STOCK OPTION AGREEMENT
EXHIBIT
2.2
THIS
STOCK OPTION AGREEMENT (the “Agreement”) made and entered into as of
______________, 2007 by and between XXXXXXX X. XXXXX (“Stockholder”) and
MACQUARIE INFRASTRUCTURE COMPANY, LLC, a Delaware limited liability company
(“Macquarie”), is to evidence the following agreements and
understandings.
WITNESSETH:
WHEREAS,
prior to the execution and delivery of this Agreement, Stockholder owned
7,745.36 common shares of Mercury Air Centers, Inc., a Delaware corporation
(“MAC”), representing approximately 11% of the issued and outstanding shares of
MAC common stock (“MAC Common”);
WHEREAS,
Stockholder entered into an agreement with MAC dated ____________, 2007 whereby
each share of MAC Common held by Stockholder on such date (“Ricci Common Stock”)
was exchanged for one (1) share of MAC Series A Preferred Stock (the “Preferred
Stock,” the terms, preferences and rights of which are described in a
Certificate of Designation of, Preferences and Rights of the Series A Preferred
Stock filed with the Delaware Secretary of State (the “Certificate of
Designations”) in connection with the terms of a Stock Purchase Agreement dated
April ___, 2007 (the “Purchase Agreement”) by and among, inter
alia,
Macquarie, Allied Capital Corporation (“Allied”) and Stockholder;
WHEREAS,
the exchange of the Ricci Common Stock for the Preferred Stock was intended
to
qualify as a tax-free exchange under Section 1036 or as a recapitalization
under
Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as amended, and
the
Preferred Stock was intended to qualify as MAC “common stock” for purposes of
Section 305(b)(3) and the regulations promulgated thereunder;
WHEREAS,
the Purchase Agreement provides, in part, that the Preferred Stock was to be
issued to Stockholder in exchange for the Ricci Common Stock on the date on
which Macquarie acquires all of the MAC Common held by Allied pursuant to the
Purchase Agreement (the “Closing Date”), and the Purchase Agreement contemplates
that on the Closing Date, Stockholder shall issue to Macquarie an option to
purchase all, and not less than all, of the Preferred Stock held by Stockholder,
and Macquarie shall issue to Stockholder an option to require Macquarie to
purchase all, and not less than all, of the Preferred Stock held by Stockholder;
WHEREAS,
immediately prior to the execution and delivery of this Agreement: (i) Macquarie
has acquired all of the “Initial Closing Shares” as defined in the Purchase
Agreement, and (ii) Stockholder has exchanged the Ricci Common Stock for an
equal number of shares of the Preferred Stock (the “Option Shares”);
and
WHEREAS,
the parties hereto desire to memorialize in this Agreement the terms and
conditions of the Call Option and the Put Option (as such terms are defined
below).
NOW,
THEREFORE, in consideration of the mutual promises contained herein and for
other good and valuable consideration, the receipt, adequacy and sufficiency
of
which are hereby acknowledged, the parties agree as follows:
1. Grant
of Call Option.
Stockholder hereby issues and sells to Macquarie an option to purchase all,
and
not less than all, of the Option Shares (“Call Option”), all on the terms and
conditions contained in this Agreement.
2. Option
Purchase Price.
In
consideration of the Stockholder’s issuance of the Call Option, Macquarie shall
pay to the Stockholder, contemporaneously with the execution and delivery of
this Agreement, the sum of $2,000,000 (“Option Purchase Price”), by bank or
certified check or by wire transfer of immediately available federal funds
to an
account designated in writing by Stockholder prior to the date of execution
of
this Agreement. The Option Purchase Price shall be nonrefundable, but shall
be
credited against the Call Option Exercise Price (defined below) if the Call
Option is exercised by Macquarie prior to the expiration of the Call Option
Exercise Period (defined below).
3. Exercise
Period.
The
Call Option shall be exercisable only from 12:01 a.m. Eastern Standard Time
October 1, 2007 through 11:59 p.m. Eastern Standard Time on October 31, 2007
(“Call Option Exercise Period”), time being of the essence.
4. Call
Option Exercise Price.
a. The
exercise price for the Option Shares acquired pursuant to the Call Option (“Call
Option Exercise Price”) shall be _____________________ Dollars ($__________),
which equals the net amount of the per share value of the MAC Common as
determined on [Macquarie/Allied
closing date]
in
connection with the closing of the purchase by Macquarie of MAC Common pursuant
to Section 1.4(a) of the Purchase Agreement times the number of Option Shares
plus $500,000 as the premium for Stockholder granting the Call Option, less
the
sum of (x) any dividends and distributions paid on the Preferred Stock to the
Stockholder from and after the [Macquarie/Allied
closing date]
to the
date of closing of the Call Option exercise and (y) the Option Purchase Price,
subject to adjustment pursuant to Paragraph 4(b) below.
b. The
parties acknowledge and agree that in certain circumstances the Call Option
Exercise Price shall be (1) reduced by the per share amount of any Final
Working Capital Deficiency, if any, or (2) increased by the per share
amount of any Final Working Capital Surplus, if any, in each case pursuant
to
the terms and conditions set forth in Section 1.7 of the Purchase
Agreement.
5. Exercise
Procedure and Closing.
The
Call Option may be exercised by Macquarie by delivery to Stockholder and Allied
of a written exercise notice (“Notice of Call Exercise”) during the Call Option
Exercise Period. Macquarie and the Stockholder shall consummate the purchase
and
sale of the Option Shares within ten (10) days following the date the Notice
of
Call Exercise is received by Stockholder.
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a. At
the
closing, the Call Option Exercise Price shall be paid as follows:
i. First,
an
amount equal to the outstanding principal, accrued and unpaid interest, and
fees
payable pursuant to the Promissory Note dated September 15, 2006 and issued
by
the Stockholder to Mercury Air Centers, Inc. in a principal amount of $7,196,493
(the “Allied Loan Amount”) shall be delivered to Allied Capital Corporation, a
Maryland corporation, as agent for the holders of such note
(“Allied”);
ii. Second,
an amount equal to the Call Option Share Escrow Fund shall be delivered to
the
Escrow Agent; and
iii. Third,
the balance of the Call Option Exercise Price for the Preferred Stock shall
be
delivered to the Stockholder, with payment being made in the same manner as
the
Option Purchase Price pursuant to Paragraph 2 above.
b. At
the
closing, the Stockholder shall deliver to Macquarie:
i. Certificates
for the Option Shares free and clear of all liens and encumbrances (except
with
respect to the liens described in Paragraphs 6(a) and 12 below), duly endorsed
for transfer or accompanied by duly executed stock powers;
ii. A
certificate from the Stockholder expressly certifying that as of the date
thereof, the Stockholder (A) holds of record, owns beneficially and has good
and
marketable title to all of the Option Shares, free and clear of security
interests, liens, options, warrants, purchase rights, contracts, commitments,
restrictions, equities, claims and demands (except with respect to the liens
described in Paragraphs 6(a) and 12 below) and (B) is not a party to any voting
trust, proxy, or other agreement or understanding, other than with respect
to
this Agreement; and
iii. An
executed release substantially in the form of Exhibit A.
6. Nontransferability
of Option Shares and Call Option.
a. Without
the prior written consent of Macquarie and Allied, the Option Shares shall
not
be transferred, assigned, pledged, hypothecated or disposed of in any way
(except with respect to the pledge described in Paragraph 12 below), whether
by
operation of law or otherwise, except as set forth in Paragraph 13(i) below;
provided, that the Option Shares may be disposed of pursuant to the
Agreement.
b. Without
the prior written consent of the Stockholder, the Call Option shall not be
transferred, assigned, pledged, hypothecated or disposed of in any way, whether
by operation of law or otherwise, except that Macquarie, upon written notice
to
the Stockholder, may transfer all or a portion of the Call Option to an
affiliate or grant a security interest in the Call Option to secure the
repayment of indebtedness of MAC, in which case Macquarie shall remain primarily
liable for and stand behind each of its obligations under the Call Option and
otherwise under this Agreement.
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7. Failure
to Exercise Call Option / Stockholder’s Right to Appointment of
Director.
If
Macquarie fails to exercise the Call Option prior to the expiration of the
Call
Option Exercise Period or fails to close on the purchase of the Preferred Stock
within ten (10) days after receipt by Stockholder of the Notice of Exercise,
the
Stockholder shall be permitted to appoint an additional director to the Board
of
MAC (which Board will consist of at least six (6) members) as long as the
Stockholder (or family members, including trusts, limited partnerships or
limited liability companies principally for the benefit of Stockholder or his
family (“Stockholder Related Parties”)) continues to own in the aggregate at
least eighty percent (80%) of the Preferred Stock. Macquarie agrees to vote
for
the election of Stockholder’s nominee as Director and take such actions in its
capacity as majority stockholder of MAC, and further, agrees to cause MAC to
take such actions as may be necessary or appropriate, in the reasonable opinion
of Stockholder or its counsel, to effectuate the purposes of this
Paragraph.
8. Stockholder
Failure to Transfer Preferred Stock.
In the
event that the Stockholder is unable to, or for any reason does not, deliver
to
Macquarie certificates for the Preferred Stock free and clear of all liens
and
encumbrances (except with respect to the liens described in Paragraphs 6(a)_and
12 below), duly endorsed for transfer or accompanied by duly executed stock
powers and an executed release substantially in the form of Exhibit A within
ten
(10) days after receipt by Stockholder of the Notice of Exercise, Macquarie
may,
in its sole discretion, pay to Allied the amount payable to it pursuant to
Paragraph 5 above and deposit the balance of the Call Option Exercise Price
to
the Escrow Agent to be held in an escrow account separate from the Escrow Fund.
Upon such deposit by Macquarie, the Option Shares shall at such time be deemed
to have been sold, assigned, transferred and conveyed to Macquarie, and the
Stockholder shall have no further rights with respect thereto. The Escrow Agent
shall hold, invest and disburse the funds in accordance with the terms and
conditions of an escrow agreement between Macquarie, the Stockholder and the
Escrow Agent, an executed counterpart of which the Stockholder has delivered
to
Macquarie as of the execution of this Agreement. The escrow agreement shall
provide that the escrow deposit and any investment income earned thereon be
disbursed in accordance with the sequence set forth in Paragraphs 5(a)(ii)
and
(iii) above upon receipt by Macquarie of the documents set forth in the first
sentence of this Paragraph 8. Any fees and expenses of the Escrow Agent shall
be
paid from the funds deposited with the Escrow Agent.
9. Adjustments
for Certain Corporate Events.
If at
any time, or from time to time, MAC shall, by subdivision, consolidation or
reclassification of shares, or otherwise, change as a whole the outstanding
Option Shares into a different number or class of shares, the number and class
(or series) of shares so changed shall, for the purposes of the Call Option
or
the Put Option (as defined below) and the terms and conditions hereof, replace
the shares outstanding immediately prior to such change, and the number of
shares subject to the Call Option or the Put Option and the consideration
calculated based on the number of Option Shares shall be proportionately
adjusted.
a. If
at any
time, or from time to time while the Call Option or Put Option is exercisable,
MAC shall consolidate with or merge into another corporation, Macquarie shall
thereafter be entitled upon exercise of the Call Option to purchase, with
respect to each Option Share purchasable hereunder immediately prior to the
date
upon when such consolidation or merger shall become effective, the securities
or
property to which a holder of one share of Preferred Stock would have been
entitled upon such consolidation or merger and Macquarie shall take, and shall
cause MAC to take such steps in connection with such consolidation or merger
as
may be necessary to assure that all of the provisions of the Call Option or
the
Put Option shall thereafter be applicable, as nearly as reasonably may be,
in
relation to any securities or property thereafter deliverable upon the exercise
of the Call Option or the Put Option as applicable.
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b. The
Call
Option granted herein shall not entitle Macquarie to any voting rights or other
rights or privileges attributable to ownership of the Option Shares prior to
the
exercise of the Call Option or the Put Option, as applicable, and payment of
the
exercise price for such shares.
10. Put
Option Exercise Price.
a. The
Stockholder shall have the option to require Macquarie to purchase all, and
not
less than all, of the Preferred Stock held by the Stockholder (“Put Option”),
exercisable only from 12:01 a.m. Eastern Standard Time April 1, 2008 through
11:59 p.m. Eastern Standard Time April 30, 2008 (“Put Option Exercise Period”),
time being of the essence. The exercise price for the Option Shares being sold
to Macquarie pursuant to the Put Option (“Put Option Exercise Price”) shall be
_____________________ Dollars ($__________), which equals the net amount of
the
per share value of MAC Common as determined on the [Macquarie/Allied
Closing Date]
in
connection with the closing of the purchase by Macquarie of the MAC Common
pursuant to Section 1.4(a) of the Purchase Agreement times the number of Option
Shares, less the sum of (x) $4,000,000 and (y) any dividends and distributions
paid to Stockholder on the Preferred Stock from and after the [Macquarie/Allied
Closing Date]
through
the date of closing of the Put Option exercise, and without reduction for the
Option Purchase Price, subject to adjustment pursuant to Paragraph 10(b) below.
b. The
parties acknowledge and agree that in certain circumstances the Put Option
Exercise Price shall be (1) reduced by the per share amount of any Final
Working Capital Deficiency, if any, or (2) increased by the per share
amount of any Final Working Capital Surplus, if any, in each case pursuant
to
the terms and conditions set forth in Section 1.7 of the Purchase
Agreement.
11. Exercise
Procedure and Closing.
The Put
Option may be exercised by Stockholder by delivery to Macquarie and Allied
of a
written exercise notice (“Notice of Put Exercise”) during the Put Option
Exercise Period. Stockholder and Macquarie shall consummate the sale of the
Preferred Stock within ten (10) days of the date of receipt by Macquarie of
the
Notice of Put Exercise.
a. At
the
closing, the Put Option Exercise Price shall be paid as follows:
i. First,
an
amount equal to the Allied Loan Amount shall be delivered to
Allied;
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ii. Second,
an amount equal to the Option Share Escrow Fund shall be delivered to the Escrow
Agent;
iii. Third,
the balance of the Put Option Exercise Price for the Preferred Stock shall
be
delivered to the Stockholder, with payment being made in the same manner as
the
Option Purchase Price pursuant to Paragraph 2 above.
b. At
the
closing, the Stockholder shall deliver to Macquarie:
i. Certificates
for the Option Shares free and clear of all liens and encumbrances (except
with
respect to the liens described in Paragraphs 6(a) and 12 below), duly endorsed
for transfer or accompanied by duly executed stock powers;
ii. A
certificate from the Stockholder expressly certifying that as of the date
thereof, the Stockholder (A) holds of record, owns beneficially and has good
and
marketable title to all of the Option Shares, free and clear of security
interests, liens, options, warrants, purchase rights, contracts, commitments,
restrictions, equities, claims and demands (except with respect to the liens
described in Paragraphs 6(a) and 12 below) and (B) is not a party to any voting
trust, proxy, or other agreement or understanding, other than with respect
to
this Agreement;
iii. And
an
executed release substantially in the form of Exhibit A.
12. Support
of Financing Transaction.
Upon
request by Macquarie, the Stockholder will enter into a stock pledge agreement
containing customary terms and conditions and on terms no less favorable than
applicable to Macquarie, if required by any bank or other financial institution
providing bona fide financing to MAC for the purpose of making distributions
to
all shareholders, including the holder of the Preferred Stock and refinancings
of such debt that do not increase the principal amount thereof. Any such stock
pledge agreement shall expressly provide that the transfer of the Preferred
Stock to either Macquarie or MAC or their respective affiliates is a permitted
transfer under the express terms of the stock pledge agreement. Macquarie
acknowledges and agrees that: (i) any grant of a security interest in the Option
Shares contemplated by this Paragraph 12 is a permitted lien on the Preferred
Stock for purposes of closing on the sale of the Preferred Shares to either
Macquarie or MAC and shall not result in a reduction to the net amount paid
to
Stockholder from the sale of the Preferred Stock; and (ii) in the event of
a
default by MAC under any bank loan contemplated by this Paragraph for which
Stockholder has pledged his Preferred Stock as security for payment, Macquarie
will indemnify and hold harmless Stockholder from and against any Losses
incurred by Stockholder in respect of such loan (including, but not limited
to,
foreclosure against the pledged shares) to the extent such Losses incurred
by
Stockholder exceeds the amount of distributions received by Stockholder after
the closing, such indemnity obligation not to exceed the aggregate amount of
proceeds the Stockholder is otherwise entitled to receive under this Agreement
and the Purchase Agreement.
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13. Miscellaneous
Provisions.
a. Governing
Law / Jurisdiction and Venue.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware. Jurisdiction and venue for any action or claim arising
hereunder shall lie exclusively in the Court of Chancery in the State of
Delaware, and each party irrevocably consents and submits to the personal and
subject matter jurisdiction of said courts.
b. Headings.
Section
and paragraph headings are not to be considered part of this Agreement. They
are
included solely for convenience and are not intended to be full and accurate
descriptions of the contents of this Agreement.
c. Recitals
and Exhibits.
The
recitals set forth at the beginning of this Agreement and the Exhibits annexed
hereto are an integral part of this Agreement and are incorporated herein by
reference as if fully rewritten.
d. No
Waiver.
A
waiver of any provisions of this Agreement shall not be effective unless in
writing signed by the party against whom the waiver is claimed. No waiver of
any
provision of this Agreement shall constitute a waiver of any other provision,
whether or not similar, and no waiver shall constitute a continuing waiver
unless expressly provided in writing.
e. Execution
in Counterparts.
This
Agreement may be executed by facsimile or other electronic communication in
multiple counterparts, each of which shall constitute an original for all
purposes, but all of which constitute but one and the same
instrument.
f. Notices.
Any
notice or other communication with respect to this Agreement to any party shall
be in writing and shall be deemed to have been delivered when personally
delivered, one business day after being sent via a reputable nationwide
overnight courier service guaranteeing next Business Day delivery charges
prepaid or three days after being deposited in the United States mail, certified
and postage prepaid, addressed to the appropriate party as follows:
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To
the Stockholder:
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Xxxxxxx
X. Xxxxx
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000
Xxxxxxxx Xxxx
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Xxxxxxxx
Xxxxxxx, Xxxx 00000
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To
Macquarie:
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Macquarie
Infrastructure Company, LLC
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000
Xxxx 00xx
Xxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attn:
Xxxxx Xxxxxx.
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A
copy of notices shall be sent to:
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Allied
Capital Corporation
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0000
Xxxxxxxxxxxx Xxx., X.X.,
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Xxxxxxxxxx,
XX 2006
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Attn:
Xxxx Xxxxxxxx.
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Any
addressee may designate a different address by delivering, as provided above,
a
notice of change of address.
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g. Modification.
This
Agreement may be modified only in a writing executed by all parties and with
the
consent of Allied which will not be unreasonably withheld, conditioned or
delayed.
h. Binding
Effect.
This
Agreement shall bind and inure to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and permitted
assigns.
i. Limited
Assignment.
The
rights and obligations of Macquarie under this Agreement may not be assigned,
nor its obligations hereunder be assumed, in whole or in part, to or by any
person or entity which is not a party to this Agreement without the prior
written consent of the Stockholder, except as expressly provided pursuant to
Section 6. The rights and obligations of the Stockholder under this Agreement
may not be assigned, nor its obligations hereunder be assumed, in whole or
in
part, to or by any person or entity which is not a party to
this
Agreement without the prior written consent of Macquarie; provided that (a)
pursuant to a Pledge and Collateral Assignment Agreement dated April 16, 2007
(“Pledge Agreement”), as it may be amended from time to time, the Stockholder
may and has pledged and assigned its right, title and interest in the Agreement
to, granted a proxy and power of attorney to, and granted a security interest
in
and assigned certain proceeds to Allied, and Macquarie acknowledges the Pledge
Agreement and agrees that Allied may serve as agent for the holders of the
“Note” as defined in the Pledge Agreement and
(b)
following the expiration of the Call Option Exercise Period, Stockholder, upon
written notice to Macquarie may assign all or a portion of the Put Option to
one
or more Stockholder Parties, and in each such case (a) and (b) Stockholder
shall
remain primarily liable for and stand behind each of his obligations under
this
Agreement.
j. Entire
Agreement.
This
Agreement, together with the Purchase Agreement, the Escrow Agreement and the
other Transaction Documents, constitutes the entire understanding among the
parties and supersedes any prior understandings and agreements between them
respecting the within subject matter. There are no representations, agreements,
arrangements or understandings, oral or written, between or among the parties
with respect to the within subject matter, other than as set forth in this
Agreement and its Exhibits. In the event of any conflict between the terms
of
this Agreement and the Purchase Agreement, the Purchase Agreement shall
govern.
k. Further
Assurances.
From
and after the closing, each party shall execute and deliver such further
instruments of conveyance and transfer and take such other action as reasonably
may be requested by the other party to further effectuate the transactions
contemplated by this Agreement.
l. Confidentiality.
The
parties covenant and agree that the terms and conditions of this Agreement
shall
not be disclosed or disseminated in any fashion, at any time, or for any person,
firm or entity except for the parties’ respective accountants, attorneys and
financial advisors and except as may be required by law; provided, that the
Stockholder hereby consents to the disclosure by Macquarie and its Affiliates
of
information regarding the Company, the Subsidiaries and the Business, to the
extent contemplated by Section
5.3(b) of the Purchase Agreement,
or as
reasonably necessary for compliance with disclosure requirements applicable
to
Macquarie or any of its Affiliates, provided such disclosure is made in
accordance with and pursuant to Legal Requirements (including applicable federal
securities laws and stock exchange listing rules).
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m. Specific
Performance.
The
Stockholder and Macquarie agree that irreparable damage would occur in the
event
that any provision of this Agreement was not performed in accordance with the
terms hereof and that the Stockholder and Macquarie shall be entitled to
specific performance of the terms hereof, in addition to any other remedy at
law
or in equity.
n. Defined
Terms.
Capitalized terms not defined in this agreement shall have the meaning given
in
the Purchase Agreement.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
_________________________________________
XXXXXXX
X. XXXXX
MACQUARIE
INFRASTRUCTURE
COMPANY,
LLC
By:
______________________________________
Xxxxx
Xxxxxx, its _____________________
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Exhibit
A
Form
of
Release of Claims
As
of the
closing of the sale of the “Option Shares”, as defined in the Stock Option
Agreement dated as of __________, 2007 (the “Option Agreement”) by and between
Xxxxxxx X. Xxxxx (“Seller”) and Macquarie Infrastructure Company, LLC (the
“Company”), Seller hereby fully and irrevocably releases, acquits and forever
discharges the Company and the Subsidiaries, and each of their respective past,
present and future officers, directors, partners, general partners, limited
partners, managing directors, members, stockholders, trustees, representatives,
employees, principals, agents, Affiliates, parents, subsidiaries (direct and
indirect), joint ventures, predecessors, successors, assigns, beneficiaries,
heirs, executors, personal or legal representatives, insurers and attorneys
of
any of them from any and all actions, claims, counterclaims, suits, causes
of
action, judgments, damages, demands and liabilities, of every kind and nature
whatsoever, including taxes (including taxes under Sections 409A and 4999 of
the
Code), past, present or future, at law or in equity, whether known or unknown,
contingent or otherwise, relating to or arising out of the ownership or
acquisition of the Option Shares or the business and affairs of the Company
and
the Subsidiaries, in each case, which such Seller had, has or may have had
at
any time in the past until and including the date of the closing of the sale
of
the Option Shares, including any claims regarding the allocation and
distribution of the Purchase Price (collectively, “Released Claims”).
Notwithstanding the foregoing, the Released Claims shall not include
(i) exculpation and indemnification rights set forth in the Company’s or
any Subsidiary’s charter documents or any written indemnification agreement, to
the extent described on the attached D&O
Indemnification Schedule
to the
Purchase Agreement (as defined below), (ii) any amounts due Seller for
compensation or expense reimbursement, (iii) any vested and accrued interest
of
Seller in, or benefit to such Seller under, any Employee Benefit Plan, (iv)
rights arising under any Transaction Document, other than any claims regarding
the allocation and distribution of the Purchase Price, or (v) rights under
directors and officers insurance policies and Section
5.10
of the
Purchase Agreement. The releases, acquittals and discharges in this Release
of
Claims are conditioned on the consummation of the closing of the sale of the
Option Shares. Capitalized terms not defined in this agreement shall have the
meaning given in the Option Agreement or the “Purchase Agreement,” as Purchase
Agreement is defined in the Option Agreement.
__________________________________
Xxxxxxx
X. Xxxxx
Date:
___________
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