EXHIBIT 10.5
AGREEMENT
THIS AGREEMENT, dated as of this the 10th day of March, 2000 (the
"AGREEMENT"), by and among AVIATION SALES COMPANY, a Delaware corporation (the
"COMPANY"), LJH, Corporation, a Texas corporation, of which Xxxx X. Xxxxxx is
the sole stockholder ("LJH CORP."), for so long as Xxxx X. Xxxxxx shall
beneficially own 100% of the capital stock of LJH, and XXXX X. XXXXXX
("XXXXXX"), an individual and resident of the State of Texas (Xxxxxx and LJH
Corp., and their respective affiliates and associates, are hereinafter referred
to collectively as the "XXXXXX GROUP").
WHEREAS, the Board of Directors of the Company (the "BOARD") has agreed
to amend ("AMENDMENT NO. 1 TO RIGHTS AGREEMENT") its Rights Agreement dated
November 1, 1999 (as amended by Amendment No. 1 to Rights Agreement, the "RIGHTS
AGREEMENT") to permit the Xxxxxx Group to beneficially own up to, but not more
than, twenty five percent (25%) of the issued and outstanding shares of common
stock of the Company, par value $0.001 per share (the "COMMON STOCK"), without
triggering the distribution of rights under the Rights Agreement;
WHEREAS, the Board has approved the transactions contemplated by
Amendment No. 1 to Rights Agreement and this Agreement upon the terms and
conditions contained therein and herein;
WHEREAS, the parties hereto believe that it is desirable to establish
certain provisions with respect to the shares of Common Stock which may be
acquired by, or which are currently held by the Xxxxxx Group;
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Capitalized terms used herein shall have the
following meanings:
"13D/G GROUP" shall mean two or more persons acting together for the
purpose of acquiring, holding, voting or disposing of Company Voting Securities,
which persons would be required under the Exchange Act to file a statement on
Schedule 13D or 13G with the SEC as a "person" within the meaning of Section
13(d)(3) of the Exchange Act if such person beneficially owned sufficient
securities to require such a filing under the Exchange Act.
"AFFILIATE" of any person shall mean any person directly or indirectly
controlling, or controlled by such person or under common control with such
person. For purposes of this Agreement, (i) members of the Xxxxxx Group, on the
one hand, and the Company (and its affiliates), on the other, shall not be
deemed to be affiliates of each other and (ii) Xxx X. Xxxxxx Xx. ("XXXXXX")
shall not be deemed to be an affiliate of the Company (and its affiliates).
"AGENTS" shall have the meaning set forth in Section 3.3.
"AMENDMENT NO. 1 TO RIGHTS AGREEMENT" shall have the meaning set forth
in the Recitals.
"ASSOCIATE" shall mean any person having a business, financial or
familial relationship that might reasonably be expected to affect the
individual's judgment with respect to matters in which a member of the Xxxxxx
Group might be interested; solely for purposes of this Agreement and the Rights
Agreement, (i) Xxxxxx shall be deemed to be an "associate" of Xxxxxx and of LJH
Corp. (and thereby a member of the Xxxxxx Group), and (ii) the members of the
Xxxxxx Group, on the one hand, and the Company, on the other hand, shall not be
deemed to be associates of each other. The term "ASSOCIATED" shall have a
correlative meaning.
"BENEFICIAL OWNERSHIP" shall have the meaning ascribed to such term
pursuant to Regulation 13D-G of the Exchange Act.
"BENEFICIALLY OWN" shall mean, with respect to any security, having
direct or indirect (including through any subsidiary or affiliate) "beneficial
ownership" of such security, as determined pursuant to Rule 13d-3 under the
Exchange Act.
"BOARD" shall have the meaning set forth in the Recitals.
"CHANGE IN CONTROL PROPOSAL" shall have the meaning set forth in
Section 3.2.
"COMBINED VOTING POWER" shall mean, at any measurement date, the total
number of votes of Company Voting Securities which could have been cast in an
election of directors of the Company had a meeting of the stockholders of the
Company been duly held based upon a record date as of the measurement date if
all Company Voting Securities then outstanding and entitled to vote at such
meeting were present and voted to the fullest extent possible at such meeting.
"COMMON STOCK" shall have the meaning set forth in the Recitals.
"COMPANY" shall have the meaning set forth in the Recitals.
"COMPANY VOTING SECURITIES" shall mean, collectively, Common Stock, any
preferred stock of the Company that is entitled to vote generally for the
election of directors, any other class or series of Company securities that is
entitled to vote generally for the election of directors and any other
securities, warrants or options or rights of any nature (whether or not issued
by the Company) that are convertible into, exchangeable for, or exercisable for
the purchase of, or otherwise give the holder thereof any rights in respect of,
Common Stock, or any other class or series of Company securities that is
entitled to vote generally for the election of directors.
"DIRECTOR" shall mean a member of the Board.
"DISINTERESTED DIRECTOR" shall mean a director of the Company who (i)
is not an employee of the Company, (ii) is not serving as a director of the
Company as a nominee of the Xxxxxx Group pursuant to Section 3.10, and (iii) is
not an affiliate or associate of the Xxxxxx Group.
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"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"GROUP" shall mean a "group" as such term is used in Section 13(d)(3)
of the Exchange Act.
"XXXXXX" shall have the meaning set forth in the Recitals.
"XXXXXX GROUP" shall have the meaning set forth in the Recitals.
"LJH CORP." shall have the meaning set forth in the Recitals.
"PERSON" shall mean any individual, corporation, partnership, limited
partnership, limited liability company, joint venture, trust, unincorporated
organization, other form of business, or legal entity or government authority.
"RIGHTS AGREEMENT" shall have the meaning set forth in the Recitals.
"SEC" shall mean the Securities and Exchange Commission.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
2.1. The Xxxxxx Group represents and warrants to the Company as
follows:
(a) LJH Corp. is a validly existing corporation under the laws
of the State of Texas and has the full legal right, power and authority to enter
into this Agreement and perform its obligations hereunder.
(b) Xxxxxx is an individual having the full legal right, power
and authority to enter into this Agreement and perform his respective
obligations hereunder.
(c) This Agreement has been duly authorized, executed and
delivered by each of Xxxxxx and LJH Corp. and constitutes the legally valid and
binding agreement of each of Xxxxxx and LJH Corp., enforceable against each of
them in accordance with the terms hereof.
(d) Neither the execution and delivery of this Agreement by
each of Xxxxxx and LJH Corp. nor the performance of their respective obligations
hereunder will conflict with or result in a breach of or constitute a default
under any law, rule, regulation, judgment, order or decree of any court,
arbitrator or governmental agency or instrumentality, or of any agreement or
instrument to which any member of the Xxxxxx Group is bound or affected or of
any organizational documents of each such member.
(e) Except for the 2,037,200 shares of Common Stock
beneficially owned by LJH Corp. as of March 8, 2000, and the 55,000 shares of
Common Stock beneficially owned by Xxxxxx (through options received from the
Company exercisable for Company Voting Securities, shares of Common Stock
acquired upon exercise of such stock options or shares of Common Stock
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beneficially owned through Producers Pipeline Corporation ("PPC")), as of the
date hereof, no shares of Company Voting Securities are beneficially owned by
any member of the Xxxxxx Group.
(f) Other than this Agreement and the other agreements
contemplated hereby, no member of the Xxxxxx Group has any agreement,
arrangement or understanding with any other person or group who is not a member
of the Xxxxxx Group with respect to acquiring, holding, voting or disposing of
Company Voting Securities.
2.2. The Company represents and warrants to the Xxxxxx Group as
follows:
(a) The Company is a validly existing corporation under the
laws of the State of Delaware and has the power and authority to enter into this
Agreement and perform its obligations hereunder.
(b) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the legally valid and binding agreement
of the Company, enforceable against the Company in accordance with the terms
hereof.
(c) Neither the execution and delivery of this Agreement nor
the performance of its obligations hereunder will conflict with or result in a
breach of or constitute a default under, any law, rule, regulation, judgment,
order or decree of any court, arbitrator or governmental agency or
instrumentality, or of any agreement or instrument to which the Company is bound
or affected or of any organizational documents of the Company.
SECTION 3. COVENANTS WITH RESPECT TO COMPANY VOTING SECURITIES.
3.1. ACQUISITION OF COMPANY VOTING SECURITIES.
(a) Except as specifically set forth in this Agreement, until
the termination of this Agreement, no member of the Xxxxxx Group shall, directly
or indirectly, acquire, offer to acquire, agree to acquire, become the
beneficial owner of or obtain any rights in respect of any Company Voting
Securities, by purchase or otherwise, or take any action in furtherance thereof.
(b) No member of the Xxxxxx Group shall, prior to March 10,
2005, directly or indirectly acquire, offer to acquire, agree to acquire, become
the beneficial owner of or obtain any rights in respect of any Company Voting
Securities, by purchase or otherwise, or take any action in furtherance thereof,
if the effect of such acquisition, agreement or other action would be (either
immediately or upon consummation of any such acquisition, agreement or other
action, or upon the expiration of any period of time provided in any such
acquisition, agreement or other action) to increase the aggregate beneficial
ownership of Company Voting Securities by the Xxxxxx Group to such number of
Company Voting Securities that represents or possesses greater than 25.0% of the
Combined Voting Power of Company Voting Securities; PROVIDED, HOWEVER, that
shares of Common Stock beneficially owned by Xxxxxx solely through the grant of
stock options by the Company to Xxxxxx as a Director of the Company shall be
excluded from such percentage. Notwithstanding the foregoing maximum percentage
limitation, (A) no member of the Xxxxxx Group shall be obligated to dispose of
any Company Voting Securities beneficially owned in violation of such maximum
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percentage limitation if, and solely to the extent that, its beneficial
ownership is or will be increased solely as a result of a repurchase, redemption
or other acquisition of any Company Voting Securities by the Company or any of
its subsidiaries, and (B) the foregoing maximum percentage limitation shall not
prohibit any purchase of Company Voting Securities by any member of the Xxxxxx
Group directly from the Company (including pursuant to the exercise of stock
options, rights, subscription rights or standby purchase obligations in
connection with rights offerings by the Company), PROVIDED such purchase is
approved by a majority of the Disinterested Directors.
3.2. TAKEOVER PROPOSALS BY THE XXXXXX GROUP. No member of the Xxxxxx
Group shall make or submit a proposal to the Company to beneficially own or
become the beneficial owner of thirty five percent (35%) or more of the Combined
Voting Power of Company Voting Securities (a "CHANGE IN CONTROL PROPOSAL");
PROVIDED, HOWEVER, that a Change In Control Proposal shall not be prohibited if
a confidential Change In Control Proposal is presented to and approved by a
majority of the Disinterested Directors after such Disinterested Directors have
received from a nationally recognized investment banking firm, an opinion that
the Change In Control Proposal is fair to the stockholders of the Company other
than the Xxxxxx Group.
3.3. DISPOSITION OF COMPANY VOTING SECURITIES AND OTHER RELATED
MATTERS.
(a) No member of the Xxxxxx Group shall, directly or
indirectly, sell, transfer any beneficial interest in or otherwise dispose of
any Company Voting Securities, other than to another member of the Xxxxxx Group,
except:
(i) for open market sales effected through the New
York Stock Exchange (or any successor thereto);
(ii) in a transaction or series of related
transactions that would result in a transfer to any
person or group of no greater than 3.0% of the
Combined Voting Power of Company Voting Securities;
or
(iii) in a transaction or series of related
transactions that would result in a transfer to any
person or group that, to the knowledge of the Xxxxxx
Group at the time of such transaction, upon
consummation of such sale, transfer or disposition,
would, directly or indirectly, have beneficial
ownership of or the right to acquire beneficial
ownership of such number of Company Voting Securities
that represent no greater than 5.0% of the Combined
Voting Power of Company Voting Securities.
Except with respect to the transactions effected in accordance with Subsection
3.3(a)(i) hereof, the members of the Xxxxxx Group shall, as appropriate, request
all purchasers of Company Voting Securities (or rights, options or warrants to
purchase any such shares) from any of them in negotiated transactions, and all
underwriters, placement agents or brokers ("AGENTS") for any public offerings or
open market transactions involving Company Voting Securities (or rights, options
or warrants to purchase any such shares), to represent and warrant that the
requirements of this Section 3.3(a) have been satisfied with respect to such
transactions, such representations by Agents to be qualified to the best of such
Agents' knowledge. Nothing in this Subsection 3.3 shall be construed to prohibit
any
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BONA FIDE pledge or hypothecation of Company Voting Securities by any member of
the Xxxxxx Group.
(b) Proposed transfers of Company Voting Securities by members
of the Xxxxxx Group that are not in compliance with this Subsection 3.3 shall be
of no force or effect.
3.4. PROXY SOLICITATIONS, ETC. No member of the Xxxxxx Group shall
solicit proxies, assist, encourage or participate with any other person in any
way, directly or indirectly, in the solicitation of proxies, become a
"participant" in a "solicitation," or assist any "participant" in, a
"solicitation" (as such terms are defined in Rule 14a-1 of Regulation 14A under
the Exchange Act), in each case in opposition to the recommendation of a
majority of the Board, or submit any proposal for the vote of stockholders of
the Company, or recommend or request or induce or attempt to induce any other
person to take any such actions, or seek to advise, encourage or influence any
other person with respect to the voting of Company Voting Securities.
3.5. NO VOTING TRUSTS, POOLING AGREEMENTS, OR FORMATION OF "GROUPS" No
member of the Xxxxxx Group shall grant a proxy to any person with respect to
Company Voting Securities (other than to Xxxxxx), or form, join in or in any
other way participate in any partnership, pooling agreement, syndicate, voting
trust or other "group," including a 13D/G Group, other than to or with any
member of the Xxxxxx Group, with respect to Company Voting Securities, or enter
into any agreement (other than this Agreement) or arrangement or otherwise act
in concert with any other person or group (other than a group comprised
exclusively of the Xxxxxx Group), for the purpose of acquiring, holding, voting
or disposing of Company Voting Securities.
3.6. AFFILIATE TRANSACTIONS. No member of the Xxxxxx Group shall engage
in any transaction with the Company without the prior approval of a majority of
the Disinterested Directors; PROVIDED that the foregoing provision shall not
apply to (i) transactions contemplated by any other agreement as in effect on
the date hereof or any amendment thereto and disclosed herein, (ii) transactions
regarding the purchase or sale of goods or services, in each case, in the
ordinary course of business (including, without limitation, pursuant to joint
venture agreements) which are fair to the Company pursuant to guidelines set
forth by of the Board and approved by a majority of the Disinterested Directors,
or (iii) any compensation which may be paid to Xxxxxx solely in his capacity as
a Director of the Company and on the same basis as is paid to other Directors of
the Company.
3.7. NO SOLICITATION OF BIDDERS. No member of the Xxxxxx Group shall
directly or indirectly assist, solicit, encourage or induce any person to bid
for, submit a proposal for or acquire any outstanding Company Voting Securities.
3.8. NON-CIRCUMVENTION. No member of the Xxxxxx Group or any affiliate
or associate of any such member shall take any action, alone or in concert with
any other person or group, to seek control of the Company or otherwise seek to
circumvent the limitations of the provisions of this Agreement without the prior
approval of a majority of the Disinterested Directors. Without limiting the
generality of the foregoing, no member of the Xxxxxx Group shall (i) present to
the Company or to any third party any proposal that can reasonably be expected
to result in a change of control of the Company or in any increase beyond the
percentage specified in Subsection 3.1 in the Combined
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Voting Power of Company Voting Securities beneficially owned in the aggregate by
the Xxxxxx Group, (ii) publicly suggest or announce its willingness or desire to
engage in a transaction or group of transactions or have another person engage
in a transaction or group of transactions that would result in a change of
control of the Company or in any increase beyond the percentage specified in
Subsection 3.1 in the Combined Voting Power of Company Voting Securities
beneficially owned in the aggregate by the Xxxxxx Group, (iii) initiate,
request, induce or attempt to induce or give encouragement to any other person
to initiate any proposal that can reasonably be expected to result in a change
of control of the Company or in any increase beyond the percentage specified in
Subsection 3.1 in the Combined Voting Power of Company Voting Securities
beneficially owned in the aggregate by the Xxxxxx Group, or (iv) publicly
request, suggest, propose or announce its desire to amend or obtain a waiver of
any provision of this Agreement. Each of Xxxxxx and LJH Corp. agrees to use its
best efforts to ensure that each member of the Xxxxxx Group (as such may be
constituted from time to time) complies with the provisions of this Agreement as
if each member of the Xxxxxx Group were a signatory hereto and that the failure
by any member of the Xxxxxx Group to comply with the provisions of this
Agreement shall be deemed to be a breach hereof by Xxxxxx and LJH Corp.
3.9. CONFIDENTIAL MATERIAL.
(a) DEFINITIONS. For purposes of this Section:
(i) The term "CONFIDENTIAL MATERIAL" means all
information, whether oral written or otherwise (including any information
furnished prior to the execution of this Agreement), furnished or otherwise
disclosed by the Company to any member of the Xxxxxx Group or any Representative
(as defined below), and all notes, reports, analyses, compilations, studies and
other materials prepared by the Xxxxxx Group or any Representative (in whatever
form maintained, whether documentary, computer storage or otherwise) containing
or based upon, in whole or in part, any such information. The term "Confidential
Material" does not include information which is or becomes generally available
to the public other than as a result of a disclosure by any member of the Xxxxxx
Group or any Representative (as defined below) or becomes available to any
member of the Xxxxxx Group or any Representative on a nonconfidential basis from
any source that is not known by such member of the Xxxxxx Group or such
Representative to be bound by an obligation of confidentiality to the Company.
(ii) The term "REPRESENTATIVE" shall mean any and all
partners, directors, officers, employees, agents, prospective financing sources,
affiliates, associates or representatives (including representatives of
advisors) of any member of the Xxxxxx Group who needs to know such information
for the purpose of facilitating the transactions contemplated by this Agreement.
(b) Each member of the Xxxxxx Group and each Representative
shall preserve the confidentiality of the Confidential Material and shall not
disclose any of the Confidential Material in any manner whatsoever; PROVIDED,
HOWEVER, that (i) any member of the Xxxxxx Group may make any disclosure of such
information to which the Company gives its prior written consent, and (ii) any
of such information may be disclosed to a Representative who needs to know, and
who is informed of the confidential nature of the Confidential Material and of
the terms of this Subsection 3.9 and who agrees to keep such information
confidential. In any event, the Xxxxxx Group shall inform any
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Representative which has, or will have, access to any or all of the Confidential
Material, of the existence and content of this Agreement and shall take all
reasonable action necessary to cause such Representative to observe the
confidentiality requirements of this Agreement. In any event, each member of the
Xxxxxx Group shall be responsible for any breach of this Agreement by any
Representative.
(c) If any member of the Xxxxxx Group or any Representative is
requested or required (by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand, any informal or
formal investigation by any government or governmental agency or authority or
otherwise) to disclose any Confidential Material or such person's opinion,
judgment, view or recommendation concerning the Company as developed from the
Confidential Material, the Xxxxxx Group agrees (i) to immediately notify the
Company in writing of the existence, terms and circumstances surrounding such a
request, (ii) to consult with the Company on the advisability of taking legally
available steps to resist or narrow such request and shall exercise its best
efforts to obtain reliable assurance that confidential treatment required hereby
will be accorded such Confidential Material, and (iii) if disclosure of such
information is required, to furnish only that portion of the Confidential
Material which, in the opinion of counsel to the Xxxxxx Group, the Xxxxxx Group
is legally compelled to disclose, and to cooperate with any action by the
Company to obtain an appropriate protective order or other reliable assurance
that confidential treatment will be accorded the Confidential Material.
(d) Xxxxxx hereby acknowledges on behalf of himself and all
members of the Xxxxxx Group (and agrees to advise any Representative and members
of the Xxxxxx Group who are informed in accordance with the terms of this
Subsection 3.9 as to the matters which are the subject of this Subsection 3.9),
that the United States securities laws prohibit any person who has received from
an issuer material, non-public information, including certain information that
may be part of the Confidential Material, while such information is non-public,
from purchasing or selling securities of such issuer or from communicating such
information to any other person under circumstances in which it is reasonably
foreseeable that such person is likely to purchase or sell such securities.
3.10. VOTING OF COMPANY VOTING SECURITIES AND OTHER RELATED MATTERS.
(a) Each member of the Xxxxxx Group that is a holder of record
of Company Voting Securities shall be present, and each member of the Xxxxxx
Group that is a beneficial owner of Company Voting Securities shall cause the
holder of record to be present, in person or by proxy, at all meetings of the
stockholders of the Company so that all Company Voting Securities owned of
record or beneficially by the Xxxxxx Group may be counted for the purpose of
determining the presence of a quorum at such meetings.
(b) As long as the members of the Xxxxxx Group beneficially
own in the aggregate at least 8.0% of the outstanding shares of Common Stock,
the Xxxxxx Group shall have the right to designate one individual for nomination
as a director of the Company (which such individual shall be reasonably
acceptable to the Board); PROVIDED that no individual who is an officer,
director, partner or principal stockholder of any significant competitor of the
Company or any of its subsidiaries shall be eligible to serve as a director;
PROVIDED, HOWEVER, that at any time when the Xxxxxx Group and its affiliates
shall no longer beneficially own at least 5% of the outstanding shares
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of Common Stock, the Xxxxxx Group shall not have the right to nominate any
individual to serve as a director of the Company, the Xxxxxx Group's rights
under this Subsection 3.10 shall terminate, and the Xxxxxx Group shall cause its
designee to resign forthwith such that no designee of the Xxxxxx Group remains
on the Board.
(c) The Company agrees to use its best efforts, to cause to be
elected to the Board one nominee of the Xxxxxx Group (subject to Subsection
3.10(b) above). The Company shall take all necessary or appropriate action to
assist in the nomination and election as a director the person designated by the
Xxxxxx Group and entitled to election to the Board pursuant to the provisions of
this Subsection 3.10.
3.11. WAIVER OF REQUIREMENTS.
Notwithstanding anything in this Section 3 to the contrary,
any of the terms of Subsections 3.1 through Subsection 3.10 may be waived, in
whole or in part and as to particular transactions or matters or as to one or
more members of the Xxxxxx Group, if (a) in the case of a waiver of an
obligation of a member of the Xxxxxx Group, a majority of the Disinterested
Directors shall have approved such waiver in accordance with applicable law, or
(b) in the case of a waiver of an obligation of the Company provided for the
benefit of a member of the Xxxxxx Group, such member of the Xxxxxx Group shall
have consented in writing to such waiver.
3.12. TERMINATION OF RESTRICTIONS. The restrictions on disposition
contained in Section 3 shall terminate upon, and shall not apply to, any of the
following events:
(a) the Company, with the approval of a majority of the
Disinterested Directors, shall enter into an agreement with any person or group
providing for an offer to be made to purchase 50% or more shares of Common Stock
or all or substantially all of the assets of the Company; or
(b) the Company, with the approval of a majority of the
Disinterested Directors, shall enter into an agreement calling for the merger or
consolidation of the Company with or into any other person in which (i) the
Company's outstanding capital stock shall be converted into cash or other
property, (ii) a majority of the outstanding voting stock of the surviving
corporation immediately following such merger or consolidation will not be owned
by persons who were stockholders of the Company immediately before the merger or
consolidation, and (iii) notice of a meeting of shareholders of the Company
called to consider such agreement shall be given.
SECTION 4. TERM OF AGREEMENT; CERTAIN PROVISIONS REGARDING TERMINATION.
Unless this Agreement specifically provides for earlier termination
with respect to any particular right or obligation, this Agreement shall
terminate if the Xxxxxx Group shall, at any time (in compliance with this
Agreement), sell or otherwise dispose of or cease to own any Company Voting
Securities so that the Xxxxxx Group beneficially owns, in the aggregate less
than 8% of all shares of Common Stock.
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SECTION 5. REMEDIES.
Each respective member of the Xxxxxx Group and the Company acknowledge
and agree that (i) the provisions of this Agreement are reasonable and necessary
to protect the proper and legitimate interests of the parties hereto, and (ii)
the parties would be irreparably damaged in the event any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties shall be
entitled to preliminary and permanent injunctive relief to prevent breaches of
the provisions of this Agreement by the other parties without the necessity of
proving actual damages or of posting any bond, and to enforce specifically the
terms and provisions hereof, which rights shall be cumulative and in addition to
any other remedy to which the parties may be entitled hereunder or at law or
equity.
SECTION 6. GENERAL PROVISIONS.
6.1. CHOICE OF LAW; FORUM SELECTION. This Agreement shall be
construed, interpreted and the rights of the parties determined in accordance
with the laws of the State of Delaware without reference to the choice of laws
provisions thereof. Each of the parties to this Agreement hereby irrevocably and
unconditionally (i) agrees to be subject to, and hereby consents and submits to,
the jurisdiction of the Court of Chancery of the State of Delaware for any
litigation arising out of or relating to this Agreement, (ii) waives any
objection to the laying of venue of any such litigation in the Court of Chancery
of the State of Delaware, and (iii) agrees not to plead or claim in the Court of
Chancery of the State of Delaware that such litigation brought therein has been
brought in an inconvenient forum. Each of the parties to this Agreement hereby
appoints RL&F Service Corp., One Xxxxxx Square, 10th and King Streets, X.X. Xxx
000, Xxxxxxxxxx, XX 00000 as its agent for service of process in the State of
Delaware and agrees to service of process in any litigation arising out of or
relating to this Agreement by service upon such agent or by certified mail,
return receipt requested, postage prepaid to it at its address for notice as
provided in this Agreement.
6.2. ADDITIONAL PARTIES; JOINT AND SEVERAL OBLIGATIONS. All of the
obligations of the Xxxxxx Group and its members hereunder shall be joint and
several. Each affiliate of a member of the Xxxxxx Group that shall become or
have the right to become the beneficial owner, within the meaning and scope of
Section 3 hereof, of Company Voting Securities shall, promptly upon becoming
such owner or holder, execute and deliver to the Company a joinder agreement,
agreeing to be legally bound by this Agreement as an original signatory as a
member of the Xxxxxx Group; PROVIDED that failure to execute such agreement
shall not excuse such person's non-compliance with any provision of this
Agreement. No member of the Xxxxxx Group shall transfer Company Voting
Securities to any of its affiliates not already a party hereto unless the
transferee shall agree to be bound by this Agreement in the manner specified
above in this Subsection 6.2.
6.3. NOTICES. All notices, consents, requests, instructions, approvals
and other communications provided for herein and all legal process in regard
hereto shall be in writing and shall be decreed to be validly given, made or
served when delivered personally, transmitted by telex or telecopier, or
deposited in the U.S. mail, postage prepaid, for delivery by express, registered
or certified mail, or delivered to a recognized overnight courier service,
addressed as follows:
If to the Company:
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Aviation Sales Company
0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Chairman and President
Fax Number: Supplied Separately
With a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Akerman, Senterfitt & Edison, P.A.
One Southeast Third Avenue
28th Floor, Sun Trust International Center
Xxxxx, Xxxxxxx 00000
Fax Number: Supplied Separately
If to Xxxxxx or any member of the Xxxxxx Group:
Xxxx X. Xxxxxx
LJH, Corporation
000 Xxxx Xxxx
Xxxxxxxx, Xxxxx 00000
Fax Number: Supplied Separately
With a copy to:
Xxxx Xxxxxx, Esq.
Xxxxxx, Xxxxxx & Xxxxxxx
620 Judge Building
0 Xxxx Xxxxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000-0000
Fax Number: Supplied Separately
or to such other address as may be specified in a notice given pursuant to this
Subsection. All such notices and communications shall be deemed to have been
duly given: At the time delivered by hand, if personally delivered; five (5)
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back if telexed; when receipt acknowledged, if telecopied; and the
next business day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery. The parties may change the address to
which notices are to be given by giving five (5) days' prior notice of such
change in accordance herewith.
6.4. SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. The parties hereto agree that they will use
their best efforts at all times to support and defend this Agreement.
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6.5. AMENDMENTS, WAIVERS. Any provision of this Agreement may be
amended or waived if, and only if, such amendment or waiver is in writing and
signed by each party hereto; PROVIDED that no such amendment or waiver by the
Company shall be effective without the approval of a majority of the
Disinterested Directors. No failure or delay by any party hereto in exercising
any right, power or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
6.6. DESCRIPTIVE HEADINGS. Descriptive headings are for convenience
only and shall not control or affect the meaning or construction of any
provision of this Agreement. Reference in this Agreement to Sections or
Subsections are to Sections of Subsections of this Agreement. All pronouns and
any variations thereof refer to the masculine, feminine or neuter, singular or
plural, as the identity of the applicable person or persons may require.
6.7. ENTIRE AGREEMENT: AMENDMENT. This Agreement and the other
instruments and agreements referred to herein embody the entire agreement of the
parties hereto with respect to the subject matter hereof and supersede all prior
agreements with respect thereto.
6.8. COUNTERPARTS. This Agreement shall become binding when one or more
counterparts hereof, individually or taken together, bears the signatures of
each of the parties hereto. This Agreement may be executed in any number of
counterparts, each of which shall be an original as against the party whose
signature appears thereon, or on whose behalf such counterpart is executed, but
all of which taken together shall be one and the same agreement.
6.9. NO PARTNERSHIP. No partnership, joint venture or joint undertaking
is intended to be, or is, formed between the parties hereto or any of them by
reason of this Agreement or the transactions contemplated herein.
6.10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the successors and assigns of the
parties hereto. All of the terms, covenants and agreements contained in this
Agreement are solely for the benefit of the parties hereto, and their respective
successors and assigns, and no other parties (including, without limitation, any
other stockholder or creditor of the Company, or any director, officer or
employee of the Company) are intended to be benefitted by, or entitled to
enforce, this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto intending to be legally bound
have duly executed this Agreement, all as of the day and year first above
written.
XXXX X. XXXXXX
By:
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Name: Xxxx X. Xxxxxx
LJH, CORPORATION
By:
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Name: Xxxx X. Xxxxxx
Title: President
AVIATION SALES COMPANY
By:
----------------------------------------------
Name:
Title: Chairman of the Board of Directors
and President
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