instrument under which such
Stockholder is obligated or by which any of such Stockholder's
property is bound.
(iv) There are no agreements to which such
Stockholder is a party that relate to the voting of Common Stock, the
nomination or election of directors or the control of the Company,
except for this Agreement.
(v) Each Stockholder is the record and Beneficial
Owner of the number of share of Common Stock of the Company set forth
opposite such Stockholder's name on Schedule 1 hereto, and owns such
shares of Common Stock free and clear of all liens, security
interests, pledges, charges or encumbrances of any nature whatsoever.
7.2 Company's Representations and Warranties. The
Company hereby represents and warrants to each Stockholder as follows:
(i) The Company has the requisite corporate power
to enter into and perform the Company's obligations under this
Agreement.
(ii) The execution, delivery and performance of
this Agreement has been duly authorized by all requisite corporate
action by the Company. This Agreement has been duly executed and
delivered by the Company and constitutes the valid and binding
obligation of the Company enforceable in accordance with its terms,
except as such enforcement may be limited by general principles of
equity, whether applied in a court of law or a court of equity, and
bankruptcy, insolvency and similar laws affecting creditors' rights
and remedies generally.
(iii) Neither the execution nor delivery of this
Agreement nor the consummation of the transactions contemplated
hereby, nor compliance with the terms and provisions hereof, will
conflict with, or result in a breach of, the terms, conditions or
provisions of, or constitute a default under, any applicable law, or
of any order, writ,
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injunction or decree of any court, administrator or arbitrator, or of
any agreement or instrument under which the Company is obligated or by
which any of the Company's property is bound.
(iv) There are no agreements to which the Company
is a party that relate to the voting of Common Stock, the nomination
or election of directors or the control of the Company, except for
this Agreement.
Article VIII - General Provisions
8. General Provisions.
8.1 Notices. All notices, requests and other
communications ("Notices") to any party hereunder shall be in writing and shall
be deemed to have been duly given and received (i) upon receipt, if delivered
personally with receipt acknowledged, (ii) three (3) business days after
mailing by certified or registered mail or equivalent, return receipt
requested, postage prepaid or one (1) day after mailing by overnight courier
for next day delivery, in each case addressed to the Company at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, Attention: Chairman, to any Stockholder
at his or its address set forth on Schedule 1 hereto, as is applicable, or to
such other address as such party may hereafter specify by Notice to the other
parties or (iii) one (1) business day after telecopying to the Company at (972)
456-2221 and to any Stockholder at the number set forth on Schedule 1 hereto,
as is applicable, or to such changed number as such party shall hereafter
specify by Notice to the other parties; provided, however, that any Notice of
change of address or telecopier number shall be effective only upon receipt and
a copy of any Notice sent by telecopier shall also be sent by registered or
certified mail or equivalent, return receipt requested, postage prepaid.
8.2 Equitable Relief. The parties hereto agree that
legal remedies may be inadequate to enforce the provisions of this Agreement,
and that each party shall have the right, in addition to any other rights it
may have at law, to equitable relief, including specific performance and
injunctive relief, to enforce the provisions of this Agreement.
8.3 No Third Party Beneficiaries; Additional Parties.
This Agreement does not create, and shall not be construed as creating, any
rights enforceable by any person not a party to this Agreement except that any
Permitted Transferee or person receiving a Transfer pursuant to an Exempt
Transfer shall be deemed to be a Stockholder and shall be bound by all
obligations and, except to the extent limited in such agreement, entitled to
all rights and privileges of a Stockholder as if such person had been an
original signatory to this Agreement.
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8.4 Amendments. Any provision of this Agreement may be
amended only if such amendment is in writing and is signed by the Company and
by the Requisite ▇▇▇▇▇▇▇▇▇▇▇ Stockholders and the Requisite Kalitta
Stockholders.
8.5 Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective personal or legal representatives, executors, heirs,
successors and permitted assigns.
8.6 Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Texas without regard
to any applicable conflicts of law provisions thereof.
8.7 Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. An executed counterpart received by telecopy shall have the same
effect as an originally-executed counterpart.
8.8 Captions. The captions in this Agreement are
included for convenience of reference only, do not constitute a part hereof and
shall be disregarded in the interpretation or construction hereof.
8.9 Entire Agreement. This Agreement, together with the
Schedules hereto, constitutes the entire agreement among the parties hereto
with respect to the subject matter hereof and supersedes all previous
agreements, whether written or oral, relating to the same subject matter,
including without limitation any existing stockholder agreements and agreements
in respect of registration rights. All such previous agreements, if any, among
the parties hereto (or any of them) are hereby terminated and shall have no
further force or effect.
8.10 Termination. This Agreement may be terminated at any
time by an instrument in writing signed by the Company, the Requisite
▇▇▇▇▇▇▇▇▇▇▇ Stockholders and the Requisite Kalitta Stockholders. This
Agreement shall automatically terminate on the earlier of the date when none of
the Stockholders is the Beneficial Owner of any shares of Common Stock or the
expiration of the Term.
8.11 Minimum Equity Ownership Requirement.
Notwithstanding anything to the contrary otherwise contained elsewhere in this
Agreement, in the event that the Kalitta Stockholders or the ▇▇▇▇▇▇▇▇▇▇▇
Stockholders shall cease to be the Beneficial Owners of an aggregate of at
least one percent (1%) of the outstanding shares of Common Stock, then the
Kalitta Stockholders or the ▇▇▇▇▇▇▇▇▇▇▇
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Stockholders, as applicable, shall no longer be deemed "Stockholders" for
purposes of Article VI of this Agreement and shall have no further rights or
obligations as "Stockholders" under Article VI hereof.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
Kitty Hawk, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: Senior Vice President
/s/ M. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
M. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Schedule 1
Stockholders
Name and Address Shares of Common Stock
---------------- ----------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 4,099,150
▇▇▇▇ ▇. ▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
M. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 5,948,436
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P.O. Box 612787
Dallas/Fort Worth
International ▇▇▇▇▇▇▇,
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