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Exhibit 10.30
Preferred Stock StockholdersAgreement
CLASS XXX PREFERRED STOCKHOLDERS' AGREEMENT
This Agreement (the
"Agreement") has been made and entered into as of this 12th day of July,
1994, by and among UAL Corporation, a Delaware corporation (the "Company"),
Xxxxxx X. Xxxxxxxx (the "Designated Nominee") and Xxxx X. Xxxxxx (the "Designated
Stockholder").
WHEREAS, pursuant to
the terms of and schedules to the Agreement and Plan of Recapitalization,
dated as of March 25, 1994, by and among the Company, the Air Line Pilots
Association, International ("ALPA") and the International Association of
Machinists and Aerospace Workers ("IAM") (as amended, the "Recapitalization
Agreement"), including the terms of the restated certificate of incorporation
of the Company to be effective as of the Effective Time (as defined in
the Recapitalization Agreement) (the "Restated Certificate") and the restated
By-Laws of the Company to be effective as of the Effective Time (the "Restated
By-Laws") (the Recapitalization Agreement, the Restated Certificate
and the Restated By-Laws, collectively, the "Governance Documents"), the
board of directors of the Company (the "Board") shall, until the Termination
Date (as defined in the Restated Certificate), consist of twelve (12) directors
(subject to adjustment in certain circumstances), one (1) of whom shall
be the designated representative (the "Salaried/Management Director") of
the salaried and management employees of United Airlines, Inc. ("United"),
nominated and elected and/or appointed as provided in the Governance Documents
and in this Agreement;
WHEREAS, the Governance
Documents contemplate that at the Effective Time, the Company shall issue
to the Designated Nominee and the Designated Stockholder, and each of them
shall be the registered holder of, two shares and one share, respectively,
of the Class XXX Junior Preferred Stock, par value $.O1 per share, of the
Company (the "Class XXX Preferred Stock"), each such share of Class XXX
Preferred Stock having the relative rights, privileges and powers as set
forth in the Restated Certificate (the holders of the Class XXX Preferred
Stock from time to time are referred to individually herein as a "Class
XXX Preferred Stockholder" and are collectively referred to herein as the
"Class XXX Preferred Stockholders");
WHEREAS, the Governance
Documents contemplate that Class XXX Preferred Stock may be held only by
the Salaried/Management Employee Director and by a designated additional
shareholder, each of whom shall be a Class XXX Preferred Stockholder;
WHEREAS, pursuant to
the Class XXX Preferred Stock Subscription Agreement dated July 12, 1994,
by and among the Company, the Designated Nominee and the Designated Stockholder,
the Company is selling to the Designated Nominee and the Designated Stockholder,
and the Designated Nominee and the Designated Stockholder are each purchasing
from the Company, two shares and one share, respectively, of Class XXX
Preferred Stock; and
WHEREAS, the parties
hereto have entered into this Agreement in order to effectuate the terms
and intent of the Governance Documents regarding the issuance of the Class
XXX Preferred Stock.
NOW, THEREFORE, in
consideration of the foregoing premises, the mutual covenants herein contained
and other good and valuable consideration the receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Effective
Date; Term. This Agreement shall become effective simultaneous with
the Effective Time and shall remain in effect in accordance with the terms
hereof until the earlier of (i) the tenth anniversary of the Effective
Time or such later date to which the duration of this Agreement shall be
permitted under the General Corporation Law of the State of Delaware (the
"GCL"), as the same may hereafter from time to time be amended, it being
the express intention of the parties hereto that this Agreement shall remain
in effect (subject to clause (ii) of this Section 1) for more than ten
(10) years if permitted under, and for as long as permitted under, the
GCL, as amended from time to time, and (ii) the first to occur of the ALPA
Termination Date and the IAM Termination Date (each as defined in Article
FIFTH of the Restated Certificate).
2. Voting
for Election of the Salaried,/Management Employee Director; Filling of
Vacancies. At all elections for the Salaried/Management Employee Director,
whether at a meeting of shareholders or pursuant to action by written consent
without a meeting, each Class XXX Preferred Stockholder shall vote, or
act by written consent with respect to, each share of Class XXX Preferred
Stock held by such Class XXX Preferred Stockholder in favor of the candidate
for Salaried/Management Employee Director nominated pursuant to Section
8 of this Agreement. In the event of a vacancy of the seat of the Salaried/Management
Employee Director, other than upon the scheduled expiration of the term
on the Hoard of the Salaried/Management Employee Director, it is agreed
that such vacancy shall be filled with a candidate nominated pursuant to
Section 8 of this Agreement.
3. Grant of
Proxy. Each Class XXX Preferred Stockholder does hereby constitute
and appoint each of the other parties hereto (including the other class
XXX Preferred Stockholder), other than the Company, as his or her proxy
to vote and/or to act by written consent with respect to all of the shares
of Class XXX Preferred Stock owned by such Class XXX Preferred Stockholder
in accordance with the provisions of this Agreement in the event that
such Class XXX Preferred Stockholder shall fail to do so, to the same extent
and with the same effect as such Class XXX Preferred Stockholder could
do so. The proxy hereby granted by each Class XXX Preferred Stockholder
is given in consideration of the proxy hereby granted by each other Class
XXX Preferred Stockholder and in consideration of the other mutual covenants
herein contained, and as such the proxy granted hereby by each Class XXX
Preferred Stockholder is coupled with an interest and shall be irrevocable
for so long as such Class XXX Preferred Stockholder remains a holder of
Class XXX Preferred Stock.
4. Restrictions
on Transfer of the Class XXX Preferred Stock. Except as provided in
Sections 5 and 8(c) hereof, a Class XXX Preferred Stockholder may not sell,
transfer, pledge, assign, hypothecate or otherwise dispose of any interest
in (each, a "Disposition") any share of Class XXX Preferred Stock, including,
without limitation, by operation of law or otherwise. Any purported Disposition
of any share of Class XXX Preferred Stock in violation of this Section
4 shall be null and void and of no force and effect as to the proposed
transferee and, upon any such purported Disposition, such share of Class
XXX Preferred Stock shall be automatically redeemed by the Company as provided
in, and subject to, Article FOURTH, Part IX, Sections 1.2 and 9 of the
Restated Certificate (the "Automatic Redemption"). The certificates evidencing
the shares of Class XXX Preferred Stock shall bear a legend describing
the transfer and voting restrictions and Automatic Redemption set forth
in this Agreement, as well as any other restrictions imposed by the Restated
Certificate of the Restated By-Laws.
5. Return of the
Shares of Class XXX Preferred Stock; Resignation of any Non-Nominated Director.
Notwithstanding anything contained in Section 4 of this Agreement to the
contrary, the Designated Nominee, immediately upon (i) the expiration of
his or her term of office as the Salaried/Management Employee Director
(unless concurrently therewith such individual is reelected for an additional
term as the Salaried/Management Employee Director), (ii) his or her removal
as the Salaried/Management Employee Director pursuant to Article FIFTH,
Section 2.8 of the Restated Certificate or pursuant to the penultimate
sentence of this section 5, (iii) his or her resignation as the
Salaried/Management Employee Director, (iv) his or her ceasing to serve
as the Salaried/Management Employee Director for any reason whatsoever,
(v) his or her disqualification pursuant to Section 8(d) of this Agreement,
or (vi) his or her failure to be re-nominated to continue to serve as the
Salaried/Management Employee Director pursuant to Section 8 of this Agreement
(in any such case, the "Terminated Director"), shall deliver or cause to
be delivered, in exchange for the payment of the par value of each share
so delivered, the stock certificate representing such Class XXX Preferred
Stockholder's shares of Class XXX Preferred Stock, duly endorsed for transfer,
to (a) such individual's elected or appointed successor as the Salaried/Management
Employee Director, upon such successor executing and delivering an agreement
in the form of Exhibit B hereto, or (b) in the case where no such successor
Salaried/Management Employee Director has been elected or appointed concurrently
with such individual's removal, resignation, disqualification pursuant
to Section 8(d) of this Agreement or failure to be re-nominated or otherwise
ceasing to serve as the Salaried/Management Employee Director, to the Company,
to be held in escrow to be delivered to the successor of such Terminated
Director when such successor (x) is duly elected or appointed, as the case
may be, and (y) executes and delivers an agreement in the form of Exhibit
B hereto.
The Company shall
immediately effect an Automatic Redemption with respect to, or if such
Automatic Redemption is not applicable, the Terminated Director shall sell
and the Company, subject to legally available funds therefor, shall purchase,
all shares of Class XXX Preferred Stock of any Terminated Director who
fails to comply with the transfer requirements of this Section 5 and shall
(subject to the following sentence) transfer or re-issue such redeemed
or purchased shares to such Terminated Director's successor upon such successor
executing and delivering an agreement in the form of Exhibit B annexed
hereto. If such Terminated Director's successor is elected or appointed
and executes and delivers an agreement in the form of Exhibit B annexed
hereto prior to such Automatic Redemption or purchase by the Company, the
Company shall issue to such successor two shares of Class XXX Preferred
Stock upon the payment of the par value thereof. In addition, if the Designated
Nominee fails to be re-nominated as the salaried/Management Employee Director
pursuant to section 8 of this Agreement, such individual shall immediately
resign from the Board and if such individual fails to so immediately resign
from the Board, each of the Class XXX Preferred Stockholders (including
the Class XXX Preferred Stockholder who has failed to so immediately resign
from the Board) shall promptly vote (or act by written consent with respect
to) their shares of Class XXX Preferred Stock to immediately remove such
individual from the Board, without cause. A Terminated Director who resigns
from, is removed from or otherwise ceases to be a member of the Board and
otherwise complies with the provisions of this Section 5 shall no longer
be deemed to be a party to this Agreement.
6. Replacement
Salaried/Management Employee Director. Immediately upon the election
or appointment (as the case may be) of an individual to replace or succeed
any Terminated Director, such individual shall execute and deliver to the
Company and the remaining parties hereto an agreement (in the form of Exhibit
B annexed hereto) agreeing to be bound by each of the terms of this Agreement,
and from and after the execution and delivery of such agreement, such individual
shall be deemed to be a party to this Agreement. Should any individual
who has been elected or appointed, as the case may be, as the Salaried/Management
Employee Director fail either (i) to become a Class XXX Preferred Stockholder
or (ii) to execute and deliver an agreement in the form of Exhibit B annexed
hereto, each of the Class XXX Preferred
Stockholders shall
vote (or act by written consent with respect to) their shares of Class
XXX Preferred Stock to remove such person as the Salaried/Management Employee
Director, without cause.
7. Mandatory
Extensions. Not later than two years prior to the date, if any, on
which this Agreement would otherwise expire pursuant to clause (i) of Section
1 of this Agreement, the Company and the Class XXX Preferred Stockholders
shall execute and deliver to each other an extension of this Agreement
for a period of time equal to the longest period then permitted by law,
but in no event beyond the first to occur of the ALPA Termination Date
and the IAM Termination Date. Should any Class XXX Preferred Stockholder
fail to execute and deliver the extension of this Agreement required by
this Section 7 (a "Non-Extending Stockholder"), each Class XXX Preferred
Stockholder, including each Non-Extending Stockholder, shall vote (or act
by written consent with respect to) their shares of Class XXX Preferred
Stock to remove such Non-Extending Stockholder from the Board, without
cause, if such Non-Extending Stockholder is the Salaried/Management Employee
Director.
8. Nomination
and Election of the Salaried/Management Employee Director. (a)
The Designated Nominee named herein shall be the initial Designated Nominee
hereunder, and the Designated Stockholder named herein shall be the initial
Designated Stockholder hereunder, each of whom shall serve in such capacity
until a replacement is named pursuant to this Section 8.
(b) The Designated
Nominee shall be the initial candidate for election as the Salaried/Management
Employee Director and shall serve in such capacity until another candidate
is elected or appointed to be the replacement Designated Nominee (the "Replacement
Designated Nominee") in accordance with the procedures identified in Exhibit
A hereto. Upon such election or appointment, the Designated Nominee shall
transfer the share of Class XXX Preferred Stock held by him or her to the
Replacement Designated Nominee for a purchase price equal to the par value
thereof, and the Replacement Designated Nominee shall purchase such share
and shall execute and deliver a copy of an agreement in the form of Exhibit
B hereto, as provided elsewhere herein. Thereupon, the Replacement Designated
Nominee shall become the "Designated Nominee" hereunder for all purposes,
and the Designated Nominee
and the Designated
Stockholder, as Class XXX Preferred Stockholders, shall vote to elect such
Designated Nominee as the Salaried/Management Employee Director, as provided
elsewhere herein. In the case of a vacancy of the Board seat for the Salaried/Management
Employee Director, a candidate for election shall be identified in accordance
with the procedures in Exhibit A as the Salaried/ Management Employee Director,
and such person shall become the Replacement Designated Nominee hereunder.
(c)
The Designated Stockholder shall serve in such capacity until another candidate
is nominated to be the replacement Designated Stockholder (the "Replacement
Designated Stockholder") in accordance with the procedure identified
in Exhibit A hereto. Upon such nomination, the Designated Stockholder shall
transfer the share of Class XXX Preferred Stock held by him or her to the
Replacement Designated Stockholder for a purchase price equal to the par
value thereof, and the Replacement Designated Stockholder shall purchase
such share and shall execute and deliver a copy of an agreement in the
form of Exhibit B hereto, as provided elsewhere herein. Thereupon,
the Replacement Designated Stockholder shall become the "Designated Stockholder"
hereunder for all purposes. The Designated Stockholder agrees to sell and
the Company agrees to purchase (which may be by redemption) all shares
of Class XXX Preferred Stock of any Designated Stockholder who fails to
comply with the transfer requirements of this Section 8(c) by paying the
par value of each share being purchased to such Designated Stockholder
and shall (subject to the following sentence) transfer or re-issue such
purchased shares to the Replacement Designated Stockholder upon such Replacement
Designated Stockholder executing and delivering an agreement in the form
of Exhibit B annexed hereto. If such Replacement Designated Stockholder
executes and delivers an agreement in the form of Exhibit B annexed hereto
prior to such purchase by the Company, the Company shall issue to such
successor one share of Class XXX Preferred Stock upon the payment of the
par value thereof.
(d) Any person
who is otherwise not disqualified pursuant to the terms of this Agreement
shall be qualified to become the Designated Nominee or the Designated Stockholder
hereunder. Notwithstanding anything in the foregoing portion of this paragraph
(d) to the contrary, any person who, as a Class XXX Preferred Stockholder,
has failed to vote the share or shares of Class
XXX Preferred Stock
for the candidate for election as the Salaried/Management Employee Director
nominated by the System Roundtable shall be disqualified hereunder from
serving as either a Designated Nominee or a Designated Stockholder thereafter
unless such disqualification is thereafter lifted by the System Roundtable.
(e) The System
Roundtable shall communicate its actions by written notice (or communicated
orally and confirmed in writing), given in person, sent by facsimile transmission
or other electronic medium or sent by overnight express service to the
addresses that the parties hereto shall provide in writing to the System
Roundtable from time to time.
(f) The System
Roundtable is the intended third-party beneficiary of this Agreement, and
the parties hereto agree for the benefit of the System Roundtable, however
constituted, that they shall perform their respective agreements hereunder.
The System Roundtable and the members thereof shall not be liable to any
person on account of any action it or they may take pursuant to the terms
of this Agreement.
9. Waiver
of Claims. Except as provided in Section 13, each Class XXX Preferred
Stockholder hereby waives any and all claims, whether for damages or otherwise,
which such individual may otherwise have against any person or entity in
connection with such person or entity performing the terms of, or otherwise
acting in accordance with, this Agreement.
10. Binding
Effect. The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and assigns (and, in the case of a deceased Class XXX Preferred Stockholder,
such individual's estate and heirs), provided that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement except as provided herein.
11. Governing
Law.This
Agreement shall be construed in accordance with and governed by the laws
of the State of Delaware, without regard to the conflicts of laws principles
thereof.
12. Counterparts.
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signature thereto
and hereto were upon the same instrument.
13. Specific
Performance. The parties hereto agree that if any of the provisions
of this Agreement were not performed in accordance with their specific
terms or were otherwise breached, irreparable damage would occur, no adequate
remedy of law would exist and damages would be difficult to determine,
and that the parties shall be entitled to specific performance of the terms
hereof, in addition to any other remedy at law or equity.
14. Amendments.
This Agreement may not be amended or modified unless such amendment or
modification (i) is approved in writing by the Company and each then existing
Class XXX Preferred Stockholder and (ii) is consented to by the Independent
Directors and the Outside Public Directors (each as defined in the Restated
Certificate).
15. Entire
Agreement. This Agreement, together with the Class XXX Preferred Stock
Subscription Agreement, constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof and, except
as otherwise contemplated hereby, supersedes all other prior agreements
and understandings, both written and oral, between the parties hereto with
respect to the subject matter hereof.
IN WITNESS WHEREOF,
the parties hereto have executed this Agreement as of the date first above
written.
UAL CORPORATION
By: /s/ Xxxxxx X.X'Xxxxxx
Name: Xxxxxx X. X'Xxxxxx,
Xx.
Title: Executive Vice
President
Xxxxxx X. Xxxxxxxx
Designated Nominee
Xxxx X. Xxxxxx
Designated Stockholder
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date first above
written.
UAL CORPORATION
By:
Name:
Title:
/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
Designate Nominee
Xxxx X. Xxxxxx
Designated Stockholder
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date first above
written.
UAL CORPORATION
By:
Name:
Title:
Xxxxxx X. Xxxxxxxx
Designated Nominee
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Designated Stockholder
EXHIBIT A TO THE
CLASS XXX PREFERRED
STOCKHOLDERS' AGREEMENT
SALARIED/MANAGEMENT
EMPLOYEES
DIRECTOR AND DESIGNATED
STOCKHOLDER
SELECTION PROCESS
The Salaried/Management
EmployeesDirector shall be nominated by the System Roundtable.
The Designated Stockholder
shall be the senior executive of United who has primary responsibility
for human resources (the "Executive") unless and until the Company has
purchased (which may be by redemption) all shares of Class XXX Preferred
stock of any Designated Stockholder in accordance the fourth sentence of
Section 8(c) of the Agreement. In the event of such purchase, the Replacement
Designated Stockholder shall be as identified by the System Roundtable
until such Executive is no longer the senior executive of United who has
primary responsibility for human resources.
The System Roundtable
shall establish a committee (the "Selection committee") of four employees
to select the nominee for Salaried/Management Employees Director and the
Replacement Designated Stockholder in accordance with the immediately preceding
paragraph, which selection must be approved by a majority of the System
Roundtable.
The Selection Committee
or the System Roundtable may engage executive search firms and other consultants
to assist in the selection of a nominee and may consult with legal counsel
and the Company's management in making the selections.
EXHIBIT B TO THE
CLASS XXX PREFERRED
STOCKHOLDERS' AGREEMENT
In consideration of
the receipt of the [one/two] share[s] of Class XXX Preferred Stock of the
Company and other good and valuable consideration the receipt of which
is hereby acknowledged, the undersigned hereby agrees to be bound by and
perform each of the terms of the Class XXX Preferred Stockholders' Agreement,
made as of the 12th day of July, 1994, by and among UAL Corporation
and certain individualswho were named to serve as the initial Designated
Nominee and the initial Designated Stockholder (the "Agreement"), as if
the undersigned were the original [Designated Stockholder/ Designated Nominee]
under the Agreement. Capitalized terms not defined herein shall have the
meanings ascribed to them in the Agreement and Plan of Recapitalization,
dated as of March 25, 1994, as amended from time to time, by and among
the Company, the ALPA and the IAM.
IN WITNESS WHEREOF,
the undersigned has executed this Agreement to be bound by the Class XXX
Preferred Stockholders' Agreement as of the date set forth below.
Dated:
EXHIBIT B TO THE
CLASS XXX PREFERRED
STOCKHOLDERS' AGREEMENT
In consideration of
the receipt of the [one) shares[s] of Class XXX Preferred Stock of the
Company and other good and valuable consideration the receipt of which
is hereby acknowledged, the undersigned hereby agrees to be bound by and
perform each of the terms of the Class XXX Preferred Stockholders' Agreement,
made as of the 12th day of July, 1994, by and among UAL Corporation and
certain individuals who were named to serve as the initial Designated Nominee
and the initial Designated Stockholder (the "Agreement"), as if the undersigned
were the original (Designated Stockholder] under the Agreement. Capitalized
terms not defined herein shall have the meanings ascribed to them in the
Agreement and Plan of Recapitalization, dated as of March 25, 1994, as
amended from time to time, by and among the Company, the ALFA and the IAM.
1N WITNESS WHEREOF,
the undersigned has executed this Agreement to be bound by the Class XXX
Prefered Stockholders' Agreement as of the date set forth below.
Dated: 3/4/97
/s/ Xxxxxxx X. Xxxxxxx
EXHIBIT B TO THE
CLASS XXX PREFERRED
STOCKHOLDERS' AGREEMENT
In consideration of the receipt of the [one] share(s] of Class XXX Preferred Stock of the Company and other good and valuable consideration the receipt of which is hereby acknowledged, the undersigned hereby agrees to be bound by and perform each of the terms of the Class XXX Preferred Stockholders' Agreement, made as of the 12th day of July, 1994, by and among UAL Corporation and certain individuals who were named to serve as the initial Designated Nominee and the initial Designated Stockholder (the "Agreement"), as if the undersigned were the original (Designated Stockholder) under the Agreement. Capitalized
terms not defined herein
shall have the meanings ascribed to them in the Agreement and Plan of Recapitalization,
dated as of March 25, 1994, as amended from time to time, by and among
the Company, the ALPA and the IAM.
IN WITNESS WHEREOF,
the undersigned has executed this Agreement to be bound by the Class XXX
Preferred Stockholders' Agreement as of the date set forth below.
Dated: 1/2/97
/s/ Xxxx Xxxxxxxxx
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