EXHIBIT 4
STANDSTILL AND NON-COMPETE AGREEMENT
STANDSTILL AND NON-COMPETE AGREEMENT (the "Agreement"), dated as of August
7, 1998, by and between BE AEROSPACE, INC., a Delaware corporation ("BE
Aerospace"), on the one hand, and the other Persons set forth on the signature
pages hereto (collectively, the "Stockholders"), on the other hand.
W I T N E S S E T H:
WHEREAS, BE Aerospace, Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxx and Xxxxx X. Xxxxx
have entered into an Acquisition Agreement dated as of July 21, 1998 (the
"Acquisition Agreement"; capitalized terms used without definition herein having
the meanings ascribed thereto in the Acquisition Agreement);
WHEREAS, as a result of the consummation of the Acquisition Agreement, the
Stockholders will beneficially own approximately 14.7% of the issued and
outstanding BE Aerospace Common Stock; and
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements set forth herein, BE Aerospace and the
Stockholders hereby agree as follows:
ARTICLE I
DEFINITIONS
-----------
For purposes of this Agreement, the following terms have the following
meanings:
(a) "Affiliate" shall have the meaning set forth in Rule 12b-2 of
the Securities and Exchange Act of 1934, as amended (the "Exchange Act");
provided, however, that any corporation in which a Stockholder or any of its
Affiliates owns less than a majority of the securities entitled generally to
vote for the election of directors shall not be considered an Affiliate of such
Stockholder or such Affiliate unless such Stockholder or such Affiliate
otherwise controls such corporation.
(b) "Beneficial ownership" and "beneficially own" shall have the
meanings set forth in Rule 13d-3 under the Exchange Act.
NYFS10...:\80\74780\0003\139\AGR8148Y.180
(c) "Control" shall mean, with respect to a Person or a Group, (i)
beneficial ownership by such Person or Group of securities entitling it to
exercise in the aggregate more than 50 percent of the votes in any election of
directors or other governing body of the entity in question; or (ii) possession
by such Person or Group of the power, directly or indirectly, (x) to elect a
majority of the board of directors (or equivalent governing body) of the entity
in question or (y) in case of a non-corporate entity, to manage or govern the
business, operations or investments of any such non-corporate entity.
(d) "Group" shall have the meaning comprehended by Section 13(d)(3)
of the Exchange Act; provided that, solely for purposes of Section 2.1(a)(iv) of
this Agreement, the Stockholders shall not by themselves constitute a "Group."
(e) "Person" shall have the meaning set forth in Section 3(a)(9) of
the Exchange Act.
(f) "Schedule 13D Filer" means any Person or Group which, based on
its direct or indirect beneficial ownership of any Voting Securities, is, or
after the acquisition of such beneficial ownership would be, required to file a
statement on Schedule 13D with the SEC in accordance with Rule 13d-1 under the
Exchange Act, but shall not include any Schedule 13G Filer.
(g) "Schedule 13G Filer" means any Person or Group which, based on
its direct or indirect beneficial ownership of any Voting Securities, is, or
after the acquisition of such beneficial ownership would be, required to file a
statement on Schedule 13D with the SEC in accordance with Rule 13d-1 under the
Exchange Act, but which in lieu of such filing may instead file a short-form
statement on Schedule 13G in accordance with such Rule.
(h) "Standstill Percentage" means 14.8% of the Total Voting Power;
provided that in the event that the percentage of the Total Voting Power
represented by the shares of Voting Securities beneficially owned by the
Stockholders and their Affiliates from time to time is reduced, then the
Standstill Percentage shall be automatically reduced to the percentage of Total
Voting Power represented by shares of Voting Securities beneficially owned by
the Stockholders and their Affiliates from time to time; provided further, that
(x) following any such reduction in the Standstill Percentage, the Standstill
Percentage shall not thereafter be subject to any increase (other than as
provided for in the following clause (y)), and (y) if the percentage of Total
Voting Power represented by shares of Voting Securities
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beneficially owned by the Stockholders and their Affiliates is increased as a
result of any BE Aerospace Action (as defined in Section 2.1(a)(i) of this
Agreement), the Standstill Percentage shall be automatically increased to
reflect such BE Aerospace Action.
(i) "Total Voting Power" means, at any time, the aggregate number of
votes which may be cast by holders of outstanding Voting Securities.
(j) "Transfer" means sell, transfer, assign, pledge, hypothecate,
give away or in any manner dispose of any Voting Securities.
(k) "Voting Securities" means the BE Aerospace Common Stock and any
other securities (including voting preferred stock) issued by BE Aerospace which
are entitled to vote generally for the election of directors of BE Aerospace,
whether currently outstanding or hereafter issued (other than securities having
such powers only upon the occurrence of a contingency).
ARTICLE II
STANDSTILL RESTRICTIONS; VOTING MATTERS
---------------------------------------
2.1 Standstill Restrictions. (a) During the term of this Agreement, each
of the Stockholders covenants and agrees that without the prior affirmative vote
of a majority of the board of directors of BE Aerospace at a meeting at which a
quorum is present, the Stockholders shall not, and shall not permit any of their
respective Affiliates to, directly or indirectly:
(i) acquire, propose to acquire (or publicly announce or
otherwise disclose an intention to propose to acquire) or offer to
acquire, by purchase or otherwise, any Voting Securities, if the effect of
such acquisition would be to increase the outstanding number of shares of
Voting Securities then beneficially owned by the Stockholders and their
Affiliates, in the aggregate, to an amount representing Total Voting Power
in excess of the Standstill Percentage; provided that this Section
2.1(a)(i) shall not be applicable, and no Stockholder shall be obligated
to dispose of Voting Securities, if the aggregate percentage of the Total
Voting Power represented by Voting Securities beneficially owned by the
Stockholders is increased as a result of corporate
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action taken solely by BE Aerospace and not caused by any action taken by
any Stockholder or any Affiliate of any Stockholder ("BE Aerospace
Action");
(ii) propose (or publicly announce or otherwise disclose an
intention to propose), solicit, offer, seek to effect, negotiate with or
provide any confidential information relating to BE Aerospace or its
business to any other Person with respect to, any tender or exchange
offer, merger, consolidation, share exchange, business combination,
restructuring, recapitalization or similar transaction involving BE
Aerospace;
(iii) make, or in any way participate in, any "solicitation" of
"proxies" to vote (as such terms are defined in Rule 14a-1 under the
Exchange Act), solicit any consent with respect to the voting of any
Voting Securities or become a "participant" in any "election contest" (as
such terms are defined or used in Rule 14a-11 under the Exchange Act) with
respect to BE Aerospace;
(iv) except to the extent contemplated by the Registration Rights
Agreement, form, participate in or join any Person or Group with respect
to any Voting Securities (except an arrangement solely among any or all of
the Stockholders), or otherwise act in concert with any third Person
(other than any Stockholder) for the purpose of (x) acquiring any Voting
Securities or (y) holding or disposing of Voting Securities for any
purpose otherwise prohibited by this Section 2.1(a);
(v) deposit any Voting Securities into a voting trust or subject
any Voting Securities to any arrangement or agreement with respect to the
voting thereof (except for this Agreement and except for any such
arrangement solely among any or all of the Stockholders);
(vi) initiate, propose or otherwise solicit stockholders for the
approval of one or more stockholder proposals with respect to BE Aerospace
as described in Rule 14a-8 under the Exchange Act, or induce or attempt to
induce any other Person to initiate any stockholder proposal;
(vii) seek election to or seek to place a representative on the
Board of Directors, or seek the removal of any member of the Board of
Directors;
(viii) call or seek to have called any meeting of the stockholders
of BE Aerospace for any purpose otherwise prohibited by this Section
2.1(a);
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(ix) take any other action to seek to control BE Aerospace;
(x) demand, request or propose to amend, waive or terminate the
provisions of this Section 2.1(a); or
(xi) agree to do any of the foregoing, or advise, assist,
encourage or persuade any third party to take any action with respect to
any of the foregoing.
(b) Each of the Stockholders agrees that it will notify BE Aerospace
promptly if any inquiries or proposals are received by, any information is
exchanged with respect to, or any negotiations or discussions are initiated or
continued with, any Stockholder regarding any matter described in Section 2.1(a)
hereof. The Stockholders and BE Aerospace shall mutually agree upon an
appropriate response to be made to any such proposals received by any
Stockholder.
(c) The Stockholders shall not be deemed to have breached Section
2.1(a)(i) of this Agreement if (i) the Stockholders or their Affiliates
inadvertently and in good faith acquire Voting Securities so as to cause the
Total Voting Power represented by the Voting Securities beneficially owned by
the Stockholders and their Affiliates to exceed the Standstill Percentage, and
(ii) the Stockholders as soon as practicable divest a sufficient number of
shares of Voting Securities beneficially owned by the Stockholders and their
Affiliates so as to result in the Total Voting Power represented by the Voting
Securities beneficially owned by the Stockholders and their Affiliates to be
equal to or less than the Standstill Percentage.
2.2 Voting. Until such time as the Stockholders no longer beneficially own
Voting Securities representing in the aggregate at least 5% of the Total Voting
Power, the Stockholders will take all such action as may be required so that all
Voting Securities owned by the Stockholders and their Affiliates, as a group,
are voted (in person or by proxy) for BE Aerospace's nominees to the Board of
Directors, and with respect to such other matters as are subject to a
stockholder vote, in accordance with the recommendation of the Board of
Directors. Each of the Stockholders shall be present, in person or by proxy, at
all duly held meetings of stockholders of BE Aerospace so that all Voting
Securities held by the Stockholders may be counted for the purposes of
determining the presence of a quorum at such meetings.
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ARTICLE III
TRANSFERS
---------
3.1 Transfers of Voting Securities. None of the Stockholders shall,
directly or indirectly, Transfer any Voting Securities except:
(a) in accordance with the terms and provisions of the Share
Disposition Agreement; or
(b) pursuant to a merger or consolidation of BE Aerospace or
pursuant to a plan of liquidation of BE Aerospace, which has been approved by
the affirmative vote of a majority of the members of the Board of Directors then
in office.
ARTICLE IV
LEGENDS AND STOP TRANSFER ORDERS
--------------------------------
4.1 Legend. All certificates evidencing Voting Securities beneficially
owned by any of the Stockholders shall bear the following legend:
"The securities represented by this certificate are subject to the
restrictions on disposition and to the other provisions of a Standstill
and Non-Compete Agreement dated as of August 7, 1998 among BE Aerospace,
Inc. and the Stockholders named therein. Copies of such Agreement are on
file at the respective offices of such parties."
4.2 Stop Transfer Orders. The Stockholders each hereby consent to the
entry of stop transfer orders with the transfer agents of any such Voting
Securities against the transfer of such legended certificates representing such
Voting Securities except in compliance with this Agreement.
4.3 Removal or Modification of Legend. BE Aerospace agrees that upon any
Transfer of the securities represented by such certificates made in compliance
with the provisions of this Agreement, it will, upon the presentation to its
transfer agent of the certificates containing such legend, remove such legend
from the certificates being sold or registered.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
5.1 Representations and Warranties of the Stockholders. Each of the
Stockholders jointly and severally represent and warrant to BE Aerospace as
follows:
(a) Assuming that (i) the Stockholders Shares (as defined below) are
duly authorized, validly issued, fully paid and nonassessable, and, immediately
prior to their receipt by the Stockholders, are free and clear of all security
interests, liens, claims, proxies, charges, encumbrances and options of any
nature whatsoever created by any Person other than an Stockholder (other than
those created by this Agreement, the Registration Rights Agreement and the Share
Disposition Agreement), and (ii) the issuance of the Stockholders Shares to the
Stockholders is properly recorded in the stock ledger of BE Aerospace, then,
upon the issuance of the Stockholders Shares to the Stockholders pursuant to
Section 1.2 of the Acquisition Agreement, each of the Stockholders will be the
beneficial and record owner of BE Aerospace Common Shares in the respective
amounts set forth in Schedule I attached hereto (the "Stockholders Shares"),
free and clear of all security interests, liens, claims, proxies, charges,
encumbrances and options of any nature whatsoever, and there will be no
outstanding options, warrants or rights to purchase or acquire, or agreements
relating to, any of the Stockholders Shares (other than those created by this
Agreement, the Registration Rights Agreement and the Share Disposition
Agreement).
(b) Except for the Stockholders Shares, neither any of the
Stockholders, nor any of their Affiliates, owns beneficially or of record,
directly or indirectly, any Voting Securities or any options, warrants or rights
of any nature (including conversion and exchange rights) to acquire beneficial
ownership of any Voting Securities.
(c) Each of the Stockholders has full legal right, power and
authority to enter into and perform this Agreement. This Agreement has been duly
authorized, executed and delivered by each of the Stockholders. This Agreement
constitutes a legally valid and binding agreement of each of the Stockholders,
enforceable in accordance with its terms, except that such enforceability may be
subject to bankruptcy, insolvency, receivership, reorganization, moratorium or
other similar laws relating to creditors' rights now or hereafter in effect and
by general equitable principles.
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(d) The execution and delivery of this Agreement by the Stockholders
does not conflict with or constitute a violation of or default under any
statute, law, regulation, order or decree applicable to any of the Stockholders,
or any contract, commitments, agreement, arrangement or restriction of any kind
to which any of the Stockholders are a party or by which any of the Stockholders
are bound, other than such violations as would not prevent or materially delay
the performance by such Stockholder of its obligations hereunder or otherwise
subject BE Aerospace to any claim or liability.
5.2 Representations and Warranties of BE Aerospace. BE Aerospace hereby
represents and warrants to the Stockholders as follows:
(a) BE Aerospace is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(b) BE Aerospace has full legal right, power and authority to enter
into and perform this Agreement and the execution and delivery of this Agreement
by BE Aerospace have been duly authorized by all necessary corporate action on
behalf of BE Aerospace. This Agreement constitutes a legally valid and binding
agreement of BE Aerospace, enforceable in accordance with its terms, except that
such enforceability may be subject to bankruptcy, insolvency, receivership,
reorganization, moratorium or other similar laws relating to creditors' rights
now or hereafter in effect, and by general equitable principles.
(c) Neither the execution and delivery of this Agreement nor the
consummation by BE Aerospace of the transactions contemplated hereby conflicts
with or constitutes a violation of or default under the Restated Certificate of
Incorporation or By-laws of BE Aerospace, any statute, law, regulation, order or
decree applicable to BE Aerospace, or any contract, commitment, agreement,
arrangement or restriction of any kind to which BE Aerospace is a party or by
which BE Aerospace is bound, other than such violations as would not prevent or
materially delay the performance by BE Aerospace of its obligations hereunder or
otherwise subject any Stockholder to any claim or liability.
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ARTICLE VI
NON-COMPETITION COVENANT
------------------------
6.1 Protective Covenants.
(a) Confidentiality. Each Stockholder hereby acknowledges and agrees
that he possesses and will continue to possess information which has been
created, discovered or developed by or otherwise become known to him (including
information discovered or made available by any SMR Company (together, the "SMR
Companies") or by which property rights have been assigned or otherwise conveyed
to any SMR Company, which information has commercial value to one or more SMR
Companies, including, but not limited to, trade secrets, innovations, processes,
computer codes, data, know-how, improvements, discoveries, developments,
techniques, marketing plans, strategies, costs, customer and client lists, the
ownership structure of any SMR Company or any information such stockholder has
reason to know that any SMR Company would treat as confidential for any purpose,
whether or not developed by you (hereinafter referred to as "Confidential
Information"). Each Stockholder hereby agrees that he will keep confidential and
will not disclose, directly or indirectly, any such Confidential Information to
any third party, except as required by law or to fulfill his duties hereunder or
to his attorney or other advisors, whom he shall notify of this confidentiality
provision and who shall be similarly bound. None of the Stockholders shall
misuse, misappropriate or exploit such Confidential information in any way. The
parties hereto acknowledge and agree that Confidential Information shall not
include any knowledge or information conveyed to, known to or held by any such
Stockholder as a result of his employment or other activities prior to his
employment by any SMR Company or otherwise becomes publicly known other than as
a result of a breach by such shareholder of his obligations hereunder; provided
further that specific information shall not be deemed to be publicly known
merely because it is embraced in general disclosures in the public domain. In
addition, any combination of features shall not be deemed to be publicly known
merely because the individual features are in the public domain unless the
combination itself and its principle of operation are in the public domain.
(b) Restrictive Covenants. Each Stockholder hereby acknowledges that
because of his skills, his position with the SMR Companies and the Confidential
Information to which he had access or was provided on account of his
relationship with the SMR Companies, competition by him with any SMR Company
could damage the SMR Companies in a manner which cannot adequately be
compensated by
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damages or an action at law. Each Stockholder also acknowledges that he has
entered into an Acquisition Agreement and that the covenants contained in this
Section 6.1 are material to the consummation of the Acquisition Agreement. In
view of such circumstances and because of the Confidential Information obtained
by or disclosed to each Stockholder, each Stockholder hereby covenants and
agrees to the following terms and conditions.
(i) Restrictions on Competitive Employment. During the period
beginning on the date hereof and ending on August 6, 2005, each
Stockholder shall not (as principal, agent, employee, consultant or
otherwise), directly or indirectly, without the prior written approval of
the Company, engage in activities for, or render services to any firm or
business anywhere in the world (A) that conducts a business or engages in
any activities conducted or engaged in by any SMR Company (or contemplated
by the business plan of any SMR Company) at the time of the closing of the
Acquisition Agreement, which business or activities are in direct or
indirect competition with any SMR Company or (B) that develops or offers
products or services substantially similar to those products or services
developed or offered by any SMR Company at the time of the closing of the
Acquisition Agreement (or then contemplated by the business plan of any
SMR Company) (the businesses in clauses (A) and (B) collectively,
"Competitive Businesses"); provided, however, that such Stockholder may
have an interest consisting of publicly traded securities constituting
less than one percent of any class of publicly traded securities in any
public company engaged in a Competitive Business so long as such
Stockholder is not employed by and does not consult with, or become a
director of or otherwise engage in any activities for, such company.
(ii) Restrictions on Solicitation. Beginning on the date hereof
and ending on August, 2005, no Stockholder shall solicit any customer or
prospective customer of any SMR Company, in either case with whom such
Stockholder has had contact during the twenty-four month period prior to
the transactions contemplated by the Acquisition Agreement for any
commercial pursuit that is in competition with any SMR Company, or induce,
or attempt to induce, any employees, agents or consultants of or to any
SMR Company to do anything from which such Stockholder is restricted by
reason of this Section 5.1(b)(ii), nor shall such Stockholder, directly or
indirectly, solicit any employee, consultant or agent to leave the employ
of any member of the Company Group.
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(iii) Reasonable Limitations. Given the important nature of the
position each Stockholder previously held with the SMR Companies, the
nature of the business of the SMR Companies and the sensitive nature of
the Confidential Information and duties such Stockholder has with the SMR
Companies, the parties hereby acknowledge that the limitations, including,
but not limited to, the scope of activities prohibited, the geographic
area covered and the time limitation, are reasonable.
(iv) Remedies. In the event of a breach by any Stockholder of the
provisions of this Section 6.1, each SMR Company shall be entitled to a
temporary restraining order and an injunction restraining such Stockholder
from such breach. Nothing herein, however, shall be construed as
prohibiting any SMR Company from pursuing any other remedies available to
it for such actual or threatened breach, including, without limitation,
the recovery of damages. If it is determined that any Stockholder has
violated any of the covenants in this Section 6.1, the term of any such
covenant violated shall be automatically extended for the period of time
of the violation, either from the date on which such Stockholder ceases
such violation or from the date of the entry by a court of competent
jurisdiction of an order or judgment enforcing such covenants, whichever
period is later.
ARTICLE VII
FURTHER ASSURANCES
------------------
Each party shall execute and deliver such additional instruments and other
documents and shall take such further actions as may be necessary or appropriate
to effectuate, carry out and comply with all of their obligations under this
Agreement. If reasonably requested by BE Aerospace, each Stockholder agrees to
execute a letter to BE Aerospace confirming that the beneficial ownership of
Voting Securities by the Stockholders and their Affiliates does not represent in
the aggregate Total Voting Power in excess of the Standstill Percentage as of
the date of such letter.
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ARTICLE VIII
TERMINATION
-----------
Unless earlier terminated by written agreement of the parties hereto, (a)
the provisions of Articles II - V shall terminate on the earlier of (i) December
31, 1998 and (ii) the date on which the Stockholders and their Affiliates
beneficially own Voting Securities representing in the aggregate less than 5% of
the Total Voting Power; and (b) the provisions of Article VI shall terminate on
August 6, 2005 or such later date provided for pursuant to Section 6.1(b)(iv).
Any termination of this Agreement as provided herein shall be without prejudice
to the rights of any party arising out of the breach by any other party of any
provisions of this Agreement which occurred prior to the termination.
ARTICLE IX
MISCELLANEOUS
-------------
9.1 Notices, Etc. All notices, requests, demands or other communications
required by or otherwise with respect to this Agreement shall be in writing and
shall be deemed to have been duly given to any party when delivered personally
(by courier service or otherwise), when delivered by telecopy and confirmed by
return telecopy, or seven days after being mailed by first-class mail, postage
prepaid in each case to the applicable addresses set forth below:
If to BE Aerospace:
BE Aerospace, Inc.
0000 Xxxxxxxxx Xxxxxx Xxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
Telecopy: (000) 000-0000
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Attn: Xxxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
If to the Stockholders:
Xxxxx X. Xxxxxx and
Xxxxx X. Xxxxxx Trust -- 1998
000 Xxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Telecopier: (000) 000-0000
Xxxxxxx X. Xxxx and
Xxxxxxx X. Xxxx Trust -- 1998
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
Telecopier: (000) 000-0000
Xxxxx X. Xxxxx and
Xxxxx X. Xxxxx Trust -- 1998
000 Xxxx Xxxxx Xxxxx
Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telecopier: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
or to such other address as such party shall have designated by notice so given
to each other party.
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9.2 Amendments, Waivers, Etc. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated except by an instrument
in writing signed by the holders of a majority in number of the Stockholders
Shares and by BE Aerospace following approval thereof by a majority of the board
of directors of BE Aerospace.
9.3 Successors and Assigns. Except as otherwise provided herein, this
Agreement shall be binding upon and shall inure to the benefit of and be
enforceable by the parties and their respective Affiliates and their respective
successors and assigns, including without limitation in the case of any
corporate party hereto any corporate successor by merger or otherwise. Except as
otherwise provided herein, this Agreement shall not be assignable.
9.4 Entire Agreement. This Agreement embodies the entire agreement and
understanding among the parties relating to the subject matter hereof and
supersedes all prior agreements and understandings relating to such subject
matter. There are no representations, warranties or covenants by the parties
hereto relating to such subject matter other than those expressly set forth in
this Agreement and the Acquisition Agreement.
9.5 Specific Performance. The parties acknowledge that money damages are
not an adequate remedy for violations of this Agreement and that any party may,
in its sole discretion, apply to a court of competent jurisdiction for specific
performance or injunctive or such other relief as such court may deem just and
proper in order to enforce this Agreement or prevent any violation hereof and,
to the extent permitted by applicable law, each party waives any objection to
the imposition of such relief.
9.6 Remedies Cumulative. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise or beginning of the
exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
9.7 No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with
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the terms hereof, shall not constitute a waiver by such party of its right to
exercise any such or other right, power or remedy or to demand such compliance.
9.8 No Third Party Beneficiaries. This Agreement is not intended to be for
the benefit of and shall not be enforceable by any Person who or which is not a
party hereto.
9.9 Jurisdiction. Each party hereby irrevocably submits to the exclusive
jurisdiction of the courts of the State of Ohio or of the United States for the
District of Ohio in any action, suit or proceeding arising in connection with
this Agreement, and agrees that any such action, suit or proceeding shall be
brought only in such court (and waives any objection based on forum non
conveniens or any other objection to venue therein); provided, however, that
such consent to jurisdiction is solely for the purpose referred to in this
Section 9.9 and shall not be deemed to be a general submission to the
jurisdiction of said court or in the State of Ohio other than for such purposes.
Each party hereto hereby waives any right to a trial by jury in connection with
any such action, suit or proceeding.
9.10 Governing Law. This Agreement and all disputes hereunder shall be
governed by and construed and enforced in accordance with the law of the State
of New York.
9.11 Name, Captions. The name assigned to this Agreement and the section
captions used herein are for convenience of reference only and shall not affect
the interpretation or construction hereof.
9.12 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies each signed by less than all, but together signed by all, the
parties hereto.
9.13 Expenses. In the event of a dispute concerning the terms or
enforcement of this Agreement, the prevailing party in any such dispute shall be
entitled to reimbursement of reasonable legal fees and disbursements from the
other party or parties to such dispute.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
BE AEROSPACE, INC.
By: /s/Xxxxxx X. XxXxxxxxx
---------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Chief Financial Officer
STOCKHOLDERS
/s/Xxxxx X. Xxxxxx
---------------------------------------
Xxxxx X. Xxxxxx
/s/Xxxxxxx X. Xxxx
---------------------------------------
Xxxxxxx X. Xxxx
/s/Xxxxx X. Xxxxx
---------------------------------------
Xxxxx X. Xxxxx
XXXXX X. XXXXXX TRUST - 1998
By: /s/Xxxxx X. Xxxxxx
---------------------------------------
Xxxxx X. Xxxxxx, Trustee
XXXXXXX X. XXXX TRUST - 1998
By: /s/Xxxxxxx X. Xxxx
---------------------------------------
Xxxxxxx X. Xxxx, Trustee
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XXXXX X. XXXXX TRUST - 1998
By: /s/Xxxxx X. Xxxxx
---------------------------------------
Xxxxx X. Xxxxx, Trustee
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SCHEDULE I
SHARE OWNERSHIP
Name of Stockholder BE Aerospace Common Shares
------------------- --------------------------
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