Exhibit 10.35
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "Agreement"), dated as of July ___,
2004, by and among U.S. Helicopter Corporation, a Delaware corporation (the
"Company"), and each of the Stockholders listed on Exhibit A attached hereto
(singularly, a "Stockholder" and collectively, the "Stockholders").
RECITALS
The Stockholders and the Company desire to enter into this Agreement to
restrict their transfer of shares of Common Stock (as defined below) on the
terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and for other good and valuable consideration, the receipt of and sufficiency of
which is hereby acknowledged, the parties hereto hereby agree that:
1. Definitions.
When used in this Agreement, the following terms shall have the meanings
specified:
1.1 "Additional Party Signature Page" means a signature page substantially
in the form attached hereto as Exhibit B.
1.2 "Affiliate", as applied to any Person, means any other Person directly
or indirectly controlling, controlled by or under common control with that
Person. The term "control" (including, with correlative meanings, the terms
"controlling", "controlled by" and "under common control with"), as applied to
any Person, means the possession, directly or indirectly, of power to direct the
management and policies of that Person, whether through voting power, by
contract or otherwise.
1.3 "Board" means the Board of Directors of the Company.
1.4 "Certificate of Incorporation" means the Company's Certificate of
Incorporation, as amended from time to time.
1.5 "Closing Price" on any day means (i) if Common Stock is listed or
admitted for trading on a national securities exchange, the reported last sales
price regular way or, if no such reported sale occurs on such day, the average
of the closing bid and asked prices on such day, in either case on the principal
national securities exchange on which the Common Stock is listed or admitted to
trading or (ii) if the Common Stock is not listed or admitted to trading on any
national securities exchange, the average of the closing bid and asked prices on
such day as reported by the Nasdaq or any comparable system.
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1.6 "Commission" means the Securities and Exchange Commission.
1.7 "Common Stock" means the shares of common stock of the Company.
1.8 "Competitor" means a person or entity that either directly or
indirectly, either as principal agent, stockholder, employee, consultant,
representative or in any other capacity, owns, manages, operates or controls, or
is connected or employed by or otherwise associated in any manner with, or
engaged in or has a financial interest in any business whose primary line of
business performs or plans to perform any of the services offered or proposed to
be offered by the Company.
1.9 "Equity Securities" means (i) the Common Stock, (ii) other classes of
capital stock of the Company (whether voting or non-voting), if any, and (iii)
other securities convertible or exchangeable into, or representing rights to
purchase, Common Stock or any other class of capital stock of the Company
(whether voting or non-voting), if any.
1.10 "Exempted Securities" means (i) Equity Securities to be issued
pursuant to an underwritten registered public offering to third parties,
including the offering in which the Company achieves Qualified Public Company
Status, (ii) Equity Securities issued pursuant to a Stock Plan, (iii) Equity
Securities issued upon the conversion of Equity Securities issued as a dividend
or distribution on Equity Securities outstanding on the date hereof, (iv) Equity
Securities issued in connection with the acquisition of another corporation by
the Company through a merger, purchase by the Company of all or substantially
all of the assets of such other corporation or other reorganization following
which the Company owns not less than 51% of the voting stock of such other
corporation and (v) Equity Securities issued in connection with any stock split,
stock dividend or recapitalization of the Company.
1.11 "Fair Market Value" shall mean the fair market value of the Company's
Equity Securities.
1.12 "Family Member" means, with respect to any Individual Stockholder,
(i) any person related to such Stockholder by blood or marriage or (ii) any
trust, partnership or entity established for the benefit of such related person.
1.13 "Fully Diluted Basis" means on the basis of the number of shares of
Common Stock that would be outstanding if all Equity Securities then convertible
or exchangeable into Common Stock were so converted or exchanged.
1.14 "Individual Stockholder" means (i) each of the Stockholders
designated as Individual Stockholders on Exhibit A attached hereto, (ii) such
other Persons who become parties hereto and are designated Individual
Stockholders on the Additional Party Signature Pages for such Persons and (iii)
the permitted transferees of the Persons described in the foregoing clauses (i)
and (ii), as applicable.
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1.15 "Institutional Stockholder" means, (i) such Persons who become a
party hereto and are designated Institutional Stockholders on the Additional
Party Signature Pages for such Persons and (ii) the permitted transferees of the
Persons described in the foregoing clause (i).
1.16 "Person" means any natural person, corporation, firm, joint venture,
limited liability company, partnership, trust, unincorporated organization,
government or any department or agency of government or any other legal entity.
1.17 "Preempted Securities" means Equity Securities other than Exempted
Securities.
1.18 "Pro Rata" means, for each member of a specified group of
Stockholders, in the proportion that the number of shares of Common Stock, on a
Fully Diluted Basis, then owned by such Stockholder bears to the number of
shares of Common Stock, on a Fully Diluted Basis, then owned by all Stockholders
of such group.
1.19 "Qualified Public Company Status" means the attainment of the
following: (a) the Common Stock is registered on one or more national securities
exchanges or listed on the Nasdaq National Market and (b) either (i) a sale of
shares of Common Stock pursuant to an underwritten public offering or offerings
registered under the Securities Act has resulted in aggregate proceeds (net of
underwriters' discount and the other fees and expenses incurred by the Company
in connection therewith) to the Company equal to or greater than $20,000,000 or
(ii) the product of the Closing Price and the number of shares of Common Stock
held by Persons who are neither Stockholders nor Affiliates of the Company is
equal to or greater than $20,000,000.
1.20 "Securities Act" means the Securities Act of 1933, and the rules and
regulations of the Commission thereunder, all as amended.
1.21 "Stock Plan" means a compensatory benefit plan as that term is
defined under Rule 701 of the Securities Act.
1.22 "Subscription Agreement" means the agreement between the Company and
each applicable Stockholder relating to the purchase by the Stockholder of
Equity Securities.
1.23 "Transfer" means, with respect to Equity Securities, any sale,
assignment, pledge, hypothecation, encumbrance, gift or other disposition or
transfer of such Equity Securities in any manner whatsoever, including without
limitation by the merger, consolidation or sale of securities by the holder of
such Equity Securities or an entity which owns, directly or indirectly, a
majority of the equity interest in such holder.
2. General Restriction on Transfer of Shares. Except to the extent otherwise
specifically provided in this Agreement and in accordance with the terms and
provisions of this Agreement and applicable law, no Stockholder shall Transfer
any Equity Securities now owned or hereafter acquired by such Stockholder except
in accordance with Section 3, 4, 5 or
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6 of this Agreement. Any attempted Transfer other than in accordance with
applicable law and the terms and provisions of this Agreement shall be void, and
the Company shall refuse to recognize any such Transfer and shall not reflect on
its records any change in record ownership of the Equity Securities pursuant to
any such attempted Transfer.
3. Permitted Transfers by Stockholders.
3.1 Individual Stockholder Transfers. An Individual Stockholder may during
the lifetime of the Individual Stockholder Transfer Equity Securities to a
Family Member, provided, that such gift is made without consideration and solely
for estate planning purposes; and further provided, that the Family Member
executes and delivers an Additional Party Signature Page to the Company prior to
receiving such Equity Securities, thereby agreeing to be bound by the terms of
this Agreement.
3.2 Right of First Offer/Co-Sale Rights. At any time, and from time to
time, a Stockholder shall have the right to Transfer all or a portion of his
Equity Securities to a third party provided such third party is not a Competitor
of the Company upon compliance with the following requirements:
(a) Notice of Transfer. A Stockholder who desires to Transfer all or a
portion of his Equity Securities (the "Offeror") to a third party shall, prior
to making a definitive offer to any third party with respect to such proposed
transfer or prior to accepting any proposal from a third party, deliver or cause
to be delivered to the Company and to each other Stockholder a written notice of
the proposed Transfer (a "Notice of Transfer") which sets forth the following
information:
(i) the name and address of the third party;
(ii) any affiliation, relationship, agreement or understanding that
might make the Transfer other than an arm's-length
transaction;
(iii) the type and number of Equity Securities that the third party
proposes to acquire from the Offeror and, for each Equity
Security other than Common Stock, the number of shares Common
Stock, on a Fully Diluted Basis, represented by such Equity
Security;
(iv) the proposed purchase price, terms of payment and other
material terms and conditions of the proposed transfer;
(v) an estimate, in the third party's reasonable, good-faith
judgment, of the fair market value of any non-cash
consideration offered by the third party, and the basis for
such estimate; and
(vi) an offer by the third party to purchase, concurrently with the
Transfer described in the Notice of Transfer and for the same
per share consideration, the Equity Securities that such third
party is required to
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purchase from Stockholders other than the Offeror pursuant to
Section 3.4 hereof.
3.3 Right of First Offer. Each Stockholder (other than the Offeror) and
the Company (each, an "Offeree") shall have fifteen (15) days from their receipt
of the Notice of Transfer (the "First Offer Period") in which to provide the
Offeror with written notice (a "First Offer Notice") of whether or not each,
individually, desires to purchase all or a part of the Equity Securities
proposed to be Transferred by the Offeror. In the event that two or more
Offerees tender a First Offer Notice during the First Offer Period, (a) the
Company, if it tendered a First Offer Notice, shall have the first priority and
right to purchase the Equity Securities specified in its First Offer Notice and
(b) the other Offerees shall have the right to acquire their Pro Rata portion of
any remaining offered Equity Securities. Each Offeree that has a right to
purchase Equity Securities shall purchase the Equity Securities on the same
terms and conditions of the Notice of Transfer. The Offeror may Transfer,
subject to Section 3.4, (i) any Equity Securities described in the Notice of
Transfer which are in excess of the Equity Securities for which First Offer
Notices were tendered during the First Offer Period, and (ii) any Equity
Securities for which a First Offer Notice was tendered but for which the
respective Offeree failed to satisfy any condition set forth herein, in either
case provided that such Transfer must be made within one hundred thirty-five
(135) days following the expiration of the First Offer Period or the date on
which an Offeree failed to satisfy a condition, as the case may be, and further
provided that such Transfer must be made on terms at least as favorable to the
Offeror as those set forth in the Notice of Transfer.
3.4 Co-Sale Rights. Any Transfer of Equity Securities by an Offeror to a
third party which is permitted by Section 3.3 shall be subject to the
requirement that the third party transferee must also purchase up to an
equivalent number, in the aggregate, of like Equity Securities from Stockholders
who choose to exercise their right to participate in the transaction (a "Co-Sale
Right"), on the same terms and conditions which govern the Transfer of Equity
Securities by the Offeror. Each Stockholder that chooses to exercise a Co-Sale
Right must give the Offeror written notice (a "Co-Sale Notice") of such election
no later than fifteen (15) days after the receipt of the Offeror's Notice of
Transfer, provided that any Stockholder who has given a First Offer Notice
pursuant to Section 3.3 shall not be entitled to exercise Co-Sale Rights or give
a Co-Sale Notice. Each Co-Sale Notice shall set forth (a) the maximum number of
Equity Securities (the "Co-Sale Bid") for which the Stockholder is willing to
exercise his Co-Sale Right (which number shall not be greater than the
Stockholder's Pro Rata portion of the Equity Securities described in the Notice
of Transfer) and (b) such Stockholder's agreement to transfer to the third party
transferee the number of like Equity Securities determined in accordance with
this Section 3.4. The third party transferee shall purchase from each
Stockholder that exercises a Co-Sale Right a number of like Equity Securities
that is lesser of (i) such Stockholder's Co-Sale Bid and (ii) the product of (1)
the number of Equity Securities Transferred by the Offeror and (2) a fraction,
the numerator of which is such Stockholder's Co-Sale Bid and the denominator of
which the sum of the Co-Sale Bids of all the Stockholders that exercised Co-Sale
Rights.
3.5 Agreement to be Bound. No transfer of Equity Securities pursuant to
this Section 3 to a Person whom is not a party of this Agreement shall be valid
unless and until
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the third-party transferee executes and delivers an Additional Party Signature
Page to the Company prior to such Transfer, thereby agreeing to be bound by the
terms of this Agreement.
3.6 Rules of Construction. For the purposes of this Section 3, the
following rules of construction shall apply:
(a) for each type of Equity Security other than Common Stock, the "number"
of any Equity Security shall mean the number of shares of Common Stock into
which such Equity Security is convertible;
(b) in the event that two or more types of Equity Securities are the
subject of a Notice of Transfer, the provisions of Section 3.2 shall be followed
separately for each such type of Equity Securities; and
(c) a Stockholder's Pro Rata portion shall be calculated without regard to
the ownership of Equity Securities of a type that is different than the type of
Equity Securities described in the Notice of Transfer to which such calculation
relates.
4. Involuntary Transfers.
4.1 Company Right of First Offer.
(a) In the event than Equity Securities owned by any Stockholder shall be
subject to sale or other transfer by reason of (i) bankruptcy or insolvency
proceedings, whether voluntary or involuntary or (ii) distraint, levy,
execution, court order, divorce decree or other involuntary transfer, then such
Stockholder shall give the Company written notice thereof as soon as
practicable, but in no event later than promptly after the occurrence of such
event, stating the number and type of Equity Securities to be transferred (the
"Subject Securities"), the terms of such proposed transfer, the identity of the
proposed transferee and the price or other consideration, if readily
determinable, for which the Subject Securities are proposed to be transferred.
After receipt by the Company of such notice or, failing such receipt, after the
Company otherwise obtains actual knowledge of such a proposed transfer, the
Company shall (x) promptly send a copy of such notice to, or otherwise notify,
each Stockholder and (y) have a first right to purchase some or all of the
Subject Securities (at the Company's option) at the price and on the terms
applicable to such proposed transfer, which right shall be exercised by written
notice given by the Company to the transferring Stockholder within ninety (90)
days of the Company's receipt of notice from such Stockholder or, failing such
receipt, the Company's obtaining actual knowledge of such proposed transfer.
(b) The closing of the purchase and sale of the Subject Securities shall
be held at the principal office of the Company on a date to be established by
the Company in its notice of its election to purchase the Subject Securities,
which in no event shall be less than ten (10) days nor more than thirty (30)
days after the date on which the Company sends its notice of election to
purchase.
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4.2 Stockholder's Option. If the Company does not elect to purchase all of
the Subject Securities, it shall thereupon give notice thereof to each
non-transferring Stockholder, each of whom shall then have, for a period of
fifteen (15) days after the receipt of such notice, the right to purchase his
Pro Rata share of the Subject Securities not purchased by the Company, with the
right of over allotment to purchase Subject Securities not purchased by any
other Stockholder (on a Pro Rata basis or such other basis as the participating
Stockholders may agree upon) by giving written notice to the Company and the
proposed transferor within such 15-day period. The purchase of Subject
Securities by Stockholders shall be subject to the same procedures and terms as
those relating to the purchase by the Company.
4.3 Transfer of Shares Not Purchased by the Company or other Stockholders.
In the event that the foregoing rights are not fully exercised with respect to
all of the Subject securities, the proposed involuntary transfer referred to in
Section 4.1(a) shall be permitted to occur with respect to Subject Securities
not purchased by the Company or other Company Stockholders. Notwithstanding the
forgoing sentence, any proposed Transfer of Equity Securities pursuant to this
section shall not be a valid Transfer and the Company will not recognize such
Transfer unless such transferee (a) executes and delivers an Additional Party
Signature Page to the Company and (b) agrees to be bound by and enjoy the
rights, benefits and obligations of a Stockholder pursuant to this Agreement.
4.4 Consideration. If the nature of the event giving rise to such
involuntary transfer is such that no readily determinable consideration is paid
for the Subject Securities, the price per share of Subject Securities to be paid
by the Company or the Stockholders, as the case may be, shall be its Fair Market
Value as determined in good faith by the Company's Board.
5. Redemption and Purchase on Death of a Stockholder.
5.1 Company Right of Redemption. Upon the death of a Stockholder (the
"Deceased Stockholder"), the Company shall have the option for a period of sixty
(60) days after the receipt of notice of the Deceased Stockholder's death to
purchase any Shares owned by the Deceased Stockholder's estate and any Shares
owned by a Family Member of such Deceased Stockholder which were transferred to
such Family Member pursuant to Section 3.1 (the "Decedent Shares"). The purchase
price of the Decedent Shares shall be determined in accordance with and payable
in accordance with Section 5.4. The Company shall exercise its option by giving
written notice (the "Estate Notice") to the Deceased Stockholder's personal
representative or Family Member owning the Decedent Shares, as applicable (in
either case, the "Deceased Stockholder's Representative"), with copies to the
other Stockholders (the "Surviving Stockholders").
5.2 Remaining Stockholder's Option. If the Company does not exercise its
option to purchase all of the Decedent Shares under Section 5.1, or exercise its
option but elects to purchase less than all of the Decedent Shares, it shall
thereupon give notice thereof to each Surviving Stockholder, each of whom shall
then have, for a period of fifteen (15) days after the receipt of such notice,
the right to purchase his Pro Rata share of the Decedent Shares not
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purchased by the Company, with the right of over allotment to purchase the
Decedent Shares not purchased by any other Surviving Stockholders (on a Pro Rata
basis or such other basis as the participating Stockholders may agree upon) by
giving written notice to the Company and the Deceased Stockholder's
Representative within such 15-day period. The purchase price shall be determined
and payable in accordance with Section 5.4.
5.3 Closing. If the Company or the Surviving Stockholders, or both, have
given written notice, pursuant to Section 5.1 or 5.2, of their election to
purchase all the Decedent Shares, a closing to purchase all of the Decedent
Shares shall be held and the purchase price shall be paid in accordance with
Section 5.4. If the Company and the Surviving Stockholders have not elected to
purchase all of the Decedent Shares pursuant to Section 5.1 or 5.2, all of the
Decedent Shares not purchased by the Company or the Surviving Stockholders may
thereafter (a) be transferred by gift, sale, pledge or otherwise by the personal
representative of the Deceased Stockholder provided such transferee (i) executes
and delivers an Additional Party Signature Page to the Company and (ii) agrees
to be bound by the terms of this Agreement or (b) continue to be held by the
Family Member who acquired such Shares pursuant to Section 3.1 of this
Agreement, and such Shares shall continue to be subject to the terms of this
Agreement.
5.4 Purchase Price for Decedent Shares.
(a) Determination of Purchase Price.
(i) The purchase price to be paid for any Shares purchased by any
Surviving Stockholder or the Company pursuant to the provisions of
Section 5 shall be the Share Value. The Share Value shall be the
Fair Market Value of the Company's Equity Securities determined as
of the end of the calendar month immediately preceding the month in
which the Deceased Stockholder died, divided by the number of Equity
Securities then outstanding.
(ii) The Fair Market Value at the end of any relevant month shall be
determined by the Company's accountants in accordance with generally
accepted accounting principles consistently applied. Such
determination shall be final and binding on the parties thereto,
unless the personal representative of the Deceased Stockholder shall
request that the determination be made by an independent appraiser
selected jointly by the Company and the Deceased Stockholder's
personal representative, as the case may be.
(iii) In the event that the parties fail to agree on an acceptable
appraiser, each of the Company and the Deceased Stockholder's
personal representative, as the case may be, shall appoint an
independent appraiser and the two appraisers shall designate a third
appraiser whose appointment shall be final and binding. The
determination of the appraiser shall be final, binding and not
subject to appeal (except where a party was denied a hearing or
fraud, misconduct, corruption or other irregularity caused the
rendition of an unjust,
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inequitable or unconscionable determination). The costs of the
appraisal shall be borne by the Company.
(b) Payment Terms.
(i) A closing of the purchase and sale of the Decedent Shares
shall be held within forty-five (45) days after the Share
Value has been determined in accordance with Section 5.4(a).
(ii) The purchase price for the Shares being purchased shall be
paid at the closing by the Company and/or Surviving
Stockholders who have elected to purchase such Decedent Shares
(the "Purchasers") against delivery to each Purchaser of the
certificates representing the Decedent Shares being purchased
by the Purchaser, duly endorsed for transfer, free and clear
of all pledges, security interests and other liens,
encumbrances or restrictions (except the restrictions of this
Agreement). Each Purchaser shall pay such purchase price in
cash or by certified check, except that at the option of any
Purchaser up to 90% of the purchase price to be paid by such
Purchaser may be paid by the unsecured (other than the pledge
from time to time of any Decedent Shares with respect to which
payment has not been made) promissory note of the Purchaser,
with principal payable in equal annual installments over a
period of not more than five (5) years, payments commencing
not later than the first anniversary of the closing date with
interest from the date of the note at the lowest rate of
simple interest which would result in there being no imputed
interest under the Internal Revenue Code of 1986, as now or
hereafter amended, payable annually on the outstanding
balance. Each promissory note shall provide that if any
installment of principal or interest is not paid when due, and
if the default continues for a period of fifteen (15) days
after notice, then, at the election of the holder, the full
amount of the principal and interest remaining unpaid shall
become immediately due and payable, and the maker shall pay
reasonable attorneys' fees to the holder in the event suit is
commenced because of default. The maker of the note shall have
the right to repay the principal and any accrued but unpaid
interest thereon without premium or penalty at any time and
from time to time, but prepayments shall be applied first to
reduce accrued interest and then to reduce installments of
principal in the inverse order of maturity.
(iii) Notwithstanding the provisions of Section 5.4(b)(ii) of this
Agreement, if under the applicable corporate law or under
applicable agreements (including bank financing agreements),
the Company is legally or contractually unable to pay any
principal or interest due under any note on any payment date,
the failure to make such payment by the Company shall not be
deemed a default under the note provided the
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Company pays such principal and interest on or before the
final maturity date of the note.
5.5 Failure to Determine Purchase Price. If the amount of the Share Value
for any Decedent Shares is not determined in accordance with Section 5.4(a), for
any reason, within one hundred twenty (120) days following receipt by the
Company of the notice of the Deceased Stockholder's death, the personal
representative of the Deceased Stockholder may petition a court to determine the
fair value of the Decedent Shares and the fair value so determined shall be the
Share Value of such Decedent Shares hereunder.
6. Redemption and Purchase on Termination of Employment of a Stockholder.
6.1 Remaining Stockholders Right of Redemption. Upon the termination of
employment of a Stockholder as an officer or an employee of the Company for any
reason, including by the Company or the Stockholder with or without cause, on or
before the first anniversary of the date of this Agreement (the "Terminated
Stockholder"), the other Stockholders (the "Remaining Stockholders") shall have
the option for a period of sixty (60) days after such termination to purchase
his Pro Rata share of any Shares owned by the Terminated Stockholder and owned
by a Family Member of such Terminated Stockholder which were transferred to such
Family Member pursuant to Section 3.1 (the "Terminated Employee Shares"), with
the right of over allotment to purchase the Terminated Employee Shares not
purchased by any other Remaining Stockholders (on a Pro Rata basis or such other
basis as the participating Stockholders may agree upon). The purchase price of
the Terminated Employee Shares shall be determined in accordance with and
payable in accordance with Section 6.4. The Remaining Stockholders shall
exercise their option by giving written notice (the "Terminated Employee
Notice") to the Terminated Stockholder or Family Member owning the Terminated
Employee Shares, as applicable (in either case, the "Terminated Stockholder's
Representative"), with copies to the Company and the other Remaining
Stockholders.
6.2 Company's Option. If the Remaining Stockholders do not exercise their
option to purchase all of the Terminated Employee Shares under Section 6.1, or
exercise their option but elect to purchase less than all of the Terminated
Employee Shares, they shall thereupon give notice thereof to the Company, which
shall then have, for a period of fifteen (15) days after the receipt of such
notice, the right to purchase any Terminated Employee Shares not purchased by
the Remaining Stockholders by giving written notice to Terminated Stockholder's
Representative within such 15-day period. The purchase price shall be determined
and payable in accordance with Section 6.4.
6.3 Closing. If the Company or the Remaining Stockholders, or both, have
given written notice, pursuant to Section 6.1 or 6.2, of their election to
purchase all the Terminated Employee Shares, a closing to purchase all of the
Terminated Employee Shares shall be held and the purchase price shall be paid in
accordance with Section 6.4. If the Company and the Remaining Stockholders have
not elected to purchase all of the Terminated Employee Shares pursuant to
Section 6.1 or 6.2, all of the Terminated Employee Shares not purchased by the
Company or the Remaining Stockholders may thereafter (a) be transferred by gift,
sale,
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pledge or otherwise by the Terminated Stockholder
provided such transferee (i) executes and delivers an Additional Party Signature
Page to the Company and (ii) agrees to be bound by the terms of this Agreement
or (b) continue to be held by the Terminated Stockholder or Family Member who
acquired such Shares pursuant to Section 3.1 of this Agreement, and such Shares
shall continue to be subject to the terms of this Agreement.
6.4 Purchase Price for Terminated Employee Shares.
(a) Determination of Purchase Price.
(i) The purchase price to be paid for any Shares purchased by any
Remaining Stockholder or the Company pursuant to the provisions of
Section 6 shall be the 25% Share Value. The 25% Share Value shall be
25% of the Fair Market Value of the Company's Equity Securities
determined as of the end of the calendar month immediately preceding
the month in which the Terminated Stockholder was terminated,
divided by the number of Equity Securities then outstanding.
(ii) The Fair Market Value at the end of any relevant month shall be
determined by an independent appraiser, selected jointly by the
Company and the Terminated Stockholder, in accordance with generally
accepted accounting principles consistently applied. Such
determination shall be final and binding on the parties thereto.
(iii) In the event that the parties fail to agree on an acceptable
appraiser, each of the Company and the Terminated Stockholder shall
appoint an independent appraiser and the two appraisers shall
designate a third appraiser whose appointment shall be final and
binding. The determination of the appraiser shall be final, binding
and not subject to appeal (except where a party was denied a hearing
or fraud, misconduct, corruption or other irregularity caused the
rendition of an unjust, inequitable or unconscionable
determination). The costs of the appraisal shall be borne by the
Company.
(b) Payment Terms.
(i) A closing of the purchase and sale of the Terminated Employee
Shares shall be held within forty-five (45) days after the 25%
Share Value has been determined in accordance with Section
6.4(a).
(ii) The purchase price for the Shares being purchased shall be
paid at the closing by the Company and/or Remaining
Stockholders who have elected to purchase such Terminated
Employee Shares (the "Section 6 Purchasers") against delivery
to each Purchaser of the certificates representing the
Terminated Employee Shares being purchased by the Section 6
Purchaser, duly endorsed for transfer, free and clear of all
pledges, security interests and other liens, encumbrances or
restrictions
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(except the restrictions of this Agreement). Each Section 6
Purchaser shall pay 10% of such purchase price in cash or by
certified check, and the balance of the purchase price to be
paid by such Section 6 Purchaser may be paid by the unsecured
(other than the pledge from time to time of any Terminated
Employee Shares with respect to which payment has not been
made) promissory note of the Section 6 Purchaser, with
principal payable in equal annual installments over a period
of not more than three (3) years, payments commencing not
later than the first anniversary of the closing date with
interest from the date of the note at the lowest rate of
simple interest which would result in there being no imputed
interest under the Internal Revenue Code of 1986, as now or
hereafter amended, payable annually on the outstanding
balance. Each promissory note shall provide that if any
installment of principal or interest is not paid when due, and
if the default continues for a period of fifteen (15) days
after notice, then, at the election of the holder, the full
amount of the principal and interest remaining unpaid shall
become immediately due and payable, and the maker shall pay
reasonable attorneys' fees to the holder in the event suit is
commenced because of default. The maker of the note shall have
the right to repay the principal and any accrued but unpaid
interest thereon without premium or penalty at any time and
from time to time, but prepayments shall be applied first to
reduce accrued interest and then to reduce installments of
principal in the inverse order of maturity.
(iii) Notwithstanding the provisions of Section 6.4(b)(ii) of this
Agreement, if under the applicable corporate law or under
applicable agreements (including bank financing agreements),
the Company is legally or contractually unable to pay any
principal or interest due under any note on any payment date,
the failure to make such payment by the Company shall not be
deemed a default under the note provided the Company pays such
principal and interest on or before the final maturity date of
the note.
6.5 Failure to Determine Purchase Price. If the amount of the 25% Share
Value for any Terminated Employee Shares is not determined in accordance with
Section 6.4(a), for any reason, within one hundred twenty (120) days following
the termination of the Terminated Stockholder, the Terminated Stockholder may
petition a court to determine the fair value of the Terminated Employee Shares
and 25% of the fair value so determined shall be the 25% Share Value of such
Terminated Employee Shares hereunder.
6.6 Miscellaneous. Notwithstanding anything in this Agreement to the
contrary, the provisions of this Section 6 and its subsections 6.1 through 6.5
shall apply only to (a) the Equity Securities held by those shareholders of the
Company that are officers or employees of the Company as of the date of this
Agreement or who may become an officer or employee at any time up to the First
Anniversary of the Agreement and acquires Equity Securities; and
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(b) any Equity Securities acquired in the future by any party to this
Agreement while that party is an officer or employee of the Company.
7. Miscellaneous.
7.1 Stock Certificate Legend. A copy of this Agreement shall be filed with
the Secretary of the Company and kept with the records of the Company. Each
certificate representing shares of Common Stock owned by any Stockholder shall
bear the following legends:
First Legend:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE
SECURITIES LAWS, AND SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS (A) THE SAME ARE REGISTERED AND QUALIFIED IN ACCORDANCE WITH
THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (B) IN THE OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY, SUCH REGISTRATION AND
QUALIFICATION ARE NOT REQUIRED."
Second Legend:
"THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
PROVISIONS OF A STOCKHOLDERS AGREEMENT (AS SUCH AGREEMENT MAY BE SUPPLEMENTED,
MODIFIED, AMENDED OR RESTATED FROM TIME TO TIME) A COPY OF WHICH IS ON FILE AT
THE PRINCIPAL OFFICE OF THE COMPANY AND WILL BE FURNISHED TO THE STOCKHOLDER ON
REQUEST TO THE SECRETARY OF THE COMPANY. SUCH STOCKHOLDERS AGREEMENT, PROVIDES,
AMONG OTHER THINGS, FOR CERTAIN RESTRICTIONS ON SALE, TRANSFER, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES EVIDENCED BY THIS
CERTIFICATE AND THAT SUCH SHARES MAY BE SUBJECT TO PURCHASE BY THE COMPANY OR
CERTAIN OF ITS STOCKHOLDERS UPON THE OCCURRENCE OF CERTAIN EVENTS. ANY ISSUANCE,
SALE, ASSIGNMENT, TRANSFER OR OTHER DISPOSITION OF THE SHARES EVIDENCED BY THIS
CERTIFICATE TO PERSONS WHO ARE NOT A PARTY TO SUCH STOCKHOLDERS AGREEMENT SHALL
BE NULL AND VOID."
Each Stockholder shall be bound by the requirements of such legends to the
extent that such legends are applicable. Upon request of a Stockholder, the
Company shall remove the first Legend from the certificate or issue to such
Stockholder a replacement certificate without the First Legend if, with such
request, the Company shall have received an opinion of counsel to
13
such Stockholder reasonably acceptable to the Company to the effect that such
legend is no longer necessary under the Securities Act. Upon the Company
achieving Qualified Public Company Status, all certificates representing shares
of Common Stock shall be replaced, at the expense of the Company, with
certificates not bearing the Second Legend required by this Section 7.1 and, in
connection with shares to be sold pursuant to a registered public offering, the
certificates representing such shares shall be replaced, at the expense of the
Company, with certificates not bearing either of the legends required by this
Section 7.1.
7.2 No Inconsistent Agreements. Each Stockholder hereby represents that he
has not entered into, and agrees that he will not enter into, any other
agreement or arrangement the performance of which would in any manner conflict
with, restrict or be inconsistent with the performance of its obligations under
this Agreement.
7.3 Confidentiality. Each Stockholder hereby agrees to use the same degree
of care to keep confidential any information from time to time supplied to it by
or on behalf of the Company (which the Company or the Person acting on its
behalf designates in writing, at the time of such delivery, to be treated as
confidential or actually known by the Stockholder [including any director,
executive officer or controlling Person of a Stockholder that is not a natural
person] to be confidential information) as such Stockholder uses to keep
confidential its own information of a similar character; provided, however, that
the foregoing provisions of this paragraph shall not apply:
(a) to the extent a Stockholder is required to disclose the information in
question pursuant to any law, statute, rule or regulation or any order of any
court or judicial process or pursuant to any direction, request or requirement
(whether or not having the force of law but, if not having the force of law,
being of a type with which the Institutional Stockholders in the relevant
jurisdiction are accustomed to complying) of any self-regulating organization or
any governmental, fiscal, monetary or other authority;
(b) to the extent that a Stockholder needs to disclose the information in
question for the protection or enforcement of any of its rights or interests
against the Company (provided that such Stockholder hereby agrees that it will
use reasonable efforts promptly to notify the Company of any request for
information to which this clause (b) applies) or to the extent counsel to such
Stockholder reasonably believes is required by the discovery process in
connection with any litigation to which a Stockholder is a party; or
(c) to a prospective transferee in connection with any contemplated
transfer of Equity Securities by such Stockholder, provided such transferee
agrees to maintain the confidentiality of such information consistent with the
provisions of this Section 7.3.
It is understood by the parties hereto that information which (i) is or
becomes public through no fault of a Stockholder, (ii) was, at the time of
receipt, already in the possession of a Stockholder or (iii) was obtained by a
Stockholder from a third party legally entitled to use and disclose the same,
shall not be considered confidential information subject to the provisions of
this Section 7.3.
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7.4 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns, regardless of whether or not any such successors, assigns or holders
have delivered an undertaking or assumption with respect to this Agreement. In
addition, whether or not any express assignment has been made, the provisions of
this Agreement that are for the benefit of or bind holders of Equity Securities
are also for the benefit of or bind any subsequent holder of Equity Securities;
provided, however, that no third-party transferee shall derive any rights under
this Agreement unless and until such third-party transferee has executed and
delivered to the Company an Additional Party Signature Page. Any party to, or
Person who is subject to, this Agreement (other than the Company) that ceases to
own Equity Securities or any interest therein shall cease to be a party to, or
person who is subject to, this Agreement and thereafter shall have no rights or
obligations hereunder other than those under Section 7.3 hereof. In no event
shall any Stockholder be permitted to Transfer any right or benefit hereunder
separate and apart from the Transfer to a Permitted Transferee of the Equity
Securities conferring and underlying such right.
7.5 Specific Performance. Without limiting the rights of each party hereto
to pursue all other legal and equitable rights available to such party for any
other party's failure to perform its obligations under this Agreement, the
parties hereto acknowledge and agree that the remedy at law for any failure to
perform their obligations hereunder would be inadequate and that each of them,
respectively, shall be entitled to specific performance, injunctive relief or
other equitable remedies in the event of any such failure.
7.6 Entire Agreement; Amendment. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof. This Agreement may be amended, and the performance of any
provision hereof may be waived only by the written agreement of Stockholders (or
their respective permitted successors and assigns) who own in the aggregate at
least 51% of the Common Stock that is subject to the terms of this Agreement.
Notwithstanding the foregoing sentence, the Board may amend Exhibit A without
the further vote, act or consent of any other Person to reflect the issuance of
additional Equity Securities to Stockholders, as provided herein.
7.7 Term. This Agreement shall terminate on the date that the Company
achieves Qualified Public Company Status or upon the Written Consent of all of
the Stockholders (such date, the "Termination Date").
7.8 Notices. Any notice provided for in this Agreement must be in writing
and must be either (a) personally delivered, (b) mailed by registered or
certified first class mail, prepaid with return receipt requested, or (c) sent
by a recognized overnight courier service, to the recipient at the address below
indicated or (d) by facsimile which is confirmed in writing by sending a copy of
such facsimile to the recipient thereof pursuant to clause (a) or (c) above:
15
(i) If to the Company, addressed to:
U.S. Helicopter Corporation
Downtown Manhattan Heliport
Xxxx 0, Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
With copies to:
Xxxxxxxxx, Xxxxxx & Xxxxxx
000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000
Confirmation: (000) 000-0000
(ii) if to any other Person who is the registered holder of
any Equity Securities to the address of such holder as
it appears in the stock ledger of the Company or such
other address or to the attention of such other person
as the recipient party shall have specified by prior
written notice to the sending party.
Any notice under this Agreement will be deemed to have been given (w) on the
date such notice is personally delivered, (x) four (4) days after the date of
mailing if sent by certified or registered mail, (y) one (1) day after the date
such notice is delivered to the overnight courier service if sent by overnight
courier or (z) with respect to facsimiles, on the earlier of one (1) day after
the date such facsimile is delivered to the overnight courier for confirmation
or confirmation by telephone to the number designated herein; provided that in
each case notices received after 4:00 p.m. (local time of the recipient) shall
be deemed to have been duly given on the next business day.
7.9 Severability. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Agreement.
7.10 Headings. The headings and captions contained herein are for
convenience only and shall not control or affect the meaning or construction of
any provision hereof.
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7.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and which together
shall constitute one and the same instrument.
7.12 Representations and Warranties. Each party to this Agreement
represents and warrants to each other party to this Agreement that (i) all
action on the part of such party necessary for the authorization, execution,
delivery and performance of this Agreement has been taken and (ii) this
Agreement is a legal, valid and binding obligation of such party, enforceable
against such party in accordance with its terms, except as such enforcement may
be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereinafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law).
7.13 GOVERNING LAW. ALL QUESTIONS CONCERNING THE VALIDITY, MEANING AND
EFFECT OF THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THAT
STATE.
7.14 CONSENT TO JURISDICTION AND VENUE. THE PARTIES HERETO EACH HEREBY
CONSENT TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE
STATE OF NEW JERSEY AND IRREVOCABLY AGREE THAT ALL ACTIONS OR PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LITIGATED IN SUCH COURTS.
EACH OF THE PARTIES HERETO ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS
RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION
AND VENUE OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY NON-APPEALABLE JUDGMENT
RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT.
7.15 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND TO THE
FULLEST EXTENT PERMITTED BY LAW WAIVES ANY RIGHTS THAT IT MAY HAVE TO CLAIM OR
RECEIVE CONSEQUENTIAL OR SPECIAL DAMAGES IN CONNECTION WITH ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Stockholders
Agreement as of the day and year first above written.
The Company: U.S. HELICOPTER CORPORATION
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive
Officer
Stockholders:
/s/ Xxxx X. Xxxxxx
---------------------------------------------
Xxxx X. Xxxxxx, as an individual
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Xxxxxxx X. Xxxxxxx, as an individual
/s/ Rue Xxxxxxxx
---------------------------------------------
Rue Xxxxxxxx, as an individual
/s/ Xxxxxx Xxxx
---------------------------------------------
Xxxxxx Xxxx, as an individual
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------------
Xxxxxxxxx, Xxxxxx & Xxxxxx
By: Xxxxxx X. Xxxxxxxxx, Esq.
/s/ Col. Xxxxxxx Xxxxxx
---------------------------------------------
Col. Xxxxxxx Xxxxxx
/s/ Xxxxx XxXxxxxxxx
---------------------------------------------
Xxxxx XxXxxxxxxx
/s/ Xxxx Xxxxxxx
---------------------------------------------
Xxxx Xxxxxxx
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July ___, 2004
EXHIBIT A
LIST OF STOCKHOLDERS
NAME STATUS NUMBER OF SHARES HELD
---- ------ ---------------------
Xxxx X. Xxxxxx Individual Stockholder 7,029,000
Xxxxxxx X. Xxxxxxx Individual Stockholder 4,899,000
Rue Xxxxxxxx Individual Stockholder 639,000
Xxxx Xxxxxxx Individual Stockholder 3,897,900
Xxxxx XxXxxxxxxx Individual Stockholder 3,450,600
Xxxxxx Xxxx Individual Stockholder 639,000
Xxxxxxxxx, Xxxxxx & Xxxxxx Individual Stockholder 532,500
Col. Xxxxxxx Xxxxxx Individual Stockholder 213,000
TOTAL SHARES 21,300,000
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EXHIBIT B
ADDITIONAL PARTY SIGNATURE PAGE
The undersigned hereby executes the Stockholders Agreement, dated as of
July ___, 2004 (the "Agreement"), by and among U.S. Helicopter Corporation, a
Delaware corporation, and each of the Stockholders listed on Exhibit A thereto,
authorizes this Additional Party Signature Page to be attached to a counterpart
of such agreement, and agrees to be bound by such agreement as if the
undersigned had executed such agreement on the date of its original execution.
INITIALS: STATUS:
______ Institutional Stockholder __________________________________________
NAME (Type or Print)
______ Individual Employee
Stockholder
______ Individual Non-Employee
Stockholder
__________________________________________
Address
__________________________________________
Signature
U.S.HELICOPTER CORPORATION
(on behalf of itself and the Stockholders)
By:_______________________________________
Name:
Title:
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