AGREEMENT
THIS AGREEMENT, dated as of this the 10th day of March, 2000
(the "Agreement"), by and among AVIATION SALES COMPANY, a
Delaware corporation (the "Company"), LJH, Corporation, a Texas
corporation, of which Xxxx X. Xxxxxx is the sole stockholder
("LJH Corp."), for so long as Xxxx X. Xxxxxx shall beneficially
own 100% of the capital stock of LJH, and XXXX X. XXXXXX
("Xxxxxx"), an individual and resident of the State of Texas
(Xxxxxx and LJH Corp., and their respective affiliates and
associates, are hereinafter referred to collectively as the
"Xxxxxx Group").
WHEREAS, the Board of Directors of the Company (the "Board")
has agreed to amend ("Amendment No. 1 to Rights Agreement") its
Rights Agreement dated November 1, 1999 (as amended by Amendment
No. 1 to Rights Agreement, the "Rights Agreement") to permit the
Xxxxxx Group to beneficially own up to, but not more than, twenty
five percent (25%) of the issued and outstanding shares of common
stock of the Company, par value $0.001 per share (the "Common
Stock"), without triggering the distribution of rights under the
Rights Agreement;
WHEREAS, the Board has approved the transactions
contemplated by Amendment No. 1 to Rights Agreement and this
Agreement upon the terms and conditions contained therein and
herein;
WHEREAS, the parties hereto believe that it is desirable to
establish certain provisions with respect to the shares of Common
Stock which may be acquired by, or which are currently held by
the Xxxxxx Group;
NOW, THEREFORE, in consideration of the mutual covenants and
premises contained herein and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the
parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used herein
shall have the following meanings:
"13D/G Group" shall mean two or more persons acting together
for the purpose of acquiring, holding, voting or disposing of
Company Voting Securities, which persons would be required under
the Exchange Act to file a statement on Schedule 13D or 13G with
the SEC as a "person" within the meaning of Section 13(d)(3) of
the Exchange Act if such person beneficially owned sufficient
securities to require such a filing under the Exchange Act.
"affiliate" of any person shall mean any person directly or
indirectly controlling, or controlled by such person or under
common control with such person. For purposes of this Agreement,
(i) members of the Xxxxxx Group, on the one hand, and the Company
(and its affiliates), on the other, shall not be deemed to be
affiliates of each other and (ii) Xxx X. Xxxxxx Xx. ("Xxxxxx")
shall not be deemed to be an affiliate of the Company (and its
affiliates).
"Agents" shall have the meaning set forth in Section 3.3.
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"Amendment No. 1 to Rights Agreement" shall have the meaning
set forth in the Recitals.
"associate" shall mean any person having a business,
financial or familial relationship that might reasonably be
expected to affect the individual's judgment with respect to
matters in which a member of the Xxxxxx Group might be
interested; solely for purposes of this Agreement and the Rights
Agreement, (i) Xxxxxx shall be deemed to be an "associate" of
Xxxxxx and of LJH Corp. (and thereby a member of the Xxxxxx
Group), and (ii) the members of the Xxxxxx Group, on the one
hand, and the Company, on the other hand, shall not be deemed to
be associates of each other. The term "associated" shall have a
correlative meaning.
"beneficial ownership" shall have the meaning ascribed to
such term pursuant to Regulation 13D-G of the Exchange Act.
"beneficially own" shall mean, with respect to any security,
having direct or indirect (including through any subsidiary or
affiliate) "beneficial ownership" of such security, as determined
pursuant to Rule 13d-3 under the Exchange Act.
"Board" shall have the meaning set forth in the Recitals.
"Change In Control Proposal" shall have the meaning set
forth in Section 3.2.
"Combined Voting Power" shall mean, at any measurement date,
the total number of votes of Company Voting Securities which
could have been cast in an election of directors of the Company
had a meeting of the stockholders of the Company been duly held
based upon a record date as of the measurement date if all
Company Voting Securities then outstanding and entitled to vote
at such meeting were present and voted to the fullest extent
possible at such meeting.
"Common Stock" shall have the meaning set forth in the
Recitals.
"Company" shall have the meaning set forth in the Recitals.
"Company Voting Securities" shall mean, collectively, Common
Stock, any preferred stock of the Company that is entitled to
vote generally for the election of directors, any other class or
series of Company securities that is entitled to vote generally
for the election of directors and any other securities, warrants
or options or rights of any nature (whether or not issued by the
Company) that are convertible into, exchangeable for, or
exercisable for the purchase of, or otherwise give the holder
thereof any rights in respect of, Common Stock, or any other
class or series of Company securities that is entitled to vote
generally for the election of directors.
"Director" shall mean a member of the Board.
"Disinterested Director" shall mean a director of the
Company who (i) is not an employee of the Company, (ii) is not
serving as a director of the Company as a nominee of the Xxxxxx
Group pursuant to Section 3.10, and (iii) is not an affiliate or
associate of the Xxxxxx Group.
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"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated
thereunder.
"Group" shall mean a "group" as such term is used in Section
13(d)(3) of the Exchange Act.
"Xxxxxx" shall have the meaning set forth in the Recitals.
"Xxxxxx Group" shall have the meaning set forth in the
Recitals.
"LJH Corp." shall have the meaning set forth in the
Recitals.
"person" shall mean any individual, corporation,
partnership, limited partnership, limited liability company,
joint venture, trust, unincorporated organization, other form of
business, or legal entity or government authority.
"Rights Agreement" shall have the meaning set forth in the
Recitals.
"SEC" shall mean the Securities and Exchange Commission.
Section 2. Representations and Warranties.
2.1. The Xxxxxx Group represents and warrants to the
Company as follows:
(a) LJH Corp. is a validly existing corporation under
the laws of the State of Texas and has the full legal right,
power and authority to enter into this Agreement and perform its
obligations hereunder.
(b) Xxxxxx is an individual having the full legal
right, power and authority to enter into this Agreement and
perform his respective obligations hereunder.
(c) This Agreement has been duly authorized, executed
and delivered by each of Xxxxxx and LJH Corp. and constitutes the
legally valid and binding agreement of each of Xxxxxx and LJH
Corp., enforceable against each of them in accordance with the
terms hereof.
(d) Neither the execution and delivery of this
Agreement by each of Xxxxxx and LJH Corp. nor the performance of
their respective obligations hereunder will conflict with or
result in a breach of or constitute a default under any law,
rule, regulation, judgment, order or decree of any court,
arbitrator or governmental agency or instrumentality, or of any
agreement or instrument to which any member of the Xxxxxx Group
is bound or affected or of any organizational documents of each
such member.
(e) Except for the 2,037,200 shares of Common Stock
beneficially owned by LJH Corp. as of March 8, 2000, and the
55,000 shares of Common Stock beneficially owned by Xxxxxx
(through options received from the Company exercisable for
Company Voting Securities, shares of Common Stock acquired upon
exercise of such stock options or shares of Common Stock
beneficially
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owned through Producers Pipeline Corporation
("PPC")), as of the date hereof, no shares of Company Voting
Securities are beneficially owned by any member of the Xxxxxx
Group.
(f) Other than this Agreement and the other agreements
contemplated hereby, no member of the Xxxxxx Group has any
agreement, arrangement or understanding with any other person or
group who is not a member of the Xxxxxx Group with respect to
acquiring, holding, voting or disposing of Company Voting
Securities.
2.2. The Company represents and warrants to the Xxxxxx
Group as follows:
(a) The Company is a validly existing corporation
under the laws of the State of Delaware and has the power and
authority to enter into this Agreement and perform its
obligations hereunder.
(b) This Agreement has been duly authorized, executed
and delivered by the
Company and constitutes the legally valid and binding agreement
of the Company, enforceable
against the Company in accordance with the terms hereof.
(c) Neither the execution and delivery of this
Agreement nor the performance of its obligations hereunder will
conflict with or result in a breach of or constitute a default
under, any law, rule, regulation, judgment, order or decree of
any court, arbitrator or governmental agency or instrumentality,
or of any agreement or instrument to which the Company is bound
or affected or of any organizational documents of the Company.
Section 3. Covenants with Respect to Company Voting Securities.
3.1. Acquisition of Company Voting Securities.
(a) Except as specifically set forth in this
Agreement, until the termination of this Agreement, no member of
the Xxxxxx Group shall, directly or indirectly, acquire, offer to
acquire, agree to acquire, become the beneficial owner of or
obtain any rights in respect of any Company Voting Securities, by
purchase or otherwise, or take any action in furtherance thereof.
(b) No member of the Xxxxxx Group shall, prior to
March 10, 2005, directly or indirectly acquire, offer to acquire,
agree to acquire, become the beneficial owner of or obtain any
rights in respect of any Company Voting Securities, by purchase
or otherwise, or take any action in furtherance thereof, if the
effect of such acquisition, agreement or other action would be
(either immediately or upon consummation of any such acquisition,
agreement or other action, or upon the expiration of any period
of time provided in any such acquisition, agreement or other
action) to increase the aggregate beneficial ownership of Company
Voting Securities by the Xxxxxx Group to such number of Company
Voting Securities that represents or possesses greater than 25.0%
of the Combined Voting Power of Company Voting Securities;
provided, however, that shares of Common Stock beneficially owned
by Xxxxxx solely through the grant of stock options by the
Company to Xxxxxx as a Director of the Company shall be excluded
from such percentage. Notwithstanding the foregoing maximum
percentage limitation, (A) no member of the Xxxxxx Group shall be
obligated to dispose of any Company Voting Securities
beneficially owned in violation of such maximum
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percentage limitation if, and solely to the extent that, its beneficial
ownership is or will be increased solely as a result of a
repurchase, redemption or other acquisition of any Company Voting
Securities by the Company or any of its subsidiaries, and (B) the
foregoing maximum percentage limitation shall not prohibit any
purchase of Company Voting Securities by any member of the Xxxxxx
Group directly from the Company (including pursuant to the
exercise of stock options, rights, subscription rights or standby
purchase obligations in connection with rights offerings by the
Company), provided such purchase is approved by a majority of the
Disinterested Directors.
3.2. Takeover Proposals by the Xxxxxx Group. No member of
the Xxxxxx Group shall make or submit a proposal to the Company
to beneficially own or become the beneficial owner of thirty five
percent (35%) or more of the Combined Voting Power of Company
Voting Securities (a "Change In Control Proposal"); provided,
however, that a Change In Control Proposal shall not be
prohibited if a confidential Change In Control Proposal is
presented to and approved by a majority of the Disinterested
Directors after such Disinterested Directors have received from a
nationally recognized investment banking firm, an opinion that
the Change In Control Proposal is fair to the stockholders of the
Company other than the Xxxxxx Group.
3.3. Disposition of Company Voting Securities and Other
Related Matters.
(a) No member of the Xxxxxx Group shall, directly or
indirectly, sell, transfer any beneficial interest in or
otherwise dispose of any Company Voting Securities, other than to
another member of the Xxxxxx Group, except:
(i) for open market sales effected through
the New York Stock Exchange (or any successor
thereto);
(ii) in a transaction or series of related
transactions that would result in a transfer to
any person or group of no greater than 3.0% of the
Combined Voting Power of Company Voting
Securities; or
(iii) in a transaction or series of related
transactions that would result in a transfer to
any person or group that, to the knowledge of the
Xxxxxx Group at the time of such transaction, upon
consummation of such sale, transfer or
disposition, would, directly or indirectly, have
beneficial ownership of or the right to acquire
beneficial ownership of such number of Company
Voting Securities that represent no greater than
5.0% of the Combined Voting Power of Company
Voting Securities.
Except with respect to the transactions effected in accordance
with Subsection 3.3(a)(i) hereof, the members of the Xxxxxx Group
shall, as appropriate, request all purchasers of Company Voting
Securities (or rights, options or warrants to purchase any such
shares) from any of them in negotiated transactions, and all
underwriters, placement agents or brokers ("Agents") for any
public offerings or open market transactions involving Company
Voting Securities (or rights, options or warrants to purchase any
such shares), to represent and warrant that the requirements of
this Section 3.3(a) have been satisfied with respect to such
transactions, such representations by Agents to be qualified to
the best of such Agents' knowledge. Nothing in this Subsection
3.3 shall be construed to prohibit any
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bona fide pledge or
hypothecation of Company Voting Securities by any member of the
Xxxxxx Group.
(b) Proposed transfers of Company Voting Securities by
members of the Xxxxxx Group that are not in compliance with this
Subsection 3.3 shall be of no force or effect.
3.4. Proxy Solicitations, etc. No member of the Xxxxxx
Group shall solicit proxies, assist, encourage or participate
with any other person in any way, directly or indirectly, in the
solicitation of proxies, become a "participant" in a
"solicitation," or assist any "participant" in, a "solicitation"
(as such terms are defined in Rule 14a-1 of Regulation 14A under
the Exchange Act), in each case in opposition to the
recommendation of a majority of the Board, or submit any proposal
for the vote of stockholders of the Company, or recommend or
request or induce or attempt to induce any other person to take
any such actions, or seek to advise, encourage or influence any
other person with respect to the voting of Company Voting
Securities.
3.5. No Voting Trusts, Pooling Agreements, or Formation of
"Groups" No member of the Xxxxxx Group shall grant a proxy to
any person with respect to Company Voting Securities (other than
to Xxxxxx), or form, join in or in any other way participate in
any partnership, pooling agreement, syndicate, voting trust or
other "group," including a 13D/G Group, other than to or with any
member of the Xxxxxx Group, with respect to Company Voting
Securities, or enter into any agreement (other than this
Agreement) or arrangement or otherwise act in concert with any
other person or group (other than a group comprised exclusively
of the Xxxxxx Group), for the purpose of acquiring, holding,
voting or disposing of Company Voting Securities.
3.6. Affiliate Transactions. No member of the Xxxxxx Group
shall engage in any transaction with the Company without the
prior approval of a majority of the Disinterested Directors;
provided that the foregoing provision shall not apply to (i)
transactions contemplated by any other agreement as in effect on
the date hereof or any amendment thereto and disclosed herein,
(ii) transactions regarding the purchase or sale of goods or
services, in each case, in the ordinary course of business
(including, without limitation, pursuant to joint venture
agreements) which are fair to the Company pursuant to guidelines
set forth by of the Board and approved by a majority of the
Disinterested Directors, or (iii) any compensation which may be
paid to Xxxxxx solely in his capacity as a Director of the
Company and on the same basis as is paid to other Directors of
the Company.
3.7. No Solicitation of Bidders. No member of the Xxxxxx
Group shall directly or indirectly assist, solicit, encourage or
induce any person to bid for, submit a proposal for or acquire
any outstanding Company Voting Securities.
3.8. Non-Circumvention. No member of the Xxxxxx Group or any
affiliate or associate of any such member shall take any action,
alone or in concert with any other person or group, to seek
control of the Company or otherwise seek to circumvent the
limitations of the provisions of this Agreement without the prior
approval of a majority of the Disinterested Directors. Without
limiting the generality of the foregoing, no member of the Xxxxxx
Group shall (i) present to the Company or to any third party any
proposal that can reasonably be expected to result in a change of
control of the Company or in any increase beyond the percentage
specified in Subsection 3.1 in the Combined Voting Power of
Company Voting Securities beneficially owned in the aggregate by
the Xxxxxx
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Group, (ii) publicly suggest or announce its
willingness or desire to engage in a transaction or group of
transactions or have another person engage in a transaction or
group of transactions that would result in a change of control of
the Company or in any increase beyond the percentage specified in
Subsection 3.1 in the Combined Voting Power of Company Voting
Securities beneficially owned in the aggregate by the Xxxxxx
Group, (iii) initiate, request, induce or attempt to induce or
give encouragement to any other person to initiate any proposal
that can reasonably be expected to result in a change of control
of the Company or in any increase beyond the percentage specified
in Subsection 3.1 in the Combined Voting Power of Company Voting
Securities beneficially owned in the aggregate by the Xxxxxx
Group, or (iv) publicly request, suggest, propose or announce its
desire to amend or obtain a waiver of any provision of this
Agreement. Each of Xxxxxx and LJH Corp. agrees to use its best
efforts to ensure that each member of the Xxxxxx Group (as such
may be constituted from time to time) complies with the
provisions of this Agreement as if each member of the Xxxxxx
Group were a signatory hereto and that the failure by any member
of the Xxxxxx Group to comply with the provisions of this
Agreement shall be deemed to be a breach hereof by Xxxxxx and LJH
Corp.
3.9. Confidential Material.
(a) Definitions. For purposes of this Section:
(i) The term "Confidential Material" means all
information, whether oral written or otherwise (including any
information furnished prior to the execution of this Agreement),
furnished or otherwise disclosed by the Company to any member of
the Xxxxxx Group or any Representative (as defined below), and
all notes, reports, analyses, compilations, studies and other
materials prepared by the Xxxxxx Group or any Representative (in
whatever form maintained, whether documentary, computer storage
or otherwise) containing or based upon, in whole or in part, any
such information. The term "Confidential Material" does not
include information which is or becomes generally available to
the public other than as a result of a disclosure by any member
of the Xxxxxx Group or any Representative (as defined below) or
becomes available to any member of the Xxxxxx Group or any
Representative on a nonconfidential basis from any source that is
not known by such member of the Xxxxxx Group or such
Representative to be bound by an obligation of confidentiality to
the Company.
(ii) The term "Representative" shall mean any and
all partners, directors, officers, employees, agents, prospective
financing sources, affiliates, associates or representatives
(including representatives of advisors) of any member of the
Xxxxxx Group who needs to know such information for the purpose
of facilitating the transactions contemplated by this Agreement.
(b) Each member of the Xxxxxx Group and each
Representative shall preserve the confidentiality of the
Confidential Material and shall not disclose any of the
Confidential Material in any manner whatsoever; provided,
however, that (i) any member of the Xxxxxx Group may make any
disclosure of such information to which the Company gives its
prior written consent, and (ii) any of such information may be
disclosed to a Representative who needs to know, and who is
informed of the confidential nature of the Confidential Material
and of the terms of this Subsection 3.9 and who agrees to keep
such information confidential. In any event, the Xxxxxx Group
shall inform any Representative which has, or will have, access
to any or all of the Confidential Material, of the
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existence and
content of this Agreement and shall take all reasonable action
necessary to cause such Representative to observe the
confidentiality requirements of this Agreement. In any event,
each member of the Xxxxxx Group shall be responsible for any
breach of this Agreement by any Representative.
(c) If any member of the Xxxxxx Group or any
Representative is requested or required (by oral questions,
interrogatories, requests for information or documents, subpoena,
civil investigative demand, any informal or formal investigation
by any government or governmental agency or authority or
otherwise) to disclose any Confidential Material or such person's
opinion, judgment, view or recommendation concerning the Company
as developed from the Confidential Material, the Xxxxxx Group
agrees (i) to immediately notify the Company in writing of the
existence, terms and circumstances surrounding such a request,
(ii) to consult with the Company on the advisability of taking
legally available steps to resist or narrow such request and
shall exercise its best efforts to obtain reliable assurance that
confidential treatment required hereby will be accorded such
Confidential Material, and (iii) if disclosure of such
information is required, to furnish only that portion of the
Confidential Material which, in the opinion of counsel to the
Xxxxxx Group, the Xxxxxx Group is legally compelled to disclose,
and to cooperate with any action by the Company to obtain an
appropriate protective order or other reliable assurance that
confidential treatment will be accorded the Confidential
Material.
(d) Xxxxxx hereby acknowledges on behalf of himself
and all members of the Xxxxxx Group (and agrees to advise any
Representative and members of the Xxxxxx Group who are informed
in accordance with the terms of this Subsection 3.9 as to the
matters which are the subject of this Subsection 3.9), that the
United States securities laws prohibit any person who has
received from an issuer material, non-public information,
including certain information that may be part of the
Confidential Material, while such information is non-public, from
purchasing or selling securities of such issuer or from
communicating such information to any other person under
circumstances in which it is reasonably foreseeable that such
person is likely to purchase or sell such securities.
3.10. Voting of Company Voting Securities and Other
Related Matters.
(a) Each member of the Xxxxxx Group that is a holder
of record of Company Voting Securities shall be present, and each
member of the Xxxxxx Group that is a beneficial owner of Company
Voting Securities shall cause the holder of record to be present,
in person or by proxy, at all meetings of the stockholders of the
Company so that all Company Voting Securities owned of record or
beneficially by the Xxxxxx Group may be counted for the purpose
of determining the presence of a quorum at such meetings.
(b) As long as the members of the Xxxxxx Group
beneficially own in the aggregate at least 8.0% of the
outstanding shares of Common Stock, the Xxxxxx Group shall have
the right to designate one individual for nomination as a
director of the Company (which such individual shall be
reasonably acceptable to the Board); provided that no individual
who is an officer, director, partner or principal stockholder of
any significant competitor of the Company or any of its
subsidiaries shall be eligible to serve as a director; provided,
however, that at any time when the Xxxxxx Group and its
affiliates shall no longer beneficially own at least 5% of the
outstanding shares of Common Stock, the Xxxxxx Group shall not
have the right to nominate any individual to serve as a director
of the
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Company, the Xxxxxx Group's rights under this Subsection
3.10 shall terminate, and the Xxxxxx Group shall cause its
designee to resign forthwith such that no designee of the Xxxxxx
Group remains on the Board.
(c) The Company agrees to use its best efforts, to
cause to be elected to the Board one nominee of the Xxxxxx Group
(subject to Subsection 3.10(b) above). The Company shall take
all necessary or appropriate action to assist in the nomination
and election as a director the person designated by the Xxxxxx
Group and entitled to election to the Board pursuant to the
provisions of this Subsection 3.10.
3.11. Waiver of Requirements.
Notwithstanding anything in this Section 3 to the
contrary, any of the terms of Subsections 3.1 through Subsection
3.10 may be waived, in whole or in part and as to particular
transactions or matters or as to one or more members of the
Xxxxxx Group, if (a) in the case of a waiver of an obligation of
a member of the Xxxxxx Group, a majority of the Disinterested
Directors shall have approved such waiver in accordance with
applicable law, or (b) in the case of a waiver of an obligation
of the Company provided for the benefit of a member of the Xxxxxx
Group, such member of the Xxxxxx Group shall have consented in
writing to such waiver.
3.12. Termination of Restrictions. The restrictions on
disposition contained in Section 3 shall terminate upon, and
shall not apply to, any of the following events:
(a) the Company, with the approval of a majority of
the Disinterested Directors, shall enter into an agreement with
any person or group providing for an offer to be made to purchase
50% or more shares of Common Stock or all or substantially all of
the assets of the Company; or
(b) the Company, with the approval of a majority of
the Disinterested Directors, shall enter into an agreement
calling for the merger or consolidation of the Company with or
into any other person in which (i) the Company's outstanding
capital stock shall be converted into cash or other property,
(ii) a majority of the outstanding voting stock of the surviving
corporation immediately following such merger or consolidation
will not be owned by persons who were stockholders of the Company
immediately before the merger or consolidation, and (iii) notice
of a meeting of shareholders of the Company called to consider
such agreement shall be given.
Section 4. Term of Agreement; Certain Provisions Regarding
Termination.
Unless this Agreement specifically provides for earlier
termination with respect to any particular right or obligation,
this Agreement shall terminate if the Xxxxxx Group shall, at any
time (in compliance with this Agreement), sell or otherwise
dispose of or cease to own any Company Voting Securities so that
the Xxxxxx Group beneficially owns, in the aggregate less than 8%
of all shares of Common Stock.
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Section 5. Remedies.
Each respective member of the Xxxxxx Group and the Company
acknowledge and agree that (i) the provisions of this Agreement
are reasonable and necessary to protect the proper and legitimate
interests of the parties hereto, and (ii) the parties would be
irreparably damaged in the event any of the provisions of this
Agreement were not performed in accordance with their specific
terms or were otherwise breached. It is accordingly agreed that
the parties shall be entitled to preliminary and permanent
injunctive relief to prevent breaches of the provisions of this
Agreement by the other parties without the necessity of proving
actual damages or of posting any bond, and to enforce
specifically the terms and provisions hereof, which rights shall
be cumulative and in addition to any other remedy to which the
parties may be entitled hereunder or at law or equity.
Section 6. General Provisions.
6. 1. Choice of Law; Forum Selection. This Agreement
shall be construed, interpreted and the rights of the parties
determined in accordance with the laws of the State of Delaware
without reference to the choice of laws provisions thereof. Each
of the parties to this Agreement hereby irrevocably and
unconditionally (i) agrees to be subject to, and hereby consents
and submits to, the jurisdiction of the Court of Chancery of the
State of Delaware for any litigation arising out of or relating
to this Agreement, (ii) waives any objection to the laying of
venue of any such litigation in the Court of Chancery of the
State of Delaware, and (iii) agrees not to plead or claim in the
Court of Chancery of the State of Delaware that such litigation
brought therein has been brought in an inconvenient forum. Each
of the parties to this Agreement hereby appoints RL&F Service
Corp., One Xxxxxx Square, 10th and King Streets, X.X. Xxx 000,
Xxxxxxxxxx, XX 00000 as its agent for service of process in the
State of Delaware and agrees to service of process in any
litigation arising out of or relating to this Agreement by
service upon such agent or by certified mail, return receipt
requested, postage prepaid to it at its address for notice as
provided in this Agreement.
6.2. Additional Parties; Joint and Several Obligations. All
of the obligations of the Xxxxxx Group and its members hereunder
shall be joint and several. Each affiliate of a member of the
Xxxxxx Group that shall become or have the right to become the
beneficial owner, within the meaning and scope of Section 3
hereof, of Company Voting Securities shall, promptly upon
becoming such owner or holder, execute and deliver to the Company
a joinder agreement, agreeing to be legally bound by this
Agreement as an original signatory as a member of the Xxxxxx
Group; provided that failure to execute such agreement shall not
excuse such person's non-compliance with any provision of this
Agreement. No member of the Xxxxxx Group shall transfer Company
Voting Securities to any of its affiliates not already a party
hereto unless the transferee shall agree to be bound by this
Agreement in the manner specified above in this Subsection 6.2.
6.3. Notices. All notices, consents, requests, instructions,
approvals and other communications provided for herein and all
legal process in regard hereto shall be in writing and shall be
decreed to be validly given, made or served when delivered
personally, transmitted by telex or telecopier, or deposited in
the U.S. mail, postage prepaid, for delivery by express,
registered or certified mail, or delivered to a recognized
overnight courier service, addressed as follows:
If to the Company:
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Aviation Sales Company
0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Chairman and President
Fax Number: Supplied Separately
With a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Akerman, Senterfitt & Edison, P.A.
One Southeast Third Avenue
28th Floor, Sun Trust International Center
Xxxxx, Xxxxxxx 00000
Fax Number: Supplied Separately
If to Xxxxxx or any member of the Xxxxxx Group:
Xxxx X. Xxxxxx
LJH, Corporation
000 Xxxx Xxxx
Xxxxxxxx, Xxxxx 00000
Fax Number: Supplied Separately
With a copy to:
Xxxx Xxxxxx, Esq.
Xxxxxx, Xxxxxx & Xxxxxxx
620 Judge Building
0 Xxxx Xxxxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000-0000
Fax Number: Supplied Separately
or to such other address as may be specified in a notice given
pursuant to this Subsection. All such notices and communications
shall be deemed to have been duly given: At the time delivered
by hand, if personally delivered; five (5) business days after
being deposited in the mail, postage prepaid, if mailed; when
answered back if telexed; when receipt acknowledged, if
telecopied; and the next business day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next
day delivery. The parties may change the address to which
notices are to be given by giving five (5) days' prior notice of
such change in accordance herewith.
6.4. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions shall remain
in full force and effect and shall in no way be affected,
impaired or invalidated. The parties hereto agree that they will
use their best efforts at all times to support and defend this
Agreement.
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6.5. Amendments, Waivers. Any provision of this Agreement
may be amended or waived if, and only if, such amendment or
waiver is in writing and signed by each party hereto; provided
that no such amendment or waiver by the Company shall be
effective without the approval of a majority of the Disinterested
Directors. No failure or delay by any party hereto in exercising
any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
6.6. Descriptive Headings. Descriptive headings are for
convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement. Reference in
this Agreement to Sections or Subsections are to Sections of
Subsections of this Agreement. All pronouns and any variations
thereof refer to the masculine, feminine or neuter, singular or
plural, as the identity of the applicable person or persons may
require.
6.7. Entire Agreement: Amendment. This Agreement and the
other instruments and agreements referred to herein embody the
entire agreement of the parties hereto with respect to the
subject matter hereof and supersede all prior agreements with
respect thereto.
6.8. Counterparts. This Agreement shall become binding when
one or more counterparts hereof, individually or taken together,
bears the signatures of each of the parties hereto. This
Agreement may be executed in any number of counterparts, each of
which shall be an original as against the party whose signature
appears thereon, or on whose behalf such counterpart is executed,
but all of which taken together shall be one and the same
agreement.
6.9. No Partnership. No partnership, joint venture or joint
undertaking is intended to be, or is, formed between the parties
hereto or any of them by reason of this Agreement or the
transactions contemplated herein.
6.10. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by
the successors and assigns of the parties hereto. All of the
terms, covenants and agreements contained in this Agreement are
solely for the benefit of the parties hereto, and their
respective successors and assigns, and no other parties
(including, without limitation, any other stockholder or creditor
of the Company, or any director, officer or employee of the
Company) are intended to be benefitted by, or entitled to
enforce, this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto intending to be
legally bound have duly executed this Agreement, all as of the
day and year first above written.
XXXX X. XXXXXX
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
LJH, CORPORATION
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: President
AVIATION SALES COMPANY
By:/s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Chairman of the Board and President
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