EXHIBIT 99.6
AGREEMENT AMONG PREFERRED STOCKHOLDERS
THIS AGREEMENT AMONG PREFERRED STOCKHOLDERS ("Agreement") dated as of
June 5, 1997, is entered into by and among Western Pacific Airlines, Inc., a
Delaware corporation (the "Corporation"), Xxxx Petroleum of Texas, Inc., a
Delaware corporation ("Xxxx"), GFI Company, a Nevada corporation ("GFI"), RGC
International Investors, LDC, a company organized under the laws of the Cayman
Islands ("Xxxx Xxxx"), CC Investments, LDC, a company organized under the laws
of the Cayman Islands ("Castle Creek") and Lionhart Global Appreciation Fund
("Lionhart").
R E C I T A L S:
WHEREAS, Xxxx and GFI are the holders of all the issued and outstanding
shares of Series B Preferred Stock of the Corporation, par value $0.001 per
share (the "Series B Preferred Shares");
WHEREAS, Xxxx Xxxx, Castle Creek and Lionhart (collectively, the
"Investors") desire to enter into a transaction whereby, among other things, the
Investors shall purchase an aggregate of 10,000 shares of the Series C Preferred
Stock of the Corporation, par value $0.001 per share (the "Series C Preferred
Shares"), and certain warrants;
WHEREAS, as a condition precedent to the purchase of the Series C
Preferred Shares, the Investors have required that the Corporation enter into an
agreement with the holders of Series B Preferred Shares (the "Series B
Agreement") whereby such holders will agree (i) to vote all of the shares of
Common Stock owned by them in favor of the Corporation's proposal to increase
its authorized shares of Common Stock, par value $0.001 per share (the "Common
Stock") to 40,000,000 shares, and (ii) pending the increase in the authorized
number of shares of Common Stock, to release for the Corporation's use 2,000,000
shares of Common Stock reserved for issuance upon exercise of certain warrants
to purchase Common Stock held by Xxxx and GFI, respectively; and
WHEREAS, as a condition to entering into the Series B Agreement, Xxxx
and GFI have required that the Investors enter into this Agreement in order to
grant the holders of Series B Preferred Shares certain tag-along redemption
rights and, in order to induce Xxxx and GFI to enter into the Series B
Agreement, the Investors and the Corporation have agreed to grant the holders of
Series B Preferred Shares such redemption rights, all on the terms and
conditions set forth herein.
A G R E E M E N T S:
In consideration of the mutual covenants and agreements set forth
herein and for good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Series B Tag-Along Redemption Rights. Each of the parties hereto
hereby agrees that, notwithstanding any of the provisions set forth in the
Amended and Restated Certificate of Incorporation of the Corporation (the
"Certificate of Incorporation"), including, without limitation, the Certificate
of Designations, Preferences and Rights for the Corporation's Series B Preferred
Stock (the "Series B Certificate of Designation") and the Certificate of
Designations, Preferences and Rights for the Corporation's Series C Preferred
Stock (the "Series C Certificate of Designation"), the holders of Series B
Preferred Shares shall have the following rights:
(a) If the Series C Preferred Shares, pursuant to the Series C
Certificate of Designation, at any time prior to the scheduled conversion
thereof (i) become subject to a mandatory redemption by the Corporation without
any action by the holders thereof, or (ii) pursuant to a right granted by the
Series C Certificate of Designation, the holders thereof elect to have such
Series C Preferred Shares redeemed by the Corporation, including, without
limitation, redemptions pursuant toArticle IV or Article V of the Series C
Certificate of Designation (each an "Early Redemption Event"), then the
Corporation shall notify the holders of outstanding Series B Preferred Shares in
writing within two (2) days of such Early Redemption Event. For a period of
fifteen (15) days after the date of such notice (the "Tag-Along Period"), at the
option the holder of such outstanding Series B Preferred Shares, such holder may
elect to have the Corporation purchase such holder's Series B Preferred Shares
for an amount per share equal to the "Liquidation Preference" thereof (as such
term is defined in the Series B Certificate of Designation); provided, however,
that (i) if the duration of the Tag-Along Period extends beyond the scheduled
Series C Preferred Share redemption date for an Early Redemption Event, the
Tag-Along Period shall be reduced to the extent necessary so that the last day
of the Tag-Along Period is two (2) business days prior to such scheduled
redemption date, and (ii) any redemption of Series B Preferred Shares pursuant
to this Section 1(a) shall be conducted on a pro rata basis with the holders of
Series C Preferred Shares that are subject to such Early Redemption Event and
any other "Parity Shares" (as such term is defined in the Series B Certificate
of Designation) that are being simultaneously redeemed by the Corporation
pursuant to similar rights (such pro rata basis being determined based upon the
dollar amount originally paid to the Corporation for such shares). Any such
redemption pursuant to this Section 1(a) shall be effected within the same time
period as called for pursuant to the Series C Preferred redemption event which
is the cause for the Early Redemption Event (the "Tag-Along Redemption Period").
(b) Upon the payment of the Liquidation Preference by the Corporation
to a holder of Series B Preferred Shares which are to be redeemed pursuant to
this Section 1, dividends with respect to such redeemed shares shall cease to
accumulate after the redemption date, such shares shall no longer be deemed
outstanding, the holders thereof shall cease to be stockholders of the
Corporation (assuming all of each such holder's Series B Preferred Shares are
redeemed), and all rights whatsoever with respect to the shares to be redeemed
(except the right of the holders to receive the Liquidation Preference without
interest upon surrender of their certificates therefor) shall terminate. If
funds legally available for such purpose are not sufficient for redemption of
the Series B Preferred Shares which were to be redeemed, then all shares shall
be redeemed pro rata to the extent the Corporation has funds legally available
to redeem any such shares and the certificates representing shares not redeemed
shall be deemed not to be surrendered, such shares shall remain outstanding, the
right of the holder to receive payment of the Liquidation Preference for such
shares shall be suspended, the right of holders of Series B Preferred Shares
thereafter shall continue to be only those of a holder of Series B Preferred
Shares, and the Tag-Along Redemption Period shall be extended until ten (10)
days after the holder of such shares receives written notice from the
Corporation stating that the Corporation currently has sufficient funds
available to redeem such holder's shares.
2. Series C Tag-Along Redemption Rights. Each of the parties hereto
hereby agrees that, notwithstanding any of the provisions set forth in the
Certificate of Incorporation, including, without limitation, the Series B
Certificate of Designation and the Series C Certificate of Designation, the
holders of Series C Preferred Shares shall have the following rights:
(a) Except for redemptions of the Series B Preferred Stock at the
option of the Corporation, which shall be governed by Section 4(k) of the
Securities Purchase Agreement, and except for redemptions pursuant to Section 6
of the Series B Certificate of Designation, if the Series B Preferred Shares,
pursuant to the Series B Certificate of Designation, at any time (i) become
subject to a mandatory redemption by the Corporation without any action by the
holders thereof, or (ii) pursuant to a right granted by the Series B Certificate
of Designation, the holders thereof elect to have such Series B Preferred Shares
redeemed by the Corporation (and in the case of each of clause (i) and (ii)
above, the holders of Series C Preferred Shares are not otherwise entitled to
have their Series C Preferred Shares redeemed under similar provisions of the
Series C Certificate of Designation) (each an "Series B Early Redemption
Event"), then the Corporation shall notify the holders of outstanding Series C
Preferred Shares in writing within two (2) days of such Series B Early
Redemption Event. For a period of fifteen (15) days after the date of such
notice (the "Series B Tag-Along Period"), at the option the holder of such
outstanding Series C Preferred Shares, such holder may elect to have the
Corporation purchase such holder's Series C Preferred Shares for an amount per
share equal to the "Liquidation Preference" thereof (as such term is defined in
the Series C Certificate of Designation); provided, however, that (i) if the
duration of the Series B Tag-Along Period extends beyond the scheduled Series B
Preferred Share redemption date for a Series B Early Redemption Event, the
Series B Tag-Along Period shall be reduced to the extent necessary so that the
last day of the Series B Tag-Along Period is two (2) business days prior to such
scheduled redemption date, and (ii) any redemption of Series C Preferred Shares
pursuant to this Section 2(a) shall be conducted on a pro rata basis with the
holders of Series B Preferred Shares that are subject to such Series B Early
Redemption Event and any other "Parity Shares" (as such term is defined in the
Series B Certificate of Designation) that are being simultaneously redeemed by
the Corporation pursuant to similar rights (such pro rata basis being determined
based upon the dollar amount originally paid to the Corporation for such
shares). Any such redemption pursuant to this Section 2(a) shall be effected
within the same time period as called for pursuant to the Series B Preferred
redemption event which is the cause for the Series B Early Redemption Event (the
"Series B Tag-Along Redemption Period").
(b) Upon the payment of the Liquidation Preference by the Corporation
to a holder of Series C Preferred Shares which are to be redeemed pursuant to
this Section 2, such shares shall no longer be deemed outstanding, the holders
thereof shall cease to be stockholders of the Corporation (assuming all of each
such holder's Series C Preferred Shares are redeemed), and all rights whatsoever
with respect to the shares to be redeemed (except the right of the holders to
receive the Liquidation Preference upon surrender of their certificates
therefor) shall terminate, including, without limitation, any rights to have
additional warrants issued to the holder pursuant to Article V.D of the Series C
Certificate of Designation. If funds legally available for such purpose are not
sufficient for redemption of the Series C Preferred Shares which were to be
redeemed, then all shares shall be redeemed pro rata to the extent the
Corporation has funds legally available to redeem any such shares and the
certificates representing shares not redeemed shall be deemed not to be
surrendered, such shares shall remain outstanding, the right of the holder to
receive payment of the Liquidation Preference for such shares shall be
suspended, the right of holders of Series C Preferred Shares thereafter shall
continue to be only those of a holder of Series C Preferred Shares, and the
Series B Tag-Along Redemption Period shall be extended until ten (10) days after
the holder of such shares receives written notice from the Corporation stating
that the Corporation currently has sufficient funds available to redeem such
holder's shares.
3. Time of the Essence; Right to Specific Performance.
(a) The parties agree that time is of the essence with respect to any of
the time periods set forth in Sections 1 and 2 hereof.
(b) The parties agree that irreparable harm would occur in the event
that any of the provisions of Sections 1 and 2 hereof are not performed in
accordance with the terms therein set forth and that any party hereto shall be
entitled to specific performance of the terms and provisions of such Section, in
addition to any other remedy available to such party in law or equity.
4. Subsequent Transferees. Each of the Investors hereby agrees not to
assign, transfer, sell or otherwise convey any Series C Preferred Shares unless
and until the proposed transferee for such Series C Preferred Shares has agreed
in writing to join in and be bound by the terms and conditions of this
Agreement.
5. Miscellaneous.
(a) Termination. This Agreement will automatically terminate at such time
as (i) all of issued and outstanding Series B Preferred Shares and/or Series C
Preferred Shares have been redeemed by the Corporation; or (ii) upon the
conversion of all of the issued and outstanding Series C Preferred Shares into
shares of Common Stock (the "Scheduled Termination"). Prior to the Scheduled
Termination, this Agreement may only be terminated by a written instrument
executed by the Corporation, the holders of a majority in interest of the Series
B Preferred Shares then outstanding and the holders a majority in interest of
the Series C Preferred Shares then outstanding.
(b) Waiver, Modification in Writing. No failure or delay on the part of any
party hereto in exercising any right, power or remedy hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given without the written consent of the Corporation, the holders of a majority
in interest of the Series B Preferred Shares then outstanding and the holders of
a majority in interest of the Series C Preferred Shares then outstanding. Any
amendment, supplement or modification of or to any provision of this Agreement,
or any waiver of any provision of this Agreement, shall be effective only in the
specific instance and for the specific purpose for which made or given. Except
where notice is specifically required by this Agreement, no notice to or demand
on any party hereto in any case shall entitle the other party to any other or
further notice or demand in similar or other circumstances.
(c) Communications. All notices and demands provided for hereunder shall be
in writing, and shall be given by registered or certified mail, return receipt
requested, telex, telegram, telecopy, courier service of personal delivery, and
addressed to the relevant party or parties at the following address:
If to the Corporation:
Western Pacific Airlines, Inc.
0000 Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Chief Executive Officer
With a copy to:
X'Xxxxxx & Xxxxxx
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
If to Xxxx, GFI or an Investor:
To the address set forth below such party's name on the
signature pages hereto.
or to such other address as Xxxx, GFI, an Investor or the Corporation, as the
case may be, may designate in writing to the other parties hereto, which notice
shall be deemed given when received.
(d) Execution in Counterparts. This Agreement may be executed in any number
of counterparts, each of which counterparts, when so executed and delivered,
shall be deemed to be an original and all of which counterparts, taken together,
shall constitute one and the same agreement.
(e) Binding Effect; Assignment. The rights and obligations of the parties
under this Agreement may not be assigned; provided, however, that the
Corporation may assign its rights hereunder to any successor entity to the
Corporation, whether pursuant to a sale of substantially all of the
Corporation's assets, or the merger or consolidation of the Corporation, that
agrees to be bound by the terms and conditions hereof or is so bound by
operation by law. Except as expressly provided in this Agreement, this Agreement
shall not be construed so as to confer any right or benefit upon any person
other than the parties to this Agreement, and their respective successors and
permitted assigns. This Agreement shall be binding upon the Corporation, Xxxx,
GFI and each of the Investors, and their respective successors and permitted
assigns.
(f) Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER THE LAWS OF THE STATE OF DELAWARE, AND FOR ALL PURPOSES SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF SAID STATE, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS.
(g) Severability of Provisions. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
(h) Headings. The Section headings used or contained in this Agreement are
for convenience of reference only and shall not affect the construction of this
Agreement.
(i) Integration. This Agreement constitutes the entire agreement among the
parties with respect to the subject matter hereof and there are no promises or
undertakings with respect thereto relative to the subject matter hereof not
expressly set forth or referred to herein.
* * * * *
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its duly authorized officer as of the date first
written above.
WESTERN PACIFIC AIRLINES, INC. XXXX PETROLEUM OF TEXAS, INC.
By: ____________________________ By: ____________________________
Its: ____________________________ Its: ____________________________
Address:
c/x Xxxx Petroleum Corporation
0000 Xxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Telecopier: (000)-000-0000
Attn: Xx. Xxxx Xxxxx, Xx., Vice Chairman
GFI COMPANY RGC INTERNATIONAL INVESTORS,
LDC
By: Xxxx Xxxx Capital Management, L.P.
By: RGC General Partner Corp.
By: ____________________________ By: ____________________________
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Its: ____________________________ Its: ____________________________
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Address: Address:
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Xxxxxx Center 000 X. Xxxxxxxxxx Xxxx
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0000 Xxxxxx Xxxxxx Xxxxxxx Xxxxx 0000
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Xxx Xxxxx, Xxxxxx 00000 Xxxxx, Xxxxxxxxxxxx 00000
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Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
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Attn: Xxxxx X. Story Attn: Xxxxx X. Xxxxx, Managing Director
CC INVESTMENTS, LDC LIONHART GLOBAL APPRECIATION FUND
By: By:
Its: Its:
Address: Address
Citco Buildings, Wickhams Cay
X.X. Xxx 000
Xxxx Xxxx
Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx
Telecopier: 011-441-819-476936
Attn: Xxxxx Xxxxx
