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EXHIBIT 10.1
EXECUTION COPY
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT (the "AGREEMENT") is entered into this 17th
day of April, 1998, by and among, Kitty Hawk, Inc., a Delaware corporation
(collectively with its subsidiaries, unless the context otherwise requires, the
"COMPANY"), M. Xxx Xxxxxxxxxxx ("XXXXXXXXXXX"), Xxxxxx X. Kalitta ("KALITTA"),
Kalitta Motorsports, L.L.C., a Michigan limited liability company
("MOTORSPORTS"), Kalitta L.L.C., a Michigan limited liability company ("KALITTA
LLC"), American International Airways, Inc., a Michigan corporation ("AIA"),
American International Travel, Inc., a Michigan corporation ("AIT"), Flight One
Logistics, Inc., a Michigan corporation ("FOL"), Kalitta Flying Service, Inc., a
Michigan corporation ("KFS") and O.K. Turbines, Inc., a Michigan corporation
("OKT"). AIA, AIT, FOL, KFS and OKT shall be collectively referred to as the
"KALITTA COMPANIES."
W I T N E S S E T H
WHEREAS, Kalitta desires to resign as an officer and employee of the
Company;
WHEREAS, in light of the resignation of Kalitta, the parties desire to
provide for the termination of certain of Kalitta's various contractual and
other relationships with the Company (other than his position as a director of
the Company and certain other contractual rights); and
WHEREAS, to accomplish this objective the parties desire to, among
other things, amend that certain Stockholders' Agreement dated as of November
19, 1997 (the "STOCKHOLDERS' AGREEMENT"), by and among the Company, Xxxxxxxxxxx
and Kalitta and that certain Employment Agreement, dated September 19, 1997, by
and between AIA and Kalitta (the "EMPLOYMENT AGREEMENT");
NOW, THEREFORE, in consideration of the premises, the terms and
conditions set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
A G R E E M E N T
1. Definitions in Stockholders' Agreement. The parties hereto hereby
amend the Stockholders' Agreement, in accordance with Section 8.4 thereof, by
(i) deleting the definition of "Permitted Transferee" in Section 1.1 thereof in
its entirety and replacing it with the following definition, (ii) deleting
clause (iii) of the definition of "Registration Expenses" in its entirety and
replacing it with the following, and (iii) adding the following definition of
"Required Filing Date" to Section 1.1 thereof:
"Permitted Transferee" means (i) with respect to Kalitta, any one
or more of Xxxxxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxx Xxxxxxxxx up to
a limit of 50,000 shares of Common Stock for each of them, and
(ii) any Family Member of such Stockholder or a trustee of a
trust for the sole benefit of
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such Stockholder and/or Family Member of such Stockholder or any
partnership, partnership, corporation or other entity which is
controlled by such Stockholder and/or Family Member, it being
agreed that prior to the making of a Transfer of Common Stock to
a Permitted Transferee, the Stockholder proposing the Transfer
shall notify the Company in writing of such proposed Transfer and
the proposed transferee shall deliver to the Company a written
instrument pursuant to which the proposed transferee becomes a
party to this Agreement and agrees to be bound by the terms and
conditions hereof to the same extent as if an original signatory
hereto.
"Registration Expenses" means ... (iii) any underwriting
discounts and commissions relating to the Common Stock being sold
by the Selling Stockholder; provided, that in the case of a
Demand Registration pursuant to Section 6.1.1, any underwriting
discounts or commissions shall not exceed 5.5%.
"Required Filing Date" means the sixtieth (60th) day following
receipt by the Company of a Demand Request; provided, that with
respect to a First Demand Request received after May 19, 1998 but
prior to May 23, 1998, "Required Filing Date" shall mean the
fifth (5th) day following receipt by the Company of such First
Demand Request."
2. Term of Stockholders' Agreement. The parties hereto hereby amend
the Stockholders' Agreement, in accordance with Section 8.4 thereof, by deleting
Article II of the Stockholders' Agreement in its entirety and replacing it with
the following:
"Article II - Term
2. Term. Unless sooner terminated as provided in Section 6.1.1
with respect to certain demand registration rights of Kalitta, the term
of this Agreement (the "TERM") shall commence on the date hereof and
continue until the tenth (10th) anniversary of the date of this
Agreement."
3. Demand Registration Rights. The parties hereto hereby amend the
Stockholders' Agreement, in accordance with Section 8.4 thereof, by renumbering
Section 6.1 thereof as Section 6.1.2 and adding the following provision
immediately after the heading "6. Registration of Common Stock":
"6.1 Registration Rights.
6.1.1 Demand Registration.
(a) General. At any time prior to December
31, 1998, Kalitta may make a single request, by a
written notice signed by Kalitta and delivered to
the Company (the "FIRST DEMAND REQUEST"), that the
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Company effect the registration under the
Securities Act of no less than exactly 2,300,000
shares of Common Stock that constitute Registrable
Securities (the "SHARES") and are beneficially
owned by any Kalitta Stockholder. In the event the
managing underwriter or underwriters shall advise
Kalitta that the amount of Shares proposed to be
included in the registration statement filed
pursuant to such First Demand Request (the "FIRST
DEMAND REGISTRATION") by Kalitta exceeds the
number of such Shares that can be sold in such
offering within a price range acceptable to
Kalitta, the Shares to be included in such First
Demand Registration shall be reduced to the number
of Shares that the Company and Kalitta are so
advised can be sold in such First Demand
Registration without a material adverse effect on
the price of, or the likelihood of successful
completion of, such offering. In the event, and
only in the event, that not all of the Shares are
sold pursuant to the First Demand Request as a
result of the inability of the underwriters to
sell such Shares at a price acceptable to Kalitta,
Kalitta will be entitled to make a second single
demand request on behalf of himself and any other
Kalitta Stockholder whose Shares were excluded
from the First Demand Registration by a written
notice signed by Kalitta and delivered to the
Company that the Company effect the registration
(the "SECOND DEMAND REGISTRATION," and,
collectively with the First Demand Registration,
the "DEMAND REGISTRATIONS" and each individually a
"DEMAND REGISTRATION") of those Shares not sold in
the First Demand Registration (the "SECOND DEMAND
REQUEST") at any time prior to June 30, 1999. The
offering of Shares pursuant to the First Demand
Request and the Second Demand Request shall both
be in the form of a firm commitment underwritten
offering, and Xxxxxx Xxxxxxx Xxxx Xxxxxx & Co., or
any successor thereof, or such other nationally
recognized investment banking firm or firms as are
mutually agreed upon by the Company and Kalitta,
shall manage such underwritten offerings of the
Shares. The Company shall have the exclusive right
to grant to the managing underwriter or managing
underwriters an option to sell additional shares
of Common Stock for the purpose of covering
over-allotments, if any, in the offering of Shares
pursuant to the First Demand Request and the
Second Demand Request. The number of Registrable
Securities constituting Shares shall be
appropriately adjusted in the event that,
subsequent to April 17, 1998, the outstanding
shares of Common Stock of the Company shall have
been increased, decreased, changed into or
exchanged for, a different number or kind of
shares or securities through a reorganization,
recapitalization, stock split, reverse stock split
or other similar change in the Company's
capitalization. In no event shall the Company be
required pursuant to this Section 6.1.1 to effect
a shelf registration pursuant to Rule 415
promulgated under the Securities Act.
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(b) Effective Registration.
(i) Subject to Section
6.1.1(b)(ii), a registration will not count as a
Demand Registration unless a registration
statement with respect thereto has been declared
effective by the Commission in compliance with,
and subject to, the provisions of this Article VI
and the Securities Act with respect to the
disposition of all Shares covered by such
registration statement (other than Registerable
Securities that are registered in a Demand
Registration and subject to an over-allotment
option).
(ii) If, after a registration
statement has been declared effective, Kalitta
withdraws all of the Shares registered thereunder
(as provided below in the last sentence of this
clause (ii)), and the Company has performed its
obligations hereunder in all material respects,
such demand will count as a Demand Registration
unless Kalitta pays all Registration Expenses in
connection with such withdrawn registration;
provided that if, after a registration statement
has become effective with respect to an offering
of Shares pursuant to a Demand Registration, such
offering is interfered with by any stop order,
injunction, or other order or similar requirement
of the Commission or other governmental agency or
court of competent jurisdiction, such registration
will be deemed not to have been effected and will
not count as a Demand Registration. Kalitta shall
have the exclusive authority to withdraw Shares
registered under any Demand Registration to be
registered on behalf of himself and any other
Kalitta Stockholder.
(c) Deferral of Filing.
(i) The Company may defer the
filing (but not the preparation) of a registration
statement with respect to a Demand Registration
until a date not later than 60 days after the
Required Filing Date if (A) at any time prior to
the Required Filing Date, the Company or any of
its subsidiaries is engaged in confidential
negotiations or other confidential business
activities, disclosure of which would be required
in such registration statement (but would not be
required if such registration statement were not
filed), and the Board of Directors of the Company
determines in good faith that such disclosure
would be materially detrimental to the Company and
its stockholders or would have a material adverse
effect on any such confidential negotiations or
other confidential business activities, or (B)
prior to receiving the Demand Request, the Company
is actively engaged in discussions with
underwriters with respect to a registered
underwritten public offering of the Company's
securities for the Company's account and is
proceeding with reasonable diligence to effect
such offering; provided that a deferral
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pursuant to this clause (B) may only occur in the
case of a Second Demand Registration and that
incidental registration rights under Section 6.1.2
shall be available (subject to the limitations set
forth therein).
(ii) A deferral of the filing of
a registration statement pursuant to this Section
6.1.1(c) shall be lifted, and the requested
registration statement shall be filed forthwith,
if, in the case of a deferral pursuant to clause
(A) of Section 6.1.1(c)(i), the negotiations or
other activities are disclosed or terminated, or,
in the case of a deferral pursuant to clause (B)
of Section 6.1.1(c)(i), the proposed registration
for the Company's account is completed or
abandoned.
(iii) In order to defer the filing
of a registration statement pursuant to this
Section 6.1.1(c), the Company shall promptly (but
in any event within 10 days), upon determining to
seek such deferral, deliver to Kalitta a
certificate signed by an executive officer of the
Company stating that the Company is deferring such
filing pursuant to this Section 6.1.1(c) and a
general statement of the reason for such deferral.
Kalitta hereby agrees to keep confidential any
information disclosed to him in any such
certificate (including the fact that such a
certificate was delivered) and further agrees that
he will not, prior to the public disclosure of
such information, purchase or sell any securities
of the Company. Within 20 days after receiving
such certificate, Kalitta may withdraw such Demand
Request by giving notice to the Company; if
withdrawn, the Demand Request shall be deemed not
to have been made for all purposes of this
Agreement. The Company may defer the filing of a
particular registration statement pursuant to
clauses (A) or (B) of Section 6.1.1(c) only once.
(d) Suspension of Dispositions. Each
Selling Stockholder agrees that, upon receipt of
any notice (a "SUSPENSION NOTICE") from the
Company of the happening of any event of the kind
described in Section 6.2(vi), such Selling
Stockholder will forthwith discontinue disposition
of Registrable Securities until such Selling
Stockholder's receipt of the copies of the
supplemented or amended prospectus contemplated by
Section 6.2(vi), or until it is advised in writing
(the "ADVICE") by the Company that the use of the
prospectus may be resumed, and has received copies
of any additional or supplemental filings which
are incorporated by reference in the prospectus
(the period from the date of the Suspension Notice
until the receipt of such copies or the Advice
being referred to herein as a "SUSPENSION
PERIOD"), and, if so directed by the Company, such
Selling Stockholder will deliver to the Company
all copies, other than permanent file copies then
in such Selling Stockholder's possession, of the
prospectus covering such
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Registrable Securities current at the time of
receipt of the Suspension Notice. In the event the
Company shall give any such Suspension Notice, (i)
the Company shall use commercially reasonable
efforts and take such actions as are reasonably
necessary to render the Advice as promptly as
practicable or deliver copies of the supplemented
or amended prospectus contemplated by Section
6.2(vi), and (ii) the time periods regarding the
effectiveness of registration statements set forth
in Section 6.2(ii) hereof shall be extended by the
number of days in the Suspension Period.
(e) Holdback Agreement. Unless the
managing underwriter otherwise agrees, each of the
Company and each Kalitta Stockholder agrees not to
effect any public sale (other than pursuant to any
registration on Form S-4 or Form S-8 promulgated
under the Securities Act) of any Common Stock (or
securities convertible into or exercisable or
exchangeable for Common Stock) during the ten
business days prior to the effectiveness of any
underwritten registration by the Company on its
own behalf and/or on behalf of Kalitta pursuant to
a Demand Registration or any other security holder
of securities of the same type and class (or
securities that are convertible into or
exercisable or exchangeable for securities of the
same type and class) and during such time period
after the effectiveness of any such underwritten
registration (not to exceed 180 days) as the
Company and the managing underwriter may agree
(except, if applicable, as part of such
underwritten registration).
In addition, if the managing underwriter so
requests in connection with any such underwritten
registration, the Company, Kalitta and each
Kalitta Stockholder shall enter into "lock-up"
agreements in customary form providing for the
restrictions on sale referred to in this Section
6.1.1(e). Notwithstanding anything contained in
this Agreement to the contrary, the Company shall
not be deemed to be in breach of its obligations
under Section 6.1.1(a) of this Agreement if the
Company fails to perform such obligations in order
to comply with the restrictions set forth in this
Section 6.1.1(e)."
(f) Nothing in this Section 6.1.1 shall
be deemed to preclude the inclusion in any Demand
Registration of shares of Common Stock to be sold
for the account of the Company."
4. References in Stockholders' Agreement. The parties hereto hereby
amend Sections 6.1.2 (as renumbered), 6.3 and 6.5 of the Stockholder's
Agreement, in accordance with Section 8.4 thereof, by replacing each reference
in such Sections to "Section 6.1" with "Section 6.1.2."
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5. Provision Concerning Underwriters in Stockholders' Agreement. The
parties hereto hereby delete Section 6.4 of the Stockholder's Agreement, in
accordance with Section 8.4 thereof, in its entirety and replace it with the
following:
6.4 Underwriters. If the Company at any time proposes to
register any of its securities under the Securities Act whether
or not for sale or for its own account, and such securities are
to be distributed by or through one or more underwriters, the
Company will use commercially reasonable efforts, if requested by
a Selling Stockholder who requests incidental registration of
Registrable Securities pursuant to Section 6.1.2 hereof in
connection therewith, to arrange for such underwriters to include
such Registerable Securities among those securities to be
distributed by or through such underwriters; provided that,
without limitation, neither the Company nor any other holder of
the securities proposed to be distributed by or through such
underwriters shall be required or obligated to reduce the amount
or sale price of such securities proposed to be so distributed.
The Selling Stockholders on whose behalf Registerable Securities
are to be distributed by such underwriters shall be parties to
any such underwriting agreement and the representations and
warranties by, and the other agreements on the part of the
Company to and for the benefit of such underwriters shall also be
made to and for the benefit of such Selling Stockholders. If the
Company at any time proposes to register any of its securities
under the Securities Act for sale for its own account other than
in connection with a demand registration pursuant to Section
6.1.1 hereof and such securities are to be distributed by or
through one or more underwriters, the managing underwriter shall
be selected by the Company. If any registration pursuant to
Section 6.1.2 shall be in connection with any underwritten public
offering, each holder of Registerable Securities agrees, if so
required by the managing underwriters, not to effect any public
sale or distribution of Registrable Securities (other than as
part of such underwritten public offering) within the period of
time seven (7) days prior to the effective date of such
registration statement and one-hundred eighty (180) days after
the effective date of such registration statement.
6. Company's Indemnification in Stockholders' Agreement. The parties
hereto hereby delete Section 6.6 of the Stockholders' Agreement, in accordance
with Section 8.4 thereof, in its entirety and replace it with the following:
6.6 Company's Indemnification. In the event of any
registration of any securities of the Company under the
Securities Act, the Company will, and hereby does, indemnify and
hold harmless in the case of any registration statement filed
pursuant to Section 6.1, each Selling Stockholder of any
Registrable Securities covered by such registration statement,
each officer and director of each underwriter and each Selling
Stockholder, each other person who participates as an underwriter
in the offering or sale of such securities and each other person,
if any, who controls any Selling Stockholder or any such
underwriter within the meaning of the Securities Act against any
losses, claims, damages, liabilities and
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expenses, joint or several, to which any such Selling Stockholder
or any such director or officer or participating or controlling
person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages, liabilities or expenses
(or actions or proceedings or investigations in respect thereof)
arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any
registration statement under which such securities were
registered under the Securities Act, any preliminary prospectus
(unless any such statement is corrected in a subsequent
prospectus and Selling Stockholder (and the underwriters, if any)
is given the opportunity to circulate the corrected prospectus to
all persons receiving the preliminary prospectus), final
prospectus or summary prospectus included therein, or any
amendment or supplement thereto, or any document incorporated by
reference therein, or (ii) any omission or alleged omission to
state therein (unless any such omission in any preliminary
prospectus is corrected in a subsequent prospectus and Selling
Stockholder (and the underwriters, if any) is given the
opportunity to circulate the corrected prospectus to all persons
receiving the preliminary prospectus) a material fact required to
be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading, or (iii) any violation by the Company of any
securities laws, and the Company will reimburse each such Selling
Stockholder and each such director, officer, participating person
and controlling person for any legal or any other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, liability, action or proceeding;
provided, however, that the Company shall not be liable to any
Selling Stockholder, director, officer, participating person or
controlling person in any such case to the extent that any such
loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement in reliance upon and in conformity with
written information furnished to the Company in an instrument
executed by or under the direction of such Selling Stockholder or
any director, officer, participating person or controlling person
of any Selling Stockholder for use in the preparation thereof,
which information was expressly provided for use in the
registration statement, preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement. Such indemnity shall
remain in full force and effect regardless of any investigation
made by or on behalf of any such Selling Stockholder or any such
director, officer, participating person or controlling person and
shall survive the transfer of such securities by such Selling
Stockholder. The Company shall agree to provide for a customary
contribution provision relating to such indemnity if requested by
any Selling Stockholder or the underwriters.
7. General Provisions of Stockholders' Agreement. The parties hereto
hereby amend Section 8.3 of the Stockholders' Agreement, in accordance with
Section 8.4 thereof, by adding the following to the end of Section 8.3:
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"No party may assign its rights hereunder to any person other than a
Permitted Transferee in accordance with this Agreement or person
receiving a Transfer pursuant to an Exempt Transfer. Any attempted
assignment in violation of this Section 8.3 shall be null and void."
8. Certain Governance Matters in Stockholders' Agreement. The
parties hereto hereby delete Articles III, IV and V of the Stockholders'
Agreement, in accordance with Section 8.4 thereof.
9. Minimum Equity Ownership Requirement in Stockholders' Agreement.
The parties hereto hereby delete Section 8.11 of the Stockholder's Agreement, in
accordance with Section 8.4 thereof.
10. Governance Provisions of the Merger Agreement. The parties hereto
hereby delete Section 5.5 of that certain Agreement and Plan of Merger among the
Company, Kitty Hawk - AIA, Inc., Kitty Hawk - AIT, Inc., Kitty Hawk - FOL, Inc.,
Kitty Hawk - KFS, Inc., Kitty Hawk - OK, Inc., Xxxxxxxxxxx, AIA, AIT, FOL, KFS,
OKT and Kalitta dated September 22, 1997, as amended (the "MERGER AGREEMENT") in
accordance with Section 10.7 thereof.
11. Definition in Merger Agreement. The parties hereto hereby delete
in its entirety the definition of "Chief Executive Officer" contained in the
Appendix of Defined Terms to the Merger Agreement, in accordance with Section
10.7 thereof, and replace it with the following:
"CHIEF EXECUTIVE OFFICER" shall mean the Chairman of the Board and
Chief Executive Officer of Kitty Hawk."
12. Office Lease Provisions of the Merger Agreement. The parties hereto
hereby delete in its entirety Section 5.2.7 of the Merger Agreement in
accordance with Section 10.7 thereof.
13. Modification of Office Lease.
13.1 Term. Kalitta LLC and AIA hereby delete in its entirety Section 3
of that certain Corporate Offices Lease between Kalitta LLC and AIA dated
February 25, 1997 (the "OFFICE LEASE"), in accordance with Section 20 thereof,
and replace it with the following:
3. Term. This lease shall be for the term of 10 years commencing
on May 14, 1997 ("commencement date") and ending on May 14, 2007;
provided, that either party may terminate this lease upon 180 days
written notice to the other party.
13.2 Rent. Kalitta LLC and AIA hereby delete in its entirety the first
paragraph of Section 4 of the Office Lease, in accordance with Section 20
thereof, and replace it with the following:
4. Rental. Tenant shall pay to Landlord as annual rent the sum of
Three Hundred Thousand Dollars ($300,000.00) payable in monthly
installments of Twenty-Five
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Thousand Dollars ($25,000.00) per month in advance on the first day of
each month during the term of this lease. All rent shall be paid to
Landlord at the address set forth above or at any other address that
Landlord designates in writing, without any prior demand by Landlord
and without any deduction or offset.
14. Reduction of Indemnification Deductible. The parties hereto
hereby delete in its entirety Section 10.3.1 of the Merger Agreement, in
accordance with Section 10.7 thereof, and replace it with the following:
"10.3.1 Deductibles. Neither Kalitta nor Kitty Hawk shall be
liable for, and neither Kalitta pursuant to Section 10.2.1 nor Kitty
Hawk pursuant to Section 10.2.2 shall be obligated to pay, any amount
until the party to be indemnified has incurred aggregate Kalitta
Established Losses or Kitty Hawk Established Losses, as applicable, in
excess of the applicable Deductible (as defined below). For purposes
hereof, the applicable "DEDUCTIBLE" (a) in the case of Kalitta for all
Kitty Hawk Established Losses shall be $600,000 and (b) in the case of
Kitty Hawk for all Kalitta Established Losses shall be $1,000,000. At
such time as the aggregate Kitty Hawk Established Losses or Kalitta
Established Losses, as applicable, incurred by the party to be
indemnified shall exceed the applicable Deductible, the claimant shall
be entitled to the full amount of such Losses in excess of the
applicable Deductible; subject, however, to the further provisions of
this Article."
In connection with the foregoing amendment, the Company hereby unconditionally
and irrevocably releases Kalitta from any and all claims arising out of or
related to the transfer from AIA to Motorsports of racing fuel and other
racing-related assets between November 1 and November 19, 1997.
15. Covenant Not to Compete in Employment Agreement. The parties
hereto hereby delete in its entirety Section 2.8 of the Employment Agreement, in
accordance with Section 4.3 thereof, and replace it with the following:
"2.8 COVENANT NOT TO COMPETE.
A. To further protect AIA's proprietary information, Employee
agrees that upon termination of his employment with AIA for whatever
reason, Employee shall not engage in the air cargo charter management,
or charter brokerage business, or in the business of ad hoc or
scheduled carriage of air freight under FAA Part 121 or Part 135
certificates, within the United States, for three (3) years following
the date of such termination, either directly or indirectly, whether as
an employee, agent, consultant, broker, partner, principal, owner,
stockholder or otherwise; provided, however, that Employee shall be
permitted to purchase up to a 5% interest in any publicly traded
company in any such businesses. Without limiting the generality of the
foregoing, during the three (3) year period following the date of such
termination, Employee shall not: (i) serve as an employee, officer or
director of, consultant to, or independent contractor for, Trans
Continental Airlines, Inc. or its affiliates (collectively,
"TRANSCON"); (ii), and
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shall cause his affiliates not to, capitalize, make loans to or
otherwise finance TransCon in excess of an aggregate principal amount
of $7,500,000 outstanding at any one time, and (iii), and shall cause
his affiliates not to, lease more than an aggregate of three aircraft
of all types to TransCon at any one time. Notwithstanding anything in
this Section 2.8A to the contrary, Employee and any affiliate of
Employee may (x) buy, modify, sell and lease aircraft, aircraft engines
and aircraft equipment following termination of his employment with AIA
and (y) deal in or with supplemental type certificates ("STCS"), except
that neither Employee, nor any affiliate of Employee, may use his or
such affiliate's, STCs to modify Boeing 727 aircraft from passenger to
freight configuration for a period of three (3) years following
termination of his employment with AIA; provided, however, this will
not prevent Employee, or any such affiliate, from contracting with a
third party for such a conversion. As used in this Agreement, the term
"affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act of 1934, as amended.
B. Employees. For a period of one (1) year from the date of
termination of his employment, without the prior written approval of
AIA, neither Kalitta nor any of his affiliates shall, directly or
indirectly, employ or contract with any individual employed by AIA or
any of its affiliates as of the date hereof or at any time within such
one (1) year period; provided, however, Kalitta, or any such affiliate,
may employ Xxxxx Xxxxx at any time and may contract with Xxxxxxx
Xxxxxxx for personal income tax services on her own time, in either
case without restriction.
C. Remedies for Breach. In the event of a breach of any of the
foregoing provisions, AIA shall be entitled to exercise any and all of
the following rights, remedies, and provisions:
(i) Injunction. Kalitta agrees that if he or any of his
affiliates, successors or assigns violate or breach, or
substantially threatens to violate or breach, any of the
provisions or covenants contained in this Agreement, AIA shall be
entitled to injunctive relief, and reimbursement of its
attorneys' fees if it prevails. In addition, Kalitta agrees that
AIA may have such injunctive relief, without bond but upon due
notice, in addition to such other and further relief as may be
available in equity or by law. Kalitta further agrees that the
sole remedy in the event of an entry of an injunction, is
dissolution of such injunction, if warranted, at a hearing and
all claims for damages by reason of the wrongful issuance of any
such injunction are expressly waived.
(ii) Non-Exclusivity. In addition to all other remedies
available to AIA in the event of any breach of any provision of
this Agreement, Kalitta agrees that the remedies exercisable by
AIA are not exclusive but are in addition to all of the remedies
provided by this Agreement, by law or in equity and that the
exercise or utilization of any one of the remedies provided by
this Agreement shall not be deemed a waiver of, or prevent AIA
from exercising, any other remedies available to it under this
Agreement, applicable law or in equity.
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D. Severability and Substitution of Valid Provisions. To the
extent that any provision of this Section 2.8 is deemed unenforceable
by virtue of the scope of the area involved, the scope of the business
activity prohibited, the length of time the activity is prohibited, or
the scope or magnitude of the remedies provided, but potentially
remedied by a reduction of any or all thereof, Kalitta agrees that this
Agreement shall be enforced to the fullest extent permissible under
applicable laws and public policies of the State of Michigan.
16. Severability Provisions of Employment Agreement. The parties hereto
hereby delete in its entirety the second sentence of Section 4.2 of the
Employment Agreement, in accordance with Section 4.3 thereof, and replace it
with the following:
"Subject to the provisions of Section 2.8C hereof, if a provision is
prohibited by or invalid under applicable law, it shall be ineffective
only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining
provisions of this Agreement."
17. Voluntary Resignations. Kalitta hereby irrevocably and voluntarily
resigns on the date hereof from his position as Vice Chairman of the Company and
from all officer and employee positions of the Company, including, without
limitation, Kalitta's position of Chief Executive Officer and President of AIA.
From and after the date hereof, Kalitta shall no longer be entitled to the
rights and benefits set forth in the Employment Agreement, including, without
limitation, any compensation except as expressly provided in, and subject to the
conditions of, Section 19 hereof.
18. Proprietary Information Disclosure Limitations of the Employment
Agreement.The parties hereto hereby amend Section 2.7 of the Employment
Agreement, in accordance with Section 4.3 thereof, to add a new subsection D as
follows:
"D. As used in this Section 2.7, the term "AIA" shall be deemed to
include all affiliates of AIA, including, but not limited to,
Kitty Hawk, Inc., a Delaware corporation and American International
Cargo, a Michigan co-partnership."
19. Optional Compliance with Voluntary Severance Requirements of the
Employment Agreement. In accordance with Section 3.3 of the Employment
Agreement, Kalitta shall, upon execution of a release and confidentiality
agreement in the form described in Section 3.2 of the Employment Agreement which
AIA may request in furtherance of the requirements set forth in the Employment
Agreement, receive from AIA one (1) month's pay in the amount of $50,000;
provided, AIA shall have no obligation hereunder if Kalitta has not executed
such release and confidentiality agreement prior to December 15, 1998.
20. Vacating Deadline. Kalitta hereby irrevocably agrees to remove all
personal belongings from his office located at 0000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxx Xxxxxxxx, Xxxxxxxx and to vacate such premises within seven (7) days
from the date hereof.
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21. AIA Claim. AIA agrees to assign to Kalitta, at Kalitta's option
(the "OPTION"), all of AIA's rights, title and interest in and to its claims
under, and all obligations and duties relating to, American International
Airways, Inc. v. GATX Capital Corporation, et al (Case No. 97-0378 WHO) pending
in the United States District Court for the Northern District of California (the
"AIA CLAIM"). If Kalitta exercises the Option, the Company covenants and agrees
that it will use its commercially reasonable efforts to obtain all consents,
approvals, authorizations and waivers of third parties necessary for the
assignment of the AIA Claim. If any such consent or authorization is not
obtained within one hundred eighty (180) days after the date hereof, or if any
attempted assignment or assumption would be ineffective, then the Company will
make a contractual assignment to Kalitta of all rights and obligations in
connection with the AIA Claim and all control thereof. The Company shall
directly absorb all legal fees and costs relating to the AIA Claim through the
date hereof. From and after the date hereof, Kalitta shall directly pay any and
all legal fees and costs incurred with respect to the AIA Claim and will control
the prosecution of the AIA Claim. The Company agrees to cooperate with Kalitta,
and cause AIA to so cooperate, by providing personnel and documentation
necessary to sustain the prosecution of the AIA Claim without cost to Kalitta;
however, Kalitta shall pay reasonable expenses, actually incurred, including,
but not limited to, per diems for employees, if necessary, at then applicable
compensation rates. In the event that the Company elects either to (i) change
the status of either of the Boeing 747 airframes which are the subject of the
AIA Claim (bearing tail numbers N701CK and N706CK)(the "AIRFRAMES") so that it
becomes commercially infeasible to repair either such Airframe for revenue
service, or (ii) scrap either such Airframe, the Company shall give Kalitta
written notice thereof. During the ninety (90) period following receipt of any
such notice, Kalitta shall have the option to purchase the affected Airframe(s)
at a price equal to the fair market scrap value of such Airframe(s), payable in
immediately available funds. Kalitta shall exercise such option by written
notice to the Company prior to the expiration of such ninety (90) day period and
the Company and Kalitta shall close on Kalitta's purchase of such Airframe(s) on
the tenth (10th) business day following delivery of Kalitta's notice of such
exercise to the Company. Kalitta shall indemnify the Company and hold the
Company harmless from and against, and reimburse the Company for, any and all
loss, liability, damage and expense, including reasonable attorneys' fees and
costs of investigation, litigation, settlement and judgment to the extent the
Company suffers any harm, loss or damage as a result of a counterclaim filed
against the Company by GATX Capital Corporation or any of its affiliates which
relates to, or arises from, the AIA Claim.
22. Modification of Amended and Restated Consulting Agreement. The
parties hereto hereby amend the Amended and Restated Consulting Agreement by and
between AIA and Kalitta dated October 23, 1997 (the "CONSULTING AGREEMENT"), in
accordance with Section 8 thereof as follows:
22.1 Legal Fees. Section 3 of the Consulting Agreement, in accordance
with Section 11 thereof, is hereby deleted and replaced with the following:
"3. AIA shall directly absorb all unpaid Legal fees incurred in
the GATX litigation prior to April 17, 1998. From and after April 17,
1998, Kalitta shall directly pay Legal fees incurred in the GATX
litigation."
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22.2 Proceeds of Litigation. Section 4 of the Consulting Agreement, in
accordance with Section 11 thereof, is hereby deleted and replaced with the
following:
"4. Any proceeds (which term shall include the fair market value
of any benefits derived by AIA) which AIA obtains directly from
the GATX litigation, whether by virtue of judgment, settlement, or
some other form of payment, shall be paid to Kalitta."
22.3 Cure Rights. Section 12 of the Consulting Agreement is hereby
deleted in accordance with Section 11 thereof.
23. Race Shop Facilities Lease. The parties hereto agree that
Motorsports shall sublease space from AIA on substantially the terms set forth
in the form of Race Shop Facilities Lease attached as Exhibit A (the "RACE SHOP
LEASE"), modified as follows: (i) the term of such lease shall be until December
31, 1998, (ii) monthly rental shall be $1.00 per month throughout the term of
the lease, (iii) Motorsports will have the option to terminate such lease at any
time prior to December 31, 1998, upon thirty (30) days prior written notice, and
(iv) the insurance provisions of Section 11 of the Race Shop lease shall be
completed to require minimum limits of insurance coverage of $1,000,000 for all
but property damage, which shall have a minimum limit of $500,000.
24. Airline Fuel. During the three (3) year period following the date
hereof, the Company will use commercially reasonable efforts to make airline
fuel available to Kalitta and his affiliates (but excluding TransCon) solely for
their use at the Company's cost for such fuel.
25. Residence. AIA hereby agrees to convey the residence owned by AIA
located at 0000 Xxx Xxxxx, xx Xxx Xxxxx Xxxxxxxx, Xxxxxxxx (the "RESIDENCE") to
Motorsports for its fair market value of $80,000 to be paid to the Company as
provided in Section 27 hereof. The sale shall be made pursuant to a standard
form of Xxx Arbor Board of Realtors Sales Agreement, attached as Exhibit B,
modified as indicated in such form. As required by Michigan law, AIA shall
deliver the Seller's Disclosure Statement in the form attached hereto as Exhibit
C.
26. Loan. Kalitta LLC agrees and acknowledges that it owes the Company
$500,000 which represents loans made to it by the Company prior to the
consummation of the transactions contemplated by the Merger Agreement (the
"KALITTA LOAN").
27. Payment of Loan and Residence. The parties agree that at the
earlier of (i) the closing of the sale of Shares under the First Demand
Registration pursuant to Section 6.1.1 of the Stockholders' Agreement, or (ii)
the sale of shares of Common Stock by Kalitta other than pursuant to the First
Demand Registration made pursuant to Section 6.1.1 of the Stockholder's
Agreement, Kalitta shall repay the Kalitta Loan on behalf of Kalitta LLC, and
pay the purchase price specified in Section 25 for the Residence on behalf of
Motorsports. Each of Kalitta LLC and Motorsports agree to promptly reimburse
Kalitta for such payments in the form of immediately available funds, debt or
equity, as determined by Kalitta. In the case of the foregoing clause (i), the
parties agree that Kalitta shall cause such payments to be made directly by the
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underwriters to the Company from the proceeds from the sale of Shares pursuant
to such First Demand Registration (and Kalitta hereby so instructs the
underwriters concerning such payments). In the case of the foregoing clause
(ii), Kalitta shall make such payments to the Company immediately on such sale.
28. Non-Disparagement.
28.1 Kalitta. For a period of three (3) years from the date hereof,
Kalitta covenants and agrees that Kalitta shall not make or cause to be made any
statements, observations, opinions or communicate any information (whether oral
or written) that disparages or is likely in any way to harm the reputation of
the Company or any of its subsidiaries, affiliates, directors, officers,
employees or agents (each, a "COMPANY HARMED PARTY"). A breach or violation of
the covenants contained in this Section will damage the Company Harmed Party
irreparably. For any violation of the covenants contained in this Section,
Kalitta shall be subject to injunctive and other equitable relief and damages.
In addition, Kalitta agrees that should it become necessary for a Company Harmed
Party to enforce any of the covenants contained in this Section through legal
proceedings, Kalitta shall reimburse such Company Harmed Party for any
reasonable legal fees, court costs and expenses incurred by such Company Harmed
Party in enforcing such covenants.
28.2. Xxxxxxxxxxx. For a period of three (3) years from the date
hereof, but subject in each case to applicable securities laws and the
regulations promulgated thereunder, Xxxxxxxxxxx covenants and agrees that
Xxxxxxxxxxx shall not make or cause to be made any public statements,
observations, opinions or communicate any information (whether oral or written)
that disparages or is likely in any way to harm the reputation of Kalitta or any
of his affiliates (each, a "KALITTA HARMED PARTY"). A breach or violation of the
covenants contained in this Section will damage the Kalitta Harmed Party
irreparably. For any violation of the covenants contained in this Section,
Xxxxxxxxxxx shall be subject to injunctive and other equitable relief and
damages. In addition, Xxxxxxxxxxx agrees that should it become necessary for a
Kalitta Harmed Party to enforce any of the covenants contained in this Section
through legal proceedings, Xxxxxxxxxxx shall reimburse such the Kalitta Harmed
Party for any reasonable legal fees, court costs and expenses incurred by such
Kalitta Harmed Party in enforcing such covenants.
29. Indemnification. The Company shall save, indemnify Kalitta and hold
Kalitta harmless from and against, and reimburse Kalitta for, any and all loss,
liability, damage and expense, including reasonable attorneys' fees and costs of
investigation, litigation, settlement and judgment (collectively "LOSSES") that
Kalitta may suffer under or relating to any and all personal guarantees,
performance bonds or other obligations securing payment, performance or
insurance obligations of AIA and the Company and all of its other subsidiaries,
including, without limitation, American International Cargo.
30. Standstill.
30.1 Acquisition of Additional Common Stock of the Company. Kalitta
represents and warrants that he does not own any voting securities, or any
securities convertible into or exchangeable or exercisable for any voting
securities, or which, upon redemption thereof could
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result in Kalitta or any of his affiliates (as such term is defined in Rule
12b-2 of the regulations promulgated under the Securities Exchange Act of 1934
(the "EXCHANGE ACT")) receiving any voting securities, or options, warrants,
contractual rights or other rights of any kind to acquire or vote any voting
securities, of the Company (collectively, the "KTTY VOTING SECURITIES"), other
than the 4,099,150 shares of Common Stock of the Company received by Kalitta
pursuant to the Merger Agreement. Kalitta hereby covenants and agrees that until
the third anniversary of the date hereof, Kalitta shall not, directly or
indirectly, purchase or cause to be purchased or otherwise acquire (other than
pursuant to a stock split or stock dividend) or make any proposal to or agree to
acquire, or become or agree to become the Beneficial Owner (as defined in the
Stockholders' Agreement) of, more than 4,099,150 shares of Common Stock of the
Company.
30.2 Prohibited Actions. Kalitta hereby agrees that until the third
anniversary of the date hereof, Kalitta shall not, directly or indirectly,
solicit, request, advise, assist or encourage others, directly or indirectly, to
take any of the following actions:
30.2.1 form, join in or in any other way participate in a
"partnership, limited partnership, syndicate or other group" within the
meaning of Section 13(d)(3) of the Exchange Act with respect to KTTY
Voting Securities or deposit any KTTY Voting Securities in a voting
trust or similar arrangement or subject any KTTY Voting Securities to
any voting agreement or pooling arrangement;
30.2.2 solicit proxies or written consents of stockholders
with respect to KTTY Voting Securities under any circumstances, or
make, or in any way participate in, any "solicitation" of any "proxy"
to vote any KTTY Voting Securities, or become a "participant" in any
election contest with respect to the Company (as such terms are defined
or used in Rules 14a-1 and 14a-11 under the Exchange Act) or seek to
advise or influence any Person (as such term is defined in the Merger
Agreement) with respect to the voting of any KTTY Voting Securities;
30.2.3 seek to call, or to request the call of, a special
meeting of the stockholders of the Company or seek to make, or make, a
stockholder proposal at any meeting of the stockholders of the Company;
30.2.4 commence, or announce any intention to commence, any
tender offer for any KTTY Voting Securities or file with or send to the
Securities and Exchange Commission (the "COMMISSION") a Schedule 13D or
any amendments thereto under the Exchange Act with respect to KTTY
Voting Securities, except (i) the Schedule 13D to be filed with the
Commission in connection with the issuance to Kalitta of KTTY Voting
Securities pursuant to the Merger Agreement (the "CURRENT SCHEDULE
13D"), and (ii) any amendment to the Current Schedule 13D to reflect
changes to the disclosures set forth therein and exhibits filed
therewith, to the extent such changes result from actions that are not
prohibited by or inconsistent with this Agreement (such permitted
amendments and additional exhibits to the Current Schedule 13D being
referred to as the "PERMITTED SCHEDULE 13D AMENDMENTS");
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30.2.5 make a proposal or bid with respect to, announce any
intention or desire to make, or publicly make or disclose, cause to be
made or disclosed publicly, facilitate the making public or public
disclosure of, any proposal or bid with respect to (i) the acquisition
of any substantial portion of the assets of the Company or of the
assets or stock of any of its subsidiaries or of all or any portion of
the outstanding KTTY Voting Securities (except Kalitta may file
Permitted Schedule 13D Amendments), or (ii) any merger, consolidation,
other business combination, restructuring, recapitalization,
liquidation or other extraordinary transaction involving the Company or
any of its subsidiaries;
30.2.6 otherwise act alone or in concert with others except,
solely in his capacity as a director of the Company, to seek to control
or influence in any manner the management, the board of directors
(including the composition thereof) or the business, policies,
operations or affairs of the Company;
30.2.7 take any action or form any intention which would
require an amendment to the Current Schedule 13D (other than amendments
containing only the Permitted Schedule 13D Amendments);
30.2.8 commence, join in, or in any way participate in, any
action, suit or proceeding of any kind (except in the case in which
such action, suit or proceeding does not relate to the matters referred
to in this Section 30.2 or in which Kalitta (i) is a defendant in any
such action, suit or proceeding; provided, however, that such
participation shall in every case be limited to the defense by Kalitta
of the allegations made or claims brought against Kalitta pursuant to
such action, suit or proceeding; provided, further, that such
participation may include counterclaims only if the Company, or any
subsidiary, affiliate or division of the Company, the board of
directors of the Company or the officers of the Company with respect to
their role as such, shall have previously brought claims under this
Section 30.2 in such action, suit or proceeding or (ii) is required, by
subpoena, court order or otherwise, to respond to or appear before the
court in which such action, suit or proceeding has been brought), or,
directly or indirectly, support or encourage (as opposed to cooperate
with governmental entities in connection with) any administrative or
investigative action or proceeding of any nature, against, involving or
relating to the Company, or any subsidiary, affiliate or division of
the Company, the board of directors of the Company, the officers of the
Company, or any agent or advisor of the Company (including, without
limitation, attorneys, accountants, bankers and financial advisors)
with respect to its or his, as the case may be, role as such;
30.2.9 arrange, or in any way participate in, any financing
for any transaction referred to in clauses 30.2.1 through 30.2.8 above;
or
30.2.10 make public, or cause or facilitate the making public
(including by disclosure to any journalist or other representative of
the media) of: (i) any request, or otherwise seek (in any fashion that
would require public disclosure by the Company,
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Kalitta or their respective affiliates), to obtain any waiver or
amendment of any provision of this Section 30.2 or (ii) the taking of
any action restricted hereby.
30.3 Exclusion from the Standstill Arrangements. Notwithstanding
anything in this Agreement to the contrary (including Sections 30.1 and 30.2
hereof), nothing in this Agreement shall prohibit the making by Kalitta of such
filings with the Commission pursuant to (i) Securities Act Rule 144(h), or (ii)
Section 16(a) of the Exchange Act to reflect changes in the Beneficial Ownership
of any KTTY Voting Securities of Kalitta or any of his affiliates (to the extent
such changes reflect action taken by Kalitta or such affiliate which is not
prohibited by this Agreement).
31. Voting by Kalitta prior to December 31, 1998. Kalitta irrevocably
agrees to vote all KTTY Voting Securities Beneficially Owned by Kalitta in the
manner recommended by the Board of Directors of the Company with respect to all
stockholder proposals (including the election of directors of the Company)
presented to the stockholders for approval until the earlier of (i) the
consummation of an offering pursuant to the First Demand Registration or (ii)
December 31, 1998.
32. Miscellaneous.
32.1 Entire Agreement. This Agreement contains the entire understanding
of the parties with respect to the subject matter hereof and may be amended only
by an agreement in writing executed by the parties hereto.
32.2 Headings. Descriptive headings are for convenience only and shall
not control or affect the meaning or construction of any provision of this
Agreement.
32.3 Number; Gender. Whenever the singular number is used herein, the
same shall include the plural where appropriate, and words of any gender shall
include each other gender where appropriate.
32.4 Notices. All notices, consents, requests, instructions, approvals
and other communications provided for herein and all legal process in regard
hereto shall be validly given, made or served, if in writing and sent by U.S.
certified mail, return receipt requested:
if to the Company, M. Xxx Xxxxxxxxxxx
AIA, AIT, FOL, Chairman of the Board
KFS, OKT or and Chief Executive Officer
Xxxxxxxxxxx: 0000 Xxxx 00xx Xxxxxx
Xxxxxx/Xxxx Xxxxx International Xxxxxxx,
Xxxxx 00000
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19
with a copy to: Xxxxxx and Xxxxx, LLP
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxx X. Xxxxxx, Esq.
if to Kalitta, Xxxxxx X. Kalitta
Kalitta LLC or 2702 N. X-00 Xxxxxxx Xxxxx
Xxxxxxxxxxx Xxxxxxxxx, Xxxxxxxx 00000
with copies to: Xxxxx X. Xxxxxxxxx, Esq.
Miller, Canfield, Paddock & Stone, P.L.C.
000 X. Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000
32.5 Enforceability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. It is hereby stipulated and
declared to be the intention of the parties that the parties would have executed
the remaining terms, provisions, covenants and restrictions without including
any such term which may be hereafter declared invalid, void or unenforceable. In
addition, the parties agree to use their commercially reasonable efforts to
agree upon and substitute a valid and enforceable term, provision, covenant or
restriction for any of such that is held invalid, void or unenforceable by a
court of competent jurisdiction.
32.6 Law Governing. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Texas, without regard
to any conflict of laws provisions thereof; provided that Sections 13, 15, 16,
18, 19, 22, 23 and 25 hereof relating to amendments to the Office Lease, the
Employment Agreement, the Consulting Agreement and the Race Shop Lease shall be
construed in accordance with and governed by the laws of the State of Michigan
without regard to any conflict of laws provisions thereof.
32.7 Jurisdiction and Venue. The state or federal courts located in
Dallas County, Texas shall have exclusive jurisdiction and venue over all
disputes arising out of or related to this Agreement and will be the sole proper
forum in which the parties and any of their officers, directors, employees,
representatives and affiliates shall adjudicate any such dispute. The parties
agree that this choice of jurisdiction and venue is enforceable by the issuance
of injunctive relief against the parties and that its violation constitutes
irreparable harm for which there is an inadequate remedy at law.
32.8 Legal Fees and Expenses. The prevailing party in any legal
proceeding based upon this Agreement shall be entitled to reasonable attorney's
fees and court costs, in addition to and other recoveries allowed by law.
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32.9 Binding Effect; No Assignment. This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the successors and
assigns of the parties hereto. Nothing in this Agreement, expressed or implied,
is intended to confer on any person or entity other than the parties hereto or
their respective heirs, successors, executors, administrators and assigns any
rights, remedies, obligations or liabilities under or by reason of this
Agreement. No party to this Agreement may assign its rights or delegate its
obligations hereunder (whether voluntarily, involuntarily, or by operation of
law) without the prior written consent of the other party. Any such attempted
assignment shall be null and void.
32.10 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
32.11 Section Headings. The headings contained in this Agreement are
for reference purposes only and will not affect in any way the meaning or
interpretation of this Agreement.
32.12 No Construction Against Drafting Party. The parties agree that
each has been represented by competent legal counsel in connection with this
Agreement and that this Agreement shall not be construed against the party on
whose behalf this Agreement has been drafted.
32.13 Cooperation. The parties agree to cooperate to the extent
necessary to give full effect to the provisions of this Agreement.
32.14 REMEDIES. EACH PARTY HERETO HEREBY ACKNOWLEDGES AND AGREES THAT
IRREPARABLE HARM WOULD OCCUR IN THE EVENT ANY OF THE PROVISIONS OF THIS
AGREEMENT WERE NOT PERFORMED IN ACCORDANCE WITH THEIR SPECIFIC TERMS OR WERE
OTHERWISE BREACHED. IT IS ACCORDINGLY AGREED THAT THE PARTIES SHALL BE ENTITLED
TO SPECIFIC PERFORMANCE HEREUNDER, INCLUDING, WITHOUT LIMITATION, AN INJUNCTION
OR INJUNCTIONS TO PREVENT AND ENJOIN BREACHES OF THE PROVISIONS OF THIS
AGREEMENT AND TO ENFORCE SPECIFICALLY THE TERMS AND PROVISIONS HEREOF IN ANY
STATE OR FEDERAL COURT IN ADDITION TO ANY OTHER REMEDY TO WHICH THEY MAY BE
ENTITLED AT LAW OR IN EQUITY. ANY REQUIREMENTS FOR THE SECURING OR POSTING OF
ANY BOND WITH SUCH REMEDY ARE WAIVED. ALL RIGHTS AND REMEDIES UNDER THIS
AGREEMENT ARE CUMULATIVE, NOT EXCLUSIVE, AND SHALL BE IN ADDITION TO ALL RIGHTS
AND REMEDIES AVAILABLE TO EITHER PARTY AT LAW OR IN EQUITY.
* * * * *
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The parties hereto have duly executed this Agreement as of the date
first above written.
KITTY HAWK, INC. AMERICAN INTERNATIONAL TRAVEL, INC.
By: By:
---------------------------------------- ----------------------------------------
Name: M. Xxx Xxxxxxxxxxx Name: Xxxxxx X. Kalitta
Title: Chairman and Chief Executive Officer Title: President
------------------------------------------- FLIGHT ONE LOGISTICS, INC.
M. Xxx Xxxxxxxxxxx
By:
------------------------------------------- ----------------------------------------
Xxxxxx X. Kalitta Name: Xxxxxx X. Xxxxxxxxx
Title: President
KALITTA MOTORSPORTS, L.L.C. KALITTA FLYING SERVICE, INC.
By: By:
---------------------------------------- ----------------------------------------
Name: Xxxxxx X. Kalitta Name: Xxxxxx X. Xxxxxxxxx
Title: Authorized Member Title: President
KALITTA L.L.C. O.K. TURBINES, INC.
By: By:
---------------------------------------- ----------------------------------------
Name: Xxxxxx X. Kalitta Name: Xxxxxx X. Xxxxxxxxx
Title: Authorized Member Title: President
AMERICAN INTERNATIONAL
AIRWAYS, INC.
By:
----------------------------------------
Name: Xxxxxx X. Kalitta
Title: President
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