EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is made and entered
into as of the 20th day of March, 1997, by and among Pan Am Corporation, a
Florida corporation (the "Company"), and JMD Delaware, Inc., as trustee for the
Xxxxx Xxxxxx 1995 Air Holding Trust (the "Trust"), Xxxxx Xxxxxx ("Arison"),
Xxxxxx Xxxxxxxx and A. Xxxxxx Xxxxx (each a "Holder" and collectively, the
"Holders").
RECITALS
A. The Company and the Holders are contemporaneously entering into that
certain Acquisition Agreement, dated as of March 20, 1997 (the "Acquisition
Agreement"), among the Company, CAL Acquisition Corporation, a Florida
corporation, Carnival Air Lines, Inc., a Florida corporation, Air Holding
Company, a Florida corporation, and the Holders pursuant to which the Company
will issue and deliver to the Holders an aggregate of 9,523,810 shares (the
"Shares") of the Company's Common Stock, par value $.0001 per share (the "Common
Stock").
B. As contemplated by the Acquisition Agreement, the Company has agreed
herein to provide to the Holders certain registration rights with respect to the
Shares.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and other good, valuable and
sufficient consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
AGREEMENT
1. SHELF REGISTRATION.
(a) Subject to the limitations set forth in this Agreement and
Section 5.10 of the Acquisition Agreement, the Company will promptly file a
registration statement (the "Initial Shelf Registration Statement") registering
each Holder's resale of up to 2,380,953 Shares owned by such Holder and shall
thereafter use its best efforts to cause the Shelf Registration Statement to be
declared effective on or as soon as legally possible after the "Closing Date"
under the Acquisition Agreement and maintain such effectiveness until the
effectiveness of the "Second Shelf Registration Statement" (as hereinafter
defined); in addition, not later than 10 months after the Closing Date, the
Company will file an additional registration statement (the "Second Shelf
Registration Statement" and, together with the Initial Shelf Registration
Statement, the "Shelf Registration Statements") registering each Holder's resale
of up to 4,761,906 Shares owned by such Holder (which amount shall be reduced by
the number of Shares sold by the Holder prior to the effectiveness of the Second
Shelf Registration Statement) and shall thereafter use its best efforts to cause
such Second Shelf Registration Statement to be declared effective by the first
anniversary of the Closing Date and to maintain such effectiveness until the
third anniversary of the Closing Date, PROVIDED, HOWEVER, that the Company shall
have the right to prohibit the sale of Common Stock pursuant to each Shelf
Registration Statement, upon notice to the Holders (A) if the Company reasonably
believes that such sale might reasonably be expected to have an adverse effect
on any significant proposal or plan of the Company to engage in an acquisition
of assets or any merger, consolidation, tender offer, financing, corporate
reorganization or similar transaction; (B) during the period specified in
Section 7(a) hereof; or (C) upon the happening of any event, as a result of
which the prospectus under the Shelf Registration Statement (the "Prospectus")
includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing (in the opinion of
counsel for the Company), it being agreed that in the case of the resale
prohibitions contemplated by clauses (A) and (C), the Company shall use its best
efforts to minimize the period of time in which it shall so prohibit the sale of
any shares of Common Stock and in no event shall any period of time during which
sales are prohibited exceed 20 consecutive days or an aggregate of 45 days in
any six-month period. Each Shelf Registration Statement will provide that the
Holders may sell their Shares in one or more transactions (which may include
"block" transactions) on any securities exchange on which the Common Stock is
traded, in the over-the-counter market, in negotiated transactions or in a
combination of such methods, at fixed prices which may be changed, at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices. Notwithstanding anything herein to the
contrary, the Company shall not be obligated to maintain the effectiveness of a
Shelf Registration Statement pursuant to this Section 1(a) or to deliver any
prospectus under a Shelf Registration Statement after the Holders have sold at
least 75% of the Shares of Common Stock issued pursuant to the Acquisition
Agreement.
2. UNDERWRITTEN OFFERING.
(a) The Company will use its best efforts, prior to the first
anniversary of the Closing Date, to consummate an underwritten offering relating
to 25% of the Shares (which amount shall be reduced by the number of shares
theretofore sold pursuant to the Initial Shelf Registration Statement), pursuant
to which the Company shall file a registration statement with the Securities and
Exchange Commission ("Commission") and shall use its best efforts to cause such
registration statement promptly become effective under the Securities Act.
(b) The Company shall be entitled to include in the registration
contemplated by this Section 2 shares of Common Stock to be sold by the Company
for its own account and for the account of other significant shareholders of the
Company. In the event that the underwriters advise the Company that in their
opinion the number of securities to be included in such registration exceeds the
number of securities which can be sold in the offering without adversely
affecting the offering price or the marketing of the Company's securities, the
Holders and the other shareholders of the Company entitled to participate in the
offering shall accept a pro rata reduction in the number of securities to be
included in such registration (such that their participation is in proportion to
their relative holdings of Common Stock); provided however that each of the
Holders shall have the absolute priority to participate (and thereby reduce or
eliminate any pro rata participation of other shareholders) to the extent
necessary so that each such Holder shall in all events be entitled to include an
aggregate of 2,000,000 Shares (which amount shall be reduced by the number of
Shares theretofore sold pursuant to the Shelf Registration Statement) in such
underwritten offering.
(c) The Company shall select a nationally recognized underwriter
or underwriters to manage and administer such offering, such underwriter or
underwriters, as the case may be, to be subject to the approval of Xxxxx Xxxxxx,
which approval shall not be unreasonably withheld.
(d) The Company will use its best efforts to complete the
underwritten offering of the Shares in accordance with customary practice.
Without limiting the generality of the foregoing, the Company will cause its
principal officers to actively prepare for and participate in good faith in any
road shows reasonably requested by the underwriters to market the Shares.
3. PIGGYBACK RIGHTS. If the Company shall at any time during the
three-year period (five years in the case of underwritten public offerings of
common equity) commencing on the Closing Date propose to file a registration
statement under the Securities Act for any sales of shares of any of the
Company's equity securities (or any warrants, units, convertibles, rights or
other securities related or linked to any shares of the Company's equity
securities), whether for a secondary offering or for a primary offering of
securities by the Company, the Company shall give written notice of such
registration to each of the Holders no later than thirty (30) days before its
filing with the Commission; provided, that registrations in connection with
acquisitions, conversions of any of the Company's securities or any employee
stock option or employee stock purchase or savings plan shall not be deemed to
be a sale for purposes of this Section 3. If any Holder or Holders so request
within thirty (30) days, the Company shall include in any registration the
Shares held by such Holder or Holders and requested to be included in such
registration, but the Company shall not be obligated to so include such Shares
to the extent the underwriter or underwriters, if any, of such securities being
otherwise registered by the Company shall determine in good faith that the
inclusion of such Shares would jeopardize the successful sale at the desired
price of such other securities proposed to be sold by such underwriter or
underwriters, in which case the Holder or Holders requesting to participate in
such registration shall be entitled to participate in any such reduced number of
Shares (if any) which may be included in such registration along with the
Company and any other Holders exercising piggyback rights with respect to such
registration hereunder on a pro rata basis in proportion to their relative
holdings of shares of Common Stock, in the aggregate,
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to the complete exclusion, if necessary, of any other holders of Common
securities having similar registration rights and proposing to include their
shares in such registration. The obligations and rights of the Company and each
of the Holders under this Section 3 shall not affect in any way the obligations
and rights of the Company and the Holders under Section 1 or 2.
4. EXPENSES. Subject to the limitations contained in this Section 4
and except as otherwise specifically provided in this Agreement, the entire
costs and expenses of the registrations and qualifications pursuant to Sections
1, 2 and 3 as hereof shall be borne by the Company. Such costs and expenses
shall include, without limitation, the fees and expenses of counsel for the
Company and of its accountants, all other costs, fees and expenses of the
Company incident to the preparation, printing and filing under the Securities
Act of each registration statement and all amendments and supplements thereto,
the reasonable fees and expenses of a special counsel to the Holders relating to
such registration and qualification (provided that the aggregate fees for all
such registrations, together with the aggregate fees of Holders' counsel in
connection with the Acquisition Agreement, shall in no event exceed $150,000),
the cost of furnishing copies of each preliminary prospectus, each final
prospectus and each amendment or supplement thereto to underwriters, dealers and
other purchasers of the Shares and the costs and expenses (including fees and
disbursements of counsel) incurred in connection with the qualification of the
Shares under the blue sky laws of various jurisdictions. The Company shall not,
however, pay underwriting discounts or commissions to the extent related to the
sale of Shares sold in any registration and qualification.
5. PROCEDURES.
(a) In the case of each registration or qualification pursuant
to Sections 1, 2 or 3, the Company will use its best efforts to register or
qualify the offering under the blue sky laws of such states as may be reasonably
requested by Holders from time to time (provided, however, the Company shall not
be obligated to qualify as a foreign corporation to do business under the laws
of any jurisdiction in which it is not then qualified or to file any general
consent to service of process). The Company will also keep each Holder advised
in writing as to the initiation of proceedings for such state and Federal
registration and qualification and as to the completion thereof, and will advise
any such Holder, upon request, of the progress of such proceedings.
(b) Except as otherwise specifically provided in Section 1 of
this Agreement, at the Company's expense, the Company will keep each
registration and qualification under this Agreement effective (and in compliance
with the Securities Act) by such action as may be necessary or appropriate for a
period of 120 days after the effective date of such registration statement,
including, without limitation, the filing of post-effective amendments and
supplements to any registration statement or prospectus necessary to keep the
registration statement current and the further qualification under any
applicable blue sky or other state securities laws to permit such sale or
distribution, all as requested by the Holder or Holders whose Shares are so
registered, and shall perform such other reasonable acts and things as may be
required of it to enable such Holder to consummate the disposition in the
jurisdiction of the securities covered by such registration statement. The
Company will immediately notify each Holder on whose behalf Shares have been
registered pursuant to this Agreement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the happening
of any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing (in which case, the Company shall promptly provide such Holder with
revised or supplemental prospectuses and, if so requested by the Company in
writing, such Holder shall promptly take action to cease making any offers of
the Common Stock until receipt and distribution of such revised or supplemental
prospectuses, subject in all respects to the 20 and 45 day time limits
contemplated by Section 1 hereof with respect to prohibitions on sale pursuant
to clauses (A) and (B) thereof).
(c) The Company will use its best efforts to furnish to each
Holder on whose behalf Shares have been registered pursuant to this Agreement a
signed counterpart, addressed to the such Holder, of (i) an opinion of counsel
for the Company, dated the effective date of such registration statement, and
(ii) a so-called "cold comfort" letter signed by the independent public
accountants who have certified the Company's financial statements included in
such registration statement, and such opinion of counsel and accountants' letter
shall cover substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of such
accountants' letter,
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with respect to events subsequent to the date of such financial statements, as
are customarily covered in opinions of issuer's counsel and in accountants'
letters delivered to underwriters in connection with underwritten public
offerings of securities.
(d) Without limiting any other provision hereof, in connection
with any registration of Shares under this Agreement, the Company will use its
best efforts to comply with the Securities Act, the Securities Exchange Act of
1934, as amended (the "Securities Exchange Act"), and all applicable rules and
regulations of the Commission, and will make generally available to its
securities holders, as soon as reasonably practicable, an earnings statement
covering a period of at least twelve months, beginning with the first month of
the first fiscal quarter after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act.
(e) In connection with any registration of Shares under this
Agreement, the Company will provide, if appropriate, a transfer agent and
registrar for the Shares not later than the effective date of such registration
statement.
(f) No Holder may participate in any underwritten registration
hereunder unless such Holder (i) agrees to sell his or its Shares on the basis
provided in any reasonable underwriting arrangements required in connection
therewith, and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements, and other documents reasonably
required under the terms of such underwriting arrangements. The Company also
agrees to enter into such underwriting agreement with the underwriters for such
offering, such agreement to contain such representations and warranties by the
Company and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions, including,
without limitation, provisions relating to indemnification and contribution. The
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of the underwriters shall also be made to and for
the benefit of the Holders.
(g) In connection with the preparation and filing of each
registration statement registering Shares under this Agreement, the Company will
give each Holder or Holders on whose behalf Shares are to be so registered and
their counsel and accountants (as well as all underwriters, if any) the
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the Commission, and each
amendment thereof or supplement thereto, and will give each of them such access
to its books and records and such opportunities to discuss the business of the
Company with its officers, its counsel and the independent public accountants
who have certified its financial statements, as shall be necessary, in the
opinion of such Holders or such underwriters or their respective counsel, in
order to conduct a reasonable and diligent investigation within the meaning of
the Securities Act. Without limiting the foregoing, each registration statement,
prospectus, amendment, supplement or any other document filed with respect to a
registration under this Agreement shall be subject to review and reasonable
approval by the Holder or Holders registering Shares in such registration and by
their counsel.
(h) The Company will use reasonable efforts to list, on or prior
to the effective date of each registration statement registering Shares under
this Agreement, all shares covered by such registration statement on any
securities exchange on which any of the Common Stock is then listed, if any.
(i) The Company will cooperate with the Holder or Holders and
each underwriter or agent participating in the disposition of securities subject
to any registration hereunder and their respective counsel in connection with
any filings required to be made with the National Association of Securities
Dealers.
(j) The Company will use reasonable efforts to prevent the
issuance by the SEC or any other governmental agency or court of a stop order,
injunction or other order suspending the effectiveness of each registration
statement registering Shares under this Agreement and, if such an order is
issued, use reasonable efforts to cause such order to be listed as promptly as
practicable.
(k) The Company and the Holders will enter into other customary
agreements, if any, and take such other actions as are reasonably required in
order to expedite or facilitate the disposition of the Shares as contemplated
hereby.
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(l) The Company will, at the expense of the Company, furnish to
each Holder on whose behalf the registration of Shares has been effected such
number of registration statements, prospectuses, offering circulars and other
documents incident to any registration or qualification referred to in Sections
1, 2 or 3 as such Holder from time to time may reasonably request.
6. INDEMNIFICATION. The Company will indemnify and hold harmless
each Holder and any underwriter (as defined in the Securities Act) for such
Holder and each person, if any, who controls the Holder or underwriter within
the meaning of the Securities Act against any losses, claims, damages or
liabilities, joint or several, and expenses (including reasonable attorneys'
fees and expenses and reasonable costs of investigation) to which the Holder or
underwriter or such controlling person may be subject, under the Securities Act
or otherwise, insofar as any thereof arise out of or are based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in (A)
any registration statement under which such Holder's Shares were registered
under the Securities Act pursuant to Sections 1, 2 or 3 hereof, any prospectus
or preliminary prospectus contained therein, or any amendment or supplement
thereto or (B) any other document incident to the registration of the Shares
under the Securities Act or the qualification of the Shares under any state
securities laws applicable to the Company, (ii) the omission or alleged omission
to state in any item referred to in the preceding clause (i) a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or (iii) any violation or alleged violation by the Company of the
Securities Act, the Securities Exchange Act or any other federal or state
securities law, rule or regulation applicable to the Company and relating to
action or inaction by the Company in connection with any such registration or
qualification, except the Company will not indemnify any Holder insofar as such
losses, claims, damages, liabilities or expenses arise out of or are based upon
any untrue statement or alleged untrue statement or omission or alleged omission
based upon information furnished to the Company in writing by the Holder or by
any affiliate of a Holder pursuant to the Acquisition Agreement or otherwise
expressly for use therein and provided further that with respect to any untrue
statement or omission or alleged untrue statement made in any prospectus
delivered in connection with non-underwritten offerings pursuant to Section 1 or
3 hereof shall not inure to the benefit of the Holders (or the benefit of any
person controlling the Holders) if the person asserting any such loss, claim,
liability, expense or damage purchased the Shares that is the subject thereof,
and the Holder or any person controlling the Holder (i) failed to comply with
the prospectus delivery requirements of Section 5(b)(2) of the Securities Act in
connection with the sale of the Shares to such person, or (ii) utilized a
prospectus after the Holder was notified, in accordance with the terms hereof,
to cease making any offers or sales of Shares pursuant to the terms thereof.
Each of the Holders severally agrees to identify and hold harmless (in the same
manner and to the same extent set forth in this Section 6 for the
indemnification of such Holder), the Company and each person who controls the
Company within the meaning of the Securities Act with respect to any untrue
statement or alleged untrue statement or omission or alleged omission with
respect to such Holder and/or his or its distribution of Shares made in reliance
upon and conformity with information furnished to the Company by such Holder for
use therein. Any underwriting agreement with the underwriter or underwriters for
any offering registered under the Securities Act pursuant to Section 2 or 3
hereof shall contain customary provisions with respect to indemnification and
contribution which shall, at a minimum, provide the indemnification set forth
above.
7. HOLDBACK.
(a) Except for transfers made in transactions exempt from the
registration requirements under the Securities Act pursuant to Section 4(1)
thereof, the Holders agree not to offer, sell, contract to sell or otherwise
dispose of any of their Shares within the five (5) business day period before or
the ninety (90) day period after the date of any final prospectus relating to
any underwritten public offering of any of the Company's Common Stock, in each
case except pursuant to such prospectus or with the written consent of the
underwriter or underwriters for such offering and provided that the Holders are
entitled to sell not less than an aggregate of 1,000,000 Shares in any such
underwritten offering.
(b) In consideration of the Company's covenants herein and in
the Acquisition Agreement, the Holders have agreed by separate instruments that
they will not sell, transfer or otherwise reduce their interest in any of the
shares of the Company's Common Stock issued pursuant to the Acquisition
Agreement until such time as the Company has published financial results
covering at least thirty (30) days of combined operations of the Company and
Carnival Air Lines, Inc. after the Closing Date. In consideration of such
covenants and the premises and covenants set forth in the
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Acquisition Agreement, the Company hereby agrees to publish such financial
results as soon as practicable and in any event no later than (x) if the Closing
Date is on or before August 31, 1997, October 30, 1997, or (y) if the Closing
Date is subsequent to August 31, 1997, 20 days after the end of the first full
month after the Closing Date.
8. NOTICES. All notices required or permitted to be given pursuant
to this Agreement shall be given in writing, shall be transmitted by personal
delivery, by registered or certified mail, return receipt requested, postage
prepaid, or by telecopier or other electronic means (with a confirming copy by
registered or certified mail, postage prepaid) and shall be addressed as
follows:
When the Holders are the intended recipients:
Xxxxx Xxxxxx
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
WITH A COPY TO:
Xxxxxxx Xxxxx, Esq.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Greenberg, Traurig, Hoffman, Lipoff,
Xxxxx & Xxxxxxx, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx, Esq.
Telecopy: (000) 000-0000
When the Company is the intended recipient:
Pan Am Corporation
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
WITH A COPY TO:
Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx
Xxxxxxxx & Xxxxxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxxx, Esq.
Telecopy: (000) 000-0000
Any party to this Agreement (each a "Party") may designate a new address to
which notices required or permitted to be given pursuant to this Agreement shall
thereafter be transmitted by giving written notice to that effect to the other
Parties. Each notice transmitted in the manner described in this Section 9 shall
be deemed to have been given, received and become effective for all purposes at
the time it shall have been (i) delivered to the addressee as indicated by the
return receipt (if transmitted by mail), the affidavit of the messenger (if
transmitted by personal delivery) or the answer back or call back (if
transmitted by telecopier or other electronic means, but only if a confirmation
copy of such telecopied or electronically delivered notice is also delivered by
registered or certified mail, postage prepaid) or (ii) presented for delivery to
the addressee as so indicated during normal business hours, if such delivery
shall have been refused for any reason.
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9. GOVERNING LAW; FORUM.
(a) The validity, interpretation, performance and enforcement of
this Agreement shall be governed by the laws the State of Florida (without
giving effect to the laws, rules or principles of the State of Florida regarding
conflicts of laws).
(b) Each Party agrees that any proceeding arising out of or
relating to this Agreement or the breach or threatened breach of this Agreement
shall be commenced and prosecuted in a court in Miami, Florida. Each party
consents and submits to the non-exclusive personal jurisdiction of any court in
Miami, Florida in respect of any such proceeding. Each Party consents to service
of process upon it with respect to any such proceeding by registered mail,
return receipt requested, and by any other means permitted by applicable laws
and rules. Each Party waives any objection that it may now or hereafter have to
the laying of venue of any such proceeding in any court in Miami, Florida and
any claim that it may now or hereafter have that any such proceeding in any
court in Miami, Florida has been brought in an inconvenient forum.
(c) Final judgment against any Party hereto in any suit or
proceeding shall be conclusive, and may be enforced in any other jurisdiction
(i) by suit, action or proceeding on the judgment, a certified or true copy of
which shall be conclusive evidence of the fact and the amount of indebtedness or
liability of the Party hereto, or (ii) in any other manner provided by or
pursuant to the laws of such other jurisdiction.
(d) Nothing herein shall in any way be deemed to limit the
ability or right of any Party to serve any legal process, summons, notices or
other documents in any other manner permitted by applicable law, or to obtain
jurisdiction over any other Party, or to bring actions, suits or proceedings
against any other Party in such other jurisdictions, and in such manner, as may
be otherwise permitted by applicable law.
10. BINDING EFFECT; ASSIGNMENT; THIRD PARTY BENEFICIARIES. This
Agreement shall be binding upon the Parties and their respective successors and
assigns and shall inure to the benefit of the Parties and their respective
successors and permitted assigns. No Party shall assign any of its rights or
delegate any of its duties under this Agreement (by operation of law or
otherwise) without the prior written consent of the other Parties. Any
assignment of rights or delegation of duties under this Agreement by a Party
without the prior written consent of the other Parties, if such consent is
required hereby, shall be void. No person (including, without limitation, any
employee of a Party) shall be, or be deemed to be, a third party beneficiary of
this Agreement.
11. ENTIRE AGREEMENT; EFFECTIVE DATE OF AGREEMENT. This Agreement
constitutes the entire contract among the Parties with respect to the subject
matter hereof and cancels and supersedes all of the previous contracts,
commitments, representations, warranties and understandings (whether oral or
written) by, between or among the Parties with respect to the subject matter
hereof.
12. AMENDMENTS. No addition to, and no cancellation, renewal,
extension, modification or amendment of, this Agreement shall be binding upon a
Party unless such addition, cancellation, renewal, extension, modification or
amendment is set forth in a written instrument which states that it adds to,
amends, cancels, renews, extends or modifies this Agreement and has been
approved by all of the Parties.
13. WAIVERS. No waiver of any provision of this Agreement shall be
binding upon a Party unless such waiver is expressly set forth in a written
instrument which is executed and delivered by such Party or on behalf of such
Party by an officer of, or attorney-in-fact for, such Party. Such waiver shall
be effective only to the extent specifically set forth in such written
instrument. Neither the exercise (from time to time and at any time) by a Party
of, nor the delay or failure (at any time or for any period of time) to
exercise, any right, power or remedy shall constitute a waiver of the right to
exercise, or impair, limit or restrict the exercise of, such right, power or
remedy or any other right, power or remedy at any time and from time to time
thereafter. No waiver of any right, power or remedy of a Party shall be deemed
to be a waiver of any other right, power or remedy of such Party or shall,
except to the extent so waived, impair, limit or restrict the exercise of such
right, power or remedy.
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14. REMEDIES.
(a) The rights, powers and remedies of the Parties set forth
herein for a breach of or default under this Agreement are cumulative and in
addition to, and not in lieu of, any rights or remedies that any Party may
otherwise have under this Agreement, at law or in equity.
(b) The Parties acknowledge that the Shares are unique, and that
any violation of this Agreement cannot be compensated for by damages alone.
Accordingly, in addition to all of the other remedies which may be available
hereunder or under applicable law, any Party shall have the right to any
equitable relief which may be appropriate to remedy a breach or threatened
breach by any other Party hereunder, including, without limitation, the right to
enforce specifically the terms of this Agreement by obtaining injunctive relief
in respect of any violation or non-performance hereof, and any Party shall have
the right to seek recovery of and be awarded attorneys' fees and expenses in any
proceeding with respect to this Agreement as reasonably determined by the court
in which such proceeding is brought.
15. HEADINGS; COUNTERPARTS. The headings set forth in this Agreement
have been inserted for convenience of reference only, shall not be considered a
part of this Agreement and shall not limit, modify or affect in any way the
meaning or interpretation of this Agreement. This Agreement may be signed in any
number of counterparts, each of which (when executed and delivered) shall
constitute an original instrument, but all of which together shall constitute
one and the same instrument. It shall not be necessary when making proof of this
Agreement to account for any counterparts other than a sufficient number of
counterparts which, when taken together, contain signatures of all of the
Parties.
16. SEVERABILITY. If any provision of this Agreement shall hereafter
be held to be invalid, unenforceable or illegal, in whole or in part, in any
jurisdiction under any circumstances for any reason, (i) such provision shall be
reformed to the minimum extent necessary to cause such provision to be valid,
enforceable and legal while preserving the intent of the Parties as expressed
in, and the benefits to the Parties provided by, this Agreement or (ii) if such
provision cannot be so reformed, such provision shall be severed from this
Agreement and an equitable adjustment shall be made to this Agreement
(including, without limitation, addition of necessary further provisions to this
Agreement) so as to give effect to the intent as so expressed and the benefits
so provided. Such holding shall not affect or impair the validity,
enforceability or legality of such provision in any other jurisdiction or under
any other circumstances. Neither such holding nor such reformation or severance
shall affect or impair the legality, validity or enforceability of any other
provision of this Agreement.
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IN WITNESS WHEREOF, the Parties have duly executed and delivered this
Agreement as of the date first above written.
PAN AM CORPORATION
By:__________________________________
Xxxx X. Xxxxxx
JMD DELAWARE, INC., as trustee for the
Xxxxx Xxxxxx 1995 Air Holding Trust
By:___________________________________
______________________________________
XXXXX XXXXXX
______________________________________
XXXXXX XXXXXXXX
______________________________________
A. XXXXXX XXXXX
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