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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)
Kitty Hawk, Inc.
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(Name of Issuer)
Common Stock, par value $.01 per share
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(Title of Class of Securities)
498326 10 7
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(CUSIP Number)
Mr. George Kelsey
Kelsey Law Offices, P.C.
2395 S. Huron Parkway, Suite 200
Ann Arbor, Michigan 48104
(734) 973-1222
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(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
April 17, 1998
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box [ ].
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Section 240.13d-7(b) for
other persons to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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SCHEDULE 13D
CUSIP NO. 498326 10 7 PAGE 2 OF 5 PAGES
--- ---
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Conrad A. Kalitta
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
N/A
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
N/A
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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7 SOLE VOTING POWER
NUMBER OF
SHARES 4,099,150
BENEFICIALLY -----------------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING 0
PERSON -----------------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
4,099,150
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10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,099,150
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
N/A
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.5%
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14 TYPE OF REPORTING PERSON
IN
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Item 1. Security and Issuer
This statement relates to the common stock, $.01 par value per share ("Common
Stock"), of Kitty Hawk, Inc. (the "Company"). The address of the principal
executive offices of the Company is 1515 West 20th Street, Dallas/Fort Worth
International Airport, Texas 75261.
Item 2. Identity and Background
(a) Conrad A. Kalitta.
(b) 2702 N. I-94 Service Drive, Ypsilanti, Michigan 48197.
(c) Mr. Kalitta is a Director of the Company.
(d) Mr. Kalitta has not, during the last five years, been convicted in a
criminal proceeding (excluding traffic violations and similar
misdemeanors).
(e) Mr. Kalitta has not, during the last five years, been a party to a
civil proceeding of a judicial or administrative body of competent
jurisdiction where as a result of such proceeding he was or is subject
to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state
securities laws or finding any violation with respect to such laws.
(f) Mr. Kalitta is a citizen of the United States.
Item 3. Source and Amount of Funds or Other Consideration.
The filing of this statement is necessitated by a change in the beneficial
ownership of and voting power of Mr. Kalitta arising solely by virtue of the
execution of a Separation Agreement (the "Separation Agreement") which
terminated all voting rights of Mr. Kalitta and M. Tom Christopher over shares
of Common Stock held by each other. Prior to the execution of the Separation
Agreement, Messrs. Kalitta and Christopher had agreed to vote their shares of
Common Stock for the election of certain persons to the Company's Board of
Directors and as officers of the Company.
Item 4. Purposes of the Transaction.
Not applicable.
Item 5. Interest in Securities of the Issuer.
(a) Mr. Kalitta beneficially owns directly an aggregate of
4,099,150 shares of Common Stock which represents
approximately 24.5% of the outstanding shares of Common
Stock on May 8, 1998.
(b) Mr. Kalitta has sole voting power over 4,099,150 shares of
Common Stock and does not share voting power over any
shares of Common Stock. Mr. Kalitta has sole dispositive
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power over 4,099,150 shares of Common Stock and does not
share dispositive power over any shares of Common Stock.
(c) In the past 60 days, Mr. Kalitta has not engaged in any
transactions in respect of shares of Common Stock.
(d) Mr. Kalitta does not know of any other person who has the
right to receive or the power to direct the receipt of
dividends from, or the proceeds from the sale of, any
shares of Common Stock beneficially owned by him.
(e) Not applicable.
Item 6. Contracts, Arrangements Understandings or Relations with Respect to
Securities of the Issuer.
Pursuant to the Separation Agreement, Mr. Kalitta has certain demand
registration rights related to the Common Stock through no later than June 30,
1999. In addition, pursuant to an escrow agreement, Mr. Kalitta has escrowed
650,000 shares of Common Stock to satisfy certain indemnification obligations to
the Company.
Item 7. Material to be filed as Exhibits.
7.1 Separation Agreement, dated as of April 17, 1998, by and among M. Tom
Christopher, Conrad A. Kalitta, Kitty Hawk, Inc. and others.
* * * * *
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Date: May 29, 1998
/s/ CONRAD A. KALITTA
------------------------------------
Conrad A. Kalitta
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INDEX TO EXHIBITS
Exhibit
Number Description
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7.1 Separation Agreement, dated as of April 17, 1998, by and
among M. Tom Christopher, Conrad A. Kalitta, Kitty Hawk,
Inc. and others
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EXHIBIT 7.1
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. Tom Christopher ("CHRISTOPHER"), Conrad A. 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, Christopher
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 Douglas Kalitta, George Kelsey, Donald
Schilling 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 such
Stockholder and/or Family Member of such
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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 Morgan Stanley Dean Witter & 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 expenses,
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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., Christopher, 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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<PAGE> 10
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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<PAGE> 11
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 Kathy Spino at any time and may
contract with Barbara Schreck 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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<PAGE> 12
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 1349 South Huron
Street, Ypsilanti Township, Michigan and to vacate such premises within seven
(7) days from the date hereof.
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<PAGE> 13
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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<PAGE> 14
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 9555 Van Buren, in Van Buren Township, Michigan (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 Ann 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
underwriters
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<PAGE> 15
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. Christopher. 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, Christopher covenants and agrees that
Christopher 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,
Christopher shall be subject to injunctive and other equitable relief and
damages. In addition, Christopher agrees that should it become necessary for a
Kalitta Harmed Party to enforce any of the covenants contained in this Section
through legal proceedings, Christopher 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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<PAGE> 16
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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<PAGE> 17
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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<PAGE> 18
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. Tom Christopher
AIA, AIT, FOL, Chairman of the Board
KFS, OKT or and Chief Executive Officer
Christopher: 1515 West 20th Street
Dallas/Fort Worth International
Airport, Texas 75261
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<PAGE> 19
with a copy to: Haynes and Boone, LLP
901 Main Street
Suite 3100
Dallas, Texas 75202-3789
Attention: Greg R. Samuel, Esq.
if to Kalitta, Conrad A. Kalitta
Kalitta LLC or 2702 N. I-94 Service Drive
Motorsports Ypsilanti, Michigan 48197
with copies to: David N. Parsigian, Esq.
Miller, Canfield, Paddock &
Stone, P.L.C.
101 N. Main Street, 7th Floor
Ann Arbor, Michigan 48108
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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<PAGE> 20
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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<PAGE> 21
The parties hereto have duly executed this Agreement as of the date
first above written.
AMERICAN INTERNATIONAL TRAVEL, INC.
KITTY HAWK, INC.
By: /s/ CONRAD A. KALITTA
---------------------------------
Name: Conrad A. Kalitta
By: /s/ M. TOM CHRISTOPHER Title: President
---------------------------------
Name: M. Tom Christopher
Title: Chairman and Chief
Executive Officer
FLIGHT ONE LOGISTICS, INC.
/s/ M. TOM CHRISTOPHER
- ------------------------------------
M. Tom Christopher By: /s/ DONALD L. SCHILLING
-------------------------------------
Name: Donald L. Schilling
Title: President
/s/ CONRAD A. KALITTA
- ------------------------------------
Conrad A. Kalitta
KALITTA FLYING SERVICE, INC.
KALITTA MOTORSPORTS, L.L.C.
By: /s/ DONALD L. SCHILLING
-------------------------------------
Name: Donald L. Schilling
Title: President
By: /s/ CONRAD A. KALITTA
---------------------------------
Name: Conrad A. Kalitta
Title: Authorized Member
O.K. TURBINES, INC.
KALITTA L.L.C.
By: /s/ DONALD L. SCHILLING
-------------------------------------
Name: Donald L. Schilling
Title: President
By: /s/ CONRAD A. KALITTA
---------------------------------
Name: Conrad A. Kalitta
Title: Authorized Member
AMERICAN INTERNATIONAL AIRWAYS, INC.
By: /s/ CONRAD A. KALITTA
---------------------------------
Name: Conrad A. Kalitta
Title: President
- 21 -
