EXHIBIT D
VOTING AGREEMENT
This VOTING AGREEMENT (the "Agreement"), dated as of this 9th day of
May, 2002, is entered into by and among VTF CorpORATION, a Delaware corporation
(together with its successors or assigns, "Purchaser"), and DAVID E. SANDLIN
(the "Stockholder").
W I T N E S S E T H:
WHEREAS, Purchaser, THE FLIGHT INTERNATIONAL GROUP, INC., a Georgia
corporation (the "Company"), FLIGHT INTERNATIONAL, INC., a Georgia corporation,
FLIGHT INTERNATIONAL AVIATION, INC., a Georgia corporation, FLIGHT INTERNATIONAL
SALES AND LEASING, INC., a Delaware corporation, FLIGHT ALASKA, INC., a Delaware
corporation and FLIGHT INTERNATIONAL OF FLORIDA, INC., a Florida corporation,
have entered into an Asset Purchase Agreement of even date herewith (as the same
may be amended from time to time, the "Asset Purchase Agreement"), pursuant to
which the Purchaser has agreed, upon the terms and subject to the conditions set
forth therein, to purchase the Assets and assume the Assumed Liabilities of
Company and certain of its subsidiaries (the "Acquisition");
WHEREAS, as of the date hereof, the Stockholder is the record and
Beneficial Owner of the number of shares (the "Shares") of New Common Stock, par
value $0.01 per share, of the Company (the "Company Common Stock") set forth on
Schedule I attached hereto; and
WHEREAS, as a condition to its willingness to enter into the Asset
Purchase Agreement, Purchaser has required that the Stockholder agree, and the
Stockholder is willing to agree, to the matters set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the agreements
set forth below, the parties hereto agree as follows:
1. Definitions. Capitalized terms not expressly defined in this
Agreement shall have the meanings ascribed to them in the Asset Purchase
Agreement. For purposes of this Agreement:
(a) "Affiliate" of any Person means another Person that directly or
indirectly, through one or more intermediaries, controls, is controlled
by, or is under common control with, such first Person.
(b) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having voting power with respect to such
securities (as determined pursuant to Rule 13d-3(a)(1) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")),
including pursuant to any agreement, arrangement or understanding,
whether or not in writing.
(c) "Person" shall mean an individual, corporation, limited
liability company, partnership, joint venture, association, trust,
unincorporated organization or other entity.
2
2. Voting Agreement. From the date of this Agreement and ending on the
earlier of (i) the date the Asset Purchase Agreement is terminated pursuant to
Article VIII thereto and (ii) the date the transactions pursuant to the Asset
Purchase Agreement are consummated (the "Termination Date"), the Stockholder
hereby agrees to vote (or cause to be voted) all of the Shares (and any and all
securities issued or issuable in respect thereof) which such Stockholder is
entitled to vote (or to provide his written consent thereto), at any annual,
special or other meeting of the stockholders of the Company, and at any
adjournment or adjournments thereof, or pursuant to any consent in lieu of a
meeting or otherwise:
(a) in favor of the Acquisition and the approval and adoption of the
terms contemplated by the Asset Purchase Agreement and any actions
required in furtherance thereof;
(b) against any action or agreement that is reasonably likely to
result in a breach in any material respect of any covenant,
representation or warranty or any other obligation of the Company under
the Asset Purchase Agreement; and
(c) except for all such actions which the Company may undertake
under the Asset Purchase Agreement, against (i) any extraordinary
corporate transaction, such as an acquisition, rights offering, tender
offer, reorganization, recapitalization or liquidation involving the
Company or any of its subsidiaries, other than the Acquisition, (ii) a
sale or transfer (other than to FII, FIA, FIS, FAI or FIOF) of assets
of the Company or any of its subsidiaries comprising more than 15% of
the assets of the Company on a consolidated basis, (iii) any change in
a majority of the Board of Directors of the Company other than in
connection with an annual meeting of the shareholders of the Company
with respect to the slate of directors proposed by the incumbent Board
of Directors of the Company (in which case he agrees to vote for the
slate proposed by the incumbent Board) or (iv) any action that is
reasonably likely to materially impede, interfere with, delay, postpone
or adversely affect in any material respect the Acquisition and the
transaction contemplated by the Asset Purchase Agreement.
3. Covenants, Representations and Warranties of the Stockholder and
----------------------------------------------------------------
Purchaser.
----------
(a) The Stockholder hereby represents, warrants and covenants to
Purchaser as follows:
(i) Ownership. As of the date of this Agreement, the
Stockholder is the record and Beneficial Owner of the number of
issued and outstanding Shares set forth on Part A of
Schedule I hereto and the stock options set forth on Part B of
Schedule I hereto. As of the date of this Agreement, the Shares set
forth on Part A of Schedule I hereto constitute all of the issued
and outstanding Shares owned of record or Beneficially Owned by the
Stockholder. Except as otherwise set forth in Part A to Schedule I,
the Stockholder has the sole power to agree to all of the matters
set forth in this Agreement, in each case with respect to all of the
Shares set forth on Part A of Schedule I hereto, with no material
limitations, qualifications or restrictions on such rights, subject
to applicable securities laws and the terms of this Agreement.
3
(ii) Power; Binding Agreement. The Stockholder has the legal
capacity, power and authority to enter into and perform all of the
Stockholder's obligations under this Agreement. This Agreement has
been duly and validly executed and delivered by the Stockholder and
constitutes a valid and binding agreement of the Stockholder,
enforceable against the Stockholder in accordance with its terms
(except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally and by general equitable principles
(regardless of whether enforceability is considered in a proceeding
in equity or at law)). There is no beneficiary or holder of a voting
trust certificate or other interest of any trust of which the
Stockholder is trustee whose consent is required for the execution
and delivery of this Agreement or the consummation by the
Stockholder of the transactions contemplated hereby. If the
Stockholder is married and the Stockholder's Shares constitute
community property, this Agreement has been duly authorized,
executed and delivered by, and constitutes a valid and binding
agreement of, the Stockholder's spouse, enforceable against such
person in accordance with its terms (except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally and by general
equitable principles (regardless of whether enforceability is
considered in a proceeding in equity or at law)).
(iii) No Conflicts. As of the date of this Agreement, except
for filings under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), if applicable, no filing with, and no permit,
authorization, consent or approval of, any state or federal public
body or authority is necessary for the execution of this Agreement
by the Stockholder and the consummation by the Stockholder of the
transactions contemplated hereby, except where the failure to obtain
such consent, permit, authorization, approval or filing would not
materially interfere with the Stockholder's ability to perform his
obligations hereunder, and none of the execution and delivery of
this Agreement by the Stockholder, the consummation by the
Stockholder of the transactions contemplated hereby or compliance by
the Stockholder with any of the provisions hereof shall (A) result
in a violation or breach of, or constitute (with or without notice
or lapse of time or both) a default (or give rise to any third party
right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of
any note, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or
obligation of any kind to which the Stockholder is a party or by
which the Stockholder or any of his properties or assets may be
bound, or (B) violate any order, writ, injunction, decree, judgment,
order, statute, rule or regulation applicable to the Stockholder or
any of the Shares, in each such case except to the extent that any
conflict, breach, default or violation would not interfere with the
ability of the Stockholder to perform his obligations hereunder.
4
(iv) No Encumbrances. Except as required by Section 2, at all
times during the term hereof, all of the Shares will be held by the
Stockholder, or by a nominee or custodian for the benefit of the
Stockholder, or by a family member or Affiliate of the Stockholder
(subject to the conditions set forth in clause (vi) below) free and
clear of all liens, claims, security interests, proxies, voting
trusts or agreements, understandings or arrangements or any other
encumbrances whatsoever, except for any liens, claims,
understandings or arrangements that do not limit or impair the
Stockholder's ability to perform his obligations under this
Agreement.
(v) No Solicitation. The Stockholder shall comply with the
terms of Section 5.7 of the Asset Purchase Agreement to the extent
such terms would be applicable to him.
(vi) Restriction on Transfer, Proxies and Non-Interference.
Except as otherwise contemplated by the Asset Purchase Agreement or
this Agreement, from and after the date of this Agreement and ending
on the Termination Date, the Stockholder shall not, directly or
indirectly, without the consent of Purchaser in respect of any
Transaction Proposal or otherwise: (A) offer for sale, sell,
transfer, tender, pledge, encumber, assign or otherwise dispose of,
or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale,
sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of (each, a "Transfer"), any or all of the Shares, or
any interest therein, (B) grant any proxies or powers of attorney,
deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares, (C) enter into any agreement
or arrangement providing for any of the actions described in clause
(A) or (B) above or (D) take any action that would reasonably be
expected to have the effect of preventing or disabling the
Stockholder from performing the Stockholder's obligations under this
Agreement; provided, however, the Stockholder may, without the
consent of Purchaser, Transfer his Shares to members of his family
and/or Affiliates, further provided, however, that such transferees
agree to be bound by the terms of this Agreement.
(vii) Further Assurances. From time to time, at Purchaser's
request and without further consideration, the Stockholder shall
execute and deliver such additional documents as may be reasonably
necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by
this Agreement.
(b) Purchaser hereby represents, warrants and covenants to the
Stockholder as follows:
(i) Organization, Standing and Corporate Power. Purchaser is
duly organized, validly existing and in good standing under the laws
of its jurisdiction of organization, with full power and authority
to own its properties and carry on its business as presently
conducted. Purchaser has the necessary power and authority to enter
into and perform all of its obligations under this Agreement and to
consummate the transactions contemplated hereby.
(ii) Execution, Delivery and Performance by Purchaser. The
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly
and validly authorized by Purchaser, do not require any
authorization, consent or approval of, exemption or other action by,
or notice to, any third party and Purchaser has taken all other
actions required by law and its organizational documents to
consummate the transactions contemplated by this Agreement. This
Agreement constitutes the valid and binding obligation of Purchaser
and is enforceable in accordance with its terms, except as
enforceability may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally.
4. Recapitalization; Option Exercise. In the event of a stock dividend
or distribution, or any change in the Shares (or any class thereof) by reason of
any split-up, recapitalization, combination, exchange of shares or the like, the
term "Shares" shall include, without limitation, all such stock dividends and
distributions and any shares into which or for which any or all of the Shares
(or any class thereof) may be changed or exchanged as may be appropriate to
reflect such event. The term "Shares" shall also include any shares of Company
Common Stock acquired by the Stockholder after the date of this Agreement and
before the Termination Date.
6
5. Stockholder Capacity. The Stockholder does not make any agreement or
understanding herein in the Stockholder's capacity as a director or officer of
the Company. The Stockholder executes this Agreement solely in his capacity as a
record owner and/or Beneficial Owner of the Shares and nothing herein shall
limit or affect any actions taken by the Stockholder or any designee of the
Stockholder in his capacity as an officer or director of the Company or any of
its subsidiaries.
6. Miscellaneous.
-------------
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject
matter hereof.
(b) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or
terminated, except upon the execution and delivery of a written
agreement executed by the parties hereto.
(c) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly received if so given) by hand
delivery, telegram, telex or telecopy, or by mail (registered or
certified mail, postage prepaid, return receipt requested) or by any
courier service, such as Federal Express, providing proof of delivery.
All communications hereunder shall be delivered to the respective
parties at the following addresses or the addresses set forth on the
signature pages hereto:
If to Stockholder: David E. Sandlin
19 Wesley Street
Newnan, GA 30263
with a copy to: Parks, Chesin, Walbert & Miller, P.C.
75 Fourteenth Street
26th Floor
Atlanta, Georgia 30309
Attention: Lee Parks, Esq.
Facsimile No: (404) 873-8050
If to Purchaser: VTF Corporation
c/o Veritas Capital Fund L.P.
660 Madison Avenue
14th Floor
New York, New York 10021
Attention: Thomas J. Campbell
Facsimile No.: (212) 688-9411
with a copy to:
Winston & Strawn
200 Park Avenue
New York, New York 10166
Attention: Benjamin Polk, Esq.
Daniel A. Ninivaggi, Esq.
Facsimile No.: (212) 294-4700
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(d) Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of 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 will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
7
(e) Specific Performance. The Stockholder recognizes and acknowledges
that a breach by the Stockholder of any covenants or agreements contained in
this Agreement will cause the Purchaser to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore the
Stockholder agrees that in the event of any such breach Purchaser shall be
entitled to the remedy of specific performance of such covenants and agreements
and injunctive and other equitable relief in addition to any other remedy to
which it may be entitled, at law or in equity.
(f) Assignability. Neither this Agreement nor any right or obligation
hereunder is assignable in whole or in part, whether by operation of law or
otherwise, by any party without the express written consent of the other parties
hereto and any such attempted assignment shall be void and unenforceable;
provided, however, that Purchaser may transfer or assign this Agreement or any
right or obligation hereunder to any of its Affiliates or any financing source
at any time prior to or after the Termination Date. This Agreement and the
rights and obligations hereunder shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors or assignees, and
no other person shall acquire or have any rights under or by virtue of this
Agreement.
(g) Remedies Cumulative. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party.
(h) No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
(i) No Third Party Beneficiaries. This Agreement is not intended to be
for the benefit of, and shall not be enforceable by, any person or entity who or
which is not a party hereto; provided that, in the event of the Stockholder's
death, the benefits and obligations of the Stockholder hereunder shall inure to
his successors and heirs.
(j) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of New York, without giving effect to the
principles of conflicts of law thereof.
(k) Jurisdiction. Each party hereby irrevocably submits to the
exclusive jurisdiction of the Federal and State Courts in the City of New York
in any action, suit or proceeding arising in connection with this Agreement, and
agrees that any such action, suit or proceeding shall be brought only in such
court (and waives any objection based on forum non conveniens or any other
objection to venue therein); provided, however, that such consent to
jurisdiction is solely for the purpose referred to in this paragraph and shall
not be deemed to be a general submission to the jurisdiction of said Courts or
in the State of New York other than for such purposes. Each party hereto hereby
waives any right to a trial by jury in connection with any such action, suit or
proceeding.
8
(l) Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
(m) Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which, taken together,
shall constitute one and the same Agreement. This Agreement shall not be
effective as to any party hereto until such time as this Agreement or a
counterpart thereof has been executed and delivered by each party hereto.
7. Termination. This Agreement shall terminate without any further action
on the part of any party hereto on the Termination
Date.
9
VOTING AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the Stockholder and a duly authorized officer of Purchaser on the day and year
first written above.
PURCHASER:
VTF CORPORATION
By: /s/ Robert B. McKeon
Name: Robert B. McKeon
Title: President
STOCKHOLDER:
/s/ David E. Sandlin
David E. Sandlin
SCHEDULE I*
Part A
Name of Owner Shares
- ------------- ---------
David E. Sandlin 230,000 shares of New Common Stock
Maritime Sales & Leasing Co.* 108,993 shares of New Common Stock
Part B
Name of Owner Other Securities
- ------------ -----------------
David E. Sandlin 173,000 options to purchase
shares of New Common Stock
* Stockholder shares voting power on these shares with John R. Bone