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EXHIBIT 99.1
AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of
this 8th day of January, 1998, by and between Eagle USA Airfreight, Inc., a
Texas corporation (the "Company"), and Xxxxx X. Xxxxx, an individual resident
of the State of Texas (the "Shareholder").
Recitals
WHEREAS, the Shareholder is the owner of an aggregate of
10,342,378 shares of the Company's common stock, par value $0.001 per share
("Common Stock"); and
WHEREAS, the Shareholder desires to sell 1,500,000 of the
shares of Common Stock owned by him or such other number as may be agreed to by
the Shareholder and the underwriter (the "Shares").
NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth herein, the parties hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the
following terms shall have the meanings set forth below:
"Commission" shall mean the Securities and Exchange
Commission.
The terms "register, "registered" and "registration" refer to
a registration effected by preparing and filing a registration
statement in compliance with the Securities Act, and the declaration
or ordering by the Commission of the effectiveness of such
registration statement.
"Registration Expenses" shall mean all reasonable
out-of-pocket registration, qualification and filing fees, NASD fees,
exchange listing fees, printing expenses, "road show" travel and
lodging expenses of the Company, fees and disbursements of outside
counsel and independent accountants for the Company, blue sky fees and
expenses, and other reasonable and customary out-of-pocket expenses
incurred by the Company and the Shareholder incident to such
registration, including without limitation all costs and expenses
required to be paid or reimbursed by the Company pursuant to the
Underwriting Agreement (as defined herein) (but excluding the
compensation of regular employees of the Company which shall be paid
in any event by the Company).
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at
the time.
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2. Registration.
2.1 Registration of the Shares. In accordance with the terms of
the Shareholders' Agreement dated as of October 1, 1994 among the Company, the
Shareholder, Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxx (the
"Shareholders' Agreement"), it is contemplated that the Company will register
the Shares pursuant to the Securities Act. It is further contemplated that the
Shares so registered shall be offered and sold in accordance with and subject
to the terms of an underwriting agreement (the "Underwriting Agreement") to be
negotiated among the Shareholder, the Company and the managing underwriter(s)
selected for such underwriting by the Company and the Shareholder. Pursuant to
such registration, it is presently contemplated that all of the Shares will be
offered and sold by the underwriter(s) on a firm commitment basis, with an
additional 225,000 (or such other number equal to 15% of the number of the
Shares) shares of Common Stock (the "Company Shares") subject to an option
granted by the Company to the underwriter(s) for the purpose of covering
overallotments, if any (the "Overallotment Option"). Notwithstanding the
foregoing, the Shareholder shall have the right to terminate or withdraw the
registration prior to the effectiveness of such registration; provided,
however, that in such event, the Shareholder shall reimburse the Company in the
manner provided in Section 2.2 below as promptly as reasonably practicable for
all Registration Expenses incurred through the date of notice of such
termination in connection with such terminated registration.
2.2 Expenses of Registration.
(a) Subject to Section 2.2(c), all Registration Expenses incurred
by the Company or the Shareholder in connection with the registration pursuant
to Section 2.1 shall be borne by the Shareholder. Subject to the foregoing,
upon the request of the Company, the Shareholder shall pay, 30 days after the
Closing (as defined below), any Registration Expenses for which there has been
the presentation of either bills, receipts or other appropriate evidence of
expense or a good faith estimate of accrued but unbilled costs and expenses
(with any remaining Registration Expenses to be paid by the Shareholder within
five business days of the invoice from time to time by the Company); provided,
however, that all such bills, receipts and/or estimates shall be presented to
the Shareholder within 90 days of the first Closing (defined below).
Notwithstanding anything to the contrary contained in this Agreement, the
Company shall use commercially reasonable efforts to minimize the Registration
Expenses to the extent reasonably practicable.
(b) All underwriting discounts, selling commissions and stock
transfer taxes applicable to (i) the Shares shall be paid by the Shareholder
and (ii) the Company Shares shall be paid by the Company (none of which shall
constitute Registration Expenses).
(c) Notwithstanding anything herein to the contrary, if the
Company Shares are sold to the underwriters pursuant to the Overallotment
Option, the Company shall pay all Registration Expenses in connection with the
registration of the Shares and the Company Shares, and the Shareholder shall
have no obligation pursuant to Section 2.2(a) hereof.
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3. Miscellaneous.
3.1 Governing Law. This Agreement shall be governed in all
respects by the laws of the State of Texas.
3.2 Amendment. This Agreement, or any provision hereof, may be
amended, waived, discharged or terminated only upon the written consent of the
Company and the Shareholder.
3.3 Notices. All notices or other communications which are
required or may be given under this Agreement shall be in writing and shall be
deemed to have been duly given when delivered in person, transmitted by
telecopier or mailed by registered or certified first class mail, postage
prepaid, return receipt requested to the parties hereto at the address set
forth below the party's signature to this Agreement (as the same may be changed
from time to time by notice similarly given) or the last known business or
residence address of such other person as may be designated by either party
hereto in writing.
3.4 Delays or Omissions. Except as expressly provided herein, no
delay or omission to exercise any right, power or remedy accruing to any party
to this Agreement shall impair any such right, power or remedy of such party
nor shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part of any
party of any breach or default under this Agreement, or any waiver on the part
of any party of any provisions or conditions of this agreement, must be in
writing and shall be effective only to the extent specifically set forth in
such writing. All remedies, either under this Agreement or by law or otherwise
afforded to any party to this Agreement, shall be cumulative and not
alternative.
3.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
3.6 Severability. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provision.
3.7 Survival. The provisions of Section 2 of this Agreement shall
survive any sale of the Shares and termination of this Agreement.
3.8 No Assignment. The benefits and obligations of this Agreement
may not be assigned to any other party without the prior written consent of the
other party hereto; provided that the rights and benefits of the Shareholder
shall inure to the benefit of his heirs and personal representatives.
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3.9 Indemnification. It is understood and agreed by the parties
hereto that the provisions of Section 5.7 of the Shareholders' Agreement
(without limiting the generality of any other provision thereof) shall apply to
the registration of the Shares contemplated by this Agreement.
IN WITNESS WHEREOF, the undersigned or each of their respective duly
authorized officers or representatives have executed this agreement effective
upon the date first set forth above.
COMPANY:
Eagle USA Airfreight, Inc.,
a Texas corporation
/s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Chief Financial Officer
Address:
Eagle USA Airfreight, Inc.
0000 Xxxxxxxx
Xxxxxxx, Xxxxx 00000
SHAREHOLDER:
/s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx
Address:
0000 Xxxxxxxx
Xxxxxxx, Xxxxx 00000
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