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EXHIBIT 2
EXECUTION COPY
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SHAREHOLDERS RIGHTS AND VOTING AGREEMENT
between
HAWKER PACIFIC AEROSPACE
As the Company
THE SHAREHOLDERS LISTED ON EXHIBIT A
As Shareholders
and
LUFTHANSA TECHNIK AG
As Investor
DATED SEPTEMBER 20, 2000
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HAWKER PACIFIC AEROSPACE
SHAREHOLDERS RIGHTS AND VOTING AGREEMENT
This Shareholders Rights and Voting Agreement (the "Agreement") is made
as of the 20th day of September 2000, by and among Hawker Pacific Aerospace, a
California corporation (the "Company"), the individuals listed on Exhibit A to
this Agreement (each a "Shareholder" and collectively the "Shareholders"), and
Lufthansa Technik AG, a company organized under the German law (the "Investor").
RECITALS
WHEREAS, the certain shareholders of the Company set forth on Exhibit B
(collectively the "Sellers") and the Investor, have entered into a Stock
Purchase Agreement (the "Purchase Agreement") dated as of September 20, 2000
pursuant to which the Sellers agreed to sell to such Investor and such Investor
has agreed to purchase from the Sellers' shares of the Company's common stock,
par value $0.01 (the "Common Stock") and such transaction has been consummated
as of the date hereof;
WHEREAS, the Company and the Investor, have entered into a Loan
Agreement (the "Loan Agreement") of even date herewith pursuant to which the
Investor has agreed to loan to the Company $9,300,000 and the Company has agreed
to issue to the Investor a warrant as of the date hereof in an amount equal to
the sum of 2,500,000 shares of Common Stock, effective and exercisable as of the
date of, and subject to, shareholders approval (the "Warrant");
WHEREAS, a condition to the closing of the transactions contemplated by
the Purchase Agreement and the Loan Agreement is that the Company, the
Shareholders and the Investor enter into this Agreement for the purpose of
setting forth the terms and conditions pursuant to which the Investor and the
Shareholders shall vote their shares of the Company's voting stock in favor of
certain designees to the Company's Board of Directors and other matters as set
forth herein;
WHEREAS, as of the date hereof and effective upon the Closing of the
Purchase Agreement, Investor became the beneficial owner of record of the number
shares as set forth on Exhibit C;
WHEREAS, each Shareholder is a record holder and the beneficial owner
of, and has the right to vote and dispose of the number of shares of Common
Stock which is set forth opposite such shareholders name on Exhibit A, and
WHEREAS, the Company, the Investor and the Shareholders each desire to
facilitate the voting arrangements set forth in this Agreement, the sale and
purchase of shares of Common Stock pursuant to the Purchase Agreement, and
extension of credit under the Loan Agreement by agreeing to the terms and
conditions set forth herein which is an inducement and condition to
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Investor consummating the transactions contemplated in the Purchase Agreement
and Loan Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements
hereinafter contained, and intending to be legally bound, the parties hereby
agree as follows:
1. VOTING POWER.
1.1. Number of Votes. All shares of the Company's capital stock
entitled to vote beneficially owned by the Shareholders, now
or hereafter acquired, including any shares represented by
options, warrants or convertible securities, shall be bound by
the terms of this Agreement and shall be given the voting
weight attributed to each such share in accordance with its
respective terms.
1.2. Means of Voting. Subject to the Article 8, the voting rights
shall be exercised and meetings shall be called and held in
accordance with the Company's articles of incorporation,
by-laws, or other agreement, instrument or documents,
individually or collectively, pursuant to which the Company is
established or organized, and that govern the internal affairs
of the Company or such documents as they may be amended from
time to time (the "Charter Documents").
2. BOARD REPRESENTATION.
2.1. Board Seat.
2.1.1. The Company hereby agrees to recommend to the Board
of Directors to take such actions as are necessary,
and each of the Shareholders and the Investor agrees
to vote his, her or its shares of the Company's
Common Stock, (and any other shares of the capital
stock of the Company over which he, she or it
exercises voting control) and take such other actions
as are necessary, so as to elect and thereafter
continue in office as directors of the Company such
individuals who may be nominated by the Investor and
the Investor shall have the exclusive right to make
three (3) nominations of directorships and each
director so designated shall sit for an initial term
equal to the remaining term of the directors who
resigned from the Board pursuant to Section 8(e) of
the Purchase Agreement and Investor's designees shall
sit until the next annual meeting of the shareholders
of the Company, except as provided in Section 2.1.2.
2.1.2. The Company hereby agrees to recommend to the Board
of Directors to take such actions as are necessary,
and each of the Shareholders and the Investor agrees
to vote his, her or its shares of the Company's
Common Stock, (and any other shares of the capital
stock of the Company over which he, she or it
exercises voting control) and take such other actions
as are necessary, at a meeting of the shareholders of
the Company to occur within 120 days of the date
hereof (the "Special Meeting"):
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2.1.2.1. to elect and establish a board which,
pursuant to Article IV of the Articles of
Incorporation of the Company, shall be
classified into two classes. Upon the
increase of the board to 9 directors
pursuant to Section 2.4.1, Class I shall be
comprised of 5 directors and Class II shall
be comprised of 4 directors. At the Special
Meeting, the directors of Class I shall be
elected to hold office for a term expiring
at the next succeeding annual meeting of the
shareholders following the Special Meeting
and the directors of Class II shall be
elected to hold office for a term expiring
at the second succeeding annual meeting of
the shareholders following the Special
Meeting. At each subsequent annual meeting
of the shareholders of the Company, the
successors to the class of directors whose
term shall then expire shall be elected to
hold office for a term expiring at the
second succeeding annual meeting of the
shareholders of the Company.
2.1.2.2. (a) two of the three directors nominated by
Investor and elected pursuant to Section
2.1.1 shall be elected and serve in Class II
and the remaining one director nominated by
the Investor and elected pursuant to Section
2.1.1 shall be elected and serve in Class I,
(b) the two directors nominated by Investor
pursuant to Section 2.4.1 and elected upon
the increase of the board size to 9, shall
each be elected and serve in Class II, and
(c) the remaining directors not nominated by
the Investor shall be elected and serve in
Class I.
2.1.2.3. to ratify the actions taken by the Board of
the Company since the 1999 annual meeting of
the shareholders of the Company.
2.1.3. The Company hereby agrees to recommend to the Board
of Directors to take such actions as are necessary,
and each of the Shareholders and the Investor agrees
to vote his, her or its shares of the Company's
Common Stock, (and any other shares of the capital
stock of the Company over which he, she or it
exercises voting control) and take such other actions
as are necessary, at the next annual meeting of the
shareholders of the Company so that (a) those
directors nominated by the Investor and elected to
Class I at the Special Meeting or such other
individuals nominated by Investor shall be nominated
for election at the next annual meeting of the
shareholders of the Company for a two year term
expiring at the 2003 annual meeting of the
shareholders of the Company and (b) those directors
nominated by the Investor and elected to Class II at
the Special Meeting or such other individuals
nominated by Investor shall be confirmed at the next
annual meeting of the shareholders of the Company for
their then current term expiring at the 2002 annual
meeting of the shareholders of the Company.
2.1.4. If, at the end of the initial term of the directors
elected pursuant to Section 2.1.1 above, the Investor
beneficially owns (which ownership shall include
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shares issuable under the Warrant) at least 40% of
the total issued and outstanding shares of Common
Stock, such individuals or such other individuals as
Investor designates shall then be nominated for a
two-year term and the Company shall recommend such
nomination to the Board of Directors; provided;
however, if the Company fails to make such
recommendation Investor, as a shareholder, may
nominate its designees in accordance with the Charter
Documents.
2.2. Removal and Substitution of Board Members. The Company hereby
agrees to recommend to the Board of Directors to take such
actions as are necessary, and each of the Shareholders and the
Investor agrees to vote his, her or its shares of Common Stock
(and any other shares of the capital stock of the Company over
which he, she or it exercises voting control) and take such
other actions as are necessary, for the removal of any
director upon the request of the party or parties designating
such director and for the election to the Board of Directors
of a substitute designated by such party.
2.3. Vacancies on Board of Directors. The Company hereby agrees to
recommend to the Board of Directors take such actions as are
necessary, and each of the Shareholders and the Investor
agrees to vote his, her or its shares of Common Stock (and any
other shares of the capital stock of the Company over which
he, she or it exercises voting control) and take such other
actions as are necessary, in such manner as shall be necessary
or appropriate to ensure that any vacancy on the Board of
Directors of the Company (occurring for any reason) shall be
filled by the election to the Board of Directors of a
replacement designated by the party or parties who designated
the director whose failure to continue to serve causes the
applicable vacancy.
2.4. Size of the Board of Directors.
2.4.1. The Company shall recommend to the Board of Directors
to take such actions as are necessary so as to (i)
increase the number of the Board of Directors from
seven (7) to nine (9) directors in accordance with
the Charter Documents, (ii) elect and thereafter
continue in office as directors of the Company such
individuals who may be nominated by the Investor and
the Investor shall have the exclusive right to make
two (2) nominations of directorships for the newly
created Board seats and each director so designated
shall sit in Class II which shall be established at
the Special Meeting and shall sit for a term expiring
at the second succeeding annual meeting of the
shareholders of the Company held following the
Special Meeting. The Company shall use its best
efforts to ensure that within 120 days of the date
hereof all such actions are taken and that any
actions are proposed to the shareholders of the
Company for their approval, if required, by the
expiration of such 120 day period.
2.4.2. Immediately following modification to the Board size
pursuant to Section 2.4.1, the Company shall
recommend to the Board of Directors to propose
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an amendment to the Company Charter Documents such
that the Board size cannot thereafter be modified
except by the vote of at least 60% of the then
outstanding shares Common Stock; provided however,
that the required percentage vote shall be increased
appropriately to counteract any future option
exercises, stock issuances, stock dividends or other
events that would have a dilutive effect on the
shares held by Investor at such time.
2.4.3. If, at the end of the initial term of the directors
elected pursuant to Section 2.4.1 above, the Lender
beneficially owns (which ownership shall include
shares issuable under the Warrant) at least 40% of
the total issued and outstanding shares of Common
Stock, such individuals or such other individuals as
Investor designates shall then be nominated for a
two-year term and the Company shall recommend such
nomination to the Board of Directors; provided;
however, if the Company fails to make such
recommendation Investor, as a shareholder, may
nominate its designees in accordance with the Charter
Documents.
2.5. Information. The Company acknowledges that the Investor will
likely have, from time to time, information that may be of
interest to the Company ("Information") regarding a wide
variety of matters including, by way of example only, (1) the
Investor's technologies, plans and services, and plans and
strategies relating thereto; (2) current and future
investments the Investor has made, may make, may consider or
may become aware of with respect to other companies and other
technologies, products and services, including, without
limitation, technologies, products and services that may be
competitive with the Company's; and (3) developments with
respect to the technologies, products and services, and plans
and strategies relating thereto, of other companies,
including, without limitation, companies that may be
competitive with the Company. The Company recognizes that a
portion of such Information may be of interest to the Company.
Such Information may or may not be known by the member of the
Board of Directors appointed by the Investor (the "Board
Representative"). The Company, as a material part of the
consideration for this Agreement, agrees that the Investor
and/or Board Representative shall have no duty to disclose any
Information, or to otherwise take advantage of any opportunity
that may be of interest to the Company if it were aware of
such Information, and hereby waives, to the extent permitted
by law, any claim based on the corporate opportunity doctrine
or otherwise that could limit the Investor's ability to pursue
opportunities based on such Information or that would require
the Investor or its Board Representative to disclose any such
Information to the Company or offer any opportunity relating
thereto to the Company.
3. RESTRICTIONS ON TRANSFER
3.1. Right of First Refusal.
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In addition to the other limitations and restrictions set forth in this
Agreement, no Shareholder shall transfer all or any portion of its Common Stock
(the "OFFERED SHARES") unless such Shareholder (the "OFFEROR") first offers to
sell the Offered Shares pursuant to the terms of this Section 3.1.
3.1.1. Limitation on Transfers. Subject to Section 3.1.2, no
Transfer may be made unless the Offeror has received
a bona fide written or oral, evidenced by the terms
set forth in the Firm Offer, offer (the "PURCHASE
OFFER") from a Person (the "PURCHASER") to purchase
the Offered Shares for a purchase price (the "OFFER
PRICE") denominated and payable in United States
dollars at closing or according to specified terms,
with or without interest, which offer shall be in
writing signed by the Purchaser and shall be
irrevocable for a period ending no sooner than the
Business Day following the end of the Offer Period
(as defined below).
3.1.2. Offer by Offeror. In accordance with Section 3.1.3,
Offeror may at any time, in the absence of a Purchase
Offer, present an independent offer to Investor to
purchase the Offered Shares for a purchase price
equal to Market Price (the "Independent Price").
3.1.3. Offer Notice. Prior to making any Transfer that is
subject to the terms of this Section 3.1, the Offeror
shall give to the Investor written notice (the "OFFER
NOTICE") which shall include a copy of the Purchase
Offer, if pursuant to Section 3.1.1, and an offer
(the "FIRM OFFER"), substantially in the form
attached hereto as Exhibit E to sell the Offered
Shares to Investor (the "OFFEREE") for the either (i)
the Offer Price, (ii) Market Price or (iii) the
Independent Price, payable according to the same
terms as (or more favorable terms than) those
contained in the Purchase Offer or the offer is made
pursuant to Section 3.1.2 then in accordance with
commercially reasonable terms set forth in the Firm
Offer; provided that Offeror may, in its sole
discretion, substitute the Market Price for the Offer
Price in the Firm Offer and, in the case of an offer
pursuant to Section 3.1.2, the Independent Price
shall equal the Market Price.
3.1.4. Offer Period. The Firm Offer shall be irrevocable for
a period (the "OFFER PERIOD") ending at 11:59 p.m.,
Los Angeles, California time, on the 3rd Business Day
following the date of delivery of the Offer Notice.
3.1.5. Acceptance of First Offer. At any time during the
Offer Period, the Offeree may accept the Firm Offer
as to all of the Offered Shares, by giving written
notice of such acceptance to the Offeror, which
notice shall indicate the maximum number of Common
Stock that the Offeree is willing to purchase. If the
Offeree does not accept the Firm Offer as to all of
the Offered Shares during the Offer Period, the Firm
Offer shall be deemed to be rejected in its entirety.
With respect to Offered Shares offered pursuant to
Section 3.1.1, if after the Offeree rejects the Firm
Offer, the Offeror transfers the Offered Shares to
Purchaser, the Offered
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Shares so transferred shall remain subject to this
Agreement as stated in the legend in Section 9
hereof.
3.1.6. Closing of Purchase Pursuant to Firm Offer. In the
event that the Firm Offer is accepted, the closing of
the sale of the Offered Shares shall take place
within 5 Business Days after the Firm Offer is
accepted or, if later, the date of closing set forth
in the Purchase Offer. The Offeror and the Offeree
shall execute such documents and instruments as may
be necessary or appropriate to effect the sale of the
Offered Shares pursuant to the terms of the Firm
Offer and this Section 3.1.
3.1.7. "Market Price" shall mean the average closing price
of the prior ten (10) consecutive trading days of the
Company Common Stock.
3.2. Future Issuance and Preemptive Rights
From the Effective Date until such time as the Investor (i) obtains at
least 51% of the seats of the Company's Board of Directors and (ii) owns
beneficially at least 51% of the total issued and outstanding shares of the
capital stock of the Company on a Fully Diluted Basis, the Investor shall be
entitled to the rights in this Section 3.2; provided however, if at any time
after clauses (i) and (ii) have become effective, Investor (x) does not hold 51%
of the seats of the Company's Board of Directors and (y) owns beneficially more
than 40% but less than 51% of the total issued and outstanding capital stock of
the Company on a Fully Diluted Basis, then the Investor shall be entitled to the
rights set forth in this Section 3.2.
3.2.1. Offering Notice. If the Company wishes to issue to
any Person any Common Stock or any other securities
convertible into or exchangeable for membership
interests of the Company (collectively, "New
Securities") to any Person (the "Subject Purchaser"),
then the Company shall offer the Proportionate
Percentage (as hereinafter defined) of such New
Securities simultaneously to the Investor by sending
written notice (the "New Issuance Notice") to the
Investor, which New Issuance Notice shall state (a)
the number of New Securities proposed to be issued,
(b) the proposed purchase price per security of the
New Securities (the "Proposed Price") and (c) and the
location of the closing of the sale of the New
Securities. Upon delivery of the New Issuance Notice,
such offer shall be irrevocable unless and until the
rights provided for in Section 3.2.2 shall have been
waived or shall have expired.
3.2.2. Preemptive Rights; Exercise.
3.2.2.1. For a period of 15 Business Days after the
giving of the New Issuance Notice pursuant
to Section 3.2.1, the Investor shall have
the right to purchase its Proportionate
Percentage (as hereinafter defined) of the
New Securities at a purchase price equal to
the Proposed Price and upon the same terms
and conditions set forth in the New Issuance
Notice. Investor shall have the right to
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purchase that percentage of the New
Securities determined by dividing (a) the
total number of shares then owned by
Investor on an as-if converted to Common
Stock basis, by (b) the total number of
shares then outstanding on an as-if
converted to Common Stock basis (the
"Proportionate Percentage").
3.2.2.2. The right of Investor to purchase the New
Securities under subsection 3.2.2 above
shall be exercisable by delivering written
notice of the exercise thereof, prior to the
expiration of the 15 Business Day period
referred to in subsection (i) above, to the
Company, which notice shall state the amount
of New Securities that Investor elects to
purchase pursuant to Section 3.2. The
failure of Investor to respond within such
15 Business Day period shall be deemed to be
a waiver of Investor's rights under Section
3.2.2.2; provided that each Investor may
waive its rights under Section 3.2.2.2 prior
to the expiration of such 15 Business Day
period by giving written notice to the
Company.
3.2.3. Closing. The closing of the purchase of New
Securities subscribed for by the Investor under
Section 3.2.2 shall be held at the place designated
by the Company in the New Issuance Notice at 10:00
a.m., local time, on (a) the date of the closing of
the sale to the Subject Purchaser or (b) at such
other time and place as the parties to the
transaction may agree. At such closing, the Company
shall deliver certificates representing the New
Securities, and such New Securities shall be issued
free and clear of all liens and the Company shall so
represent and warrant, and further represent and
warrant that such New Securities shall be, upon
issuance thereof to the Investors and after payment
therefor, duly authorized, validly issued, fully paid
and non-assessable. Investor shall deliver at the
closing payment in full in immediately available
funds for the New Securities purchased by him or it.
At such closing, all of the parties to the
transaction shall execute such additional documents
as are otherwise necessary or appropriate.
3.3. Investor acknowledges that the Shareholders set forth on
Schedule 3.3 have as of the date hereof pledged their
respective Common Stock in the number of shares listed
opposite such Shareholder's name to the Person listed opposite
such Shareholder's name. Each Shareholder listed on Schedule
3.3 hereby represents and warrants to Investor that (i) such
pledge of Common Stock does not restrict the Shareholder's
ability to perform its obligations under this Agreement,
including without limitation with respect to Article 2 and
Article 8 or conflict with Investor's rights under Section 3.1
and (ii) prior to the Effective Date, such Shareholder has
obtained, and delivered a copy to Investor, a written waiver
and consent by Xxxxxx Xxxxxxx Xxxx Xxxxxx to the Shareholders
Rights Agreement with respect to shares owned by such
Shareholder. Each Shareholder hereby agrees that it shall not
pledge any Common Stock or enter into any agreement or take
other action on or after the Effective Date in any manner that
would restrict
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the Shareholder's ability to perform its obligations under
this Agreement, including without limitation with respect to
Article 2 and Article 8 or conflict with Investor's rights
under Section 3.1.
4. RIGHTS PLAN.
4.1. From the Effective Date, the Company shall not propose any
amendment to the Rights Agreement dated as of March 10, 1999,
as filed with the Securities and Exchange Commission (the
"SEC") on March 23, 1999, as amended and filed with the SEC on
April 7, 1999 and as amended on August 15, 2000 (the "Rights
Plan"), that would prevent, discourage or hinder the Investor
or its Affiliates from acquiring beneficial ownership of any
securities of the Company of at least 51% of the then
outstanding Common Stock. The Company acknowledges that the
August 15, 2000 amendment expressly waived the application of
the Rights Plan to Investor or its Affiliates.
5. COVENANTS OF THE COMPANY.
5.1. The Company agrees to use its best efforts to ensure that the
rights granted hereunder are effective and that the parties
hereto enjoy the benefits thereof. Such actions include,
without limitation, the use of the Company's best efforts to
cause the nomination and election of the directors as provided
in Section 2; the Company shall use its best efforts to make
such nominations to the Board on the first Business Day
following the Closing of the transactions contemplated in the
Purchase Agreement and Loan Agreement. The Company will not,
by any voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be performed hereunder
by the Company, but will at all times in good faith assist in
the carrying out of all of the provisions of this Agreement
and in the taking of all such actions as may be necessary or
in order to protect the rights of the parties hereunder
against impairment.
5.2. The Company covenants that it (i) will file any reports
required to be filed by it under the Securities Act and the
Exchange Act, including without limitation Section 13 and
15(d), (ii) shall provide Investor and the Shareholders and
prospective purchasers of their respective shares with the
information specified in Rule 144(A), and (iii) will take such
further action as the Shareholders or the Investor may
reasonably request to the extent required from time to time to
enable the Shareholders or the Investor to sell the Common
Stock (and any other shares convertible into Common Stock)
beneficially owned by it without registration under the
Securities Act within the limitation of the exemptions
provided by Rule 144 under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission. Upon the
request of any Shareholder or the Investor, the Company will
deliver to such holder a written statement as to whether it
has complied with such reporting requirements.
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5.3. After the requirement for the restrictive legend described in
Section 9 hereof and Section 2.4 of the Warrant is no longer
applicable because such Common Stock held by Investor or
Shareholder are freely transferable under the Securities Act,
the Company shall remove such legend upon the request of the
holder of such Common Stock, if outside counsel for such
holder reasonably determines that the transfer of such Common
Stock is no longer restricted by the Securities Act and
outside counsel for the Company reasonably concurs in such
determination.
5.4. The Charter Documents of the Company shall at all times
provide for the exculpation and indemnification of the Board
of Directors to the fullest extent permitted by the law of the
jurisdiction in which the Company is organized.
5.5. Except for options or warrants grated prior to the date
hereof, the Company shall not issue any capital stock of the
Company, options or warrants or other securities convertible
into capital stock of the Company to any senior management,
including any (i) executive officer or (ii) as determined by
the Board of Directors, other key personnel, or member of the
Board of Directors who is not a party to this Agreement as of
the Effective Date, without such Person simultaneously
agreeing to be bound by this Agreement in the same manner as
the Shareholders and executing and delivering to the Company,
the Investor and the Shareholders such agreement and
delivering an irrevocable proxy to Investor in accordance with
Article 8.
6. THE WARRANTS.
Each Shareholder hereby agrees to (i) vote, or cause the vote of, his
Shares and any shares such Shareholder may receive upon exercise or conversion
of any options in favor of the Warrants issued to Investor in an aggregate
amount of 2,500,000 shares of Common Stock at the next meeting of the
shareholders of the Company and any adjournment or postponement thereof, to the
extent that such Shares have not been voted by proxy pursuant to Section 8
hereof and (ii) take such other action necessary to effectuate the foregoing
clause (i).
7. CHARTER DOCUMENTS AND OTHER ACTIONS.
7.1. At any Company Shareholders' meeting or at any adjournment
thereof or in any other circumstances upon which their vote,
consent or other approval is sought, Shareholder shall vote
(or cause to be voted) such Shareholder's Shares against any
amendment of Company's Charter Documents or other proposal or
transaction involving Company or any of its subsidiaries which
amendment or other proposal or transaction would in any manner
impede, frustrate, prevent or nullify any of the transactions
contemplated in the Other Transaction Documents.
8. GRANT OF PROXY.
8.1. This Agreement be construed to constitute the granting of
proxies to the Investor, to secure Investor's performance as a
creditor of the Company, such proxies shall be deemed coupled
with an interest and are irrevocable for the term of this
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Agreement. The Parties acknowledge that the proxy from each
Shareholder is given in consideration for the extension of
credit by Investor to the Company. Such irrevocable proxy is
executed, and intended to be irrevocable in accordance with
the applicable provisions of the California Corporations Code.
8.2. Each of the Shareholders hereby indefinitely and irrevocably
appoints Investor as his true and lawful attorney in fact,
agent and proxy, and attorney-in-fact, with full power of
substitution, to vote all of the Common Stock beneficially
owned by him, now or hereafter acquired, as his proxy at any
meetings of the shareholders of the Company for the term of
this Agreement, with full power and authority to act for him
and in his name at any meeting of shareholders or by written
action by shareholders or in the transaction of such business
as may come before a meeting of the shareholders, including
matters set forth in Sections 2, 6 and 7 hereof, such grant of
proxy shall be deemed coupled with an interest.
8.3. Each Shareholder represents that there are no other proxies
(other than as set forth in this Section 8) heretofore given
in respect of such Shareholder's shares that will continue in
effect as of the date hereof.
9. LEGENDS.
9.1. In addition to any other legends required by law or agreements
between or among the parties, each certificate representing
Shareholders' or Investor's shares of Common Stock shall be
endorsed by the Company with a legend reading as follows:
"THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A SHAREHOLDERS
RIGHTS AND VOTING AGREEMENT BY AND AMONG THE SHAREHOLDER,
HAWKER PACIFIC AEROSPACE, AND LUFTHANSA TECHNIK AG (A COPY OF
WHICH MAY BE OBTAINED FROM HAWKER PACIFIC AEROSPACE). BY
ACCEPTING ANY INTEREST IN SUCH SHARES, THE PERSON ACCEPTING
THIS INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL BECOME
BOUND BY ALL THE PROVISIONS OF SAID SHAREHOLDERS RIGHTS AND
VOTING AGREEMENT."
10. NO HEIGHTENED DUTY.
10.1. Each party hereby acknowledges and agrees that no additional
fiduciary duty, duty of care, duty of loyalty or other
heightened duty will be created or imposed upon any party to
any other party, the Company or any other Shareholder of the
Company, by reason of this Agreement and/or any right or
obligation hereunder; provided, however, that a Shareholder
who is also a current member of the Company's Board of
Directors may engage in activities to the extent necessary to
satisfying fiduciary duty obligations to the Company and its
shareholders. Investor and each Shareholder signs solely in
his capacity as the record holder and beneficial owner of such
Shareholder's Shares and options or warrants and
11
13
nothing herein shall limit or affect any actions taken by a
Investor's designees or such to the Board or Shareholder in
its capacity as director of the Company.
11. DISPUTE RESOLUTION.
11.1. Disputes. Within fifteen (15) days of the written request of
either Party, the Parties shall meet to negotiate in good
faith a resolution of any dispute, claim, controversy or claim
arising out of or relating to this Agreement or the subject
matter of this Agreement, or the breach, termination or
invalidity thereof (a "Dispute").
11.2. Arbitration. Any Dispute which cannot be resolved pursuant to
Section 11.1 above within twenty (20) days of the written
request provided pursuant to Section 11.1, will be finally
settled by arbitration before a sole arbitrator in accordance
with the Commercial Rules of Arbitration of the American
Arbitration Association in effect on the date of this
Agreement. The arbitrator shall be appointed in accordance
with the applicable rules of arbitration. The arbitrator shall
be an individual with significant experience in investment
banking or venture capital.
11.3. Timing and Location of Arbitration. The Parties agree that any
arbitration process related to this Agreement shall be
structured to the fullest extent possible in accordance with
the applicable arbitration rules in such a way as to enable a
decision to be rendered by the arbitrators within ninety (90)
days of the date of the commencement of such arbitration. The
place of arbitration will be Salt Lake City, Utah. By this
agreement to arbitrate, the Parties waive their right to any
form of appeal or recourse to a court of law or other judicial
authority, to the fullest extent permitted by law, provided
that any judgment upon an award rendered by the arbitrator may
be entered in any court having jurisdiction therefor.
11.4. Confidentiality; Expenses.
11.4.1. The Parties shall keep the arbitration confidential
and shall not disclose to any Person, other than
those necessary to the proceedings, the existence of
the arbitration, any document submitted or exchanged
in connection with it, any oral submissions or
testimony, transcripts, or any award unless
disclosure is required by law or is necessary to
challenge, recognize or enforce an award. The
arbitrators and any experts shall be required to
agree to comply with this confidentiality provision
before accepting appointment.
11.4.2. All expenses of the arbitration procedure and
tribunal will be borne equally by the Parties, or as
otherwise prescribed by the applicable arbitration
rules. Each Party's expenses with respect to the
conduct of the arbitration, including the fees of
attorneys, accountants, or other experts used in
connection with the arbitration, will be borne by the
unsuccessful
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party in the arbitration, in whole or in part as
determined by the arbitration tribunal.
12. SPECIFIC PERFORMANCE.
12.1. The parties hereby acknowledge that it is impossible to
measure in money the damages that will accrue to a party
hereto or to its heirs, personal representatives, or
assignees, by reason of a party's failure to perform its
obligations under this Agreement and therefore agree that, in
addition to and without limiting any remedies available at
law, each of the parties hereto will have full equitable
remedies available to such party.
13. CONFIDENTIALITY.
13.1. Disclosure of Terms. The terms and conditions of this
Agreement (the "Terms"), including its existence, shall be
considered confidential information and shall not be disclosed
by any party hereto to any third party except in accordance
with the provisions set forth below.
13.2. Press Releases, Etc. Within sixty (60) days of the date of the
Purchase Agreement, the Company may issue a press release, in
a form approved in advance by Investor, disclosing that the
Investor has purchased an interest in the Company. The
Investor's name and the fact that the Investor is an investor
in the Company can be included in a reusable press release
boilerplate statement, so long as the Investor has given the
Company its initial approval of such boilerplate statement and
the boilerplate statement is reproduced in exactly the form in
which it was approved. No other announcements regarding the
Investor in a press release, conference, advertisement,
announcement, professional or trade publication, mass
marketing materials or otherwise to the general public may be
made without such Investor's prior written consent, which
consent could be withheld at the Investor's sole discretion.
13.3. Permitted Disclosures. Notwithstanding the foregoing, any
party may disclose any of the Terms to its current or bona
fide prospective investors, employees, investment bankers,
lenders, accountants and attorneys, in each case only where
such persons or entities are under appropriate nondisclosure
obligations.
13.3.1. Legally Compelled Disclosure. In the event that any
party is requested or becomes legally compelled
(including without limitation, pursuant to securities
laws and regulations) to disclose the existence of
this Agreement or the Purchase Agreement, Loan
Agreement, Warrant, Registration Rights Agreement
between the Company and Investor of even date
herewith, or the Deephaven Purchase Agreement
(collectively the "Other Transaction Documents") or
any of the Terms hereof in contravention of the
provisions of this Section 13, such party (the
"Disclosing Party") shall provide the other parties
(the "Non-Disclosing Parties") with prompt written
notice of that fact so that the appropriate party may
seek (with the
13
15
cooperation and reasonable efforts of the other
parties) a protective order, confidential treatment
or other appropriate remedy. In such event, the
Disclosing Party shall furnish only that portion of
the information which is legally required or which
has been previously released in a public filing and
shall exercise reasonable efforts to obtain reliable
assurance that confidential treatment will be
accorded such information to the extent reasonably
requested by any Non-Disclosing Party.
Notwithstanding the preceding, each Party
acknowledges that the other Party may be required to
make certain filings with SEC with respect to this
Agreement or the Other Transaction Documents; each
Disclosing Party shall provide the Non-Disclosing
Party with prior notice of any such filings, and no
such filing shall be made without the prior written
approval of the Non-Disclosing Party to the
applicable disclosures.
14. TERMINATION.
14.1. Events of Termination. This Agreement shall terminate in its
entirety on the earlier of (a) consummation of a transaction
in which the Company shall sell, convey, or otherwise dispose
of all or substantially all of its property or business, or
merge into or consolidate with any other corporation (other
than a wholly-owned subsidiary corporation), or effect any
other transaction or series of related transactions in which
at least 50% of the voting power of the Company is disposed
of, or (b) mutual agreement in writing by all of the parties
hereto; provided that this Agreement shall not be terminated
following a merger effected solely for the purpose of changing
the domicile of the Company; provided, further, the agreement
may be terminated with respect to a Shareholder in accordance
with Section 14.2 or as Investor, in its sole discretion, may
otherwise agree in writing with such Shareholder or (c) if
Shareholder ceases to be employed by the Company for any
reason, (i) the proxy granted in Section 8 shall continue for
six months following the termination of such employment
provided the shareholders of the Company have not approved the
Warrant as of the date of termination of such employment and
(ii) Investor shall be granted the right of first refusal set
forth in Section 3 as of the date of termination if
Shareholder desires to sell its Shareholder Shares at that
time.
14.2. Release of a Shareholder or Investor. In the event a
Shareholder or the Investor bound by this Agreement ceases to
hold any Company Common Stock, such party shall cease to be
Shareholder or Investor and all rights and obligations as a
party hereto shall cease; provided however, that (a) the
obligations of such party set forth in Article 13, Article 11
and Article 14 shall survive and continue in full force and
effect, (b) the representations and warranties of such party
shall survive and continue in full force and effect for the
longer of one year from the date Shareholder or Investor
ceases to be a shareholder or the time periods allowed under
applicable law, and (c) such party shall not be released from
any liabilities or obligations under this Agreement accruing
prior to the time such party ceases to hold any Company Common
Stock.
14
16
15. MISCELLANEOUS.
15.1. Amendments and Waivers. Any term hereof may be amended or
waived with the written consent of the Company, the Investor,
and holders of a majority in interest of the Common Stock held
by the Shareholders (or their respective successors and
assigns); provided, however, that any such amendment or waiver
cannot be effected in accordance with this Section 15.1 if it
adversely affects the rights of any Shareholder or the
Investor hereunder or increases the obligations of any
Shareholder or the Investor hereunder unless the affected
party expressly consents, in writing, to such amendment or
waiver. Any amendment or waiver effected in accordance with
this Section 15.1 shall be binding upon the Company, the
Investor and any holder of the Common Stock held by the
Shareholders, and each of their respective successors and
assigns.
15.2. Notices. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient on the date
of delivery, when delivered personally or by overnight courier
or sent by telegram or fax, or forty-eight (48) hours after
being deposited in the U.S. mail, as certified or registered
mail, with postage prepaid, and addressed to the party to be
notified at such party's address as set forth below or on
Exhibit D hereto.
15.3. Severability. Any provision of this Agreement which is invalid
or unenforceable shall be ineffective to the extent of such
invalidity or unenforceability, provided that such invalidity
or unenforceability does not deny any party the material
benefits of the transactions for which it has bargained and
such invalidity or unenforceability shall not affect in any
way the remaining provisions hereof.
15.4. Governing Law. This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in
accordance with the laws of the State of California, without
giving effect to principles of conflicts of law.
15.5. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and
all of which together shall constitute one instrument.
15.6. Successors and Assigns; No Third Party Beneficiaries. The
terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective successors and
assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the
parties hereto or their respective successors and assigns any
rights, remedies, obligations, or liabilities under or by
reason of this Agreement.
15.7. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto pertaining to the subject
matter hereof, and any and all other written or oral
agreements relating to the subject matter hereof existing
between the parties hereto are expressly canceled.
15
17
15.8. Captions; Interpretation. The section and other headings
contained in this Agreement are for reference purposes only
and shall not affect the meaning or interpretation of this
Agreement. Terms used with initial capital letters will have
the meanings specified, applicable to both singular and plural
forms, for all purposes of this Agreement. The words "include"
and "exclude" and derivatives of those words are used in this
Agreement in an illustrative sense rather than limiting sense.
15.9. No Investor Affiliate Liability. Each of the following is
herein referred to as an "Investor Affiliate:" (a) any direct
or indirect holder of any equity interests or securities of
the Investor (whether such holder is a limited or general
partner, member, Shareholder or otherwise), (b) any Affiliate
of the Investor, or (c) any director, officer, employee,
representative or agent of (i) Investor, (ii) any Affiliate of
Investor or (iii) any such holder of equity interests or
securities referred to in clause (a) above. No Investor
Affiliate shall have any liability or obligation of any nature
whatsoever in connection with or under this Agreement or any
of the Other Transaction Documents or the transactions
contemplated hereby or thereby (whether or not such Investor
Affiliate has called or received capital for contribution to
Investor), and the Shareholders and the Company hereby waive
and release all claims related to any such liability or
obligation.
15.10. Survival. The representations, warranties and covenants of the
Shareholders, Investor and the Company contained in or made
pursuant to this Agreement shall survive the execution and
delivery of this Agreement and, except as otherwise
specifically provided in this Agreement, shall remain
operative and in full force and effect for the longer of one
(1) year following the termination of the Agreement or time
periods allowed under applicable law, except (i) as otherwise
provided in Article 14 and (ii) as to any matters with respect
to which a bona fide written claim shall have been made or an
action at law or in equity shall have commenced before such
date, in which event survival shall continue (but only with
respect to, and to the extent of, such claim) until the final
resolution of such claim, including all applicable periods for
appeal.
15.11. Authority. If the Shareholder is married and the Shareholder's
Shares or options in the Company constitute community
property, this Agreement has been duly authorized, executed
and delivered by Shareholder, and constitutes a valid and
binding agreement of the Shareholder's spouse, enforceable
against such person in accordance with its terms (except as
enforceability may be limited by applicable bankruptcy,
insolvency, moratorium or similar laws affecting creditors'
rights generally or by principles governing the availability
of equitable remedies).
[Signature Pages Follow]
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18
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
COMPANY:
HAWKER PACIFIC AEROSPACE
By: /s/ XXXXX X. XXXXXX
----------------------------------
Name: XXXXX X. XXXXXX
--------------------------------
Title: PRESIDENT/CEO
-------------------------------
INVESTOR:
LUFTHANSA TECHNIK AG
By: /s/ XXXXXXXX XXXXXXXX
----------------------------------
Name: XXXXXXXX XXXXXXXX
--------------------------------
Title: GENERAL COUNSEL
-------------------------------
By: /s/ XXXXX X. XXXXXXXX
----------------------------------
Name: XXXXX X. XXXXXXXX
--------------------------------
Title: GENERAL MANAGER
-------------------------------
[Signatures Continue on Next Page]
Signature Page 1 of 2 to Shareholders Rights and Voting Agreement by
and among Hawker Pacific Aerospace, Lufthansa Technik AG, and
Xxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxx Xxxxx, and Xxxxxx Xxxxx
19
SHAREHOLDERS:
Xxxxx Xxxxxx /s/ XXXXX XXXXXX
---------------------------
Xxxxx Xxxx /s/ XXXXX X. XXXX
---------------------------
Xxxxxxx Xxxxx /s/ XXXXXXX XXXXX
---------------------------
Xxxxxx Xxxxx
---------------------------
Signature Page 2 of 2 to Shareholders Rights and Voting Agreement by
and among Hawker Pacific Aerospace, Lufthansa Technik AG, and
Xxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxx Xxxxx, and Xxxxxx Xxxxx
20
Exhibits:
Exhibit A - Schedule of Shareholders
Exhibit B - Schedule of Sellers
Exhibit C - Schedule of Investors
Exhibit D - Addresses
Exhibit E - Form of Firm Offer
Schedules:
Schedule 3.3: Pledge Agreements
Signature Page 2 of 2 to Shareholders Rights and Voting Agreement by
and among Hawker Pacific Aerospace, Lufthansa Technik AG, and
Xxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxx Xxxxx, and Xxxxxx Xxxxx
21
EXHIBIT A
SCHEDULE OF SHAREHOLDERS
--------------------------------------------- ------------------------- -------------------------
SHAREHOLDER NUMBER OF SHARES NUMBER OF OPTIONS
--------------------------------------------- ------------------------- -------------------------
Xxxxx Xxxxxx 138,930 72,105
--------------------------------------------- ------------------------- -------------------------
Xxxxx Xxxx 28,706 14,420
--------------------------------------------- ------------------------- -------------------------
Xxxxxxx Xxxxx 28,706 14,420
--------------------------------------------- ------------------------- -------------------------
Xxxxxx Xxxxx 0 28,841
--------------------------------------------- ------------------------- -------------------------
TOTAL: 196,342 129,786
--------------------------------------------- ------------------------- -------------------------
A-1
22
EXHIBIT B
SCHEDULE OF SELLERS
NAME NUMBER OF SHARES
------------------------------------------------------------ ----------------------------------------------------------
Xxxxxxx Xxxxxxx 961,252
------------------------------------------------------------ ----------------------------------------------------------
Xxxx Xxxxxx 444,943
------------------------------------------------------------ ----------------------------------------------------------
Xxxxxx Xxxxxx 287,060
------------------------------------------------------------ ----------------------------------------------------------
Xxxxxx Xxxxxx 324,120
------------------------------------------------------------ ----------------------------------------------------------
Xxxxx Xxxxxxx 319,120
------------------------------------------------------------ ----------------------------------------------------------
TOTAL: 2,336,495
------------------------------------------------------------ ----------------------------------------------------------
B-1
23
EXHIBIT C
SCHEDULE OF INVESTOR'S INTEREST
--------------------------------------------------- --------------------- ---------------------
INVESTOR NUMBER OF SHARES NUMBER OF WARRANTS
--------------------------------------------------- --------------------- ---------------------
LUFTHANSA TECHNIK AG 2,336,495 2,500,000(1)
--------------------------------------------------- --------------------- ---------------------
--------
(1) The number of warrant shares are subject to shareholder approval in
accordance with the Warrant.
C-1
24
EXHIBIT D
ADDRESSES
COMPANY:
HAWKER PACIFIC AEROSPACE
0000 Xxxxxxx Xxx
Xxx Xxxxxx, Xxxxxxxxxx 00000
Attn.: Chief Financial Officer
Fax No.: 000 000 0000
SHAREHOLDERS:
Xxxxx Xxxxxx
Xxxxx Xxxx
Xxxxxxx Xxxxx
Xxxxxx Xxxxx
c/o Hawker Pacific Aerospace
0000 Xxxxxxx Xxx
Xxx Xxxxxx, XX 00000
Fax No.: 000-000-0000
INVESTOR:
LUFTHANSA TECHNIK XX
Xxx xxxx Xxxxx 000
X-00000 Xxxxxxx, XXXXXXX
Attn.: Xxxxxxxx Xxxxxxxx
Fax No.: 000 00 00 0000 0000
With a copy to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Fax No.: (202) 663 - 6363
D-1
25
EXHIBIT E
FIRM OFFER
[SELLER]
[ADDRESS]
[PHONE AND FAX]
_________, 2000
Lufthansa Technik AG
Weg beim Jager 193
D-22335 Hamburg, GERMANY
Re: Firm Offer
Dear Sir:
The undersigned, hereby makes an irrevocable offer to sell shares of
Common Stock ("Common Stock") of Hawker Pacific Aerospace ,a California
corporation (the "Corporation") to Lufthansa Technick AG, a corporation
organized under the laws of the Germany ("Offeree") pursuant to the terms and
conditions set forth in this Firm Offer ("Firm Offer"):
1. Number of Shares : The undersigned (the "Seller") certifies to
the Offeree that they are a registered holder and beneficial owner of
______shares of the Corporation's Common Stock and desires to sell those shares
("Offered Shares") to Offeree for [Offer Price] [Market Price] as set forth in
paragraph 2 below, payable according to the same terms as [or more favorable
terms than] those contained in the Purchase offer (attached hereto), provided
that Seller may in its sole discretion substitute the Market Price for the Offer
Price .
(i) " Market Price" shall mean the average closing price of the prior
ten (10) consecutive trading days of the Company Common Stock from the date
hereof.
(ii) "Offer Price" shall mean offer a Seller received by oral or
written notice to purchase the Offered Shares for a purchase price.
(iii) "Purchase Offer" shall mean the bona fide offer Seller has
received from a third party purchaser for the offered shares.
2. Purchase Price : Seller, hereby agrees to irrevocably sell the
Offered Shares to the Offeree at a purchase price ______ per share based on
[Offer Price] [Market Price].
X-0
00
0. [Other Terms of the Purchase]
4. Offer Period. This Firm Offer shall be irrevocable for a
period (the "Offer Period") ending at 11:59 p.m., Los Angeles, California time,
on the 3rd Business Day following the date of delivery of this Firm Offer to
Offeree.
5. Acceptance of First Offer. At any time during the Offer
Period, the Offeree may accept the Firm Offer as to all of the Offered Shares,
by giving written notice of such acceptance to the Seller, which notice shall
indicate the maximum number of Common Stock that the Offeree is willing to
purchase at the [Offer Price] [Market Price]. If the Offeree does not accept the
Firm Offer as to all of the Offered Shares by the expiration of the Offer
Period, the Firm Offer shall be deemed to be rejected in its entirety.
6. Closing of Purchase Pursuant to Firm Offer. In the event that
the Firm Offer is accepted, the closing of the sale of the Offered Shares shall
take place within 5 Business Days after the Firm Offer is accepted by Offeree
or, if later, the date of closing set forth in the Purchase Offer. The Seller
and the Offeree shall execute such documents and instruments as may be necessary
or appropriate to effect the sale of the Offered Shares pursuant to the terms of
this Firm Offer.
7. Offer Irrevocable; Acceptance Procedure: Execution and
delivery of this Firm Offer by Seller and countersignature by Offeree below
shall constitute an irrevocable offer and acceptance of this Firm shares of
Common Stock, and Seller shall be bound to transfer and sell to Offeree the
Offered Shares and Offeree shall be bound to purchase the Offered Shares from
Seller in accordance with the terms of this Firm Offer.
Sincerely,
---------------------------------
Name:
Acknowledged and Agreed to by:
LUFTHANSA TECHNIK AG OFFEREE
By:
--------------------------------
Name:
Title:
E-2
27
SCHEDULE 3.3
PLEDGE AGREEMENTS
The following Shareholders have pledged their respective Common Stock in Margin
Client Agreements with Xxxxxx Xxxxxxx Xxxx Xxxxxx.
Xxxx Xxxxxx 138,930 shares
Xxxxx Xxxx 28,706 shares
Xxxx Xxxxx 28,706 shares
