Exhibit 10.19
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STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (the "Agreement"), entered into this 18th day
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of September, 2000 is made by and among (i) Diamond Aviation, Inc., a Georgia
corporation (the "Company"), and (ii) those persons listed on Exhibits A, B and
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C hereto (collectively, the "Stockholders").
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W I T N E S S E T H:
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WHEREAS, each of the Stockholders is the record and beneficial owner of
that number of shares of Common Stock (as hereinafter defined) indicated on
Exhibits A, B and C, and all of the outstanding shares of Capital Stock (as
hereinafter defined) are owned by the Stockholders; and
WHEREAS, the parties hereto desire to set forth more fully their agreements
regarding the ownership of stock in the Company;
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, the receipt and sufficiency of which are
acknowledged, the parties hereto, each intending to be legally bound hereby,
agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1 Definitions.
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As used herein, the following terms shall have the respective meanings set
forth below:
"Affiliate" of any Person means any Person that directly or indirectly
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controls, or is under common control with, or is controlled by, such Person. As
used in this definition, "control" (including with its correlative meanings,
"controlled by" and "under common control with") shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of a person (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise).
"Board of Directors" means the Board of Directors of the Company, as constituted
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from time to time in accordance with the Company's Bylaws and this Agreement.
"Capital Stock" means any class of capital stock of the Company including,
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without limitation, the Common Stock and any preferred stock that may hereafter
be issued by the Company.
"Common Stock" means the Company's Common Stock without par value.
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"Director" means a member of the Board of Directors.
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"Family Group" means (i) a Person's spouse, descendants, stepchildren,
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parents and descendants of parents, (ii) the spouse of any individual referred
to in clause (i) above, and (iii) any trust solely for the benefit of such
Person and/or any individual referred to in clause (i) or (ii) above.
"Holder Group" means (i) the IASG Holders (as a collective group), (ii) the
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Management Holders (as a collective group), or (iii) the Priddy Holders (as a
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collective group).
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"IASG" means International Airline Support Group, Inc., a Delaware
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corporation, and its successors and assigns.
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"IASG Holders" means IASG and any of its shareholders who receive Capital
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Stock from IASG. The term "IASG Holders" shall also include any Family Group
members who receive Capital Stock from any Stockholder who is an IASG Holder
with respect to such stock.
"Management Holders" means those Stockholders identified on Exhibit C hereto
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with respect to the stock indicated on such Exhibit and any stock thereafter
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acquired by such Stockholders. The term "Management Holders" shall also include
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any Family Group members who receive Capital Stock from any Stockholder who is a
Management Holder with respect to such stock.
"New Securities" shall mean any Capital Stock whether now authorized or not, and
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rights, options or warrants to purchase Capital Stock, and securities of any
type whatsoever that are, or may become convertible into or exchangeable for
Capital Stock; provided that the term "New Securities" does not include (i)
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Capital Stock issued as a stock dividend to holders of the Company's Common
Stock, (ii) securities issued in connection with an acquisition, merger or
Strategic Transaction approved by the required vote of the Board of Directors,
(iii) the issuance of stock awards or stock options to consultants, employees,
officers or Directors of the Company pursuant to a plan approved by the required
vote of the Board of Directors and the issuance of shares of Common Stock upon
the exercise of such awards or grants, (iv) shares of Common Stock issued
pursuant to registered public offerings, and (v) debt securities that are not,
and will not become, convertible into or exchangeable for Capital Stock. (For
purposes of clause (iii) above, the Company's 2000 Stock Option Plan (the "2000
Plan"), authorizing the grant of options to purchase up to 200,000 shares of
Common Stock, shall be deemed to have been approved by the required vote of the
Board of Directors).
"Person" means any individual, corporation, partnership, limited liability
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company, firm, joint venture, association, joint-stock company, trust,
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unincorporated organization, governmental body or other entity. In the event of
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a trust, the term "Person" shall refer to both the trust itself and the then
current income beneficiaries thereof.
"Priddy Holders" means those Stockholders identified on Exhibit B hereto with
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respect to the stock indicated on such Exhibit and any stock thereafter acquired
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by such Stockholders. The term "Priddy Holders" shall also include any members
of RMC Capital, LLC who receive Capital Stock from RMC Capital, LLC and any
Family Group members who receive Capital Stock from any Stockholder who is a
Priddy Holder with respect to such stock.
"Qualified Public Offering" shall mean a firm commitment underwritten public
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offering after which the market capitalization of the Company exceeds $50
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million based on the initial public offering price multiplied by the number of
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shares of stock outstanding.
"Securities Act" means the Securities Act of 1933, as amended, or any
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similar federal law then in force.
"Securities and Exchange Commission" means the Securities and Exchange
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Commission and includes any governmental body or agency succeeding to the
functions thereof.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
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amended, or any similar federal law then in force.
"Stockholder Shares" means (i) all Common Stock issued or issuable to the
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Stockholders and (ii) Common Stock issued or issuable directly or indirectly
with respect to the securities referred to in clause (i) above by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, conversion, consolidation or other reorganization.
"Strategic Transaction" means a transaction, including without limitation the
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formation of a joint venture or partnership, entered into other than in the
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ordinary course of business, pursuant to which the Company acquires a
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significant amount of assets, leases one or more aircraft, obtains a capital
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investment, incurs a significant amount of indebtedness or enters into a new
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line of business.
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"Third Party" means any Person that is not an Affiliate or a member of the
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Family Group, as appropriate, of the Company or any of the Stockholders.
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"Transfer" means to sell, transfer, assign, pledge, encumber or otherwise
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dispose of any interest in any Stockholder Shares.
ARTICLE II.
BOARD OF DIRECTORS AND VOTING AGREEMENT
SECTION 2.1 Board of Directors.
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(a) The Board of Directors of the Company shall initially consist of three
(3) Directors. The number of Directors may be increased from time to time by a
majority vote of the Stockholders which majority includes the Priddy Holders.
(b) The IASG Holders, the Management Holders, and the Priddy Holders (each
such Holder Group, a "Nominating Stockholder") shall each have the right to
nominate one (1) person to serve as a Director of the Company. The initial
nominees of the various Holder Groups are as follows: (i) IASG Holders - Alexius
A. Dyer, III, (ii) Management Holders - George Murnane III, and (iii)
Priddy Holders - Robert L. Priddy. If a Nominating Stockholder wishes to remove
or proposes the removal of the Director which it had designated or nominated for
the Board of Directors, all of the Stockholders entitled to vote shall vote for,
and take all necessary steps to accomplish, the removal of such Director. If
any Director is removed from office, resigns or otherwise leaves the Board of
Directors, the Nominating Stockholder which had designated and nominated such
Director in accordance with this Paragraph shall be entitled to designate and
nominate a new Director to the Company's Board of Directors.
(c) Each Stockholder hereby agrees to vote to elect to the Company's Board
of Directors all of the persons nominated in accordance with Paragraph (b)
above.
(d) Notwithstanding any provision of the Company's Articles of Incorporation
or By-laws, each party to this Agreement hereby agrees that none of the
following actions shall be taken by the Company without being approved by the
Director nominated by the Priddy Holders at a properly constituted meeting of
the Board of Directors (or action by unanimous written consent in lieu of such a
meeting):
(i) (A) any arrangement pursuant to which the Company would be merged or
consolidated with another entity, (B) any arrangement pursuant to which the
Company would acquire all or substantially all the assets or of another entity
or securities of another entity that would result in the Company having control
of such other entity, (C) any arrangement pursuant to which the Company would
undergo a reorganization or recapitalization, (D) any arrangement pursuant to
which the Company would sell, lease, transfer, hypothecate, pledge, liquidate or
otherwise dispose of all or substantially all of its assets, (E) the filing
by the Company of a voluntary petition in bankruptcy or any petition or answer
seeking any reorganization, debtor rehabilitation, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future federal, state or other code, statute or law relating to bankruptcy,
insolvency or other relief for debtors, or seeking or consenting to or
acquiescing in the appointment of any trustee, receiver, conservator, custodian
or liquidator of the Company or of all, or substantially all, of its property,
(F) admitting in writing the Company's inability to pay its debts as they
mature, (G) giving notice to any Person of insolvency or pending insolvency of
the Company, or suspension or pending suspension of the Company's operations, or
(H) making an assignment for the benefit of creditors or taking any other
similar action for the protection or benefit of creditors;
(ii) the amendment, restatement, modification or repealing of the Articles
of Incorporation or By-laws of the Company;
(iii) the repurchase of any Capital Stock of the Company;
(iv) an increase in the size of the Company's Board of Directors to a number
greater than three;
(v) the issuance of any preferred stock or any securities, convertible into
preferred stock of the Company;
(vi) incurring any single or related series of indebtedness, other than
leases entered into in the ordinary course of business of the Company, such that
there would be more than $50,000 of indebtedness at any one time outstanding;
(vii) change the Company's principal line of business, enter into any
business unrelated to its current business or make any material changes in its
business or business plan;
(viii) entering into any agreement giving any Person any rights to have such
Person's Capital Stock registered for sale under federal securities laws;
(ix) hiring or firing the Company's chief executive officer;
(x) the Company organizing any subsidiary of which it owns less than 100% of
the Capital Stock, selling any interest in any subsidiary or entering into
a joint venture involving the diversion of assets or business of the Company;
(xi) the Company filing a registration statement with the Securities and
Exchange Commission for the purpose of registering any securities of the
Company;
(xii) the issuance of any securities in conjunction with a Strategic
Transaction;
(xiii) any amendment of the Management Services Agreement between the
Company and IASG or entering into any transaction between the Company and any
Stockholder or any Affiliate of the Company or any Stockholder;
(xiv) sales of assets of the Company outside the ordinary course of
business; and
(xv) execution of any agreement with respect to any of the actions set forth
in (i) through (xiv) above.
(e) Notwithstanding anything herein to the contrary, all parties to this
Agreement agree that any decision to terminate the Management Services Agreement
between the Company and IASG shall be made solely by the Director nominated
by the Priddy Holders.
(f) The Company is indebted to IASG with respect to which certain aircraft
of the Company are pledged as collateral. IASG hereby agrees, on behalf of
itself and its successors and assigns, that IASG will not seek to accelerate
such debt or to foreclose upon such aircraft in the event of a default by the
Company unless IASG shall have first provided notice thereof to RMC Capital, LLC
("RMC") and RMC or the Company shall not have cured such default written
fifteen (15) days after receipt of such notice by RMC.
(g) The provisions set forth in this Section 2.1 shall terminate upon the
closing of a Qualified Public Offering.
SECTION 2.2 Compensation Committee.
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(a) The Compensation Committee shall consist solely of Directors who are not
Management Holders.
(b) The Compensation Committee shall approve (i) compensation levels for
each officer who also serves as a member of the Board of Directors or whose
total compensation in any year exceeds $150,000, and (ii) all bonus payments
exceeding $50,000 to any one individual in any year, (iii) the issuance of stock
awards to consultants, employees, officers or Directors of the Company, and
(iv) the Company's policies with respect to vacation pay, paid time off, sick
pay and similar matters.
(c) The Compensation Committee shall undertake all administration of the
Company's 2000 Option Plan, including making all determinations as to who will
receive option grants thereunder, the number of shares subject to such grants
and the option price for all options granted.
ARTICLE III.
PREEMPTIVE RIGHTS; TRANSFER RESTRICTIONS AND OFFER PROCEDURES
SECTION 3.1 Preemptive Rights.
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(a) If the Company at any time after the date hereof authorizes the issuance
or sale of any New Securities (other than as a dividend on the outstanding
Common Stock), the Company (i) must do so only to a Third Party (the
"Prospective Purchaser") and only on a bona-fide arm's length commercial basis,
and (ii) shall first offer to sell to each Holder Group a portion of such New
Securities equal to the percentage of outstanding shares of Common Stock held by
such Holder Group at the time of such issuance.
(b) In order to exercise its purchase rights hereunder, each Holder Group
must within 10 days after receipt of written notice from the Company describing
in reasonable detail the New Securities being offered, the purchase price
thereof, the payment terms and such Holder Group's percentage allotment (the
"Issuance Notice"), deliver a written notice to the Company describing its
election hereunder. In the event any Holder Group does not elect to purchase
all of the shares offered to such Holder Group, any New Securities not elected
to be purchased by the end of such 10-day period shall be reoffered for an
additional 5-day period by the Company on a pro rata basis to the Holder Groups
who elected to purchase all shares of such New Securities originally offered to
such Holder Groups. Any purchase of New Securities pursuant to this preemptive
right will be on the terms specified in the Issuance Notice.
(c) Upon the expiration of the offering periods described above, the Company
shall during the 120-day period thereafter be entitled to sell such New
Securities to the Prospective Purchaser which the Holder Groups have not elected
to purchase on terms and conditions no more favorable to the purchasers thereof
than those offered to the Holder Groups. Any New Securities offered or sold by
the Company to any Person after such 120-day period must be reoffered to the
Holder Groups pursuant to the terms of this Section 3.1.
(d) Termination of Restrictions. The provisions set forth in Section 3.1
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shall terminate upon the closing of a Qualified Public Offering.
SECTION 3.2 Transfer Restrictions.
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(a) No Stockholder shall Transfer any interest in any Stockholder Shares
except pursuant to and in accordance with the provisions of this Section 3.2.
(b) If, at any time, a Stockholder wishes to Transfer any of its Stockholder
Shares to a Third Party (including, for this purpose, a transfer from a
Stockholder who is a member of a Holder Group to a member of another Holder
Group), such Transfer shall be made pursuant to the following procedures.
(i) At least 30 days prior to making any Transfer of Stockholder Shares, any
transferring Stockholder of Stockholder Shares (the "Transferring Holder")
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shall deliver a written notice (the "Offer Notice") to the Company and the
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Stockholders. The Offer Notice shall disclose in reasonable detail the proposed
number of Stockholder Shares to be transferred (the "Stockholder Transfer
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Shares") and the proposed terms and conditions of the Transfer (including the
proposed price at which the shares are to be transferred).
(ii) Each Stockholder in the same Holder Group as the Transferring Holder
shall be entitled to purchase all (but not less than all) of his Pro Rata Share
(as defined below) of the Stockholder Transfer Shares specified in the Offer
Notice at the price and on the terms specified therein by delivering written
notice of such election (an "Election Notice") to the Transferring Holder as
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soon as practical but in any event within 10 days after delivery of the Offer
Notice. Any Stockholder Transfer Shares not elected pursuant to an Election
Notice to be purchased by the end of such 10-day period shall be reoffered for
an additional 5-day period by the Transferring Holder on a pro rata basis to the
Stockholders who have elected to purchase their Pro Rata Share (if any) and
who are in the same Holder Group as the Transferring Holder. Any Stockholder
Transfer Shares not elected pursuant to an Election Notice to be purchased by
the end of the above periods shall be reoffered for an additional 10-day period
by the Transferring Holder to the Stockholders who are not in the same Holder
Group as the Transferring Holder on a pro rata basis based on each such
Stockholder's Pro Rata Share. Any Stockholder Transfer Shares not elected
pursuant to an Election Notice to be purchased by the end of such 10-day period
shall be reoffered for an additional 5-day period by the Transferring Holder on
a pro rata basis to the Stockholders who have elected to purchase their Pro Rata
Share and who are not in the same Holder Group as the Transferring Holder. Each
Stockholder's "Pro Rata Share" shall be equal to such Stockholder's
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proportionate ownership of the Stockholder Shares as compared to the total
number of Stockholder Shares owned by all Stockholders (including such
Stockholder) then given the right to purchase. The Stockholders shall have the
right to purchase Stockholder Transfer Shares whether or not they agree to
purchase all of the Stockholder Transfer Shares being offered.
(iii) The Transfer of any Stockholder Transfer Shares to be purchased by the
Stockholders shall be consummated as soon as practical after the delivery
of the final Election Notice under clause (ii) above, but in any event within 15
days after the delivery of the final Election Notice. In the event that the
Stockholders do not elect to purchase all of the Stockholder Transfer Shares or
fail to consummate the purchase within the time frames specified herein, the
Transferring Holder may, within 90 days after the expiration of the last period
pursuant to clause (ii) above, Transfer such remaining Stockholder Transfer
Shares to one or more Third Parties at a price no less than the price per share
specified in the Offer Notice and on other terms no more favorable to the
transferees thereof than offered to the Stockholders in the Offer Notice. Any
Stockholder Transfer Shares not Transferred within such 90-day period shall be
reoffered to the Stockholders under this Section 3.2(b) prior to any subsequent
Transfer pursuant to the terms of this Section.
(iv) At any closing under this Section 3.2(b), each Transferring Holder will
deliver to the relevant purchaser good and valid title to the Stockholder Shares
being sold by each such Transferring Holder, free and clear of any lien.
(v) In the event the consideration for the Stockholder Shares as disclosed
in the Offer Notice is other than cash, a promissory note or a combination
thereof, the price for the Stockholder Shares shall be the value of that
consideration as agreed to by the Transferring Holder and the Stockholders, or,
if no agreement can be reached as to the valuation of such consideration, the
fair market value of such consideration as determined by two appraisers (one
appointed by the Transferring Holder and one appointed by the Company). In the
event the two appraisers are unable to agree on a fair market value within 20
days after they are appointed and further negotiations, in the opinion of either
of the appraisers, would not result in an agreement, the fair market value
of the consideration shall be the average of the appraised values of the two
appraisers; provided, however, that if the appraised values of the two
appraisers differ by more than ten percent (10%) of the higher of the two
appraised values, the two respective appointed appraisers shall select a third
appraiser who shall independently, within 20 days after his appointment, make a
determination of the value of the consideration and the average of the appraised
values of the three appraisers shall be the purchase price and shall be binding
on the parties hereto. The Transferring Holder whose Stockholder Shares are
subject to the Offer Notice and the Company shall each bear the cost of their
respective appraisers and shall share the cost equally of the third appraiser,
if any. Notwithstanding anything herein to the contrary, if an appraisal is
used to determine the value of the consideration pursuant to this Section
3.2(b), the time periods provided for in this Section 3.2(b) shall be tolled
from the time of the initial appointment of the two appraisers until a final
appraised value is determined pursuant to this Section 3.2(b)(v).
(c) Permitted Transfers. The restrictions set forth in Section 3.2(b) shall
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not apply to (i) any Transfer of Stockholder Shares from a member of a
Holder Group to another member of the same Holder Group, (ii) any Transfer of
Stockholder Shares by any Stockholder among its Affiliates, or (iii) a Transfer
of Stockholder Shares by any Stockholder pursuant to the laws of descent and
distribution or among the Family Group of such Stockholder; provided that the
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provisions of this Agreement will continue to be applicable to the Stockholder
Shares after any Transfer pursuant to clauses (i), (ii) and (iii) above and the
transferees of such Stockholder Shares shall agree in writing to be bound by the
provisions of this Agreement.
(d) Termination of Restrictions. The restrictions set forth in Section
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3.2(b) shall terminate upon the consummation of a Qualified Public Offering.
SECTION 3.3 Legends. Each certificate evidencing outstanding Stockholder
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Shares held by the Stockholders shall bear a legend in substantially the
following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THESE
SHARES MAY NOT BE SOLD OR OFFERED FOR SALE UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT IN EFFECT UNDER SAID ACT AND ANY APPLICABLE STATE LAWS,
OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
TRANSFER AS SET FORTH IN THE STOCKHOLDERS AGREEMENT DATED AS OF SEPTEMBER 18,
2000, COPIES OF WHICH WILL BE FURNISHED BY DIAMOND AVIATION, INC. AND ANY
SUCCESSOR THERETO UPON REQUEST AND WITHOUT CHARGE.
SECTION 3.4 Future Stockholders. Without limiting the other provisions of
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this Article III, in no event may any Person who is not, at such time, a holder
of Capital Stock become a holder of Capital Stock after the date of this
Agreement (other than in connection with or after the Company's initial
Qualified Public Offering) unless either: (i) such Person also becomes a party
to this Agreement at the same time (at which time such Person shall be deemed to
be a Stockholder under this Agreement), or (ii) the Board of Directors of
the Company approves the issuance of Capital Stock to the new stockholder
without requiring the new stockholder to become bound by the terms of this
Agreement.
SECTION 3.5 Transfers in Compliance With Securities Laws. Each Stockholder
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acknowledges that his, her or its Stockholder Shares have not been registered
under the Securities Act and may not be Transferred except while such
registration is in effect or pursuant to an exemption from registration under
the Securities Act. No Stockholder will Transfer any such Stockholder Shares at
any time if such Transfer would violate applicable federal and state
securities laws and, upon the written request of the Board of Directors of the
Company, such Stockholder will deliver a legal opinion of counsel reasonably
acceptable to the Company to the effect that such Transfer is in compliance with
applicable federal and state securities laws.
ARTICLE IV.
NONCOMPETITION AGREEMENTS
SECTION 4.1 Definitions. For purposes of this Agreement, the following
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terms and provisions shall have the following meanings:
(a) "Prohibited Geographic Area" shall mean the continental United States.
(b) "Prohibited Time Period" shall mean the period beginning on the date of
execution hereof and ending on the date that the Stockholder no longer owns any
Capital Stock in the Company.
(c) "Prohibited Business" shall mean the provision of air cargo services on
a basis reasonably similar to that being provided by the Company, or such other
related business as the Board of Directors shall from time to time approve as
contemplated by Section 2.1 of this Agreement.
SECTION 4.2 Noncompetition Agreement. Each Stockholder agrees that during
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the Prohibited Time Period, he shall not, for any reason, without the prior
written consent of the Company, on his own behalf or in the service or on behalf
of others, participate, whether as an owner, stockholder, partner,
employee, consultant, agent, independent contractor or otherwise, in the
Prohibited Business in the Prohibited Geographic Area.
SECTION 4.3 Reasonable Restrictions. The parties hereto acknowledge and
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agree that (i) the covenants contained in Section 4.2 are reasonably necessary
to protect the interest of the Company; (ii) the restrictions imposed by Section
4.2 are not greater than are necessary for the protection of the Company in
light of the substantial harm that the Company will suffer should a Stockholder
breach any such covenant; (iii) the period of restriction and geographical area
of restriction contained in Section 4.2 are fair and reasonable in that they are
reasonably required for the protection of the Company; (iv) the nature, kind and
character of the activities the Stockholders are prohibited to engage in as
described in Section 4.2 are reasonable and necessary to protect the Company and
shall not be interpreted or construed as prohibiting a Stockholder from
rendering any other services or performing any other activities not referenced
therein; and (v) the covenants and agreements of the Stockholders contained in
Section 4.2 are material inducements to the Company to sell stock to the
Stockholders, and, but for such covenants made by each Stockholder herein, the
Company would not have agreed to sell stock to such Stockholder.
SECTION 4.4 Remedies Available. The Stockholders acknowledge and agree that
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the covenants and agreements contained in Section 4.2 of this Agreement are made
by them in consequence of and as a specific inducement to the Company to sell
stock to such Stockholder and to protect and preserve the benefit of this
Agreement to the Company; that each of the covenants contained in Section 4.2 is
reasonable and necessary to protect and preserve the benefits received by the
Company under this Agreement; that irreparable loss and damage will be suffered
by the Company should a Stockholder breach any of such covenants and agreements;
that each of such covenants and agreements is separate, distinct and severable
from the other and remaining provisions of this Agreement; that the
unenforceability of any such covenant or agreement shall not affect the validity
or enforceability of any other such covenant or agreements or any other
provision or provisions of this Agreement; and that, in addition to other
remedies available to it, the Company shall be entitled to both temporary and
permanent injunctions to prevent a breach or contemplated breach by a
Stockholder of any of such covenants or agreements. In the event the Company
should seek an injunction hereunder, each Stockholder hereby waives any
requirement that the Company post a bond or any other security.
SECTION 4.5 Severability. If the provisions of Section 4.2 should ever be
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adjudicated to exceed the time, geographic or other limitations permitted by
applicable law in any jurisdiction, then such provisions shall be deemed
reformed in such jurisdiction to the maximum time, geographic or other
limitation permitted by applicable law.
SECTION 4.6 No Defenses. The covenants and agreements on the part of the
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Stockholders contained in Section 4.2 shall be construed as agreements
independent of any other agreement between the Company and such Stockholders.
The existence of any claim or cause of action of a Stockholder against the
Company, whether predicated on this Agreement or otherwise, shall not constitute
a defense to the enforcement by the Company of each of such covenants and
agreements.
SECTION 4.7 Exceptions. Nothing contained in this Article IV shall
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restrict: (i) IASG from selling or leasing aircraft or aircraft parts to any
other cargo airline so long as IASG does not operate such cargo airline or
otherwise participate in the management of such cargo airline; (ii) Robert L.
Priddy from continuing his involvement and ownership in AirTran Holdings, Inc.
or any subsidiary thereof or successor thereto; (iii) any Stockholder from
owning less than 5% of the securities of any company that is publicly traded and
could be deemed to be a competitor of the Company; and (iv) any Stockholder from
holding any amount of securities of IASG.
SECTION 4.8 Survival. The provisions of this Article IV shall survive the
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termination of this Agreement for any reason whatsoever.
ARTICLE V.
MISCELLANEOUS
SECTION 5.1 Transfers in Violation of Agreement. Any Transfer or attempted
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Transfer of any Stockholder Shares in violation of any provision of this
Agreement shall be void, and the Company shall not record such Transfer on its
books or treat any purported transferee of such Stockholder Shares as the owner
of such shares for any purpose.
SECTION 5.2 Amendment and Waiver. Except as otherwise provided herein, no
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modification, amendment or waiver of any provision of this Agreement shall be
effective against any party hereto unless such modification, amendment or waiver
is approved in writing by the Company and Stockholders holding at least 75%
of the outstanding Common Stock.
SECTION 5.3 Severability. Whenever possible, each provision of this
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Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or the effectiveness or validity of such provision in any
other jurisdiction, and this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
SECTION 5.4 Entire Agreement. This Agreement embodies the complete
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agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersedes and preempts any prior understandings, agreements
or representations by or among the parties, written or oral, which may have
related to the subject matter hereof in any way.
SECTION 5.5 Successors and Assigns. The provisions of this Agreement shall
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be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns (including without limitation permitted
transferees under Article III), and to the extent applicable, heirs, executors,
administrators and legal representatives and any subsequent holders of
Stockholder Shares and the respective successors and assigns of each of them, so
long as they hold Stockholder Shares.
SECTION 5.6 Counterparts. This Agreement may be executed in separate
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counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
SECTION 5.7 Remedies. The parties hereto agree and acknowledge that owing
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to the special, unique and extraordinary nature of the matters covered by this
Agreement, money damages may not be an adequate remedy for any breach of the
provisions of this Agreement because of the substantial and irreparable injury
which could be suffered in such event, and that the parties hereto shall have
the right to temporary and/or permanent injunctive relief, in addition to all of
their rights and remedies at law or in equity, to enforce the provisions of this
Agreement without necessity of proving actual damages or of posting bond. Each
party to this Agreement hereby waives the defenses, claims or arguments that the
matters covered by this Agreement are not special, unique and extraordinary,
that he or it must prove actual damages, and that he or it has an adequate
remedy at law. Nothing contained in this Agreement shall be construed to confer
upon any Person who is not a signatory hereto any rights or benefits, as a third
party beneficiary or otherwise.
SECTION 5.8 Notices. All notices, demands or other communications to be
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given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when personally delivered
or received by certified mail, return receipt requested, confirmed telecopy or
sent by guaranteed overnight courier service. Such notices, demands and other
communications will be sent to the parties as indicated below, or to any party
at such address or to the attention of such other person as the recipient party
has specified by prior written notice to the sending party.
SECTION 5.9 Governing Law. All issues concerning this Agreement shall be
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governed by and construed in accordance with the laws of the State of Georgia,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Georgia or any other jurisdiction) that would cause the
application of the law of any jurisdiction other than the State of Georgia.
SECTION 5.10 Descriptive Headings. The descriptive headings of this
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Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
IN WITNESS WHEREOF, the parties, by their respective officers duly
authorized, have caused this Agreement to be duly executed and delivered as of
the date hereof.
DIAMOND AVIATION, INC.
By:
Name:
Title:
INTERNATIONAL AIRLINE SUPPORT
GROUP, INC.
By:
Name:
Title:
PRIDDY HOLDERS:
- ---------------
RMC CAPITAL, LLC
By:
Name
Title:
MANAGEMENT HOLDERS:
- -------------------
GEORGE MURNANE, III
ALEXIUS A. DYER, Ill
E. JAMES MUELLER
BARCLAY G. JONES, III