EXHIBIT 4
VALUJET 1994 EMPLOYEE STOCK TRUST
THIS TRUST AGREEMENT, to be known as the VALUJET 1994 EMPLOYEE STOCK
TRUST, is made and entered into this 28th day of June, 1994, between VALUJET
AIRLINES, INC., a Nevada corporation (the "Company") as the Grantor, and XXXXXXX
X. XXXXX, as Trustee.
The Company has this day transferred to the Trustee Nine Thousand Nine
Hundred Ten (9,910) shares of the Company's Common Stock, $.01 par value per
share (which 9,910 shares of stock, along with any other stock in the Company
purchased by the Trustee or received by the Trustee as the result of any stock
dividend, stock split or other capital change in the Company, is hereinafter
referred to as the "Stock") as the initial corpus of the VALUJET 1994 EMPLOYEE
STOCK TRUST. The Stock and any other property that may be received by the
Trustee hereunder shall be held and disposed of upon the following terms and
conditions.
ARTICLE I
A. This Trust is and shall be irrevocable and the Company shall have
no right, title or interest in or power, privilege or incident of ownership in
regard to any property held under this Trust Agreement, whether income or
corpus, and shall have no right to alter, amend, revoke or terminate this Trust
Agreement or any provision hereof.
B. This Trust shall be for the benefit of those employees and
temporary employees of the Company listed on Exhibit "A" attached hereto and
hereby made a part hereof who remain in the continuous employ of the Company
until the date (the "Termination Date") which is the earlier of June 28, 1997 or
the date all of the Stock is transferred or sold in connection with the
acquisition of the Company by, or the merger of the Company into, another
entity. Such persons who are listed on Exhibit "A" and who remain in the
Company's employ on the Termination Date are hereinafter referred to as the
"Beneficiaries." No person who is not employed by the Company on the
Termination Date shall be a Beneficiary hereunder, regardless of whether the
Beneficiary's employment with the Company terminates by reason of death,
disability or other involuntary or voluntary action or event.
ARTICLE II
A. Until the Termination Date, the Trust property shall be held as
follows:
1. The Trustee shall vote the Stock in his sole and absolute
discretion.
2. All cash received by the Trustee from cash dividends payable
with respect to the Stock shall be applied to the purchase of additional Common
Stock of the Company, which Common Stock purchased shall thereafter become part
of the "Stock" hereunder. Until additional stock is purchased, the Trustee
shall be authorized to maintain such cash in interest bearing or non-interest
bearing accounts with any financial institutions selected by the Trustee, in his
sole and absolute discretion.
3. The Trustee shall not sell or otherwise transfer the Stock or
any portion thereof unless such sale or transfer is in connection with the
acquisition of the Company by, or the merger of the Company into, another
entity.
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B. Within a reasonable time after the Termination Date, the Trustee
shall distribute and dispose of the Trust property as follows:
1. Any Stock shall be divided equally among and distributed to
the Beneficiaries; provided, however, that no fractional shares shall be issued.
The Company shall cause a stock certificate representing the appropriate number
of shares to be issued to each Beneficiary. Such stock certificates shall
contain such restrictive legends as the Company or its counsel may deem
appropriate to reflect that the stock has not been registered with the
Securities and Exchange Commission.
2. As soon as practicable after the Termination Date, the
Company shall purchase from the Trust the aggregate number of shares of Stock
not distributed to the Beneficiaries as a result of no fractional shares being
issued. The purchase price for such stock shall be the closing price for such
stock as reported in The Wall Street Journal on the last business day preceding
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the Termination Date. The net proceeds of such sale shall be divided equally
among and distributed to the Beneficiaries.
3. The proceeds of the sale or transfer of all of the Stock in
connection with the acquisition of the Company by, or the merger of the Company
into, another entity shall, as soon as practicable after the Termination Date,
be divided equally among and distributed to the Beneficiaries.
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ARTICLE III
A. The Trustee may interpret this Trust and make such determinations
and take such other action as he deems necessary or desirable for the
administration of this Trust. Without limiting the generality of the foregoing,
the Trustee, in his discretion, may treat all or any part of any period during
which a person is on military duty or on an approved leave of absence from the
Company as a period of employment of such person by the Company for purposes of
determining his rights under this Trust. Any interpretation, determination or
other action made or taken by the Trustee shall be final, binding and
conclusive.
B. A person who is or may qualify as a Beneficiary hereunder shall
not have any rights as a stockholder with respect to any Stock owned by this
Trust until the issuance of a stock certificate for such shares. No adjustment
shall be made on the issuance of a stock certificate to a Beneficiary as to any
dividends or other rights for which the record date occurred prior to the date
of issuance of such certificate.
C. The interest of any beneficiary in the income or corpus of this
Trust shall not be subject to assignment, alienation, pledge, attachment or
claims of creditors and may not otherwise be voluntarily or involuntarily
alienated or encumbered by such beneficiary.
D. Use of pronouns in any form wherever they appear in this Trust
Agreement shall be read as either masculine, feminine or neuter, and either
singular or plural, whenever the context and facts permit that construction.
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E. If any provision of this Trust Agreement shall be unenforceable,
the remaining provisions shall nevertheless be carried into effect.
ARTICLE IV
A. If XXXXXXX X. XXXXX shall at any time fail, cease or otherwise be
unable or unwilling to serve as Trustee hereunder, then XXXXXXX X. XXXX shall
serve in his place and stead as the Trustee hereunder. If XXXXXXX X. XXXX or
any successor Trustee shall fail, cease or otherwise be unable or unwilling to
serve as the Trustee hereunder, then the Company shall have the right,
exercisable by written instrument, to appoint any one or more persons to serve
as successor Trustee hereunder.
B. All expenses incurred in the administration of this Trust
including any Trustee compensation, shall be paid by the Company and no such
amount shall be charged against the assets of this Trust.
C. Any Trustee may renounce the appointment by giving written notice
or may resign by giving thirty (30) days' prior written notice to the Company.
D. No successor Trustee shall be liable or responsible in any way for
any acts or defaults of any predecessor Trustee, or for any loss or expense
caused by anything done or neglected to be done by any predecessor Trustee, but
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such successor Trustee shall be liable for his own acts and defaults with
respect to the property actually received by him as Trustee.
E. Any successor Trustee qualified and acting hereunder shall have
all the title, privileges, powers, exemptions and duties of the original
Trustee.
F. No successor Trustee shall be required to inquire into or audit
the acts or doings of any predecessor Trustee or to make any claim against any
such predecessor Trustee or his estate.
G. The Trustee shall keep records for this Trust, showing all
disbursements, charges for commissions, receipts of income and corpus, and all
investments and changes of investments. These records shall be open for
inspection at all reasonable times to the Company or its agents.
H. Any power and right granted to the Trustee may be exercised by the
Trustee without posting any bond, without obtaining any order from or the
approval of any court, without any notice to or consent of anyone, and the
Trustee shall not be required to make any inventory, appraisement, return or
report to any court at any time or for any purpose.
I. Any reference in this Trust Agreement to the word "Trustee" shall
also include any successor Trustee and shall be read as either masculine,
feminine or neuter whenever the context and facts permit such construction.
J. The Company agrees to indemnify, defend and hold the Trustee
harmless from and against any and all loss, damage, tax, liability and expense,
including attorneys fees, that may be incurred by the Trustee arising out of or
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in connection with his serving as Trustee hereunder, except as caused by the
Trustee's gross negligence or willful misconduct, including the legal costs and
expenses of defending the Trustee against any claim or liability in connection
with his performance hereunder, and the legal costs and expenses of any action
instituted by him to resolve any dispute as to the property held in this Trust.
ARTICLE V
The Trustee and his successors in office shall have all privileges,
powers, exemptions and duties conferred by statute or case law in the State of
Georgia, which are incorporated by reference herein and which may be exercised
without order of any court. Such powers specifically include the power:
1. To hold any moneys in cash or to deposit the same in any bank
organized under the laws of any state or of this or any foreign country,
regardless of whether such moneys may earn interest, for such periods of time as
the Trustee alone may deem advisable.
2. To vote stock by himself by proxy, to deposit securities with
and transfer title to committees representing security holders and to
participate in voting trusts, reorganizations and other transactions involving
the common interest of security holders; to enter into any plan or agreement for
the sale, merger, consolidation, liquidation, recapitalization or other
disposition of any trust property subject to this Trust Agreement or of any
corporation issuing securities held as part of any Trust created hereunder and
to accept in such transactions any cash, securities or property that the Trustee
deems proper.
3. To select an annual accounting period for this Trust; to pay
taxes, assessments and other expenses incurred in the collection, care,
administration and protection of the Trust created hereunder; to have the sole
and absolute discretion to exercise any rights of election available under or in
respect to any tax law.
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4. To exercise all power and authority after the termination of
the Trust created hereunder until the same is fully distributed.
IN WITNESS WHEREOF, the Company and the Trustee have caused this
instrument to be executed the day and year first above written.
VALUJET AIRLINES, INC.
By: /s/ Xxxxxx X. Xxxxxx
_______________________________
Title: Chairman of the Board
____________________________
/s/ Xxxxxxx X. Xxxxx
______________________________(SEAL)
XXXXXXX X. XXXXX, Trustee
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