AMENDMENT NO. 1 TO RIGHTS AGREEMENT
Exhibit 10.8
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT NO. 1 TO RIGHTS AGREEMENT (this “Amendment”) dated as of November 9, 2005 by and
between Kitty Hawk, Inc., a Delaware corporation (the “Company”), and American Stock Transfer &
Trust Company (the “Rights Agent”).
WHEREAS, the Company and the Rights Agent have previously entered into that certain Rights
Agreement dated as of January 21, 2004 (the “Rights Agreement”); and
WHEREAS, Section 27 of the Rights Agreement provides that, for so long as the Rights (as
defined in the Rights Agreement) are redeemable, the Company may from time to time supplement or
amend any provision of the Rights Agreement as the Company may deem necessary or desirable without
the approval of any holders of certificates representing shares of Common Stock (as defined in the
Rights Agreement); and
WHEREAS, the Rights are currently redeemable; and
WHEREAS, the Board of Directors has determined in good faith that the amendment to the Rights
Agreement set forth herein is desirable and, pursuant to the terms of the Rights Agreement, has
duly authorized such amendment to the Rights Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. Amendment to the Definition of “Acquiring Person”. The definition of “Acquiring
Person” set forth in Section 1(a) of the Rights Agreement is hereby amended and restated in its
entirety as follows:
(a) “Acquiring Person” shall mean any Person (as such term is hereinafter defined) who
or which, together with all Affiliates and Associates of such Person, shall be the
Beneficial Owner (as such term is hereinafter defined) of 15% or more of the shares of
Common Stock then outstanding, but shall not include (i) the Company, (ii) any Subsidiary of
the Company, (iii) any employee benefit plan of the Company or of any Subsidiary of the
Company, or any Person or entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan, (iv) any Person who becomes an Acquiring Person
solely as a result of a reduction in the number of shares of Common Stock outstanding due to
the repurchase of shares of Common Stock by the Company, unless and until such Person shall
purchase or otherwise become (as a result of actions taken by such Person or its Affiliates
or Associates) the Beneficial Owner of additional shares of Common Stock constituting 1% or
more of the then outstanding shares of Common Stock, or (v) an Exempted Person (as such term
is hereinafter defined). Notwithstanding the foregoing, if (i) the Board of Directors of
the Company determines in good faith that a Person who would otherwise be an Acquiring
Person, as defined pursuant to the foregoing provisions of this paragraph, has become such
inadvertently (including, without limitation, because (A) such Person was unaware that it
beneficially owned a percentage of Common Stock that would otherwise cause such Person to be
an Acquiring Person, or (B) such Person was aware of the extent of its Beneficial Ownership
of Common Stock but had no actual knowledge of the consequences of such Beneficial Ownership
under this Agreement) and without any intention of changing or influencing control of the
Company, and (ii) within ten Business Days of being requested by the Company to advise it
regarding the same, such Person certifies to the Company that such Person acquired shares of
Common Stock in excess of 14.99%
inadvertently or without knowledge of the terms of the Rights and who, together with
all Affiliates and Associates, thereafter does not acquire additional shares of Common Stock
and within ten Business Days of being requested by the Company to do so disposes of the
portion of such shares of Common Stock in excess of 14.99%, then such Person shall not be
deemed to be or to have become an Acquiring Person for any purposes of this Agreement;
provided, however, that if the Person requested to so certify fails to do so
within ten Business Days of the Company’s request or such Person fails to dispose of such
shares of Common Stock in excess of 14.99% within ten Business Days of the Company’s
request, then such Person shall become an Acquiring Person immediately after such ten
Business Day period. The phrase “then outstanding,” when used with reference to a Person’s
Beneficial Ownership of securities of the Company, shall mean the number of such securities
then issued and outstanding together with the number of such securities not then actually
issued and outstanding which such Person would be deemed to own beneficially hereunder.
2. Amendment to the Definition of “Beneficial Owner”. The definition of “Beneficial
Owner” set forth in Section 1(f) of the Rights Agreement is hereby amended and restated in its
entirety as follows:
(f) A Person shall be deemed the “Beneficial Owner” of, and shall be deemed to
“beneficially own,” any securities:
(i) which such Person or any of such Person’s Affiliates or Associates, directly or
indirectly, has the right to acquire (whether such right is exercisable immediately or only
after the passage of time) pursuant to any agreement, arrangement or understanding (whether
or not in writing) or upon the exercise of conversion rights, exchange rights, rights,
warrants or options, or otherwise; provided, however, that a Person shall
not, for purposes of this paragraph (i), be deemed the “Beneficial Owner” of or to
“beneficially own,” (A) securities tendered pursuant to a tender or exchange offer made by
such Person or any of such Person’s Affiliates or Associates until such tendered securities
are accepted for purchase or exchange, or (B) securities issuable upon exercise of Rights at
any time prior to the occurrence of a Triggering Event, or (C) securities issuable upon
exercise of Rights from and after the occurrence of a Triggering Event, which Rights were
acquired by such Person or any of such Person’s Affiliates or Associates prior to the
Distribution Date or pursuant to Section 3(a) (Issuance of Rights Certificates —
Distribution Date; Rights Certificates) or Section 22 (Issuance of New Rights
Certificates) (the “Original Rights”) or pursuant to Section 11(i) (Adjustment of
Purchase Price; Number and Kind of Shares or Number of Rights — Adjustment of
Number of Rights) in connection with an adjustment made with respect to any Original
Rights;
(ii) which such Person or any of such Person’s Affiliates or Associates, directly or
indirectly, has the right to vote or dispose of or has “beneficial ownership” of (as
determined pursuant to Rule 13d-3 of the General Rules and Regulations under the Exchange
Act), including pursuant to any agreement, arrangement or understanding, whether or not in
writing; provided, however, that a Person shall not be deemed the
“Beneficial Owner” of, or to “beneficially own,” any security under this subparagraph (ii)
as a result of an agreement, arrangement or understanding to vote such security if such
agreement, arrangement or understanding: (A) arises solely from a revocable proxy given in
response to a public proxy or consent solicitation made pursuant to, and in accordance with,
the applicable provisions of the General Rules and Regulations under the Exchange Act, and
(B) is not also then reportable by such Person on a Schedule 13D under the Exchange Act (or
any comparable or successor report); or
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(iii) which are “beneficially owned,” directly or indirectly, by any other Person (or
any Affiliate or Associate thereof) with which such Person (or any of such Person’s
Affiliates or Associates) has any agreement, arrangement or understanding (whether or not in
writing), for the purpose of acquiring, holding, voting (except pursuant to a revocable
proxy as described in the proviso to subparagraph (ii) of this paragraph (f)) or disposing
of any voting securities of the Company;
provided, however, that nothing in this paragraph (f) shall cause a Person engaged
in business as an underwriter of securities to be the “Beneficial Owner” of or to “beneficially
own,” any securities acquired through such Person’s participation in good faith in a firm
commitment underwriting until the expiration of forty (40) calendar days after the date of such
acquisition.
3. Amendment to the Definition of “Exempted Person”. The definition of “Exempted
Person” set forth in Section 1(t) of the Rights Agreement is hereby amended and restated in its
entirety as follows:
(t) “Exempted Person” shall mean Xxxxxx, unless and until the earlier of such time as
(i) Xxxxxx, directly or indirectly, and together with its Affiliates and Associates, becomes
the Beneficial Owner of 23.50% or more of the shares of Common Stock then outstanding (other
than under circumstances described in Section 1(a)(iv) and in the second sentence of Section
1(a) (replacing for purposes of this clause (i) all references in Section 1(a) to 14.99%
with 23.49%)), (ii) Xxxxxx, directly or indirectly, and together with its Affiliates and
Associates, becomes the Beneficial Owner of less than 15% of the shares of Common Stock then
outstanding, or (iii) Xxxxxx breaches the terms of the Standstill Agreement. Upon the
occurrence of (i), (ii) or (iii) above, Xxxxxx immediately shall cease to be an Exempted
Person.
4. Deletion of Definitions. Section 1 of the Rights Agreement shall be amended as
follows:
(a) Section 1(q) of the Rights Agreement shall be amended and restated in its entirety as
follows:
“(q) [INTENTIONALLY DELETED]”
(b) Section 1(z) of the Rights Agreement shall be amended and restated in its entirety as
follows:
“(z) [INTENTIONALLY DELETED]”
(c) Section 1(ii) of the Rights Agreement shall be amended and restated in its entirety as
follows:
“(ii) [INTENTIONALLY DELETED]”
(d) Section 1(pp) of the Rights Agreement shall be amended and restated in its entirety as
follows:
“(pp) [INTENTIONALLY DELETED]”
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5. Additional Definitions. Section 1 of the Rights Agreement shall be amended to
include the following definitions:
(uu) “Xxxxxx” shall mean collectively, Xxxxx X. Xxxxxx, III and any of his Affiliates and
Associates.
(vv) “Standstill Agreement” shall mean that certain Standstill Agreement, dated as of November
10, 2005, by and among the Company, Xxxxxx, and the other parties thereto.
6. Amendment to Section 3(a). Section 3(a) of the Rights Agreement is hereby amended
and restated in its entirety as follows:
(a) Distribution Date; Rights Certificates. Until the earlier of (i) the Close of
Business on the tenth Business Day after the Stock Acquisition Date (or, if the tenth Business Day
after the Stock Acquisition Date occurs before the Record Date, the Close of Business on the Record
Date), or (ii) the Close of Business on the tenth Business Day (or such later date as the Board
shall determine prior to such time as any Person becomes an Acquiring Person) after the date that a
tender or exchange offer by any Person (other than the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity
organized, appointed or established by the Company for or pursuant to the terms of any such plan)
is first published or sent or given within the meaning of Rule 14d-2(a) of the General Rules and
Regulations under the Exchange Act, if upon consummation thereof such Person would be the
Beneficial Owner of 15% (or, in the case of Xxxxxx, 23.50%, for so long as Xxxxxx is an Exempted
Person) or more of the shares of Common Stock then outstanding (the earlier of (i) and (ii) being
herein referred to as the “Distribution Date”), (x) the Rights will be evidenced (subject to the
provisions of paragraph (b) of this Section 3) by the certificates for the Common Stock registered
in the names of the holders of the Common Stock (which certificates for Common Stock shall be
deemed also to be certificates for Rights) and not by separate certificates, and (y) the Rights
will be transferable only in connection with the transfer of the underlying shares of Common Stock
(including a transfer to the Company, except pursuant to the provision of Section 23 (Redemption
and Termination)). As soon as practicable after the Distribution Date, the Rights Agent will send
by first-class, insured, postage prepaid mail, to each record holder of the Common Stock as of the
Close of Business on the Distribution Date, at the address of such holder shown on the records of
the Company, one or more rights certificates, in substantially the form of Exhibit 2 hereto (the
“Rights Certificates”), evidencing one Right for each share of Common Stock so held, subject to
adjustment as provided herein. In the event that an adjustment in the number of Rights per share
of Common Stock has been made pursuant to Section 11(p) (Adjustment of Purchase Price; Number and
Kind of Shares or Number of Rights — Common Stock Adjustments) at the time of distribution of the
Rights Certificates, the Company shall make the necessary and appropriate rounding adjustments (in
accordance with Section 14(a) (Fractional Rights and Fractional Shares — Fractional Rights)) so
that Rights Certificates representing only whole numbers of Rights are distributed and cash is paid
in lieu of any fractional Rights. As of and after the Distribution Date, the Rights will be
evidenced solely by such Rights Certificates.
7. Amendment to Section 27. Section 27 of the Rights Agreement is hereby amended and
restated in its entirety as follows:
Section 27. Supplements and Amendments. For so long as the Rights are redeemable, and
subject to the penultimate sentence of this Section 27, the Company may, and the Rights Agent
shall, if the Company so directs, supplement or amend any provision of this Agreement without the
approval of any holders of certificates representing shares of Common Stock or, on and after the
Distribution Date, the
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holders of Rights Certificates. At any time when the Rights are no longer
redeemable and subject to the penultimate sentence of this Section 27, the Company and the Rights
Agent shall, if the Company so directs, supplement or amend this Agreement without the approval of
any holders of Rights Certificates;
provided, however, that no such supplement or amendment may (i) adversely
affect the interests of the holders of Rights Certificates (other than an Acquiring Person or an
Affiliate or Associate of any such Person) or, prior to the Distribution Date, holders of
certificates representing shares of Common Stock; (ii) cause this Agreement again to become
amendable other than in accordance with this sentence; or (iii) cause the Rights again to become
redeemable. Upon the delivery of a certificate from an appropriate officer of the Company which
states that the proposed supplement or amendment is in compliance with the terms of this Section
27, the Rights Agent shall execute such supplement or amendment. Notwithstanding anything contained
in this Agreement to the contrary, no supplement or amendment shall be made which changes the
Redemption Price, the Final Expiration Date, the Purchase Price, or the number of one
one-thousandths of a share of Preferred Stock for which a right is exercisable; provided,
however, that at any time prior to (i) a Stock Acquisition Date or (ii) the date that a
tender or exchange offer by any Person (other than the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or any Subsidiary of the Company, or any Person or entity
organized, appointed or established by the Company for or pursuant to the terms of any such plan)
is first published or sent or given within the meaning of Rule 14d-2(a) of the General Rules and
Regulations under the Exchange Act, if upon consummation thereof, such Person would be the
Beneficial Owner of 15% (or, in the case of Xxxxxx, 23.50%, for so long as Xxxxxx is an Exempted
Person) or more of the shares of Common Stock then outstanding the Board may amend this Agreement
to increase the Purchase Price or extend the Final Expiration Date. Prior to the Distribution
Date, the interests of the holders of Rights shall be deemed coincident with the interests of the
holders of Common Stock.
8. Effectiveness. This Amendment shall be effective as of November 9, 2005, as if
executed by both parties on such date. Except as expressly amended by this Amendment, the Rights
Agreement shall remain in full force and effect, and all references to the Rights Agreement from
and after such time shall be deemed to be references to the Rights Agreement as amended hereby.
9. Governing Law. This Amendment shall be deemed to be a contract made under the laws
of the State of Delaware and for all purposes shall be governed by and construed in accordance with
the laws of such state applicable to contracts made and to be performed entirely within such state.
10. Counterparts. This Amendment may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same instrument.
11. Severability. If any term, provision, covenant or restriction of this Amendment
is held by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Amendment
shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
12. Descriptive Headings. Descriptive headings of the several Sections of this
Amendment are inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions of this Amendment.
13. Exhibits. Exhibit 2 to the Rights Agreement shall be deemed amended in a manner
consistent with this Amendment.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of
the day and year first above written.
| KITTY HAWK, INC. | |||||
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | ||||
| Name: Xxxxxx X. Xxxxxx, Xx. Title: President and Chief Executive Officer |
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| AGREED AND ACCEPTED: | ||||
| AMERICAN STOCK TRANSFER & TRUST COMPANY | ||||
By: |
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Name:
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Title:
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{Signature Page to the Amendment No. 1 to Rights Agreement}
