EXHIBIT 10.7
MERCURY AIR GROUP, INC.
2002 MANAGEMENT STOCK PURCHASE PLAN
STOCK PURCHASE AGREEMENT
THIS AGREEMENT made in connection with the 2002 Management Stock Purchase
Plan effective as of the 22nd day of May, 2002, by and between Mercury Air
Group, Inc., a Delaware corporation, having its principal offices of 0000
XxXxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as
"Mercury"), CFK Partners, an Illinois general partnership ("Seller"), Xxxxxx X.
Xxxxxx, residing at 0000 Xxxxxx Xxxxx, Xxxxx Xxx Xxx, XX 00000 (hereinafter
referred to as "Xxxxxx"), Xxxxx Xxxxxx, residing at 0000 Xxxxxxxxx, Xxxxxx Xxxxx
Xxxxxx, XX 00000 (hereinafter referred to as "Xxxxxx"), Xxxx Xxxxxxx, residing
at 00000 Xxxxx xx Xxxxxxxx, Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx 00000 (hereinafter
referred to as "Xxxxxxx"), Xxxx Xxxxxxxxx, residing at 0000 Xxxxxxxx, Xxxxxxx,
Xxxxxxx 00000 (hereinafter referred to as "Enticknap"), Xxxxxx Xxxxxx, residing
at 00 Xxxxxxx Xxxx, Xxxxxx Xxxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as
"Xxxxxx"), and Xxxxx Xxxxxxxx, residing at 000 Xxxxx Xxxxxxxx Xxxxxx, #0,
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as "Xxxxxxxx", and
Czyzyk, Lovett, Coleman, Enticknap, Xxxxxx and Xxxxxxxx collectively referred to
as the "Purchasers").
W I T N E S S E T H:
WHEREAS, the Purchasers are all key executive officers of Mercury; and
WHEREAS, Mercury wishes to enter into a transaction with such officers
(the "Transaction") to secure the continued services of such officers consistent
with past practices; and
WHEREAS, Mercury and the Seller wish to secure for Mercury the benefits of
incentives inherent in ownership of Mercury's Common Stock by its key employees,
to encourage Mercury's key employees to increase their interest in the future
growth and prosperity of
Mercury, to sustain constructive and imaginative thinking by key employees, to
further the identity of interests of key employees as stockholders of Mercury
with Mercury's present shareholders, to induce continued employment of its key
employees and to enable Mercury to compete with other organizations offering
similar or other incentives in obtaining and retaining the services of competent
executives; and
WHEREAS, a 2002 Management Stock Purchase Plan was approved by the board
of directors of Mercury in furtherance of such Transaction; and
WHEREAS, Mercury wishes to allow for the Purchasers to purchase the shares
from Sellers at $7.50 per share by amending or entering into employment
agreements with such officers.
NOW THEREFORE, in consideration of the mutual covenants and provisions
herein contained and subject to the conditions hereinafter set forth, the
parties intending to be legally bound, agree as follows:
FIRST: COMMON STOCK TO BE SOLD
Subject to the terms and conditions of this Agreement and in reliance on
the representations and warranties contained herein, the Purchasers hereby
purchase from Seller and the Seller hereby sells to the Purchasers, at $7.50 per
share, that number of unregistered shares of the Common Stock of Mercury Air
Group, Inc., $0.01 par value, set forth below (hereinafter referred to as the
"Stock") on terms and conditions as hereinafter set forth:
Purchaser Number of Shares
--------- ----------------
Xxxxxx 387,650
Xxxxxx 31,896
Xxxxxxx 25,000
Enticknap 30,000
Xxxxxx 25,000
Xxxxxxxx 25,000
A total of 524,546 shares shall be purchased from Sellers and allocated to
this Plan.
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SECOND PURCHASE PRICE
(a) The purchase price of the Stock is Seven Dollars and 50/100 ($7.50)
per share.
(b) Xxxxxx hereby separately and individually purchases Three Hundred
Eighty-Seven Thousand Six Hundred Fifty (387,650) shares of such Stock.
(c) Xxxxxx hereby separately and individually purchases Thirty-One
Thousand Eight Hundred Ninety-Six (31,896) shares of such Stock.
(d) Xxxxxxx hereby separately and individually purchases Twenty-Five
Thousand (25,000) shares of such Stock.
(e) Enticknap hereby separately and individually purchases Thirty Thousand
(30,000) shares of such Stock.
(f) Xxxxxx hereby separately and individually purchases Twenty Five
Thousand (25,000) shares of such Stock.
(g) Xxxxxxxx hereby separately and individually purchases Twenty Five
Thousand (25,000) shares of such Stock.
(h) Upon closing the Stock being sold herein shall be represented by one
or more certificates totaling five hundred twenty-four thousand, five hundred
forty-six (524,546) shares. The Transaction between Mercury and Xxxxxx shall be
reflected in an amendment to his employment agreement and the Transaction
between Mercury, Lovett, Coleman, Enticknap, Xxxxxx and Xxxxxxxx shall be
reflected in their employment agreements.
THIRD: INTENTIONALLY DELETED
FOURTH: TERMINATION
As shall be reflected in the employment agreements or amendment to
employment agreement, in the event Czyzyk, Lovett, Coleman, Enticknap, Xxxxxx or
Xxxxxxxx voluntary leave the full-time employment of Mercury or any of its
subsidiaries or related companies for
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any reason whatsoever without the prior written consent of Mercury or in the
event Czyzyk, Lovett, Coleman, Enticknap, Xxxxxx or Xxxxxxxx are discharged with
or without cause, then in any of those events the balance of the purchase price
as set forth in Article Seventh shall be immediately due and payable by the
defaulting purchaser to Mercury, subject to the provisions set forth in Article
Seventh, and the Stock purchased by such defaulting party shall be applied
toward the balance of the purchase price against which Seller or Mercury shall
have a secured interest as a creditor of the defaulting party.
FIFTH: [INTENTIONALLY OMITTED]
SIXTH: SELLER'S REPRESENTATIONS
(a) Seller represents to the Purchasers that it will pay any and all taxes
required to be paid and arising out of the sale of the Stock to the Purchasers.
(b) Seller agrees to sign any and all other documents reasonably required
to be signed in order to effectuate the transfer and assignment of the Stock
being sold herein to the Purchaser including, but not limited to, the stock
certificates with signature guaranteed, along with stock powers.
SEVENTH: UNDERTAKING BY MERCURY
UNDERTAKING WITH XXXXXX
(a) Mercury hereby agrees to provide to Xxxxxx, in connection with his
services to Mercury and pursuant to the terms and conditions set forth in his
employment agreement, the funds to purchase the amount of Shares set forth above
pursuant to the following terms and conditions:
In the event Xxxxxx voluntarily leaves the full-time employment of
Mercury or any of its subsidiaries or related companies for any reason
whatsoever without the prior consent of Mercury or Xxxxxx is discharged with or
without cause (except pursuant to Article 12(a) of his employment agreement or
as set forth below) (hereinafter the "Date of Discharge") Xxxxxx
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shall be obligated to repay the sums provided by Mercury hereunder, provided,
however, that Xxxxxx'x obligations hereunder shall be forgiven by the percentage
equal to the product of (i) 10% and (ii) the number of years from the date
hereof to the Date of Discharge, with the number of years calculated on a March
1st fiscal year (so that if for example, the Date of Discharge is April 1, 2004,
the number of years calculated hereunder shall be 2). Xxxxxx shall have no
obligation to repay Mercury if he remains employed by Mercury on or after March
1, 2012. The Stock being held by Bank of America shall be security to Mercury
and subordinate to Bank of America for the payment of the balance of the
purchase price to Mercury. Mercury shall be granted a secured interest as a
creditor of Xxxxxx in the event Xxxxxx defaults in his obligation to repay
Mercury as herein set forth. In the event Xxxxxx terminates his employment
pursuant to Article 12(a) of his employment agreement or is terminated by
Mercury for any reason following an event set forth in Article 12(a) of his
employment agreement, or in the event Xxxxxx dies or becomes disabled, Xxxxxx
shall have no further obligation to repay Mercury all or any portion of the
purchase price of the Stock purchased hereunder.
UNDERTAKING BY MERCURY
UNDERTAKING WITH XXXXXX
(b) Mercury hereby agrees to provide to Xxxxxx, in connection with his
services to Mercury and pursuant to the terms and conditions set forth in his
employment agreement, the funds to purchase the amount of Shares set forth above
pursuant to the following terms and conditions:
In the event Xxxxxx voluntarily leaves the full-time employment of
Mercury or any of its subsidiaries or related companies for any reason
whatsoever without the prior consent of Mercury, or Xxxxxx is discharged with
our without cause (except pursuant to Article 11(a) of his employment agreement
or as set forth below) or in the event Xxxxxx dies or becomes disabled,
(hereinafter the "Date of Discharge"), Xxxxxx shall be obligated to repay the
sums provided by
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Mercury hereunder, provided, however, that Xxxxxx'x obligations hereunder shall
be forgiven by the percentage equal to the product of (i) 10% and (ii) the
number of years from the date hereof to the Date of Discharge, with the number
of years calculated on a March 1st fiscal year (so that if, for example, the
Date of Discharge is April 1, 2004, the number of years calculated hereunder
shall be 2); provided further, that such obligation shall be limited in dollar
amount to the net monies received after deducting all expenses incurred from the
sale of the shares of common stock of Mercury being held as security for the
payment of the shares purchased hereunder. Xxxxxx shall have no obligation to
repay Mercury if he remains employed by Mercury on or after March 1, 2012. CFK
Partners may, within 90 days following the Date of Discharge, purchase that
number of shares of stock (the "Unvested Shares") calculated by multiplying the
(x) total shares of stock purchased by Xxxxxx by (y) the percentage with respect
to which the obligation set forth above has not been forgiven, by tendering the
Purchase Price per share of stock (as adjusted to reflect any subdivision,
combination, or dividend or distribution which has been paid in additional
shares of common stock) to Mercury, following which Mercury shall discharge the
remainder of Xxxxxx'x obligation hereunder. In the event CFK does not exercise
its right set forth above, then Mercury shall be obligated to purchase, and
Xxxxxx shall be obligated to sell, the Unvested Shares at the price set forth
immediately above. The consideration for Mercury's purchase of the Unvested
Shares shall be the cancellation of Xxxxxx'x remaining obligations hereunder.
Mercury shall be granted a secured interest as a creditor of Xxxxxx in the event
Xxxxxx defaults in his obligation to Mercury as herein set forth. In the event
Xxxxxx terminates his employment pursuant to Article 11(a) of his employment
agreement or is terminated by Mercury for any reason following an event set
forth in Article 11(a) of his employment agreement, Xxxxxx shall have no further
obligation to repay Mercury all or any portion of the purchase price of the
stock purchased hereunder.
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UNDERTAKING BY MERCURY
UNDERTAKING WITH XXXXXXX
(c) Mercury hereby agrees to provide to Xxxxxxx, in connection with his
services to Mercury and pursuant to the terms and conditions set forth in his
employment agreement, the funds to purchase the amount of Shares set forth above
pursuant to the following terms and conditions:
In the event Xxxxxxx voluntarily leaves the full-time employment of
Mercury or any of its subsidiaries or related companies for any reason
whatsoever without the prior consent of Mercury, or Xxxxxxx is discharged with
our without cause (except pursuant to Article 11(a) of his employment agreement
or as set forth below) (hereinafter the "Date of Discharge"), Xxxxxxx shall be
obligated to repay the sums provided by Mercury hereunder, provided, however,
that Xxxxxxx'x obligations hereunder shall be forgiven by the percentage equal
to the product of (i) 10% and (ii) the number of years from the date hereof to
the Date of Discharge, with the number of years calculated on a March 1st fiscal
year (so that if, for example, the Date of Discharge is April 1, 2004, the
number of years calculated hereunder shall be 2); provided further, that such
obligation shall be limited in dollar amount to the net monies received after
deducting all expenses incurred from the sale of the shares of common stock of
Mercury being held as security for the payment of the shares purchased
hereunder. Xxxxxxx shall have no obligation to repay Mercury if he remains
employed by Mercury on or after March 1, 2012. CFK Partners may, within 90 days
following the Date of Discharge, purchase that number of shares of stock (the
"Unvested Shares") calculated by multiplying the (x) total shares of stock
purchased by Xxxxxxx by (y) the percentage with respect to which the obligation
set forth above has not been forgiven, by tendering the Purchase Price per share
of stock (as adjusted to reflect any subdivision, combination, or dividend or
distribution which has been paid in additional shares of common stock) to
Mercury, following which Mercury shall discharge the remainder of Xxxxxxx'x
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obligation hereunder. In the event CFK does not exercise its right set forth
above, then Mercury shall be obligated to purchase, and Xxxxxxx shall be
obligated to sell, the Unvested Shares. The consideration for Mercury's purchase
of the Unvested Shares shall be the cancellation of Xxxxxxx'x remaining
obligations hereunder. Mercury shall be granted a secured interest as a creditor
of Xxxxxxx in the event Xxxxxxx defaults in his obligation to Mercury as herein
set forth. In the event Xxxxxxx terminates his employment pursuant to Article
11(a) of his employment agreement or is terminated by Mercury for any reason
following an event set forth in Article 11(a) of his employment agreement,
Xxxxxxx shall have no further obligation to repay Mercury all or any portion of
the purchase price of the stock purchased hereunder.
UNDERTAKING BY MERCURY
UNDERTAKING WITH ENTICKNAP
(d) Mercury hereby agrees to provide to Enticknap, in connection with his
services to Mercury and pursuant to the terms and conditions set forth in his
employment agreement, the funds to purchase the amount of Shares set forth above
pursuant to the following terms and conditions:
In the event Enticknap voluntarily leaves the full-time employment of
Mercury or any of its subsidiaries or related companies for any reason
whatsoever without the prior consent of Mercury, or Enticknap is discharged with
our without cause (except pursuant to Article 11(a) of his employment agreement
or as set forth below) (hereinafter the "Date of Discharge"), Enticknap shall be
obligated to repay the sums provided by Mercury hereunder, provided, however,
that Enticknap's obligations hereunder shall be forgiven by the percentage equal
to the product of (i) 10% and (ii) the number of years from the date hereof to
the Date of Discharge, with the number of years calculated on a March 1st fiscal
year (so that if, for example, the Date of Discharge is April 1, 2004, the
number of years calculated hereunder shall be 2); provided further, that such
obligation shall be limited in dollar amount to the net monies received after
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deducting all expenses incurred from the sale of the shares of common stock of
Mercury being held as security for the payment of the shares purchased
hereunder. Enticknap shall have no obligation to repay Mercury if he remains
employed by Mercury on or after March 1, 2012. CFK Partners may, within 90 days
following the Date of Discharge, purchase that number of shares of stock (the
"Unvested Shares") calculated by multiplying the (x) total shares of stock
purchased by Enticknap by (y) the percentage with respect to which the
obligation set forth above has not been forgiven, by tendering the Purchase
Price per share of stock (as adjusted to reflect any subdivision, combination,
or dividend or distribution which has been paid in additional shares of common
stock) to Mercury, following which Mercury shall discharge the remainder of
Enticknap's obligation hereunder. In the event CFK does not exercise its right
set forth above, then Mercury shall be obligated to purchase, and Enticknap
shall be obligated to sell, the Unvested Shares. The consideration for Mercury's
purchase of the Unvested Shares shall be the cancellation of Enticknap's
remaining obligations hereunder. Mercury shall be granted a secured interest as
a creditor of Enticknap in the event Enticknap defaults in his obligation to
Mercury as herein set forth. In the event Enticknap terminates his employment
pursuant to Article 11(a) of his employment agreement or is terminated by
Mercury for any reason following an event set forth in Article 11(a) of his
employment agreement, Enticknap shall have no further obligation to repay
Mercury all or any portion of the purchase price of the stock purchased
hereunder.
UNDERTAKING BY MERCURY
UNDERTAKING WITH XXXXXX
(e) Mercury hereby agrees to provide to Xxxxxx, in connection with his
services to Mercury and pursuant to the terms and conditions set forth in his
employment agreement, the funds to purchase the amount of Shares set forth above
pursuant to the following terms and conditions:
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In the event Xxxxxx voluntarily leaves the full-time employment of
Mercury or any of its subsidiaries or related companies for any reason
whatsoever without the prior consent of Mercury, or Xxxxxx is discharged with
our without cause (except pursuant to Article 11(a) of his employment agreement
or as set forth below) (hereinafter the "Date of Discharge"), Xxxxxx shall be
obligated to repay the sums provided by Mercury hereunder, provided, however,
that Xxxxxx'x obligations hereunder shall be forgiven by the percentage equal to
the product of (i) 10% and (ii) the number of years from the date hereof to the
Date of Discharge, with the number of years calculated on a March 1st fiscal
year (so that if, for example, the Date of Discharge is April 1, 2004, the
number of years calculated hereunder shall be 2); provided further, that such
obligation shall be limited in dollar amount to the net monies received after
deducting all expenses incurred from the sale of the shares of common stock of
Mercury being held as security for the payment of the shares purchased
hereunder. Xxxxxx shall have no obligation to repay Mercury if he remains
employed by Mercury on or after March 1, 2012. CFK Partners may, within 90 days
following the Date of Discharge, purchase that number of shares of stock (the
"Unvested Shares") calculated by multiplying the (x) total shares of stock
purchased by Xxxxxx by (y) the percentage with respect to which the obligation
set forth above has not been forgiven, by tendering the Purchase Price per share
of stock (as adjusted to reflect any subdivision, combination, or dividend or
distribution which has been paid in additional shares of common stock) to
Mercury, following which Mercury shall discharge the remainder of Xxxxxx
obligation hereunder. In the event CFK does not exercise its right set forth
above, then Mercury shall be obligated to purchase, and Xxxxxx shall be
obligated to sell, the Unvested Shares. The consideration for Mercury's purchase
of the Unvested Shares shall be the cancellation of Xxxxxx'x remaining
obligations hereunder. Mercury shall be granted a secured interest as a creditor
of Xxxxxx in the event Xxxxxx defaults in his obligation to Mercury as herein
set forth. In the event
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Xxxxxx terminates his employment pursuant to Article 11(a) of his employment
agreement or is terminated by Mercury for any reason following an event set
forth in Article 11(a) of his employment agreement, Xxxxxx shall have no further
obligation to repay Mercury all or any portion of the purchase price of the
stock purchased hereunder.
UNDERTAKING BY MERCURY
UNDERTAKING WITH XXXXXXXX
(d) Mercury hereby agrees to provide to Xxxxxxxx, in connection with his
services to Mercury and pursuant to the terms and conditions set forth in his
employment agreement, the funds to purchase the amount of Shares set forth above
pursuant to the following terms and conditions:
In the event Xxxxxxxx voluntarily leaves the full-time employment of
Mercury or any of its subsidiaries or related companies for any reason
whatsoever without the prior consent of Mercury, or Xxxxxxxx is discharged with
our without cause (except pursuant to Article 11(a) of his employment agreement
or as set forth below) (hereinafter the "Date of Discharge"), Xxxxxxxx shall be
obligated to repay the sums provided by Mercury hereunder, provided, however,
that Xxxxxxxx'x obligations hereunder shall be forgiven by the percentage equal
to the product of (i) 10% and (ii) the number of years from the date hereof to
the Date of Discharge, with the number of years calculated on a March 1st fiscal
year (so that if, for example, the Date of Discharge is April 1, 2004, the
number of years calculated hereunder shall be 2); provided further, that such
obligation shall be limited in dollar amount to the net monies received after
deducting all expenses incurred from the sale of the shares of common stock of
Mercury being held as security for the payment of the shares purchased
hereunder. Xxxxxxxx shall have no obligation to repay Mercury if he remains
employed by Mercury on or after March 1, 2012. CFK Partners may, within 90 days
following the Date of Discharge, purchase that number of shares of stock (the
"Unvested Shares") calculated by multiplying the (x) total shares of stock
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purchased by Xxxxxxxx by (y) the percentage with respect to which the obligation
set forth above has not been forgiven, by tendering the Purchase Price per share
of stock (as adjusted to reflect any subdivision, combination, or dividend or
distribution which has been paid in additional shares of common stock) to
Mercury, following which Mercury shall discharge the remainder of Xxxxxxxx'x
obligation hereunder. In the event CFK does not exercise its right set forth
above, then Mercury shall be obligated to purchase, and Xxxxxxxx shall be
obligated to sell, the Unvested Shares. The consideration for Mercury's purchase
of the Unvested Shares shall be the cancellation of Xxxxxxxx'x remaining
obligations hereunder. Mercury shall be granted a secured interest as a creditor
of Xxxxxxxx in the event Xxxxxxxx defaults in his obligation to Mercury as
herein set forth. In the event Xxxxxxxx terminates his employment pursuant to
Article 11(a) of his employment agreement or is terminated by Mercury for any
reason following an event set forth in Article 11(a) of his employment
agreement, Xxxxxxxx shall have no further obligation to repay Mercury all or any
portion of the purchase price of the stock purchased hereunder.
EIGHT: PURCHASER REPRESENTATIONS
(1) Each of Czyzyk, Lovett, Coleman, Enticknap, Xxxxxx and Xxxxxxxx
represents to Mercury and the Seller that they shall use their best effort to
perform their duties assigned to them as employees of Mercury or any of its
subsidiaries or related companies consistent with the manner in which they have
been performing those duties prior to the execution of this agreement.
(2) Czyzyk, Lovett, Coleman, Enticknap, Xxxxxx and Xxxxxxxx each agree for
themselves that for a period of one (1) year following the date on which he is
no longer employed by Mercury or any of its subsidiaries he will not, directly
or indirectly, or in any capacity, compete or attempt to compete with Mercury,
any parent, subsidiary or affiliate of Mercury, or any corporation merged into,
or merged or consolidated by Mercury, any parent, subsidiary or affiliate of
Mercury as of the date of such termination of employment:
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(i) By soliciting any customer of Mercury or any of its divisions,
subsidiaries, or affiliated companies;
(ii) By soliciting any contracts which were either being solicited by,
or which were under contract with, Mercury or any of its divisions,
subsidiaries or affiliated companies during the period of his employment,
or by performing or causing to be performed any work which was either
being solicited by, or which was under contract with or being performed
by, Mercury or any of its divisions, subsidiaries or affiliated companies
during said period;
(iii) By inducing any sales or technical personnel of Mercury or any
of its divisions, subsidiaries or affiliated companies to leave the
service of Mercury or any of its divisions, subsidiaries or affiliated
companies to engage in activities prohibited to the Purchaser under this
paragraph, or by employment such personnel for the purpose of engaging in
such activities.
This representation on the part of each of the Purchaser is of the essence
of this Agreement without which Mercury would not enter into this Agreement and
this representation shall be construed as an agreement independent of any other
provision contained herein and shall be enforceable in both law and equity,
including by temporary or permanent restraining orders, notwithstanding the
existence of any claim or cause of action of the Purchasers or any of them
against Mercury, whether predicated on this Agreement or otherwise.
The parties recognize and agree that there is no adequate remedy at law to
compensate Mercury in place of injunctive relief to prevent the Purchasers or
any of them from in any way competing with Mercury as hereinabove outlined.
NINTH: XXX-XXXXXXXXXX
00
The Purchasers acknowledge that as a result of their employment with
Mercury and/or any of its subsidiaries or related companies he has and will have
information concerning Mercury and its business including, but not limited to,
the manner in which Mercury establishes its prices to customers for services,
supplies and materials sold; the xxxx-up or profits that Mercury receives for
services, supplies and materials Mercury sells to its customers; the names,
address and nature of relationship of Mercury's customers to Mercury, the names,
address and nature of the relationship of Mercury's suppliers of products,
services and/or equipment to Mercury, the nature of Mercury's relationship to
its banks; the nature of Mercury's relationship with its employees and
subsidiary and related corporations and their employees, banks, unions and
customers; the nature of Mercury's financial situation, credit relationships and
lines of credit with financial institutions and financial resources; the manner
in which Mercury conducts its business with competitors to Mercury, as well as
its customers and its employees; the nature of Mercury's relationship with its
union; the nature of the Mercury relationship in relation to government services
installations and government contracts and the terms and conditions of its
contracts, both with governmental agencies and private entities; the cost of
product to Mercury; the nature and terms of Mercury's real estate leases and
personal property leases that it has entered into at various times with various
governmental agencies and private business; the book value, fair market value
and liquidation value of Mercury's assets; the general and specific financial
condition of Mercury; the nature of various claims, litigations and/or
contingencies that may be outstanding between Mercury and other entities or
persons; the nature of Mercury's credit relationships with its customers,
suppliers and financial institutions and all other information related thereto
(hereinafter referred to as "CONFIDENTIAL INFORMATION").
The Purchasers and each of them acknowledge and agree that the discussion
or revealing of such CONFIDENTIAL INFORMATION to any person, firm, entity,
corporation, union,
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financial institution, stockholder of Mercury, competitor of Mercury, customer
of Mercury or any other individual, organization or entity could cause
substantial irreparable damage to Mercury.
The Purchaser and each of them agree that they shall not, directly or
indirectly, reveal any such CONFIDENTIAL INFORMATION in any way, in any nature
to any firm, entity, corporation, union or individual without the prior written
consent of Mercury.
The Purchasers and each of them acknowledge and agree that this
Non-Disclosure Agreement on their part is of the essence of this Agreement
without which Mercury would not enter into this Agreement and this
Non-Disclosure Agreement shall be construed as an agreement independent of any
other provision contained herein and shall be enforceable in both law and
equity, including by temporary of permanent restraining orders, notwithstanding
the existence or any claim or cause of action of the Purchasers or any of them
against Mercury whether predicated on this Agreement or otherwise.
The parties recognize and agree that there is no adequate remedy at law to
compensate Mercury in place of injunctive relief to prevent the Purchasers or
any of them from revealing any such CONFIDENTIAL INFORMATION to outside parties
or entities.
TENTH: APPROVAL OF BOARD OF DIRECTORS
This Stock Purchase Agreement and the terms and conditions therein are
subject to the prior approval of the Board of Directors of Mercury, through
formal executed resolutions of the Board of Directors of Mercury.
ELEVENTH: CONSTRUCTION
This Agreement and other documents shall be governed by and construed in
accordance with the laws of the State of California. Any action or proceeding in
connection with this Agreement or any of the other documents may be brought in a
court of record of the State of
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California, the parties hereby consenting to the jurisdiction thereof, and
services of process may be made upon any party by mailing a copy of the summons
to such party, by registered or certified mail, at its address to be used for
the giving of notices under this Agreement. In any action or proceeding relating
to this Agreement and/or any other document, the parties mutually waive trial by
jury and the parties waive any claim that Los Angeles County is an inconvenient
forum.
TWELFTH: NON-WAIVER
All representations, warranties and agreements made by the Purchasers,
Mercury and the Seller in this Agreement or pursuant hereto shall survive the
closing. No action or omission by Purchaser, Mercury or Seller shall constitute
a wavier of any of the covenants, warranties or representations, unless such
waiver shall be executed in writing by the party for whose benefit such
covenant, warranty or representation is designed.
THIRTEENTH: OTHER DOCUMENTS
The parties shall execute such other documents as may be reasonably
necessary for the implementation and consummation of this Agreement.
FOURTEENTH: RESTRICTION ON TRANSFER OF THE STOCK
Except as otherwise provided herein, Purchasers may not sell, transfer,
assign, pledge, hypothecate or otherwise dispose of any of the Stock, or any
right or interest therein, while any obligation to Mercury is owed hereunder.
Any purported sale, transfer (including involuntary transfers initiated by
operation of legal process), hypothecation or disposition of any of the Stock or
any right or interest therein, except in strict compliance with the terms and
conditions of this Agreement, shall be null and void.
FIFTEENTH: PLEDGE AND ESCROW
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Purchasers hereby grant to Mercury a security interest in the Stock,
pledge and hypothecate the Stock to Mercury, and deposit the certificates
evidencing the Stock (the "Certificates") with Mercury's Corporate Counsel as
collateral security for the full, faithful and timely performance by Purchaser
of its obligations under this Agreement. The Stock is also delivered to
Mercury's Corporate Counsel pursuant to the terms of this Agreement to be held
in escrow in order to ensure performance of all repurchase rights Mercury may
have in the Stock as and when such right becomes exercisable. The Certificates,
together with a stock assignment duly executed in blank with signatures
appropriately guaranteed or witnessed, are being retained by Mercury's Corporate
Counsel, as the pledgeholder and escrow holder for the Stock.
SIXTEENTH: LEGENDS ON CERTIFICATES
Any and all certificates now or hereafter issued evidencing Stock which is
purchased hereunder shall have endorsed upon them a legend substantially as
follows:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE
SUBJECT TO RESTRICTIONS UPON TRANSFER AND MAY NOT BE
SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF, EXCEPT IN ACCORDANCE WITH THE
TERMS AND CONDITIONS OF THAT CERTAIN STOCK PURCHASE
AGREEMENT UNDER THE 2002 MANAGEMENT STOCK PURCHASE
PLAN, AND RELATED EMPLOYMENT AGREEMENTS, COPIES OF
WHICH AGREEMENTS ARE ON FILE AT THE PRINCIPAL OFFICE
OF MERCURY AIR GROUP, INC."
Such certificates shall also bear such legends and shall be subject to such
restrictions on transfer as may be necessary to comply with all applicable
federal and state securities laws and regulations.
SEVENTEENTH: MISCELLANEOUS
In the event litigation ensues as a result of the terms and conditions of
this Agreement, the prevailing party shall be entitled to reasonable attorneys
fees and costs of suit.
17
EIGHTEENTH: NOTICES
All necessary notices, demands and required or permitted to be given under
the provisions of this Agreement shall be deemed duly given if mailed by
certified mail, return receipt requested, postage prepaid and addressed as
follows:
(a) If to be given to Mercury:
0000 XxXxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Board of Directors
(b) If to be given to Seller:
CFK Partners
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
(c) If to be given to Purchasers:
Xxxxxx X. Xxxxxx
0000 Xxxxxx Xxxxx
Xxxxx Xxx Xxx, Xxxxxxxxxx 00000
Xxxxx X. Xxxxxx
0000 Xxxxxxxxx
Xxxxxx Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Xxxx Xxxxxxx
00000 Xxxxx xx Xxxxxxxx
Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx 00000
Xxxx Xxxxxxxxx
0000 Xxxxxxxx
Xxxxxxx, Xxxxxxx 00000
Xxxxxx Xxxxxx
00 Xxxxxxx Xxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx 00000
Xxxxx Xxxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
NINETEENTH: ENTIRE AGREEMENT
18
This Agreement, together with all Exhibits attached hereto, contains all
of the terms agreed upon by the parties with respect to the subject matter
hereof and may be modified and amended only by a writing signed by the parties
and approved by the Board of Directors, where required.
TWENTIETH: HEADINGS
The headings of the paragraphs of this Agreement are for the convenience
of reference only and do not form a part thereof and in no way modify, interpret
or construe the meanings of the parties.
TWENTY-FIRST: COUNTERPARTS
This Agreement may be signed upon any number of counterparts with the same
effect as if the signature to each were upon the same agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have duly executed this Agreement
effective as of the date first above written.
[SEAL]
Mercury Air Group, Inc.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx, President
CFK Partners
By: /s/ Xxxxxxxxx X. Xxxxx, Xx.
-----------------------------------
Partner
/s/ Xxxxxx X. Xxxxx
--------------------------------------
Xxxxxx X. Xxxxxx
19
/s/ Xxxxx X. Xxxxxx
--------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxx Xxxxxxx
--------------------------------------
Xxxx Xxxxxxx
/s/ Xxxx Xxxxxxxxx
--------------------------------------
Xxxx Xxxxxxxxx
/s/ Xxxxxx Xxxxxx
--------------------------------------
Xxxxxx Xxxxxx
/s/ Xxxxx Xxxxxxxx
--------------------------------------
Xxxxx Xxxxxxxx
20
STATE OF CALIFORNIA )
) ss:
COUNTY OF LOS ANGELES )
On the ____ day of _________, 2002, before me personally came XXXXXX X.
CZYZK, to me known, who being by me duly sworn, did depose and say that he is
the Chief Executive Officer of Mercury Air Group, Inc., the corporation
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by order of the Board of Directors of said
corporation, and that he signed his name thereto by like order.
______________________________________
Notary Public
My Commission Expires:
______________________________________
STATE OF CALIFORNIA )
) ss:
COUNTY OF LOS ANGELES )
On the ____ day of _________, 2002, before me personally came XXXXXX X.
CYZYZK, to me known, who being by me duly sworn, did depose and say that he is
the person described herein and who executed the foregoing instrument.
______________________________________
Notary Public
My Commission Expires:
______________________________________
21
STATE OF CALIFORNIA )
) ss:
COUNTY OF LOS ANGELES )
On the ____ day of _________, 2002, before me personally came XXXXX X.
XXXXXX, to me known, who being by me duly sworn, did depose and say that he is
the person described herein and who executed the foregoing instrument.
______________________________________
Notary Public
My Commission Expires:
______________________________________
STATE OF CALIFORNIA )
) ss:
COUNTY OF LOS ANGELES )
On the ____ day of ___________, 2002, before me personally came XXXX
XXXXXXX, to me known, who being by me duly sworn, did depose and say that he is
the person described herein and who executed the foregoing instrument.
______________________________________
Notary Public
My Commission Expires:
______________________________________
22
STATE OF CALIFORNIA )
) ss:
COUNTY OF LOS ANGELES )
On the ____ day of __________, 2002, before me personally came XXXX
XXXXXXXXX, to me known, who being by me duly sworn, did depose and say that he
is the person described herein and who executed the foregoing instrument.
______________________________________
Notary Public
My Commission Expires:
______________________________________
STATE OF CALIFORNIA )
) ss:
COUNTY OF LOS ANGELES )
On the ____ day of _________, 2002, before me personally came XXXXXX
XXXXXX, to me known, who being by me duly sworn, did depose and say that he is
the person described herein and who executed the foregoing instrument.
______________________________________
Notary Public
My Commission Expires:
______________________________________
23
STATE OF CALIFORNIA )
) ss:
COUNTY OF LOS ANGELES )
On the ____ day of ___________, 2002, before me personally came XXXXX
XXXXXXXX, to me known, who being by me duly sworn, did depose and say that he is
the person described herein and who executed the foregoing instrument.
______________________________________
Notary Public
My Commission Expires:
______________________________________
24
