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EXHIBIT 10.42
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EQUITY RIGHTS PUT AGREEMENT
This Agreement dated as of September 15, 1995 is made by and between
Trans World Airlines, Inc., a Delaware corporation (the "Company") and Westgate
International, L.P., a Cayman Islands limited partnership (the "Purchaser");
WITNESSETH:
WHEREAS, pursuant to the Company's plan of reorganization confirmed by
the United States Bankruptcy Court for the Eastern District of Missouri on
August 4, 1995 (the "Plan") which became effective on August 23, 1995 (the
"Effective Date"), the Company has issued approximately 13,150,000 Equity
Rights (as defined in Section 1.1.60 of the Plan), each consisting of the
nontransferable right to purchase for cash from the Company newly issued Common
Stock pursuant to a "Basic Subscription Privilege" and an "Oversubscription
Privilege" (as such terms are defined in Section 1.1.60 of the Plan);
WHEREAS, the Purchaser is the owner and holder of Equity Rights
("Purchaser's Equity Rights");
WHEREAS, the Common Stock to be issued to Purchaser upon exercise of
Purchaser's Equity Rights has been registered by the Company pursuant to
Registration Statement No. 33-89764, as amended, filed with the Securities and
Exchange Commission and declared effective on May 12, 1995 (the "Registration
Statement").
WHEREAS, the Company and Purchaser are willing to enter into this
Agreement to provide for the purchase of the number of shares of Common Stock
of the Company hereinafter set forth to the extent such shares may be acquired
pursuant to the Option (as defined below) to be effected by the full exercise
of the Basic Subscription Privilege, and an exercise of the Oversubscription
Privilege, of the Equity Rights held by Purchaser as set forth below; and
WHEREAS, all capitalized terms used herein which are not separately
defined, are used herein as defined in the Plan.
NOW THEREFORE, in consideration of the mutual covenants hereinafter
contained, the Company and the Purchaser, agree as follows:
1. GRANT OF PUT OPTION. Purchaser hereby grants to the Company the
Option (the "Option") exercisable on or before October 5, 1995 (the 43rd day
following the Effective Date) to put to the Purchaser the exercise of
Purchaser's Basic Subscription Privileges and Oversubscription Privileges as
hereinafter provided. Upon the exercise by the Company of the Option, the
Purchaser shall, in accordance with the covenants, representations and
warranties herein contained, on or prior to 5:00 p.m. New York time on October
5, 1995, exercise the Basic Subscription Privilege and the Oversubscription
Privilege under Equity Rights held by the Purchaser to subscribe for, in the
aggregate, not fewer than 772,388 shares (the "Committed Shares") of Common
Stock of the Company by executing and delivering to American Stock
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Transfer and Trust Company as agent (the "Subscription Agent") properly
completed Subscription Forms, with any required signatures guaranteed, together
with payment in full of the Subscription Price for each of the Committed Shares
in accordance with the terms of the Equity Rights and the Plan. The Option may
be exercised by the Company by sending notice in writing to Purchaser by
facsimile transmission to the Purchaser's address, as initially stated in
Section 9, on or before 3:00 p.m. New York time on October 5, 1995. In no
event shall Purchaser be required to subscribe for more than 772,388 shares of
Common Stock in the aggregate pursuant to its own exercise of the Equity Rights
and the exercise by the Company of the Option.
2. PREMIUM TO PURCHASER FOR OPTION. As consideration for the
Option in Section 1, the Company will pay to the Purchaser an aggregate premium
equal to $202,148.42 (the "Premium").
The Premium will be paid in immediately available funds on the date of
the execution of this Agreement, if this Agreement is executed prior to 10:00
a.m. New York time on such date, and otherwise in immediately available funds
on the day following the execution of this Agreement, and will be placed in an
escrow account with Xxxxx, Xxxxxxxx & Xxxxxxx (in such capacity, the "Escrow
Agent") pursuant to an escrow agreement which will authorize the release of the
funds to Purchaser only upon receipt by the Escrow Agent and the Company of an
affidavit of a duly authorized officer or general partner of the Purchaser to
the effect that, Purchaser has executed or caused to be executed and delivered
or caused to be delivered to the Subscription Agent properly completed
Subscription Forms, with any required signatures guaranteed, together with
payment in full of the Subscription Price for each of the Committed Shares in
accordance with the terms hereof and of the Equity Rights and the Plan, and
confirmation from the carrying broker receipt and execution of instructions
from the Purchaser to exercise the Equity Rights in the amount specified in
such affidavit. Such escrow agreement shall provide that the Premium shall be
subject to a partial release at Purchaser's request, to the extent that the
Purchaser's Basic Subscription Privilege has been exercised prior to its
Oversubscription Privilege provided the Escrow Agent and the Company shall have
been furnished evidence as above required of such execution and delivery of
Subscription Forms and payment of the Subscription Price. Any partial release
of the Premium shall be in the same proportion as the number of shares
subscribed for by the Purchaser pursuant to the Equity Rights bears to the
total Committed Shares committed to by the Purchaser (the dollar amount derived
from such calculation shall be referred to as the "Computation"). Such escrow
agreement shall further provide that interest shall accrue on all escrowed
amounts. The Escrow Agent shall deposit the Premium in such interest bearing
account, as may be selected by the Escrow Agent, with Wachovia Bank of Georgia,
N.A. (the "Bank") on a basis allowing for withdrawal of the funds on one
business day's notice. The escrow agreement shall be in the form attached
hereto as Exhibit A and may contain such other terms as may be agreed to by the
parties hereto and the Escrow Agent. The Purchaser shall send a copy of all
documents sent to the Escrow Agent to the Company but such transmission shall
not be a condition to the release of Funds from escrow unless objection shall
be given by the Company as provided in the Escrow Agreement.
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3. TRANSACTION COSTS, FEES AND EXPENSES. Each party hereto
agrees to pay its own transaction costs, fees and expenses in connection with
the transactions contemplated hereby, including without limitation, the fees
and expenses of their respective counsel.
4. PURCHASER'S REPRESENTATIONS AND WARRANTIES. The Purchaser
represents and warrants and agrees that:
a. Purchaser is a duly organized and validly existing
Cayman Islands limited partnership which is in good standing
under the laws of its jurisdiction of organization, with
partnership power and authority to own its property and
conduct its business and to enter into and perform all of its
obligations under this Agreement.
b. Purchaser is the owner and holder of Equity Rights.
c. This Agreement has been duly authorized, executed and
delivered by the Purchaser and constitutes the valid, legal
and binding obligation of the Purchaser enforceable against
the Purchaser in accordance with its terms subject to the
effect of bankruptcy, insolvency, reorganization, moratorium,
in each case with respect to proceedings subsequent to the
date of this Agreement and other similar laws affecting the
rights and remedies of creditors generally and general
principles of equity.
d. The Purchaser has a net worth computed in accordance
with generally accepted accounting principles, of not less
than 90% of the amount set forth in the audited financial
statements heretofore furnished to the Company by Purchaser in
connection with this Agreement and has sufficient unrestricted
liquid assets and the financial ability to fully perform its
obligations under this Agreement. The financial statements of
the Purchaser furnished to the Company prior to execution and
delivery of this Agreement have been prepared in accordance
with generally accepted accounting principles consistently
applied and fairly present the pertinent results of operations
for the periods indicated and the financial position at the
end of such periods of the Purchaser, except as set forth in
the footnotes thereto.
e. No consent, approval, authorization or order of, or
filing with, any governmental agency or body of any court is
required for the consummation by the Purchaser of the
transactions contemplated by this Agreement.
f. The execution, delivery and performance of this
Agreement and the consummation of the transactions herein
contemplated will not result in a breach or violation by
Purchaser of any of the terms and provisions of, or constitute
a default under, (i) any statute, rule or regulation, or any
order of any governmental agency or body or any court having
jurisdiction over the Purchaser or any subsidiary of the
Purchaser or any of their properties or (ii) any agreement or
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instrument to which the Purchaser or any subsidiary is a party
or by which the Purchaser or any subsidiary is bound or to
which any of the properties of the Purchaser or any subsidiary
is subject, or (iii) the certificate of limited partnership or
partnership agreement of the Purchaser or any subsidiary of
the Purchaser which currently conducts business.
g. No suit, action, claim or governmental proceeding has
been instituted or, to the knowledge of the Purchaser,
threatened against, and no order, decree or judgment of any
court, agency or other governmental authority of competent
jurisdiction in the United States shall have been rendered
against, the Purchaser to restrain or prohibit the performance
by Purchaser of this Agreement or the transactions
contemplated by this Agreement.
h. Payment by the Company of the Premium to the Escrow
Agent or release of the Premium to the Purchaser from escrow
is not subject to any United States federal or state
withholding obligations. Purchaser agrees that any legal
action or proceeding against Purchaser relating to or arising
out of or under this Agreement may be brought in any court of
competent jurisdiction in the State of New York or of the
United States of America for the Southern District of New
York, and Purchaser accepts with regard to any such action or
proceeding for itself and in respect to its property,
generally and unconditionally, the jurisdiction of the
aforesaid courts. Purchaser further irrevocably consents to
the service of process out of any of the aforementioned courts
in any such action or proceeding by the mailing of copies
thereof by registered or certified U.S. mail, postage prepaid,
to the Purchaser at its address provided in Section 9 hereof,
such service to become effective upon receipt or five (5) days
after such mailing, whichever shall first occur. Nothing
herein contained shall affect the right of the Company to
serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against
Purchaser in the Cayman Islands or in any other jurisdiction
in which Purchaser may be subject to suit. To the fullest
extent permitted by applicable law, Purchaser hereby waives,
and agrees not to assert, by way of motion, defense,
counterclaim or otherwise, in any such suit, action or
proceeding any claim that (i) Purchaser is not personally
subject to the jurisdiction of any of the above-named courts
by reason of any immunity or otherwise (ii) its properties are
exempt or immune from setoff, execution or attachment, either
prior to judgment or in aid of execution or (iii) any suit,
action or proceeding so brought is in an inconvenient forum or
that the venue of the suit, action or proceeding is improper
or that the subject matter hereof may not be enforced in or by
such courts. Purchaser further agrees that, after final
judgment by any such court, they will, to the fullest extent
permitted by applicable law, waive the benefit of any defense
that would hinder or delay the levy, execution or collection
of any amount to which the Company is entitled hereunder or
pursuant to a final judgment of any court having jurisdiction.
The Purchaser hereby irrevocably designates Xx. Xxxx X. Xxxxxx
having an office on the date hereof at Stonington
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Management Corp., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, as the designee, appointee and agent of the
Purchaser to receive service of process in such jurisdiction
in any legal action or proceeding with respect to this
Agreement and such service shall be deemed complete five (5)
days after delivery thereof to the office of said agent, if
written notice of such service shall be given to Purchaser
either by such agent or by the Company, by mailing the same by
registered or certified mail to Purchaser at the addresses set
forth in Section 9 or otherwise as notice is permitted to be
given under such paragraph.
If, for the purpose of obtaining a judgment in any court with
respect to any obligation of Purchaser under this Agreement it
becomes necessary to convert into any other currency any
amount in Dollars due under this Agreement, then that
conversion shall be made at the buying spot rate of exchange
that would be utilized by the Company to purchase freely
transferable Dollars at the close of business on the day
before the day on which the judgment is rendered.
5. COMPANY'S REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants and agrees that:
a. The Company is a duly organized and validly existing
Delaware corporation in good standing under the laws of its
jurisdiction of incorporation, with corporate power and
authority to own its property and conduct its business and to
enter into and perform all of its obligations under this
Agreement.
b. This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid, legal and
binding obligation of the Company, enforceable against the
Company in accordance with its terms subject to the effect of
bankruptcy, insolvency, reorganization, moratorium, in each
case with respect to proceedings subsequent to the date of
this Agreement and other similar laws affecting the rights and
remedies of creditors generally and general principles of
equity.
c. Except for the filing of an appropriately
supplemented prospectus describing, among other things, the
transactions contemplated by this Agreement, no consent,
approval, authorization or order of, or filing with, any
governmental agency or body or any court in any applicable
jurisdiction of the United States is required for the
consummation by the Company of the transactions contemplated
by this Agreement.
d. The execution, delivery and performance of this
Agreement and the consummation of the transactions herein
contemplated will not result in a breach or violation by the
Company of any of the terms and provisions of, or constitute a
default under, (i) any statute, rule or regulation, or any
order of any governmental agency or body or any court having
jurisdiction over the Company
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or any subsidiary of the Company or any of their properties or
(ii) any agreement or instrument to which the Company or any
subsidiary is a party or by which the Company or any
subsidiary is bound or to which any of the properties of the
Company or any subsidiary is subject, or (iii) the certificate
of incorporation or by-laws of the Company or any subsidiary
of the Company which currently conducts business.
e. No suit, action, claim or governmental proceeding has
been instituted or, to the knowledge of the Company,
threatened against, and no order, decree or judgment of any
court, agency or other governmental authority of competent
authority in the United States shall have been rendered
against, the Company to restrain or prohibit the performance
by Company of this Agreement or the transactions contemplated
by this Agreement.
f. The Equity Rights issued to Purchaser for the
Committed Shares and the Committed Shares issued upon exercise
thereof have been duly authorized by the Company and such
Committed Shares, when issued and delivered by the Company in
accordance with the Plan and against payment therefor as
contemplated in the Plan and hereby, will be (i) validly
issued, fully paid and non-assessable and such Equity Rights
and Committed Shares have been registered pursuant to the
Registration Statement under the Securities Act of 1933, as
amended (the "Securities Act") and (ii) free and clear of any
liens, claims and encumbrances arising by, through, or under
the Company and shall not be subject to any stop transfer
instructions imposed by the Company.
g. The Registration Statement with respect to the sale
of the Equity Rights and the underlying Common Stock (issuable
upon the exercise thereof) in each case by the Company to the
Purchaser is currently effective and no stop order pertaining
to it has been issued by the Securities and Exchange
Commission. The Registration Statement shall be effective at
the time of sale and delivery by the Company of the Committed
Shares and no stop order suspending the effectiveness of such
Registration Statement including any amendment or supplement
thereto shall have been issued. The Committed Shares have
been approved for issuance on the American Stock Exchange,
subject to official notice of issuance.
h. As of its effective date, the Registration Statement
did not, insofar as relevant to the Equity Rights or the
underlying Common Stock purchasable pursuant thereto, include
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements made therein not misleading, and, as of
such date, the Prospectus did not, insofar as material to the
investment decision of a reasonable purchaser of the Common
Stock, include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
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6. PURCHASER'S COVENANTS. The Purchaser covenants and agrees
with the Company that:
a. No later than three business days following the
execution of this Agreement, the Purchaser shall cause to be
delivered to the Company an opinion of counsel for Purchaser
dated as of the date of this Agreement in form and substance
reasonably satisfactory to the Company as to the matters set
forth in Section 4a, c, e and f and the first sentence of
Section 4h with respect to federal withholding obligations in
the case of foreign entities.
b. The Purchaser agrees to take such actions and execute
and deliver to the Company such documents and instruments as
may be necessary to fully consummate the transactions and
agreements of the Purchaser as contemplated by this Agreement.
c. During the period commencing with the execution of
this Agreement and terminating on the payment in full of the
exercise price as contemplated in Section 1 (the "Option
Term"), the Purchaser agrees not to enter into any agreement
for the sale or disposition of all or substantially all of the
Purchaser's assets (in one or more transactions), or a merger,
consolidation or other business combination involving all or
substantially all of the Purchaser's assets, unless the
Purchaser provide the Company with the express, written
agreement by the Purchaser or other successor(s) to assume the
Purchaser's obligations and covenants hereunder and, after
giving effect to any such sale, disposition, merger,
consolidation or other business combination, the Purchaser or
other successor(s) shall meet the requirements of Section 4
hereof.
7. THE COMPANY'S COVENANTS. The Company covenants and agrees
with the Purchaser that:
a. No later than three business days following the
execution of this Agreement, the Company shall cause to be
delivered to the Purchaser an opinion of counsel for the
Company dated as of the date of this Agreement in form and
substance reasonably satisfactory to Purchaser as to the
matters set forth in Section 5a, b, c, d and f , and as to the
first sentence of 5(g), such opinion of counsel shall state
that, to the best knowledge of such counsel, the Registration
Statement is currently in effect and no stop order suspending
the effectiveness has been instituted or is pending or
threatened by the Securities and Exchange Commission (the
"SEC").
b. The Company agrees to take such actions and execute
and deliver such documents and instruments as may be necessary
to fully consummate the transactions and agreements of the
Company as contemplated by this Agreement, including, without
limitation, the filing with the SEC in a timely manner in
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accordance with applicable law of an appropriately
supplemented prospectus as referred to in Section 5c (the
"Supplemental Prospectus").
c. Except as otherwise provided below and except for
distributions provided for in the Prospectus, the Plan and/or
pursuant to the terms of securities issued under the Plan,
during the Option Term and thereafter for the period ending
two weeks after the issuance and delivery to the Purchaser of
all of the Committed Shares (i) the Company shall not declare
any dividend or make any distribution on the Company's Common
Stock or Preferred Stock (other than dividends or
distributions payable in the Company's Common Stock or
Preferred Stock) and (ii) the Company shall not effect any
stock dividends, stock splits, or any other issuance of
capital stock (including options, warrants, rights to purchase
stock or securities convertible into stock) or issue any
Common Stock or any other options, warrants or rights thereto
("Derivative Securities") other than: (a) such Common Stock
or Derivative Securities provided for by the Prospectus, the
Plan and/or pursuant to the terms of securities issued under
the Plan, as the case may be; (b) such Common Stock or
Derivative Securities as may be issued pursuant to the terms
of the Company's Key Employee Stock Incentive Plan or to an
employee stock ownership or benefit plan in the ordinary
course of business. For purposes of this provision, the term
"employees" shall include those entities and persons defined
in Instruction A(1)(a) to Form S-8 under the Securities Act.
d. The Company will consult with the Purchaser with
respect to any press release, prospectus supplement, amendment
to the Registration Statement or other public statement or
filing that names or refers to the Purchaser. Any such
disclosure regarding the Purchaser shall be subject to the
Purchaser's consent (which shall not be unreasonably
withheld), except where such release, filing, statement or
announcement by the Company is believed by the responsible
officers of the Company, after consultation with the Company's
counsel, to be required, or that the failure to make such
disclosure would involve an unacceptable risk to the Company,
in each case, under applicable law or pursuant to any listing
agreement with or the rules or regulations of, any national
securities exchange on which the securities of the Company are
listed or traded.
e. Subject to the terms and conditions of this
Agreement, the Company shall deliver or cause to be delivered
to the Purchaser, the Premium (or applicable portion thereof),
together with any accrued interest thereon, (the Premium and
any accrued interest thereon, the "Funds") to be in same day
funds on the first business day following the date of notice
as provided in Section 2 by the Purchaser to the Escrow Agent
that it has performed its obligations under the Agreement
necessary for the Escrow Agent to release the Funds. The
Purchaser shall use its best reasonable efforts to give any
notice to the Escrow Agent to release Funds no later than 5:00
p.m. Atlanta, Georgia time on the business day immediately
preceding the business day on which such Funds are to be
released from escrow. Should the
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Purchaser terminate this Agreement, in whole or in part,
pursuant to Section 11, Purchaser shall refund all Funds, and
any interest accrued thereon, theretofore received by it and
shall not be entitled to receive any further Funds whether
held in escrow or otherwise.
f. The Company shall instruct the Subscription Agent to
determine the amount of shares purchased and not purchased
pursuant to the Basic Subscription Privilege on October 6,
1995 and thereafter the Company shall, within one business day
after receiving all the foregoing information from the
Subscription Agent, in form sufficient to determine the shares
to be allocated pursuant to the Oversubscription Privilege,
and direct the Subscription Agent to effect the delivery of
the Committed Shares purchased pursuant to Purchaser's
Oversubscription Privilege within four business days
thereafter.
g. In reliance upon the truth and accuracy of the
representation of the Purchaser in Section 4h and upon
receipt of the opinion referred to in Section 6a, the Company
shall not, and will instruct the Escrow Agent not to, withhold
any part of the Funds pursuant to any United States federal or
state withholding obligations.
8. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS. The agreements,
representations and warranties set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of the Company or any
of its representatives, officers or directors or any controlling person.
9. NOTICES. All notices, demands, instructions and other
communications required or permitted hereunder will be in writing and shall be
personally delivered or sent by registered, certified or express mail, postage
prepaid, return receipt requested, or by telefacsimile (which shall immediately
be followed by the original of such communication) and shall be deemed to be
given when received by the intended recipient or, in the case of telefacsimile,
on the date transmitted to the intended recipient thereof. Unless otherwise
specified in writing in accordance with this Section, such notices, demands
instructions and communications shall be made to the following:
To Purchaser: Westgate International, L.P.
c/o Stonington Management Corp.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000]
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To the Company: Trans World Airlines, Inc.
One City Centre
000 Xxxxx Xxxxx Xxxxxx
Xx. Xxxxx, Xx. 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
10. INDEMNIFICATION. (A) Each party shall indemnify, defend and
hold harmless the other, for any and all claims, losses, liabilities and
expenses (including reasonable attorneys' fees) arising out of the breach of
this Agreement in any material respect by such party; PROVIDED, HOWEVER, that
in no event shall this provision give rise to any obligation on the part of the
Company to indemnify the Purchaser for or in respect of any tax liabilities
related to or based on the payment to or receipt of the Premium and further
provided that the foregoing proviso shall not be construed to excuse the
Company's performance under its covenant in Section 7g of this Agreement.
(B) (a) GENERAL INDEMNITY. The Company agrees to indemnify
and hold harmless the Purchaser, and its respective partners, officers and
agents against any and all claims, damages, liabilities and expenses (including
but not limited to reasonable attorneys' fees and any out of pocket expenses
reasonably incurred, as incurred, in defending against any litigation,
commenced or threatened, and any amounts paid in settlement of any claim or
litigation in accordance with the terms hereof) asserted by persons other than
parties to this Agreement or any affiliate of any party to this Agreement (any
such litigation or claim collectively a "Claim"), to which Purchaser or its
respective partners, officers and agents shall become subject insofar as such
Claim results from any untrue statement, or alleged untrue statement, of a
material fact contained in the Registration Statement or any amendment thereof,
or the prospectus contained therein (the "Prospectus"), or in any supplement
thereto or amendment thereof, or any omission, or alleged omission, to state
therein a material fact required to be stated to make the statements therein
not misleading, PROVIDED, HOWEVER, the Company shall not be required to
indemnify the Purchaser for any Claim for any violation by the Purchaser of
Section 5 of the Securities Act arising out of the sales of Common Stock by
Purchaser after the date of this Agreement, including any violations arising
out of the failure of a registration statement ( other than the Registration
Statement with respect to the sale to the Purchaser) for such sales to be
effective, unless there shall be a final judicial determination that (x) the
Registration Statement or Prospectus contained an untrue statement of material
fact or an omission of a material face necessary to make the Registration
Statement or Prospectus not misleading and (y) which fact or omission (i) does
not relate to Purchaser's status, conduct or performance under or related to
this Agreement, and (ii) does not result from the description of the
transaction contemplated by this Agreement. The foregoing indemnification
pertains to such untrue statements or omissions relating to the Registration
Statement or any amendment thereof or the Prospectus or any supplement thereto
or amendment thereof at the time the Registration Statement was declared
effective or on any subsequent date until the expiration of the Option.
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(b) A claim for indemnification shall be made by
Purchaser by delivery of a written notice to the Company requesting
indemnification and specifying the basis and facts, in reasonable detail, on
which indemnification is sought and the amount of asserted Claims and,
containing (by attachment or otherwise) such other information as such
Purchaser shall have concerning such Claims.
(c) The obligations and liabilities of the Company
hereunder with respect to a claim for indemnification shall be subject to the
following terms and conditions.
(i) The Purchaser shall give the Company written
notice of a Claim promptly after receipt by the Purchaser of notice
thereof, and the Company may undertake the defense, compromise and
settlement thereof by legal counsel and representatives of its own
choosing reasonably acceptable to the Purchaser. The failure of the
Purchaser to notify the Company of a Claim shall not relieve the
Company of any liability that it may have with respect to such Claim
except to the extent the Company demonstrates that the defense of such
Claim is prejudiced by such failure or otherwise impairs the Company's
ability to participate in the contest of such Claim in any material
respect. The assumption of the defense, compromise and settlement of
any such Claim by the Company shall not be an acknowledgment of the
obligation of the Company to indemnify the Purchaser with respect to
any Claim or otherwise under the Agreement. Likewise, any payment
made by the Company pursuant to this indemnification provision shall
not be an acknowledgment of the obligation of the Company to indemnify
the Purchaser with respect to any Claim or otherwise under the
Agreement. If the Purchaser desires to participate in, but not
control, any such defense, compromise and settlement, it may do so at
its sole cost and expense. If, however, the Company fails or refuses
to undertake the defense of such Claim within seven (7) business days
after written notice of such Claim has been given to the Company by
the Purchaser, the Purchaser shall have the right to undertake the
defense of such Claim with counsel of its own choosing provided such
counsel is reasonably acceptable to the Company. After the Company's
notice to the Purchaser of the Company's election to assume the
defense of a Claim, the Company will not be liable to the Purchaser
under this Section 10(B)(a) for any legal or other expenses,
subsequently incurred by Purchaser in connection with the defense
thereof, unless (1) the Purchaser shall have employed separate counsel
in accordance with the immediately preceding sentence or (2) the
Company has authorized the employment of counsel for the Purchaser at
the expense of the Company.
(ii) No settlement or compromise of, or consent to
a judgement with respect to, a Claim shall be made without the prior
written consent of the Company, and the Company shall have no
liability with respect to any compromise or settlement of, or consent
to a judgement with respect to, a Claim effected without its consent.
(iii) In connection with the defense, compromise or
settlement of any Claim, the parties to this Agreement shall execute
such powers of attorney as may reasonably be necessary or appropriate
to permit participation of counsel selected by any
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party hereto and, as may reasonably be related to any such claim or
action, shall provide access to the counsel, accountants and other
representatives of each party during normal business hours to all
properties, personnel, books, tax records, contracts, commitments and
all other business records of such other party relevant to the Claim
and will furnish to such other party copies of all such documents as
may reasonably be requested (certified, if requested).
(iv) Purchaser and the Company agrees to cooperate
in good faith in the defense of any Claim indemnifiable hereunder and
shall endeavor to keep any indemnity payable by the Company to a
minimum, consistent with a proper defense of the Claim.
11. TERMINATION. The Purchaser may terminate this Agreement (i)
upon the occurrence of a delisting of the Common Stock from the American Stock
Exchange at any time during the Option Term or a suspension of trading in the
Common Stock for (x) any four business days during the Option Term or (y) a
definite period of at least three business days or for an indefinite period
which suspension actually lasts for at least three business days, which, in
either case under clause (i)(y), shall exist or continue in whole or in part at
any time during the five business days prior to and including October 5, 1995,
(ii) if a general suspension shall occur in trading of securities on the New
York Stock Exchange, the American Stock Exchange and the NASDAQ National Market
for a period of three business days which shall exist or continue in whole or
in part during the five business days prior to and including October 5, 1995,
(iii) if there shall have occurred any general banking moratorium declared by
United States federal or by all or any substantial number of state banking
authorities, (iv) if a state of war shall have been declared or exist between
the United States and China, Germany, France, Japan, the United Kingdom or
Russia or (v) if on or prior to October 5, 1995, there shall have occurred, as
of any business day during the eight business days prior to and including
October 5, 1995, a decline in the Dow Xxxxx Industrial Average by an amount in
excess of 20% as measured from the close of business on the date of this
Agreement to such business day.
12. NO LIMITATION ON EQUITY RIGHTS. Nothing in this Agreement,
including any failure by the Company to exercise the Option, shall be construed
as limiting any right Purchaser has to subscribe or oversubscribe for shares of
Common Stock pursuant to its Equity Rights, including, without limitation, the
right to purchase, if applicable, Common Stock in an amount in excess of the
Committed Shares.
13. CONDITIONS TO PURCHASER'S OBLIGATIONS. The Purchaser's
obligations to purchase the Committed Shares, shall be subject to the condition
that (i) the Company's representations and warranties set forth in Section 5a,
b, c, d, f, g, and h herein shall, as of the date made have been and on October
5, 1995 will be, true and correct in all material respects, (ii) that on or
prior to October 5, 1995 no order, decree or judgment of any court, agency or
other authority of competent authority in the United States shall have been
rendered against the Company to restrain or prohibit the performance by the
Company of this Agreement or the transactions contemplated thereby, (iii) on
October 5, 1995, the Registration Statement shall be currently effective and no
stop order pertaining to it shall have been issued by the Securities and
Exchange Commission,
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(iv) the Company shall have substantially performed its covenants or other
obligations set forth in this Agreement, and (v) the Company shall not have
altered the actual terms of the Equity Rights Offering or extended the time for
exercise of such Equity Rights without the consent of the Purchaser, which
consent will not be unreasonably withheld; PROVIDED, HOWEVER, that the entry by
the Company into any put agreement or stand by purchase agreement of any kind
whatsoever with respect to the Equity Rights or the Common Stock issuable
pursuant thereto shall not be deemed to be an alteration of the terms of the
Equity Rights Offering in any manner whatsoever. In the event of an agreement
by the parties hereto (which agreement may be evidenced by the absence of an
objection by the Company to a disbursement request by the Purchaser pursuant to
the terms of the Escrow Agreement based on this Section 13) or the entry of a
final non-appealable judgment by a court of competent jurisdiction that the
Purchaser's performance under this Agreement is excused pursuant to this
Section 13, Purchaser shall be entitled to receive the Funds (as defined in the
Escrow Agreement).
14. SUCCESSORS. This Agreement will inure to the benefit of and
be binding upon the parties hereto, their respective successors and assigns.
Except as expressly stated herein, the Purchaser may not assign its obligations
under this Agreement or the Standby Commitment but may, without restriction,
assign its rights hereunder to any affiliated entity and, following the
settlement date, to any three or fewer third parties or affiliated parties.
Except as expressly stated herein, the Company may not assign its obligations
under this Agreement without the consent of the Purchaser.
15. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding of the parties hereto and supersedes any and all
prior agreements, arrangements and understandings relating to the matters
provided for herein.
16. APPLICABLE LAW. The Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York
without regard to principles of conflict of laws.
17. AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed on behalf of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their authorized officers as of the date first
above written.
COMPANY:
TRANS WORLD AIRLINES, INC.
By:
-----------------------------------
Title:
------------------------------
PURCHASER:
WESTGATE INTERNATIONAL, L.P.
By:
-----------------------------------
General Partner
By:
-------------------------------
Title:
----------------------------
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ESCROW AGREEMENT
THIS ESCROW AGREEMENT, made and entered into this 15th day of
September, 1995, by and among Westgate International, L.P., a Cayman Islands
limited partnership (hereinafter referred to as "Purchaser"), Trans World
Airlines, Inc., a Delaware corporation ("TWA") and Xxxxx, Xxxxxxxx & Xxxxxxx, a
general partnership (the "Escrow Agent");
W I T N E S S E T H, THAT:
WHEREAS, Purchaser and TWA have entered into a certain Agreement of
even date herewith, a copy of which is attached hereto as EXHIBIT A (the
"Agreement"); and
WHEREAS, the Agreement provides for the deposit with the Escrow Agent
of $202,148.42, with all such amounts, together with any interest earned
thereon, to be held and applied by the Escrow Agent in accordance with the
terms of the Agreement; and
WHEREAS, the parties hereto desire to enter into a written escrow
agreement;
NOW, THEREFORE, in consideration of the agreements set forth in the
Agreement and the mutual covenants set forth herein, the parties hereto,
intending to be and being legally bound, do hereby agree as follows:
1. ESCROW. TWA has delivered to Escrow Agent $202,148.42 (the "Premium"),
the receipt whereof is hereby acknowledged by Escrow Agent, which together with
any interest earned thereon (collectively, the Funds ) shall be held,
administered and disbursed by Escrow Agent in accordance with the terms and
conditions of this Escrow Agreement and the Agreement. Escrow Agent shall hold
the Funds and shall deposit the Funds within one business day after the date of
this Agreement in an account with Wachovia Bank of Georgia, N.A. (the "Bank")
which shall be a standard passbook savings account or other interest bearing
account as Escrow Agent may direct, in its sole discretion, consistent with the
required availability of the Funds for payment under the Agreement. Interest
or other income, if any, earned on the Funds shall be deemed a part of the
Funds for purposes of this Agreement and shall be disbursed to Purchaser from
time to time in accordance with the terms and conditions of this Escrow
Agreement and the Agreement.
2. DISBURSEMENT OF FUNDS. The Funds shall be held and disbursed by Escrow
Agent as herein provided and subject to the terms of the Agreement. In
reliance on the representations of Purchaser in the Agreement and the opinion
of counsel to the Purchaser delivered pursuant to the Agreement, Escrow Agent
will disburse any Funds hereunder without withholding for any U.S. federal or
state tax obligation. At such time as Escrow Agent receives from the Purchaser
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the affidavit and other evidence required by Section 2 of the Agreement as to
the exercise of Equity Rights pursuant to the Agreement, together with a
computation of the Funds required to be disbursed in consequence of such
exercise and written notice stating the identity of the party to whom the Funds
are to be disbursed (which, in each such case, Escrow Agent believes to be
genuine), Escrow Agent shall disburse such Funds pursuant to such notice,
PROVIDED, HOWEVER, that if the Escrow Agent does not receive the affidavit from
Purchaser required by the Agreement by October 31, 1995, the Company will
return the Premium to TWA. TWA and Purchaser hereby agree to send to the other
at the address specified in Section 7 hereof, a duplicate of any written notice
sent to Escrow Agent requesting any disbursement of funds or requesting that
any such disbursement be withheld.
3. LIMITED LIABILITY. In performing any of its duties hereunder, Escrow
Agent shall not incur any liability to anyone for any damages, losses, or
expenses, except for any such arising solely as a result of the willful
misconduct or breach of trust by Escrow Agent hereunder, and, accordingly,
Escrow Agent shall not incur any such liability with respect to (i) any action
taken or omitted in good faith upon the basis of its own opinion, or upon
advice of separate legal counsel given, with respect to any questions relating
to the duties and responsibilities of Escrow Agent under this Agreement, or
(ii) any action taken or omitted in reliance on any instrument, including any
written notice or instruction provided for in this Agreement, not only as to
its due execution and the validity and effectiveness of its provisions but also
as to the truth and accuracy of any information contained therein, which Escrow
Agent shall in good faith believe to be genuine, to have been signed, or
presented by a person or persons having authority to sign or present such
instrument, and to conform with the provisions of this Escrow Agreement.
4. PURCHASER'S EXCUSED PERFORMANCE. Notwithstanding anything in this
Escrow Agreement to the contrary, in the event that prior to disbursement of
the Funds pursuant to Section 2 hereof, Purchaser shall give notice to Escrow
Agent, with a copy delivered to the Company as provided herein, that its
obligations to purchase have been excused pursuant to Paragraph 13 of the
Agreement and TWA shall not, within ten (10) days thereafter, give notice to
Escrow Agent that it disputes Purchaser's right to excused performance as
asserted, Escrow Agent shall disburse the Escrow Funds to Purchaser. If within
ten (10) of Escrow Agent's receipt of Purchaser's notice hereunder, TWA shall
give notice to the Escrow Agent, with a copy delivered to the Purchaser by the
Company as provided herein, that it disputes Purchaser's claimed right to
excused performance, Escrow Agent shall tender into the registry or custody of
a court of competent jurisdiction the Funds, together with such pleadings as it
may deem appropriate, and thereupon be discharged from all further duties and
liabilities under this Escrow Agent (other than with respect to any liabilities
for willful misconduct or breach of trust by Escrow Agent). Any such legal
action may be brought in such court as Escrow Agent shall determine to have
jurisdiction thereof. Any notice by Purchaser claiming a right to payment by
virtue of excused performance pursuant to this Paragraph 4 shall set forth with
particularity the specific basis (including the underlying facts) upon which
the performance is claimed to be excused.
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5. INDEMNITY. TWA and Purchaser hereby agree to indemnify Escrow Agent
against, and hold Escrow Agent harmless from, any and all claims, actions,
demands, losses, damages, expenses (including, without limitation, court costs,
attorneys' fees, and accountant's fees), and liabilities that may be imposed
upon performance of its duties hereunder, including, without limitation, any
litigation arising from this Escrow Agreement or involving the subject matter
hereof, but excluding any such claims, actions, demands, losses, damages,
expenses, and liabilities resulting solely from any willful misconduct or
breach of trust by Escrow Agent hereunder. In the event of any litigation
arising from this Escrow Agreement or involving the subject matter hereof, and
in the event TWA and Purchaser are opposing parties in such litigation, the
party prevailing in such litigation shall be reimbursed promptly upon demand by
the other such party for the reasonable out-of-pocket costs and expenses of
such litigation together with any amount which the prevailing party shall have
paid Escrow Agent with respect to such litigation and the subject matter
thereof pursuant to the indemnification agreement contained in this Paragraph
5.
6. COMPENSATION. In consideration of its services hereunder, Escrow Agent
shall be (i) paid an escrow fee of $l0.00, which amount shall be paid by TWA at
the time of disbursement of the Funds by Escrow Agent and (ii) indemnified by
the parties as provided in Paragraph 5 hereof.
7. NOTICES. Wherever any notice or other communication is required or
permitted hereunder, such notice shall be in writing and shall be delivered in
person or sent by U.S. registered or certified mail, return receipt requested,
postage prepaid, to the addresses set out below or at such other addresses as
are specified by written notice delivered in accordance herewith:
PURCHASER: Westgate International, L.P.
c/o Stonington Management Corp.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
TWA: Trans World Airlines, Inc.
One City Centre
000 Xxxxx Xxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
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ESCROW AGENT: Xxxxx, Xxxxxxxx & Xxxxxxx
1230 Peachtree Street, X.X.
Xxxxxxxxx XX, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
8. BINDING EFFECT. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors, and assigns, provided
neither TWA nor Purchaser shall be permitted to assign all or any part of their
respective right, title, and interest hereunder, except to the extent said
party is permitted to assign its right, title and interest whether in whole or
in part under the Agreement, and then only from and to the extent permitted
thereunder or pursuant to the written consent of the other party. Any and all
rights granted to any of the parties hereto may be exercised by their agents or
personal representatives.
9. MISCELLANEOUS. Time is of the essence of this Agreement. Capitalized
terms not otherwise defined herein shall have the meaning ascribed to them in
the Agreement or the Plan. Each of the parties hereto acknowledge that Escrow
Agent acts as outside counsel for TWA and has so acted in connection with,
among other things, the negotiation, preparation and execution of the Agreement
and this Escrow Agreement. Such parties acknowledge and agree that Escrow
Agent shall be entitled to continue to so act with respect to all existing and
future matters on or with respect to which TWA may wish to consult Xxxxx,
Xxxxxxxx & Xxxxxxx.
10. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all such
counterparts together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have signed and sealed this Escrow
Agreement as of the day and year first above written.
PURCHASER:
WESTGATE INTERNATIONAL, L.P.
By:
----------------------------------------------
General Partner
By:
----------------------------------------------
Title:
-------------------------------------
TRANS WORLD AIRLINES, INC.:
By:
----------------------------------------------
Its:
---------------------------------------------
ESCROW AGENT:
XXXXX, XXXXXXXX & XXXXXXX
By:
----------------------------------------------
a Partner
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