EXHIBIT 99.3
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Robert D. Albergotti John D. Penn Sarah B. Foster
State Bar No. 00969800 State Bar No. 15752300 State Bar No. 07297500
Haynes and Boone, LLP Haynes and Boone, LLP Haynes and Boone, LLP
901 Main Street, Suite 3100 201 Main Street, Suite 2200 600 Congress Ave., Suite 1600
Dallas, Texas 75202 Fort Worth, Texas 76102 Austin, Texas 78701
Tel. No. (214) 651-5000 Tel. No. (817) 347-6610 Tel. No. (512) 867-8400
Fax No. (214) 651-5940 Fax No. (817) 348-2300 Fax No. (512) 867-8470
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ATTORNEYS FOR DEBTORS
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
IN RE: ss. Chapter 11
ss.
KITTY HAWK, INC., et. al ss. Case No. 400-42069-BJH and
ss. Case Nos. 400-42141 through
Debtors ss. Case No. 400-42149
ss.
ss. JOINTLY ADMINISTERED UNDER
ss. CASE NO. 400-42141-BJH
ss.
---------------------------------------------
PLAN SUPPLEMENT FOR
DEBTORS' AMENDED JOINT PLAN OF REORGANIZATION
DATED NOVEMBER 22, 2000
---------------------------------------------
Kitty Hawk, Inc., Kitty Hawk Aircargo, Inc., Kitty Hawk Charters, Inc.,
Kitty Hawk International, Inc., Kitty Hawk Cargo, Inc., OK Turbines, Inc.,
Longhorn Solutions, Inc., Aircraft Leasing, Inc., American International Travel,
Inc., and Flight One Logistics, Inc. (collectively the "Debtors") as debtors and
debtors-in-possession, proposed this an Amended Joint Plan of Reorganization
("Plan") pursuant to section 1121(a) of Title 11 of the United States Code for
the
PLAN SUPPLEMENT FOR DEBTORS' AMENDED JOINT
PLAN OF REORGANIZATION DATED NOVEMBER 22, 2000
Page 1
<PAGE>
resolution of the Debtors' outstanding creditor claims and equity interests.
By this document, the Debtors file this, their Plan Supplement, and in support
thereof represents:
1. The Plan provides the following regarding the Plan Supplement:
1.95 "PLAN SUPPLEMENT" means the documents including the forms of
the Amended By-Laws, Amended Certificate of Incorporation, as well as a list of
the executory contracts and unexpired leases to be assumed pursuant to the Plan,
which shall be contained in a separate Plan Supplement which shall be filed with
the Clerk of the Bankruptcy Court at least fifteen (15) days prior to the date
on which the Confirmation Hearing shall first commence or such shorter period as
ordered by the Court. The Plan Supplement may be inspected in the office of the
Clerk of the Bankruptcy Court during hours established therefor. Holders of
Claims against and Equity Interests in the Debtors may obtain a copy of the Plan
Supplement upon written request to the Debtors. The Plan Supplement is
incorporated into and is a part of the Plan as if fully set forth herein.
2. The Plan also provides:
7.1 REJECTION OF ALL EXECUTORY CONTRACTS AND LEASES NOT ASSUMED.
The Plan constitutes and incorporates a motion by the Debtors to reject, as of
the Confirmation Date, all pre-petition executory contracts and unexpired leases
to which the Debtors are a party, except for any executory contract or unexpired
lease that (i) has been assumed or rejected pursuant to a Final Order, (ii) is
the subject of a pending motion for authority to assume the contract or lease
Filed by the Debtors prior to the Confirmation Date, or (iii) is identified in
the Plan Supplement as an executory contract or lease that Debtors intend to
assume. Assumption by any of the Debtors shall constitute assumption by the
Reorganized Debtor as the successor to each of the Debtors. The filing of the
Plan Supplement shall constitute a motion by Debtors to assume, effective on the
Effective Date, the executory contracts and leases identified therein. With
respect to leases and executory contracts not previously assumed, the Plan
Supplement shall set forth a cure amount in accordance with section 365(b)(1) of
the Bankruptcy Code for each unexpired lease and executory contract to be
assumed. Unless the non-debtor parties timely object to such amount, the
confirmation of the Plan shall constitute consent to the approval of the
assumption of such executory contracts and unexpired leases and a determination
that such cure amount is sufficient under section 365(b)(1) of the Bankruptcy
Code.
7.2 CURE PAYMENTS. Any monetary defaults under each executory
contract and unexpired lease to be assumed under the Plan in the amount either
set forth in the Plan Supplement, motion to assume, or Final Order shall be
satisfied, pursuant to section 365(b)(1) of the Bankruptcy Code, either: (1) by
payment by the Reorganized Debtor of the default amount in Cash on the Effective
Date, or (2) on such other terms as agreed to by the Reorganized Debtor and the
non-debtor parties to such executory contract or unexpired lease. In the event
of a dispute regarding (i) the amount of any cure payments, (ii) the ability of
the Reorganized Debtor to provide adequate assurance of future performance under
the contract or lease to be assumed, or (iii) any other matter pertaining to
assumption, the cure payments required by section
PLAN SUPPLEMENT FOR DEBTORS' AMENDED JOINT
PLAN OF REORGANIZATION DATED NOVEMBER 22, 2000
Page 2
<PAGE>
365(b)(1) of the Bankruptcy Code shall be made by the Reorganized Debtor
following the entry of a Final Order resolving the dispute and approving
assumption.
7.3 BAR DATE FOR FILING OF REJECTION CLAIMS. Any Claim for
damages arising from the rejection under this Plan of an executory contract or
unexpired lease must be Filed within thirty (30) days after the mailing of
notice of Confirmation or be forever barred and unenforceable against the
Debtors, the Estates, any of their affiliates and their properties and barred
from receiving any distribution under this Plan.
3. As provided in the Plan, the Plan Supplement consists of the
following: Exhibit "A" - Proposed Amended By-Laws and proposed Amended
Certificate of Incorporation. Exhibit "B" - List of the executory contracts and
unexpired leases to be assumed pursuant to the Plan. Copies of the Amended Plan,
Disclosure Statement and Supplemental Disclosure are available at
www.haynesboone.com/kittyhawk.
4. Parties with executory contracts or unexpired leases are advised that
this Plan Supplement has been filed and that claims they might have against one
or more Debtors will be affected by this amendment as described in ss.ss.7.1 -
7.3 of the Amended Plan (as reiterated above).
PREMISES CONSIDERED, the Debtors file this Plan Supplement and request
that all parties take appropriate notice thereof as it may affect their claims
and rights, including rights in and to various executory contracts and unexpired
leases.
RESPECTFULLY SUBMITTED this 5th day of December, 2000.
/S/ JOHN D. PENN
-----------------------
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<CAPTION>
<S> <C> <C>
Robert D. Albergotti John D. Penn Sarah B. Foster
State Bar No. 00969800 State Bar No. 15752300 State Bar No. 07297500
Haynes and Boone, LLP Haynes and Boone, LLP Haynes and Boone, LLP
901 Main Street, Suite 3100 201 Main Street, Suite 2200 600 Congress Ave., Suite 1600
Dallas, Texas 75202 Fort Worth, Texas 76102 Austin, Texas 78701
Tel. No. (214) 651-5000 Tel. No. (817) 347-6610 Tel. No. (512) 867-8400
Fax No. (214) 651-5940 Fax No. (817) 348-2300 Fax No. (512) 867-8470
</TABLE>
ATTORNEYS FOR DEBTORS
PLAN SUPPLEMENT FOR DEBTORS' AMENDED JOINT
PLAN OF REORGANIZATION DATED NOVEMBER 22, 2000
Page 3
<PAGE>
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing document
was served upon: the parties listed on the attached Service List by first class
mail on the 5th day of December, 2000.
/S/ JOHN D. PENN
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 4
<PAGE>
BYLAWS
OF
KITTY HAWK AIRCARGO, INC.
A Delaware Corporation
December __, 2000
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 5
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE: OFFICES
1.1 Registered Office and Agent
1.2 Other Offices
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting
2.2 Special Meeting
2.3 Place of Meetings
2.4 Notice
2.5 Notice of Stockholder Business; Nomination of
Director Candidates
2.6 Voting List
2.7 Quorum
2.8 Required Vote; Withdrawal of Quorum
2.9 Method of Voting; Proxies
2.10 Record Date
2.11 Conduct of Meeting
2.12 Inspectors
ARTICLE THREE: DIRECTORS
3.1 Management
3.2 Number; Qualification; Election; Term
3.3 Change in Number
3.4 Vacancies
3.5 Meetings of Directors
3.6 First Meeting
3.7 Election of Officers
3.8 Regular Meetings
3.9 Special Meetings
3.10 Notice
3.11 Quorum; Majority Vote
3.12 Procedure
3.13 Presumption of Assent
3.14 Compensation
ARTICLE FOUR: COMMITTEES
4.1 Designation
4.2 Number; Qualification; Term
4.3 Authority
4.4 Committee Changes
4.5 Alternate Members of Committees
4.6 Regular Meetings
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 6
<PAGE>
4.7 Special Meetings
4.8 Quorum; Majority Vote
4.9 Minutes
4.10 Compensation
4.11 Responsibility
ARTICLE FIVE: NOTICE
5.1 Method
5.2 Waiver
ARTICLE SIX: OFFICERS
6.1 Number; Titles; Term of Office
6.2 Removal
6.3 Vacancies
6.4 Authority
6.5 Compensation
6.6 Chairman of the Board and Chief Executive Officer
6.7 President
6.8 Vice Presidents
6.9 Treasurer
6.10 Assistant Treasurers
6.11 Secretary
6.12 Assistant Secretaries
ARTICLE SEVEN: CERTIFICATES AND STOCKHOLDERS
7.1 Certificates for Shares
7.2 Replacement of Lost or Destroyed Certificates
7.3 Transfer of Shares
7.4 Registered Stockholders
7.5 Regulations
7.6 Legends
ARTICLE EIGHT: MISCELLANEOUS PROVISIONS
8.1 Dividends
8.2 Reserves
8.3 Books and Records
8.4 Fiscal Year
8.5 Seal
8.6 Resignations
8.7 Securities of Other Corporations
8.8 Telephone Meetings
8.9 Action Without a Meeting
8.10 Invalid Provisions
8.11 Mortgages, etc.
8.12 Headings
8.13 References
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 7
<PAGE>
BYLAWS
OF
KITTY HAWK AIRCARGO, INC.
A DELAWARE CORPORATION
PREAMBLE
These bylaws ("bylaws") are subject to, and governed by, the General
Corporation Law of the State of Delaware (the "Delaware Corporation Law") and
the certificate of incorporation ("Certificate of Incorporation") of Kitty Hawk
Aircargo, Inc., a Delaware corporation (the "Corporation"). In the event of a
direct conflict between the provisions of these bylaws and the mandatory
provisions of the Delaware Corporation Law or the provisions of the Certificate
of Incorporation, such provisions of the Delaware Corporation Law or the
Certificate of Incorporation, as the case may be, will be controlling.
ARTICLE ONE: OFFICES
1.1 Registered Office and Agent. The registered office and registered
agent of the Corporation shall be as designated from time to time by the
appropriate filing by the Corporation in the office of the Secretary of State of
the State of Delaware.
1.2 Other Offices. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the Board of Directors
of the Corporation (the "Board of Directors") may from time to time determine or
as the business of the Corporation may require.
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders of the Corporation
shall be held each calendar year on such date and at such time as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting or in a duly executed waiver of notice of such meeting. At such
meeting, the stockholders shall elect directors and transact such other business
as may be properly brought before the meeting.
2.2 Special Meeting. A special meeting of the stockholders may be called
by the Board of Directors pursuant to a resolution adopted by a majority of the
members of the Board of Directors then serving, by the Chairman of the Board and
Chief Executive Officer, or by any holder or holders of record of at least 25%
of the outstanding shares of capital stock of the Corporation then entitled to
vote on any matter for which the respective special meeting is being called. A
special meeting shall be held on such date and at such time as shall be
designated by the person(s) calling the meeting and stated in the notice of the
meeting or in a duly executed waiver of notice of such meeting. Only such
business shall be transacted at a special meeting as
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 8
<PAGE>
may be stated or indicated in the notice of such meeting given in accordance
with these bylaws or in a duly executed waiver of notice of such meeting.
2.3 Place of Meetings. An annual meeting of stockholders may be held at
any place within or without the State of Delaware designated by the Board of
Directors. A special meeting of stockholders may be held at any place within or
without the State of Delaware designated in the notice of the meeting or a duly
executed waiver of notice of such meeting. Meetings of stockholders shall be
held at the principal office of the Corporation unless another place is
designated for meetings in the manner provided herein.
2.4 Notice. Written or printed notice stating the place, day, and time
of each meeting of the stockholders and, in case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not less
than 10 nor more than 60 days before the date of the meeting, either personally
or by mail, by or at the direction of the Chairman of the Board and Chief
Executive Officer, the Secretary, or the officer or person(s) calling the
meeting, to each stockholder of record entitled to vote at such meeting. If such
notice is to be sent by mail, it shall be directed to such stockholder at his
address as it appears on the records of the Corporation, unless he shall have
filed with the Secretary of the Corporation a written request that notices to
him be mailed to some other address, in which case it shall be directed to him
at such other address. Notice of any meeting of stockholders shall not be
required to be given to any stockholder who shall attend such meeting in person
or by proxy and shall not, at the beginning of such meeting, object to the
transaction of any business because the meeting is not lawfully called or
convened, or who shall, either before or after the meeting, submit a signed
waiver of notice, in person or by proxy.
2.5 Notice of Stockholder Business; Nomination of Director Candidates.
(a) At annual meetings of the stockholders, only such business shall be
conducted as shall have been brought before the meetings (i) pursuant to the
Corporation's notice of meeting, (ii) by or at the direction of the Board of
Directors, or (iii) by any stockholder of the Corporation who is a stockholder
of record at the time of giving of notice provided for in this Section 2.5, who
shall be entitled to vote at such meeting, and who complies with the notice
procedures set forth in this Section 2.5.
(b) Only persons who are nominated in accordance with the procedures set
forth in these bylaws shall be eligible to serve as directors. Nominations of
persons for election to the Board of Directors may be made at a meeting of
stockholders (i) by or at the direction of the Board of Directors or (ii) by any
stockholder of the Corporation who is a stockholder of record at the time of
giving of notice provided for in this Section 2.5, who shall be entitled to vote
for the election of directors at the meeting, and who complies with the notice
procedures set forth in this Section 2.5.
(c) A stockholder must give timely, written notice to the Secretary of
the Corporation to nominate directors at an annual meeting pursuant to Section
2.5(b) hereof or to propose business to be brought before an annual or special
meeting pursuant to clause (iii) of Section 2.5(a) hereof. To be timely in the
case of an annual meeting, a stockholder's notice must be received at the
principal executive offices of the Corporation not more than 180 days nor less
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 9
<PAGE>
than 90 days before the first anniversary of the preceding year's annual
meeting. To be timely in the case of a special meeting or in the event that the
date of the annual meeting is changed by more than 30 days from such anniversary
date, a stockholder's notice must be received at the principal executive offices
of the Corporation no later than the close of business on the tenth day
following the earlier of the day on which notice of the meeting date was mailed
or public disclosure of the meeting date was made. For purposes of this Section
2.5(c), "public disclosure" shall mean disclosure in a press release reported by
the Dow Jones News Service, Associated Press or comparable national news service
or in a document publicly filed by the Corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the Securities
Exchange Act of 1934. Such stockholder's notice shall set forth (i) with respect
to each matter, if any, that the stockholder proposes to bring before the
meeting, a brief description of the business desired to be brought before the
meeting and the reasons for conducting such business at the meeting, (ii) with
respect to each person, if any, whom the stockholder proposes to nominate for
election as a director, all information relating to such person (including such
person's written consent to being named in the proxy statement as a nominee and
to serving as a director) that is required under the Securities Exchange Act of
1934, as amended, (iii) the name and address, as they appear on the
Corporation's records, of the stockholder proposing such business or nominating
such persons (as the case may be), and the name and address of the beneficial
owner, if any, on whose behalf the proposal or nomination is made, (iv) the
class and number of shares of capital stock of the Corporation that are owned
beneficially and of record by such stockholder of record and by the beneficial
owner, if any, on whose behalf the proposal or nomination is made, and (v) any
material interest or relationship that such stockholder of record and/or the
beneficial owner, if any, on whose behalf the proposal or nomination is made may
respectively have in such business or with such nominee. At the request of the
Board of Directors, any person nominated for election as a director shall
furnish to the Secretary of the Corporation the information required to be set
forth in a stockholder's notice of nomination which pertains to the nominee.
(d) Notwithstanding anything in these bylaws to the contrary, no
business shall be conducted, and no person shall be nominated to serve as a
director, at an annual or special meeting of stockholders, except in accordance
with the procedures set forth in this Section 2.5. The chairman of the meeting
shall, if the facts warrant, determine that business was not properly brought
before the meeting, or that a nomination was not made, in accordance with the
procedures prescribed by these bylaws and, if he shall so determine, he shall so
declare to the meeting, and any such business not properly brought before the
meeting shall not be transacted and any defective nomination shall be
disregarded. A stockholder shall also comply with all applicable requirements of
the Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder with respect to the matters set forth in this Section 2.5.
2.6 Voting List. At least 10 days before each meeting of stockholders,
the Secretary or other officer of the Corporation who has charge of the
Corporation's stock ledger, either directly or through another officer appointed
by him or through a transfer agent appointed by the Board of Directors, shall
prepare a complete list of stockholders entitled to vote thereat, arranged in
alphabetical order and showing the address of each stockholder and number of
shares of capital stock registered in the name of each stockholder. For a period
of 10 days prior to such meeting, such list shall be kept on file at a place
within the city where the meeting is to be held, which place shall be specified
in the notice of meeting or a duly executed waiver of notice of
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 10
<PAGE>
such meeting or, if not so specified, at the place where the meeting is to be
held and shall be open to examination by any stockholder, for any purpose
germane to the meeting, during ordinary business hours. Such list shall be
produced at such meeting and kept at the meeting at all times during such
meeting and may be inspected by any stockholder who is present.
2.7 Quorum. The holders of a majority of the outstanding shares of
capital stock entitled to vote on a matter, present in person or by proxy, shall
constitute a quorum at any meeting of stockholders, except as otherwise provided
by law, the Certificate of Incorporation, or these bylaws. If a quorum shall not
be present, in person or by proxy, at any meeting of stockholders, the
stockholders entitled to vote thereat who are present, in person or by proxy
(or, if no stockholder entitled to vote is present, any officer of the
Corporation), may adjourn the meeting from time to time without notice other
than announcement at the meeting (unless the Board of Directors, after such
adjournment, fixes a new record date for the adjourned meeting), until a quorum
shall be present, in person or by proxy. At any adjourned meeting at which a
quorum shall be present, in person or by proxy, any business may be transacted
which may have been transacted at the original meeting had a quorum been
present; provided that, if the adjournment is for more than 30 days or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder of record entitled
to vote at the adjourned meeting.
2.8 Required Vote; Withdrawal of Quorum. When a quorum is present at any
meeting, the vote of the holders of at least a majority of the outstanding
shares of capital stock entitled to vote thereat who are present, in person or
by proxy, shall decide any question brought before such meeting, unless the
question is one on which, by express provision of law, the Certificate of
Incorporation, or these bylaws, a different vote is required, in which case such
express provision shall govern and control the decision of such question;
provided, however, that the vote of the holders of a plurality of the
outstanding shares of capital stock entitled to vote in the election of
directors who are present, in person or by proxy, shall be required to effect
elections of directors. The stockholders present at a duly constituted meeting
may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
2.9 Method of Voting; Proxies. Except as otherwise provided in the
Certificate of Incorporation or by law, each outstanding share of capital stock,
regardless of class, shall be entitled to one vote on each matter submitted to a
vote at a meeting of stockholders. Elections of directors need not be by written
ballot. At any meeting of stockholders, every stockholder having the right to
vote may vote either in person or by a proxy executed in writing by the
stockholder or by his duly authorized attorney-in-fact. Each such proxy shall be
filed with the Secretary of the Corporation before or at the time of the
meeting. No proxy shall be valid after three years from the date of its
execution, unless otherwise provided in the proxy. If no date is stated in a
proxy, such proxy shall be presumed to have been executed on the date of the
meeting at which it is to be voted. Each proxy shall be revocable unless
expressly provided therein to be irrevocable and coupled with an interest
sufficient in law to support an irrevocable power or unless otherwise made
irrevocable by law.
2.10 Record Date. For the purpose of determining stockholders entitled
(a) to notice of or to vote at any meeting of stockholders or any adjournment
thereof, (b) to receive payment of
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 11
<PAGE>
any dividend or other distribution or allotment of any rights, or (c) to
exercise any rights in respect of any change, conversion, or exchange of stock
or for the purpose of any other lawful action, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, for any
such determination of stockholders, such date in any case to be not more than 60
days and not less than 10 days prior to such meeting nor more than 60 days prior
to any other action. If no record date is fixed:
(i) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held.
(ii) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
2.11 Conduct of Meeting. The Chairman of the Board and Chief Executive
Officer, if such office has been filled, and, if such office has not been filled
or if the Chairman of the Board and Chief Executive Officer is absent or
otherwise unable to act, the President shall preside at all meetings of
stockholders. The Secretary shall keep the records of each meeting of
stockholders. In the absence or inability to act of any such officer, such
officer's duties shall be performed by the officer given the authority to act
for such absent or non-acting officer under these bylaws or by resolution
adopted by the Board of Directors, or if no officer has been given such
authority, by some person appointed at the meeting.
2.12 Inspectors. The Board of Directors may, in advance of any meeting
of stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If any of the inspectors so appointed shall fail to appear
or act, the chairman of the meeting shall, or if inspectors shall not have been
appointed, the chairman of the meeting may, appoint one or more inspectors. Each
inspector, before entering upon the discharge of his duties, shall take and sign
an oath to execute faithfully the duties of inspector at such meeting with
strict impartiality and according to the best of his ability. The inspectors
shall determine the number of shares of capital stock of the Corporation
outstanding and the voting power of each, the number of shares represented at
the meeting, the existence of a quorum, and the validity and effect of proxies
and shall receive votes, ballots, or consents, hear and determine all challenges
and questions arising in connection with the right to vote, count, and tabulate
all votes, ballots, or consents, determine the results, and do such acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the chairman of the meeting, the inspectors shall make a report in
writing of any challenge, request, or matter determined by them and shall
execute a certificate of any fact found by them. No director or candidate for
the office of director shall act as an inspector of an election of directors.
Inspectors need not be stockholders.
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 12
<PAGE>
ARTICLE THREE: DIRECTORS
3.1 Management. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors.
3.2 Number; Qualification; Election; Term. The Board of Directors shall
consist of no less than one director (plus such number of directors as may be
elected from time to time pursuant to the terms of any series of preferred stock
that may be issued and outstanding from time to time). Subject to the preceding
sentence, the number of directors which shall constitute the whole Board of
Directors shall from time to time be fixed and determined by resolution adopted
by the Board of Directors. Each director shall hold office until his successor
shall have been duly elected and qualified.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of preferred stock issued by the Corporation shall have the
right, voting separately by series or by class (excluding holders of common
stock), to elect directors at an annual or special meeting of stockholders, the
election, term of office, filling of vacancies, and other features of such
directorships shall be governed by the terms of the Certificate of Incorporation
(including any amendment to the Certificate of Incorporation that designates a
series of preferred stock).
3.3 Change in Number. No decrease in the number of directors
constituting the entire Board of Directors shall have the effect of shortening
the term of any incumbent director.
3.4 Vacancies. Any or all directors may be removed for cause at any
annual or special meeting of stockholders, upon the affirmative vote of the
holders of a majority of the outstanding shares of each class of capital stock
then entitled to vote in person or by proxy at an election of such directors,
provided that notice of the intention to act upon such matter shall have been
given in the notice calling such meeting. Newly created directorships resulting
from any increase in the authorized number of directors and any vacancies
occurring in the Board of Directors caused by death, resignation, retirement,
disqualification, removal or other termination from office of any directors may
be filled by the vote of a majority of the directors then in office, though less
than a quorum, or by the affirmative vote, at a special meeting of the
stockholders called for the purpose of filling such directorship, of the holders
of a majority of the outstanding shares of capital stock then entitled to vote
in person or by proxy at such meeting. Each successor director so chosen shall
hold office until his respective successor shall have been duly elected and
qualified.
3.5 Meetings of Directors. The directors may hold their meetings and may
have an office and keep the records of the Corporation, except as otherwise
provided by law, in such place or places within or without the State of Delaware
as the Board of Directors may from time to time determine or as shall be
specified in the notice of such meeting or duly executed waiver of notice of
such meeting.
3.6 First Meeting. Each newly elected Board of Directors may hold its
first meeting for the purpose of organization and the transaction of business,
if a quorum is present, immediately after and at the same place as the annual
meeting of stockholders, and no notice of such meeting shall be necessary.
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 13
<PAGE>
3.7 Election of Officers. At the first meeting of the Board of Directors
after each annual meeting of stockholders at which a quorum shall be present,
the Board of Directors shall elect the officers of the Corporation.
3.8 Regular Meetings. Regular meetings of the Board of Directors shall
be held at such times and places as shall be designated from time to time by
resolution of the Board of Directors. Notice of such regular meetings shall not
be required.
3.9 Special Meetings. Special meetings of the Board of Directors shall
be held whenever called by the Chairman of the Board and Chief Executive
Officer, or any director.
3.10 Notice. The Secretary shall give notice of each special meeting to
each director at least 24 hours before the meeting. Notice of any such meeting
need not be given to any director who, either before or after the meeting,
submits a signed waiver of notice or who shall attend such meeting without
protesting, prior to or at its commencement, the lack of notice to him. The
purpose of any special meeting shall be specified in the notice or waiver of
notice of such meeting.
3.11 Quorum; Majority Vote. At all meetings of the Board of Directors, a
majority of the directors fixed in the manner provided in these bylaws shall
constitute a quorum for the transaction of business. If at any meeting of the
Board of Directors there is less than a quorum present, a majority of those
present or any director solely present may adjourn the meeting from time to time
without further notice. Unless the act of a greater number is required by law,
the Certificate of Incorporation, or these bylaws, the act of a majority of the
directors present at a meeting at which a quorum is in attendance shall be the
act of the Board of Directors. At any time that the Certificate of Incorporation
provides that directors elected by the holders of a class or series of stock
shall have more or less than one vote per director on any matter, every
reference in these bylaws to a majority or other proportion of directors shall
refer to a majority or other proportion of the votes of such directors.
3.12 Procedure. At meetings of the Board of Directors, business shall be
transacted in such order as from time to time the Board of Directors may
determine. The Chairman of the Board and Chief Executive Officer, if such office
has been filled, and, if such office has not been filled or if the Chairman of
the Board and Chief Executive Officer is absent or otherwise unable to act, the
President shall preside at all meetings of the Board of Directors. In the
absence or inability to act of such officers, a chairman shall be chosen by the
Board of Directors from among the directors present. The Secretary of the
Corporation shall act as the secretary of each meeting of the Board of Directors
unless the Board of Directors appoints another person to act as secretary of the
meeting. The Board of Directors shall keep regular minutes of its proceedings
which shall be placed in the minute book of the Corporation.
3.13 Presumption of Assent. A director of the Corporation who is present
at the meeting of the Board of Directors at which action on any corporate matter
is taken shall be presumed to have assented to the action unless his dissent
shall be entered in the minutes of the meeting or unless he shall file his
written dissent to such action with the person acting as secretary of the
meeting before the adjournment thereof or shall forward any dissent by certified
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 14
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or registered mail to the Secretary of the Corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
3.14 Compensation. The Board of Directors shall have the authority to
fix the compensation, including fees and reimbursement of expenses, paid to
directors for attendance at regular or special meetings of the Board of
Directors or any committee thereof; provided, that nothing contained herein
shall be construed to preclude any director from serving the Corporation in any
other capacity or receiving compensation therefor.
ARTICLE FOUR: COMMITTEES
4.1 Designation. The Board of Directors may designate one or more
committees.
4.2 Number; Qualification; Term. Each committee shall consist of one or
more directors appointed by resolution adopted by a majority of the entire Board
of Directors. The number of committee members may be increased or decreased from
time to time by resolution adopted by a majority of the entire Board of
Directors. Each committee member shall serve as such until the earliest of (i)
the expiration of his term as director, (ii) his resignation as a committee
member or as a director, or (iii) his removal as a committee member or as a
director.
4.3 Authority. Each committee, to the extent expressly provided in the
resolution establishing such committee, shall have and may exercise all of the
powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation except to the extent expressly restricted by law,
the Certificate of Incorporation, or these bylaws.
4.4 Committee Changes. The Board of Directors shall have the power at
any time to fill vacancies in, to change the membership of, and to discharge any
committee.
4.5 Alternate Members of Committees. The Board of Directors may
designate one or more directors as alternate members of any committee. Any such
alternate member may replace any absent or disqualified member at any meeting of
the committee. If no alternate committee members have been so appointed to a
committee or each such alternate committee member is absent or disqualified, the
member or members of such committee present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member.
4.6 Regular Meetings. Regular meetings of any committee may be held
without notice at such time and place as may be designated from time to time by
the committee and communicated to all members thereof.
4.7 Special Meetings. Special meetings of any committee may be held
whenever called by any committee member. The committee member calling any
special meeting shall cause notice of such special meeting, including therein
the time and place of such special meeting, to be given to each committee member
at least two days before such special meeting. Neither the business to be
transacted at, nor the purpose of, any special meeting of any committee need be
specified in the notice or waiver of notice of any special meeting.
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 15
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4.8 Quorum; Majority Vote. At meetings of any committee, a majority of
the number of members designated by the Board of Directors shall constitute a
quorum for the transaction of business. If a quorum is not present at a meeting
of any committee, a majority of the members present may adjourn the meeting from
time to time, without notice other than an announcement at the meeting, until a
quorum is present. The act of a majority of the members present at any meeting
at which a quorum is in attendance shall be the act of a committee, unless the
act of a greater number is required by law, the Certificate of Incorporation, or
these bylaws.
4.9 Minutes. Each committee shall cause minutes of its proceedings to be
prepared and shall report the same to the Board of Directors upon the request of
the Board of Directors. The minutes of the proceedings of each committee shall
be delivered to the Secretary of the Corporation for placement in the minute
books of the Corporation.
4.10 Compensation. Committee members may, by resolution of the Board of
Directors, be allowed a fixed sum and expenses of attendance, if any, for
attending any committee meetings or a stated salary.
4.11 Responsibility. The designation of any committee and the delegation
of authority to it shall not operate to relieve the Board of Directors or any
director of any responsibility imposed upon it or such director by law.
ARTICLE FIVE: NOTICE
5.1 Method. Whenever by statute, the Certificate of Incorporation, or
these bylaws, notice is required to be given to any committee member, director,
or stockholder and no provision is made as to how such notice shall be given,
personal notice shall not be required and any such notice may be given (a) in
writing, by mail, postage prepaid, addressed to such committee member, director,
or stockholder at his address as it appears on the books or (in the case of a
stockholder) the stock transfer records of the Corporation, or (b) by any other
method permitted by law (including but not limited to overnight courier service,
telegram, telex, or telefax). Any notice required or permitted to be given by
mail shall be deemed to be delivered and given at the time when the same is
deposited in the United States mail as aforesaid. Any notice required or
permitted to be given by overnight courier service shall be deemed to be
delivered and given at the time delivered to such service with all charges
prepaid and addressed as aforesaid. Any notice required or permitted to be given
by telegram, telex, or telefax shall be deemed to be delivered and given at the
time transmitted with all charges prepaid and addressed as aforesaid.
5.2 Waiver. Whenever any notice is required to be given to any
stockholder, director, or committee member of the Corporation by statute, the
Certificate of Incorporation, or these bylaws, a waiver thereof in writing
signed by the person or persons entitled to such notice, whether before or after
the time stated therein, shall be equivalent to the giving of such notice.
Attendance of a stockholder, director, or committee member at a meeting shall
constitute a waiver of notice of such meeting, except where such person attends
for the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 16
<PAGE>
ARTICLE SIX: OFFICERS
6.1 Number; Titles; Term of Office. The officers of the Corporation
shall be a Chairman of the Board and Chief Executive Officer, a President, a
Secretary, and such other officers as the Board of Directors may from time to
time elect or appoint, including one or more Vice Presidents (with each Vice
President to have such descriptive title, if any, as the Board of Directors
shall determine) and a Treasurer. Each officer shall hold office until his
successor shall have been duly elected and shall have qualified, until his
death, or until he shall resign or shall have been removed in the manner
hereinafter provided. Any two or more offices may be held by the same person.
None of the officers need be a stockholder or a director of the Corporation or a
resident of the State of Delaware.
6.2 Removal. Any officer or agent elected or appointed by the Board of
Directors may be removed by the Board of Directors whenever in its judgment the
best interest of the Corporation will be served thereby, but such removal shall
be without prejudice to the contract rights, if any, of the person so removed.
Election or appointment of an officer or agent shall not of itself create
contract rights.
6.3 Vacancies. Any vacancy occurring in any office of the Corporation
(by death, resignation, removal, or otherwise) may be filled by the Board of
Directors.
6.4 Authority. Officers shall have such authority and perform such
duties in the management of the Corporation as are provided in these bylaws or
as may be determined by resolution of the Board of Directors not inconsistent
with these bylaws.
6.5 Compensation. The compensation, if any, of officers and agents shall
be fixed from time to time by the Board of Directors; provided, however, that
the Board of Directors may delegate the power to determine the compensation of
any officer and agent (other than the officer to whom such power is delegated)
to the Chairman of the Board and Chief Executive Officer or the President.
6.6 Chairman of the Board and Chief Executive Officer. The Chairman of
the Board and Chief Executive Officer shall be the chief executive officer of
the Corporation and, subject to the supervision of the Board of Directors of the
Corporation, shall have the general management and control of the Corporation
and its subsidiaries (including the right to vote the voting securities of the
subsidiaries of the Corporation on behalf of the Corporation), shall preside at
all meetings of the stockholders and of the Board of Directors and may sign all
certificates for shares of capital stock of the Corporation.
6.7 President. The President shall be the chief operating officer of the
Corporation and, subject to the supervision of the Chairman of the Board and
Chief Executive Officer, he shall have general executive charge, management, and
control of the properties and operations of the Corporation in the ordinary
course of its business, with all such powers with respect to such properties and
operations as may be reasonably incident to such responsibilities. In the
absence or inability to act of the Chairman of the Board and Chief
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 17
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Executive Officer, the President shall exercise all of the powers and discharge
all of the duties of the Chairman of the Board and Chief Executive Officer. As
between the Corporation and third parties, any action taken by the President in
the performance of the duties of the Chairman of the Board and Chief Executive
Officer shall be conclusive evidence that the Chairman of the Board and Chief
Executive Officer is absent or unable to act. The President may sign all
certificates for shares of stock of the Corporation.
6.8 Vice Presidents. Each Vice President shall have such powers and
duties as may be assigned to him by the Board of Directors, the Chairman of the
Board and Chief Executive Officer, or the President, and (in order of their
seniority as determined by the Board of Directors or, in the absence of such
determination, as determined by the length of time they have held the office of
Vice President) shall exercise the powers of the President during that officer's
absence or inability to act. As between the Corporation and third parties, any
action taken by a Vice President in the performance of the duties of the
President shall be conclusive evidence of the absence or inability to act of the
President at the time such action was taken.
6.9 Treasurer. The Treasurer shall have custody of the Corporation's
funds and securities, shall keep full and accurate account of receipts and
disbursements, shall deposit all monies and valuable effects in the name and to
the credit of the Corporation in such depository or depositories as may be
designated by the Board of Directors, and shall perform such other duties as may
be prescribed by the Board of Directors, the Chairman of the Board and Chief
Executive Officer, or the President.
6.10 Assistant Treasurers. Each Assistant Treasurer shall have such
powers and duties as may be assigned to him by the Board of Directors, the
Chairman of the Board and Chief Executive Officer, or the President. The
Assistant Treasurers (in the order of their seniority as determined by the Board
of Directors or, in the absence of such a determination, as determined by the
length of time they have held the office of Assistant Treasurer) shall exercise
the powers of the Treasurer during that officer's absence or inability to act.
6.11 Secretary. Except as otherwise provided in these bylaws, the
Secretary shall keep the minutes of all meetings of the Board of Directors and
of the stockholders in books provided for that purpose, and he shall attend to
the giving and service of all notices. He may sign with the Chairman of the
Board and Chief Executive Officer or the President, in the name of the
Corporation, all contracts of the Corporation and affix the seal, if any, of the
Corporation thereto. He may sign with the Chairman of the Board and Chief
Executive Officer or the President all certificates for shares of stock of the
Corporation, and he shall have charge of the certificate books, transfer books,
and stock papers as the Board of Directors may direct, all of which shall at all
reasonable times be open to inspection by any director upon application at the
office of the Corporation during business hours. He shall in general perform all
duties incident to the office of the Secretary, subject to the control of the
Board of Directors, the Chairman of the Board and Chief Executive Officer, and
the President.
6.12 Assistant Secretaries. Each Assistant Secretary shall have such
powers and duties as may be assigned to him by the Board of Directors, the
Chairman of the Board and Chief Executive Officer, or the President. The
Assistant Secretaries (in the order of their seniority as determined by the
Board of Directors or, in the absence of such a determination, as determined
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 18
<PAGE>
by the length of time they have held the office of Assistant Secretary) shall
exercise the powers of the Secretary during that officer's absence or inability
to act.
ARTICLE SEVEN: CERTIFICATES AND STOCKHOLDERS
7.1 Certificates for Shares. Certificates for shares of stock of the
Corporation shall be in such form as shall be approved by the Board of
Directors. The certificates shall be signed by the Chairman of the Board and
Chief Executive Officer or the President or a Vice President and also by the
Secretary or an Assistant Secretary or by the Treasurer or an Assistant
Treasurer. Any and all signatures on the certificate may be a facsimile and may
be sealed with the seal of the Corporation or a facsimile thereof. If any
officer, transfer agent, or registrar who has signed, or whose facsimile
signature has been placed upon, a certificate has ceased to be such officer,
transfer agent, or registrar before such certificate is issued, such certificate
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent, or registrar at the date of issue. The certificates
shall be consecutively numbered and shall be entered in the books of the
Corporation as they are issued and shall exhibit the holder's name and the
number of shares.
7.2 Replacement of Lost or Destroyed Certificates. The Corporation may
direct a new certificate or certificates to be issued in place of a certificate
or certificates theretofore issued by the Corporation and alleged to have been
lost or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate or certificates representing shares to be lost or
destroyed. When authorizing such issue of a new certificate or certificates the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the Corporation a bond with a surety or
sureties satisfactory to the Corporation in such sum as it may direct as
indemnity against any claim, or expense resulting from a claim, that may be made
against the Corporation with respect to the certificate or certificates alleged
to have been lost or destroyed.
7.3 Transfer of Shares. Shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate representing shares duly endorsed or accompanied by proper evidence
of succession, assignment, or authority to transfer, the Corporation or its
transfer agent shall issue a new certificate to the person entitled thereto,
cancel the old certificate, and record the transaction upon its books.
7.4 Registered Stockholders. The Corporation shall be entitled to treat
the holder of record of any share or shares of stock as the holder in fact
thereof and, accordingly, shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
7.5 Regulations. The Board of Directors shall have the power and
authority to make all such rules and regulations as they may deem expedient
concerning the issue, transfer, and registration or the replacement of
certificates for shares of stock of the Corporation.
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 19
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7.6 Legends. The Board of Directors shall have the power and authority
to provide that certificates representing shares of stock bear such legends as
the Board of Directors deems appropriate to assure that the Corporation does not
become liable for violations of federal or state securities laws or other
applicable law.
ARTICLE EIGHT: MISCELLANEOUS PROVISIONS
8.1 Dividends. Subject to provisions of law and the Certificate of
Incorporation, dividends may be declared by the Board of Directors at any
regular or special meeting and may be paid in cash, in property, or in shares of
stock of the Corporation. Such declaration and payment shall be at the
discretion of the Board of Directors.
8.2 Reserves. There may be created by the Board of Directors out of
funds of the Corporation legally available therefor such reserve or reserves as
the directors from time to time, in their discretion, consider proper to provide
for contingencies, to equalize dividends, or to repair or maintain any property
of the Corporation, or for such other purpose as the Board of Directors shall
consider beneficial to the Corporation, and the Board of Directors may modify or
abolish any such reserve in the manner in which it was created.
8.3 Books and Records. The Corporation shall keep correct and complete
books and records of account, shall keep minutes of the proceedings of its
stockholders and Board of Directors and shall keep at its registered office or
principal place of business, or at the office of its transfer agent or
registrar, a record of its stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each.
8.4 Fiscal Year. The fiscal year of the Corporation shall be fixed by
the Board of Directors; provided, that if such fiscal year is not fixed by the
Board of Directors and the selection of the fiscal year is not expressly
deferred by the Board of Directors, the fiscal year shall be the calendar year.
8.5 Seal. The seal of the Corporation shall be such as from time to time
may be approved by the Board of Directors.
8.6 Resignations. Any director, committee member, or officer may resign
by so stating at any meeting of the Board of Directors or by giving written
notice to the Board of Directors, the Chairman of the Board and Chief Executive
Officer, the President, or the Secretary. Such resignation shall take effect at
the time specified therein or, if no time is specified therein, immediately upon
its receipt. Unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
8.7 Securities of Other Corporations. The Chairman of the Board and
Chief Executive Officer or the President shall have the power and authority to
transfer, endorse for transfer, vote, consent, or take any other action with
respect to any securities of another issuer which may be held or owned by the
Corporation and to make, execute, and deliver any waiver, proxy, or consent with
respect to any such securities.
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 20
<PAGE>
8.8 Telephone Meetings. Members of the Board of Directors and members of
a committee of the Board of Directors may participate in and hold a meeting of
such Board of Directors or committee by means of a conference telephone or
similar communications equipment by means of which persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
Section shall constitute presence in person at such meeting, except where a
person participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
8.9 Action Without a Meeting. Unless otherwise restricted by the
Certificate of Incorporation or by these bylaws, any action required or
permitted to be taken at a meeting of the Board of Directors, or of any
committee of the Board of Directors, may be taken without a meeting if a consent
or consents in writing, setting forth the action so taken, shall be signed by
all the directors or all the committee members, as the case may be, entitled to
vote with respect to the subject matter thereof, and such consent shall have the
same force and effect as a vote of such directors or committee members, as the
case may be, and may be stated as such in any certificate or document filed with
the Secretary of State of the State of Delaware or in any certificate delivered
to any person. Such consent or consents shall be filed with the minutes of
proceedings of the Board or committee, as the case may be.
Any action required to be taken at any annual or special meeting of
stockholders of the Corporation, or any action which may be taken at any annual
or special meeting of stockholders, may be taken without a meeting, without
prior notice and without a vote, if a consent or consents in writing, setting
forth the action so taken, shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing.
8.10 Invalid Provisions. If any part of these bylaws shall be held
invalid or inoperative for any reason, the remaining parts, so far as it is
possible and reasonable, shall remain valid and operative.
8.11 Mortgages, etc. With respect to any deed, deed of trust, mortgage,
or other instrument executed by the Corporation through its duly authorized
officer or officers, the attestation to such execution by the Secretary of the
Corporation shall not be necessary to constitute such deed, deed of trust,
mortgage, or other instrument a valid and binding obligation against the
Corporation unless the resolutions, if any, of the Board of Directors
authorizing such execution expressly state that such attestation is necessary.
8.12 Headings. The headings used in these bylaws have been inserted for
administrative convenience only and do not constitute matter to be construed in
interpretation.
8.13 References. Whenever herein the singular number is used, the same
shall include the plural where appropriate, and words of any gender should
include each other gender where appropriate.
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 21
<PAGE>
8.14 Citizenship Requirements of Officers and Directors. Persons who are
not U.S. Citizens (as defined in the Certificate of Incorporation) are not
qualified to serve as a director or officer of the Corporation.
* * * * *
The undersigned Secretary of the Corporation hereby certifies that the
foregoing bylaws were adopted by unanimous consent of the directors of the
Corporation as of December , 2000.
, Secretary
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 22
<PAGE>
CERTIFICATE OF INCORPORATION
OF
KITTY HAWK AIRCARGO, INC.
FIRST: The name of the Corporation is Kitty Hawk Aircargo, Inc.
SECOND: The address of the initial registered office of the Corporation
in the State of Delaware is 1201 North Market Street in the City of Wilmington,
County of New Castle. The name and address of its initial registered agent is
Delaware Corporation Organizers, Inc., Wilmington, Delaware 19801.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the Delaware General
Corporation Law ("DGCL"). The Corporation is to have perpetual existence.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 65,000,000 shares of capital stock, classified as (i)
62,000,000 shares of common stock, $0.01 par value ("Common Stock"), and (ii)
3,000,000 shares of preferred stock, $0.01 par value ("Preferred Stock").
The designations and the powers, preferences, rights, qualifications,
limitations, and restrictions of the Preferred Stock and Common Stock are as
follows:
1. Provisions Relating to the Preferred Stock.
(a) The Preferred Stock may be issued from time to time in one or more
classes or series, the shares of each class or series to have such designations
and powers, preferences, and rights, and qualifications, limitations, and
restrictions thereof, as are stated and expressed herein and in the resolution
or resolutions providing for the issue of such class or series adopted, as
hereinafter prescribed, by the entire board of directors of the Corporation
("Board of Directors") or (to the extent permitted by law) by any duly
designated committee thereof ("Committee").
(b) Authority is hereby expressly granted to and vested in the Board of
Directors or Committee to authorize the issuance of the Preferred Stock from
time to time in one or more classes or series, and with respect to each class or
series of the Preferred Stock, to fix and state by the resolution or resolutions
from time to time adopted providing for the issuance thereof the following:
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 23
<PAGE>
(i) whether or not the class or series is to have voting rights,
full, special, or limited, or is to be without voting rights, and whether or not
such class or series is to be entitled to vote as a separate class either alone
or together with the holders of one or more other classes or series of stock;
(ii) the number of shares to constitute the class or series and
the designations thereof;
(iii) the preferences, and relative, participating, optional, or
other special rights, if any, and the qualifications, limitations, or
restrictions thereof, if any, with respect to any class or series;
(iv) whether or not the shares of any class or series shall be
redeemable at the option of the Corporation or the holders thereof or upon the
happening of any specified event, and, if redeemable, the redemption price or
prices (which may be payable in the form of cash, notes, securities, or other
property), and the time or times at which, and the terms and conditions upon
which, such shares shall be redeemable and the manner of redemption;
(v) whether or not the shares of a class or series shall be
subject to the operation of retirement or sinking funds to be applied to the
purchase or redemption of such shares for retirement, and, if such retirement or
sinking fund or funds are to be established, the annual amount thereof, and the
terms and provisions relative to the operation thereof;
(vi) the dividend rate, whether dividends are payable in cash,
stock of the Corporation, or other property, the conditions upon which and the
times when such dividends payable on any other class or classes or series of
stock, whether or not such dividends shall be cumulative or noncumulative, and
if cumulative, the date or dates from which such dividends shall accumulate;
(vii) the preferences, if any, and the amounts thereof which the
holders of any class or series thereof shall be entitled to receive upon the
voluntary or involuntary dissolution of, or upon any distribution of the assets
of, the Corporation;
(viii) whether or not the shares of any class or series, at the
option of the Corporation or the holder thereof or upon the happening of any
specified event, shall be convertible into or exchangeable for, the shares or
any other class or classes or of any other series of the same or any other class
or classes of stock, securities, or other property of the Corporation and the
conversion price or prices or ratio or ratios or the rate or rates at which such
exchange may be made, with such adjustments, if any, as shall be stated and
expressed or provided for in such resolution or resolutions; and
(ix) such other special rights and protective provisions with
respect to any class or series as may to the Board of Directors or Committee
deem advisable.
(c) The shares of each class or series of the Preferred Stock may vary
from the shares of any other class or series thereof in any or all of the
foregoing respects. The Board of Directors or Committee may increase the number
of shares of the Preferred Stock designated for any
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 24
<PAGE>
existing class or series by a resolution adding to such class or series
authorized and unissued shares of the Preferred Stock not designated for any
other class or series. The Board of Directors or Committee may decrease the
number of shares of the Preferred Stock designated for any existing class or
series by a resolution subtracting from such class or series authorized and
unissued shares of the Preferred Stock designated for such existing class or
series, and the shares so subtracted shall become authorized, unissued, and
undesignated shares of the Preferred Stock.
2. Provisions Relating to the Common Stock.
(a) Each share of Common Stock of the Corporation shall have identical
rights and privileges in every respect. The holders of shares of Common Stock
shall be entitled to vote upon all matters submitted to a vote of the
stockholders of the Corporation and shall be entitled to one vote for each share
of Common Stock held.
(b) Subject to the prior rights and preferences, if any, applicable to
shares of the Preferred Stock or any series thereof, the holders of shares of
the Common Stock shall be entitled to receive such dividends (payable in cash,
stock, or otherwise) as may be declared thereon by the Board of Directors or
Committee at any time and from time to time out of any funds of the Corporation
legally available therefor.
(c) In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Corporation, after distribution in full of the
preferential amounts, if any, to be distributed to the holders of shares of the
Preferred Stock or any series thereof, the holders of shares of the Common Stock
shall be entitled to receive all of the remaining assets of the Corporation
available for distribution to its stockholders, ratably in proportion to the
number of shares of the Common Stock held by them. A liquidation, dissolution,
or winding-up of the Corporation, as such terms are used in this paragraph (c),
shall not be deemed to be occasioned by or to include any consolidation or
merger of the Corporation with or into any other corporation or corporations or
other entity or a sale, lease, exchange, or conveyance of all or a part of the
assets of the Corporation.
3. General.
(a) Subject to the foregoing provisions of this Certificate of
Incorporation, the Corporation may issue shares of its Preferred Stock and
Common Stock from time to time for such consideration (not less than the par
value thereof) as may be fixed by the Board of Directors or Committee, which is
expressly authorized to fix the same in its absolute and uncontrolled discretion
subject to the foregoing conditions. Shares so issued for which the
consideration shall have been paid or delivered to the Corporation shall be
deemed fully paid stock and shall not be liable to any further call or
assessment thereon, and the holders of such shares shall not be liable for any
further payments in respect of such shares.
(b) The Corporation shall have authority to create and issue rights and
options entitling their holders to purchase shares of the Corporation's capital
stock of any class or series or other securities of the Corporation, and such
rights and options shall be evidenced by instrument(s) approved by the Board of
Directors or Committee. The Board of Directors or Committee shall be empowered
to set the exercise price, duration, times for exercise, and other
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 25
<PAGE>
terms of such options or rights; provided, however, that the consideration to be
received for any shares of capital stock subject thereto shall not be less than
the par value thereof.
FIFTH: The number of directors constituting the Board of Directors shall
be fixed by, or in the manner provided in, the bylaws of the Corporation,
provided that such number shall be no less than one (plus such number of
directors as may be elected from time to time pursuant to the terms of any
series of Preferred Stock that may be issued and outstanding from time to time)
and until changed in accordance with the manner prescribed by the bylaws shall
be seven (7).
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by series or by class (excluding holders of Common
Stock), to elect directors, the election, term of office, filling of vacancies,
and other features of such directorships shall be governed by the terms of this
Certificate of Incorporation (including any amendment to this Certificate of
Incorporation that designates a series of Preferred Stock).
Any or all directors may be removed, with or without cause, upon the
affirmative vote of the holders of a majority of the outstanding shares of each
class of capital stock of the Corporation then entitled to vote at an election
of such directors.
The names and addresses of the persons who are to serve as directors
until their respective terms of office expire (as described below) or until
their successors are elected and qualified, are as follows:
Name Mailing Address
[RESERVED]
SIXTH: All the powers of the Corporation, insofar as the same may be
lawfully vested by this Certificate of Incorporation in the Board of Directors,
are hereby conferred upon the Board of Directors. In furtherance and not in
limitation of that power, the Board of Directors shall have the power to make,
adopt, alter, amend, and repeal from time to time the bylaws of the Corporation
and to make from time to time new bylaws of the Corporation (subject to the
right of the stockholders entitled to vote thereon to adopt, alter, amend, and
repeal bylaws made by the Board of Directors or to make new bylaws).
SEVENTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
ss.291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
ss.279 of Title 8 of the Delaware Code order a meeting of the creditors or class
of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 26
<PAGE>
of the creditors of class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this Corporation, as the case
may be, and also on this Corporation.
EIGHTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or that involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit. If the
DGCL hereafter is amended to authorize the further elimination or limitation of
the liability of directors, then the liability of a director of the Corporation,
in addition to the limitation on personal liability provided herein, shall be
limited to the fullest extent permitted by the amended DGCL. Any repeal or
modification of this Article by the stockholders of the Corporation shall be
prospective only and shall not adversely affect any limitation of the personal
liability of a director of the Corporation existing at the time of such repeal
or modification.
NINTH: The Corporation shall indemnify any person who was, is, or is
threatened to be made a party to a proceeding (as hereinafter defined) by reason
of the fact that he or she (i) is or was a director or officer of the
Corporation or (ii) while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of another
foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise, to the
fullest extent permitted under the DGCL, as the same exists or may hereafter be
amended.
Such rights shall be a contract right and as such shall run to the
benefit of any director or officer who is elected and accepts the position of
director or officer of the Corporation or elects to continue to serve as a
director or officer of the Corporation while this Article NINTH is in effect.
Any repeal or amendment of this article NINTH shall be prospective only and
shall not limit the rights of any such director or officer or the obligations of
the Corporation with respect to any claim arising from or related to the
services of such director or officer in any of the foregoing capacities prior to
any such repeal or amendment to this Article NINTH. Such right shall include the
right to be paid by the Corporation expenses incurred in defending any such
proceeding in advance of its final disposition to the maximum extent permitted
under the DGCL.
If a claim for indemnification or advancement of expenses hereunder is
not paid in full by the Corporation within sixty (60) days after a written claim
has been received by the Corporation, the claimant may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the claim,
and if successful in whole or in part, the claimant shall also be entitled to be
paid the expenses of prosecuting such claim. It shall be a defense to any such
action that such indemnification or advancement of costs of defense are not
permitted under the DGCL, but the burden of proving such defense shall be on the
Corporation. Neither the failure
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 27
<PAGE>
of the Corporation (including the Board of Directors or any Committee thereof,
independent legal counsel, or stockholders) to have made its determination prior
to the commencement of such action that indemnification of, or advancement of
costs of defense to, the claimant is permissible in the circumstances nor an
actual determination by the Corporation (including the Board of Directors or any
Committee thereof, independent legal counsel, or stockholders) that such
indemnification or advancement is not permissible shall be a defense to the
action or create a presumption that such indemnification by the Corporation is
not permissible.
In the event of the death of any person having rights of indemnification
under the foregoing provisions, such right shall inure to the benefit of his or
her heirs, executors, administrators, and personal representatives. The rights
conferred above shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, bylaw, resolution of stockholders
or directors, agreement, or otherwise.
The Corporation may additionally indemnify any employee or agent of the
Corporation to the fullest extent permitted by law.
As used herein, the term "proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such an action, suit, or
proceeding, and any inquiry or investigation that could lead to such an action,
suit, or proceeding.
TENTH: The Corporation expressly elects not to be governed by Section
203 of the DGCL.
ELEVENTH: Special meetings of stockholders of the Corporation may only
be called by the Board of Directors pursuant to a resolution adopted by a
majority of the Directors then serving, by the Chairman of the Board of
Directors, or by any holder or holders of at least twenty-five percent (25%) of
the outstanding shares of capital stock of the Corporation then entitled to vote
on any matter for which the respective special meeting is being called.
TWELFTH: Notwithstanding any other provisions of this Certificate of
Incorporation or any provision of law which might otherwise permit a lesser vote
or no vote, the affirmative vote of the holders of at least two-thirds (2/3) of
the outstanding shares of each class of capital stock of the Corporation then
entitled to vote thereon shall be required to amend, alter, or repeal any one or
more of Articles EIGHTH, NINTH and TWELFTH of this Certificate of Incorporation.
THIRTEENTH: The name and the mailing address of the incorporator are:
Name Mailing Address
Garrett A. DeVries Haynes and Boone, LLP
901 Main Street, Suite 3100
Dallas, Texas 75202
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 28
<PAGE>
THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, does make this Certificate, hereby declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this ___ day of December, 2000.
Garrett A. DeVries, Incorporator
Exhibit "A" - Proposed Amended Bylaws and Certificate of Incorporation Page 29
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
-------------- -------- ------------ ---------------- ----------------------- --------------------------------------- -------------
<S> <C> <C> <C> <C> <C> <C>
12/30/96 KHAC DFW Aircraft Lease Aircraft Lease for TA Air IX, Corp./First Security Bank $0.00
N750US 5080 Spectrum Drive
Suite 1100 West
Dallas, Texas 75248
-------------- -------- ------------ ---------------- ----------------------- --------------------------------------- -------------
12/30/96 KHAC DFW Aircraft Lease Aircraft Lease for TA Air IX, Corp./First Security Bank $0.00
N751US 5080 Spectrum Drive
Suite 1100 West
Dallas, Texas 75248
-------------- -------- ------------ ---------------- ----------------------- --------------------------------------- -------------
11/4/99 KHAC DFW Aircraft Lease Aircraft Lease Republic Advanced Freighter 901, Inc.
Agreement for N901RF 3300 S. Parker Road, 5th Floor
Aurora, CO 80014-3527 $0.00
-------------- -------- ------------ ---------------- ----------------------- --------------------------------------- -------------
11/5/99 KHAC DFW Aircraft Lease Aircraft Lease Republic Advanced Freighter 902, Inc. $0.00
Agreement Lease for 3300 S. Parker Road, 5th Floor
N902RF Aurora, CO 80014-3527
-------------- -------- ------------ ---------------- ----------------------- --------------------------------------- -------------
12/25/96 KHAC DFW Aircraft Lease Lease Agreement 264 - Pegasus Capital Corporation $0.00
ASSUMED AS MODIFIED C/o Pegasus Aviation, Inc.
4 Embarcadero Center, Suite 3550
San Francisco, CA 94111
-------------- -------- ------------ ---------------- ----------------------- --------------------------------------- -------------
9/1/99 KHAC DFW Aircraft Lease Lease Agreement 579 - First Security Bank, NA $0.00
ASSUMED AS MODIFIED 79 South Main Street
Salt Lake City, UT 84111
Attn: Corporate Trust Department
</TABLE>
Exhibit "B" - Agreements to Be Assumed Page 30
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
----------------- -------- -------- ---------------- ----------------------- --------------------------------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
11/1/99 KHAC DFW Aircraft Lease Lease Agreement 936 - Pegasus Aviation II, Inc. $0.00
ASSUMED AS MODIFIED c/o Pegasus Aviation, Inc.
4 Embarcadero Center, Suite 3550
San Francisco, CA 94111
----------------- -------- -------- ---------------- ----------------------- --------------------------------------- ---------------
11/1/99 KHAC DFW Aircraft Lease Lease Agreement 748 - Pacific AirCorp 748, Inc. $0.00
ASSUMED AS MODIFIED c/o Pegasus Aviation, Inc.
4 Embarcadero Center, Suite 3550
San Francisco, CA 94111
----------------- -------- -------- ---------------- ----------------------- --------------------------------------- ---------------
1/15/99 KHAC DFW Aircraft Lease Lease Agreement 735 - First Security Bank, NA $0.00
ASSUMED AS MODIFIED 79 South Main Street
Salt Lake City, UT 84111
Attn: Corporate Trust Department
----------------- -------- -------- ---------------- ----------------------- --------------------------------------- ---------------
7/29/99 KHAC DFW Aircraft Lease Lease Agreement 780 - First Security Bank, NA $0.00
ASSUMED AS MODIFIED 79 South Main Street
Salt Lake City, UT 84111
Attn: Corporate Trust Department
----------------- -------- -------- ---------------- ----------------------- --------------------------------------- ---------------
5/21/99 KHAC DFW Aircraft Lease Lease Agreement 916 - Pacific AirCorp 916, Inc. $0.00
ASSUMED AS MODIFIED c/o Pegasus Aviation, Inc.
4 Embarcadero Center, Suite 3550
San Francisco, CA 94111
----------------- -------- -------- ---------------- ----------------------- --------------------------------------- ---------------
11/4/99 KHAC DFW Aircraft Lease Aircraft Lease Wren Equipment Finance Ltd. $0.00
Agreement 21269 - Fitzroy House
ASSUMED AS MODIFIED 18-20 Grafton Street
Mayfair, London W1X3LE England
Contact: David L. Massie
----------------- -------- -------- ---------------- ----------------------- --------------------------------------- ---------------
7/1/99 - 7/1/00 KHInc DFW Aircraft Aircraft maintenance Accel Aviation Accessories, Inc. Rotable Repair
Maintenance Vendor # 64018 1234 Viscaye Pkwy. ($3496.29)
Agreement Cape Coral, FL 33990 (credit bal.)
</TABLE>
Exhibit "B" - Agreements to Be Assumed Page 31
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
--------- -------- ----------------- ---------------- ----------------------- --------------------------------------- --------------
<S> <C> <C> <C> <C> <C> <C>
3/6/00 KHAC Jacksonville, FL Aircraft General Terms of FlightStar Aircraft Service, Inc. NEED TO CHECK
Maintenance Agreement P.O. Box 18035 W/ PAT
Agreement Jacksonville, Florida 32229
--------- -------- ----------------- ---------------- ----------------------- --------------------------------------- --------------
__/__/00 KHAC Memphis, TN Airport Memphis-Shelby County Airport Landing &
Operating Exclusive Airport Authority Parking
Agreement Operating Agreement Director of Properties $28,822.72
2491 Winchester Road, Suite 113
Memphis, TN 38116
--------- -------- ----------------- ---------------- ----------------------- --------------------------------------- --------------
7/23/96 KHC Albuquerque, NM Airport Airfreight Operators City of Albuquerque
Operating Operating Agreement, Albuquerque International Airport A/C Parking &
Agreement as amended P.O. Box 9022 Landing
Vendor # 59550 Albuquerque, NM 87119 $47,938.82
--------- -------- ----------------- ---------------- ----------------------- --------------------------------------- --------------
2/1/95 Kitty DFW Airport Airport Aviation Operating DFW Int'l Airport V# 24361
Hawk Operating Permit No. 23664-1 P. O. Drawer DFW Landing
Airways Agreement DFW Airport, TX 75261 $18,722.18
Vendor # 24361 PO Box 844281
Vendor # 61126 Zip-75284-4281 V# 61126
Landing
$93,440.86
--------- -------- ----------------- ---------------- ----------------------- --------------------------------------- --------------
KHAC Houston, TX - Airport Airport use & lease City of Houston, Parking &
IAH Operating P.O. Box 60106 Landing
Agreement Vendor # 57261 Houston, Texas 77205-0106 $25,998.57
Attn: Finance/Dept. of Aviation
</TABLE>
Exhibit "B" - Agreements to Be Assumed Page 32
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
---------------- ---------- ---------------- ---------- -------------------- --------------------------------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
6/8/95 AIA (KH Huntsville- Airport Huntsville-Madison Huntsville-Madison Airport Rent
Int'l) Madison Operating County Air Carrier 1000 Glenn Hearn Blvd $0.00
County, Alabama Agreement Operating & Landing Box 20008
Rights Permit Huntsville, AL 35824-2101
Vendor # 61546
---------------- ---------- ---------------- ---------- -------------------- --------------------------------------- ---------------
2/1/98 - 1/31/00 AIA Indianapolis, IN Airport Airport Use Permit Airport Director Landing Fees
(KH Int'l) Operating Vendor # 31966 Indianapolis Int'l Airport $175,805.54
Agreement 2500 S. High School Road, Suite 100
Indianapolis, IN 46241
PO BOX 66755
Zip-46266-6755
---------------- ---------- ---------------- ---------- -------------------- --------------------------------------- ---------------
4/22/99 KHAC Knoxville, TN Airport Commercial Aircraft Metropolitan Knoxville Airport Landing
Operating Operating Agreement Authority $34,594.04
Agreement Vendor # 42411 P. O. Box 15600
Knoxville, TN 37901
---------------- ---------- ---------------- ---------- -------------------- --------------------------------------- ---------------
1/13/97 KHAC Los Angeles, CA Airport Non-Exclusive City of Los Angeles Landing &
Operating Operating Permit Department of Airports Parking
Agreement Vendor # 61102 1 World Way $ 149,007.07
P. O. Box 92216 Customs
Los Angeles, CA 90009-2216 $440.84
File 54989, Provider 06750 Rent
Los Angeles, CA 90074-4989 $0.00
</TABLE>
Exhibit "B" - Agreements to Be Assumed Page 33
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
---------- ------------ ------------- ---------------- ----------------------- ----------------------------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
AIA (KH Newark, NJ Airport Airport Operating The Port Authority of New York and Landing &
Int'l) Operating Agreement New Jersey Parking
Agreement One World Trade Center $19,930.21
New York, NY 10048
PO Box 17309
Zip Code-07194
---------- ------------ ------------- ---------------- ----------------------- ----------------------------------- ---------------
9/1/99 Kitty Oakland Int'l Airport Monthly Rate Aircraft Port of Oakland V# 29516 & 63801 V# 29516
Hawk Airport Operating Parking Application File No. 73752 Parking &
Airways Agreement and Agreement for Air PO Box 60000 Landing
Carrier Licensing San Francisco, CA 94160-3752 $16,074.64
Airport Facilities at Tent Site
the Metropolitan 530 Water St. V# 61140 Rent ('99)
Oakland International PO Box 2064 $545.00
Airport Oakland, CA 94604
V# 63801
Landing
$41.84
Rent $1914.40
V# 61140
Landing &
Parking
$5127.80
---------- ------------ ------------- ---------------- ----------------------- ----------------------------------- ---------------
5/14/99 KHAC Orlando, FL Airport Non Signatory Airline Greater Orlando Aviation Authority Landing
Operating Operating Agreement One Airport Blvd. $16,679.15
Agreement Vendor # 29049 Orlando, Fl 32827
</TABLE>
Exhibit "B" - Agreements to Be Assumed Page 34
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
---------------- ---------- ----------------- ------------- --------------------- ----------------------------------- --------------
<S> <C> <C> <C> <C> <C> <C>
8/25/99 KHAC Sacramento, CA Airport Operating Agreement Director of Airports Landing
Operating Sacramento Mather Sacramento County Department of $166,981.15
Agreement Airport Airports Parking
Vendor # 57712 6900 Airport Blvd. $772.50
Sacramento, CA 95837
---------------- ---------- ----------------- ------------- --------------------- ----------------------------------- --------------
9/12/97 KHAC San Francisco, Airport Airline Operating San Francisco Int'l Airport Landing &
(until revoked) CA Operating Permit International Terminal, 5th Floor Parking
Agreement Vendor # 36089 P. O. Box 8097 $142,420.61
San Francisco, CA 94128
Attn: Airport Director
PO Box 7743, Zip Code - 94120
---------------- ---------- ----------------- ------------- --------------------- ----------------------------------- --------------
11/23/87 Connie Seattle, WA Airport Operating Agreement The Port of Seattle Operations Landing
Kalitta Operating Vendor # 70588 & Dept. V# 70558
Services Agreement 29583 P. O. Box 68727 $246.15
(KH Int'l) Seattle, WA 98168 Landing &
Parking
PO Box 34249-1249 V# 29583
Seattle WA 98124-1249 $465,579.65
Rent $2031.12
---------------- ---------- ----------------- ------------- --------------------- ----------------------------------- --------------
5/20/98 KHAC Spokane, WA Airport Use Agreement between Spokane Airport Board Landing
Operating the Spokane Airport P. O. Box 19186 $57,023.09
Agreement Board and KHAC Spokane, WA 99219
Vendor # 38789
---------------- ---------- ----------------- ------------- --------------------- ----------------------------------- --------------
5/1/99 KH Cargo Airport Airport Cargo Ramp Denver International Airport Ramp Rental,
(effective date) & KH Inc Denver, CO Operating Facilities Agreement Airport Office Building, Room 9870 Parking and
Agreement and btwn City and County 8500 Pena Boulevard Landing Fees
Ramp Rental of Denver and KH Inc Denver, CO 80249-6340 $61,315.36
and KH Cargo at DIA Attn: William T. Roche (at signatory
rate)
</TABLE>
Exhibit "B" - Agreements to Be Assumed Page 35
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
---------- --------- ----------------- ---------------- ----------------------- --------------------------------------- ------------
<S> <C> <C> <C> <C> <C> <C>
4/13/98 KHInc. Ft. Wayne, IN Airport Building Lease Ft. Wayne-Allen County Authority Parking,
Operating Room 209, Lt. Paul Baer Terminal Landing,
Agreement/Real Addendum No. 1 to Fort Wayne, IN 46809 Customs
Property Lease Building Lease $323,377.38
Ground Lease
Operating
Agreement -
ASSUMED AS
MODIFIED
And any all other
agreements, if any,
by any Debtor with
the Authority or any
related party that
relate to facilities
and operations by
any Debtor at the
Fort Wayne
International Airport
Vendor # 68218
</TABLE>
Exhibit "B" - Agreements to Be Assumed Page 36
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
---------- ---------- --------------- ---------------- ----------------------- --------------------------------------- -------------
<S> <C> <C> <C> <C> <C> <C>
2/16/99 AIA (KH Mather, CA Auto Lease Blazer lease Team One Chevrolet-Oldsmobile, Inc. $0.00
Int'l) Vendor #61693; 1616 Lansing Rd.
GMAC Smartlease Charlotte, MI 48813
GMAC
PO Box 5180
Carol Stream IL 60197-5180
---------- ---------- --------------- ---------------- ----------------------- --------------------------------------- -------------
4/9/98 AIA (KH ALL Communication MCI One Special MCI Telecommunications Corporation $174,690.51
(3 yrs) Int'l - Services Customer Arrangement(1) Three Ravisin Drive
but used Agreement Multiple Accounts Atlanta, GA 30346
by all) (long distance
and network)
---------- ---------- --------------- ---------------- ----------------------- --------------------------------------- -------------
KHAC Atlanta/Boston/ Deicing Deicing at Atlanta, Delta Air Lines $0.00
DFW Agreement Boston & DFW TOC-1, Dept. 490
Hartsfield Atlanta Int'l Airport
Atlanta, GA 30320-0001
---------- ---------- --------------- ---------------- ----------------------- --------------------------------------- -------------
Various ALL ALL Equipment lease Vendor # 55680 AT&T Wireless (V. # 59984) V# 55680
Entities PO Box 650054 PO Box 97058 $12,527.56
Dallas, TX 75265 (Acct. # 8046) Various Ph's
Vendor # 66351 V# 59984
PO Box 78224 $37,179.32
Phoenix, AZ 85062
V# 66351
$327.39
Various Ph's
</TABLE>
------------
(1) The MCI Contract is being assumed on a preliminary basis, pending further
financial analysis. In the event that the Debtors ultimately determine not
to assume the MCI Contract, it will notify MCI accordingly and shall agree
to give MCI 45 days to file a Proof of Claim attributable to its premature
termination damages.
Exhibit "B" - Agreements to Be Assumed Page 37
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
------------- ----------- --------------- ---------------- -------------------- --------------------------------------- ------------
<S> <C> <C> <C> <C> <C> <C>
Various All ALL Equipment lease Pagers (multiple Verizon Pagers(Wireless Messaging) $48,246.00
Entities accounts) 580 Decker STE 101
Acct #"s Irving, TX 75062
H1-770266
H1-770267
H1-770268
------------- ----------- --------------- ---------------- -------------------- --------------------------------------- ------------
12/31/99 KHAC Blytheville, AR Equipment lease Equipment lease Finova Capital Corp. $23,751.36
#C101100102 115 W Century Rd.
Vendor # 80872 Paramus, NJ 07652
Attn: Pamela Marchant
ATTN: John W. Ferrell
------------- ----------- --------------- ---------------- -------------------- --------------------------------------- ------------
KHAC DFW Equipment lease Equipment3 Cannon IOS Capital $0.00
microfiche, acct PO Box 9115
#429993-201904, Macon, GA 31208-9115
vendor #32504
------------- ----------- --------------- ---------------- -------------------- --------------------------------------- ------------
KHInc. DFW Equipment lease Vending machines Aramark Refreshment Services $5699.10
Vendor # 65527 5073 Martin Luther King Fwy
Ft. Worth, TX 76119
------------- ----------- --------------- ---------------- -------------------- --------------------------------------- ------------
8/12/99 KHAC Mather, CA Equipment Lease Lease of 6 trailers GE Capital Modular $3707.73
Vendor # 28097 3287 Monier Circle
Rancho Cordova, CA 95742
------------- ----------- --------------- ---------------- -------------------- --------------------------------------- ------------
11/8/99 KHAC Sacramento, CA Equipment lease Ground Equipment Finova Capital Corp. $86,797.95
lease #C101100101 115 W. Century Rd.
Vendor # 80872 Paramus, NJ 07652
Attn: Pamela Marchant and
John W. Ferrell
------------- ----------- --------------- ---------------- -------------------- --------------------------------------- ------------
KHAC Postal SEA Equipment Lease Lease # 56360 Lease Corp. of America (vendor # $1,222.44
(3 Additional Radios 79149) PO Box 650336
leased) Dallas, TX 75265-0336
</TABLE>
Exhibit "B" - Agreements to Be Assumed Page 38
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
---------- --------- ----------------- ---------------- ----------------------- --------------------------------------- ------------
<S> <C> <C> <C> <C> <C> <C>
KHAC SEA Equipment Lease Lease of Radios Lease Corp. of America V# 39562
#33681 and #50558 PO Box 2000 $985.87
Acct #132827 - Vendor Houston, TX 77216-0956
#39562, Vendor # 39554 V# 39554
$1974.74
---------- --------- ----------------- ---------------- ----------------------- --------------------------------------- ------------
5/26/99 KHInc ALL Fare Agreement Agreement for Free Southwest Airlines Co. Employee
and Reduced Rate P.O. Box 36611 Tickets
Transportation dated Dallas, TX 75235-1611 $338.71
5/26/99 Attn: Kay Gaskill, Mgr. Pass Bureau
Vendor # 38172 PO Box 971093
Zip 75397
---------- --------- ----------------- ---------------- ----------------------- --------------------------------------- ------------
________ KHInc. DFW Furniture Lease Vendor #39204 Steelcase Financial Services, Inc. $19,861.42
Office furniture lease PO Box 91200
Chicago, IL 60693
---------- --------- ----------------- ---------------- ----------------------- --------------------------------------- ------------
KHInc DFW Furniture Lease 2 leases Business Interiors $368.06
Vendor #57944 PO Box 911836 (2 monthly
Lease # 196893 Dallas, TX 75391-1836 payments)
---------- --------- ----------------- ---------------- ----------------------- --------------------------------------- ------------
12/1/99 KHCargo Fort Wayne, IN Furniture Lease Lease for apt Cort Furniture $10.00 Late
(12 mos) furniture 4904 Century Plaza Rd. Fee
Vendor #76999 Indianapolis, IN 46254
---------- --------- ----------------- ---------------- ----------------------- --------------------------------------- ------------
KHAC Mather, CA Furniture lease Vendor #77029 Brook Furniture Rental $1124.25
2199 Norse Dr., Suite A
Pleasant Hill, CA 94523
Dept. LA 21909
Pasadena, CA 91185-1909
</TABLE>
Exhibit "B" - Agreements to Be Assumed Page 39
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
----------------- --------- ------------- ----------- ----------------------- --------------------------------------- --------------
<S> <C> <C> <C> <C> <C> <C>
2/28/00 KHCargo BNA Ground Ground Handling Burton's Air Freight Service $0.00
Handling Agreement 321 Airfreight Blvd.
Agreement Vendor # 87097 Nashville, TN 37217
Attn: Bobby Burton, Owner
317 Airfreight Blvd.
----------------- --------- ------------- ----------- ----------------------- --------------------------------------- --------------
6/11/99 KHAC GEG Ground Ground Handling Spokane Airways Rent
Handling Agreement P.O. Box 19009 $3117.52
Agreement Vendor # 38771 Spokane International Airport Grnd Handling
Spokane, WA 99219 $189,479.35
----------------- --------- ------------- ----------- ----------------------- --------------------------------------- --------------
5/30/2000 KHCargo Oakland, CA Ground Ground Handling Transair Services Grnd Handling
(mo-to-mo) Handling Agreement P. O. Box 1523 $777.78
Agreement Vendor #44337 Winter Park, FL 32790
Attn: Ken Sturgill
----------------- --------- ------------- ----------- ----------------------- --------------------------------------- --------------
3/24/98 KHAC TYS Ground Ground Handling KnoxAir Rent
Handling Agreement 2221 Airport Highway $600.00
Agreement Vendor # 37735 Alcoa, TN 37701 Grnd Handling
& Tech Svcs
$71,718.80
----------------- --------- ------------- ----------- ----------------------- --------------------------------------- --------------
2/1/95 AIA (KH Newark, NJ Ground Newark International Port Authority of New York and $0.00
Int'l) Handling Privilege Permit New Jersey
License One World Trade Center
New York, NY 10048
----------------- --------- ------------- ----------- ----------------------- --------------------------------------- --------------
3/1/00 - 2/28/02 KHInc ALL Insurance Employee Assistance Community Health Plus $0.00
Program Services d/b/a Behavioral Health Partners
Agreement Employee Assistance Program
3/1/00 120 S. Central, Suite 1000
Vendor # 84466 Clayton, MO 63105
Attn: June Lowell-Oates
</TABLE>
Exhibit "B" - Agreements to Be Assumed Page 40
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
------------ ------------ ------------ ---------------- ---------------------- --------------------------------------- -------------
<S> <C> <C> <C> <C> <C> <C>
7/1/99 KHInt'l ALL Insurance Administrative Allied Benefit Systems, Inc. $0.00
6/30/00 Management Services Agreement (Claims Administrator)
(see next Group #22772 208 S. LaSalle St., Suite 1300
entry) (not executed) Chicago, IL 60604
Vendor # 66641
------------ ------------ ------------ ---------------- ---------------------- --------------------------------------- -------------
5/1/00 - KHInc ALL Insurance Administrative Comsal, Inc. $500.00
12/31/00 Management Services Agreement d/b/a TaxSaver Plan
dated 5/1/00 4131 N. Central Expwy.
(not executed by KH) Suite 1140, Lock Box 45
Section 125 flexible Dallas, TX 75204
benefit plan
Vendor # 85900
------------ ------------ ------------ ---------------- ---------------------- --------------------------------------- -------------
9/1/93 KHInc ALL Insurance Group Annuity CIGNA Retirement & Investment Services $0.00
Amended Policy Contract #GA-12649 Connecticut General Life Insurance Co.
12/1/96 P.O. Box 2975
Hartford, CT 06104
------------ ------------ ------------ ---------------- ---------------------- --------------------------------------- -------------
5/20/99 - KHInc ALL Insurance Indemnification for Underwriters at Lloyds $0.00
6/1/00 Policy Loss of Profit C/o The Aviation Agency
Commission 500 Coventry Lane, Suite 140
Crystal Lake, IL 60014
Vendor # 17435
------------ ------------ ------------ ---------------- ---------------------- --------------------------------------- -------------
3/29/00 - KH Charters ALL Insurance Inland marine Northern Assurance Company of America $0.00
3/29/01 Dba Policy insurance C/o The Aviation Agency
Kalitta 500 Coventry Lane, Suite 140
Flying Svc Crystal Lake, IL 60014
Vendor # 17435
------------ ------------ ------------ ---------------- ---------------------- --------------------------------------- -------------
8/1/99 - KHInc, et ALL Insurance Inland marine Northern Assurance Company of America $0.00
8/1/00 al Policy insurance C/o The Aviation Agency
500 Coventry Lane, Suite 140
Crystal Lake, IL 60014
Vendor # 17435
</TABLE>
Exhibit "B" - Agreements to Be Assumed Page 41
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
------------- ------------ ----------- ---------------- ---------------------- --------------------------------------- -------------
<S> <C> <C> <C> <C> <C> <C>
10/1/99 - KHCharters, ALL Insurance Aircraft hull & Illinois National Insurance Co. (AIG) $0.00
10/1/00 Kalitta Policy liability insurance C/o The Aviation Agency
Flying 500 Coventry Lane, Suite 140
Service, Crystal Lake, IL 60014
OKT Vendor # 17435
------------- ------------ ----------- ---------------- ---------------------- --------------------------------------- -------------
5/20/99 - KH ALL Insurance Airline hull & Houston Casualty Company $0.00
6/1/00 Companies Policy liability (15%) C/o The Aviation Agency
insurance 500 Coventry Lane, Suite 140
Crystal Lake, IL 60014
Vendor # 17435
------------- ------------ ----------- ---------------- ---------------------- --------------------------------------- -------------
5/20/99 - KH ALL Insurance Airline hull & Underwriters at Lloyds & various $0.00
6/1/00 Companies Policy liability (85%) insurance companies
insurance C/o The Aviation Agency
500 Coventry Lane, Suite 140
Crystal Lake, IL 60014
Vendor # 17435
------------- ------------ ----------- --------------- ----------------------- --------------------------------------- -------------
3/13/00 - KHInc ALL Insurance D&O Liability Great American Insurance Company $0.00
4/1/01 Policy insurance C/o The Aviation Agency
500 Coventry Lane, Suite 140
Crystal Lake, IL 60014
Vendor # 17435
------------- ------------ ----------- --------------- ----------------------- --------------------------------------- -------------
4/1/00 - KHInc, et ALL Insurance Excess auto National Union Fire Insurance Company $0.00
4/1/01 al Policy liability insurance C/o The Aviation Agency
500 Coventry Lane, Suite 140
Crystal Lake, IL 60014
Vendor # 17435
</TABLE>
Exhibit "B" - Agreements to Be Assumed Page 42
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
------------- ------------ ----------- --------------- ----------------------- --------------------------------------- -------------
<S> <C> <C> <C> <C> <C> <C>
7/1/98 KHInc ALL Insurance Life Insurance Master Life Insurance Company of North Cannot ID
(annual) Policy Document America Vendor/Acct.
Re-issued Policy #FLX-050917 1601 Chestnut St.
5/1/00 Philadelphia, PA 19192-5744
------------- ------------ ----------- --------------- ----------------------- --------------------------------------- -------------
10/1/99 KHInc ALL Insurance Group Insurance Policy Hartford Life & Accident Insurance Co. V# 41937
(annual) Policy #GLT-206609 17855 Dallas Pkwy, Suite 100 $11,660.98
Long term disability Dallas, TX 75287
Vendor # 41937 Attn: Rebecka Nichols
Vendor # 29840 PO Box 891954
Zip - 75389-1954
------------- ------------ ----------- --------------- ----------------------- --------------------------------------- -------------
Various KHInt'l, ALL Insurance Mexican aircraft Seguros Comercial America and $0.00
effective KH Policy liability insurance Seguros Interamericana Independencia
dates Charters, C/o The Aviation Agency
KH Aircargo 500 Coventry Lane, Suite 140
Crystal Lake, IL 60014
Vendor # 17435
------------- ------------ ----------- --------------- ----------------------- --------------------------------------- -------------
5/1/00 KHInc ALL Insurance Group Insurance Policy UNUM Life Insurance Co. of America $0.00
(annual) Policy (Draft) dated 5/1/00 North Central Plaza I
Policy #88013-001 12655 N. Central Expwy., Suite 500
Pilots LTD insurance Dallas, TX 75243
Vendor # 71251 Attn: Steve Brooks, Sr. AE
33222 Treasury Center
Chicago, IL 60694-3200
</TABLE>
Exhibit "B" - Agreements to Be Assumed Page 43
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
------------- ------------ ----------- --------------- ----------------------- --------------------------------------- -------------
<S> <C> <C> <C> <C> <C> <C>
4/1/00 - KHInc, et Insurance Primary Automobile Northern Assurance Company of America $0.00
4/1/01 al ALL Policy insurance C/o The Aviation Agency
500 Coventry Lane, Suite 140
Crystal Lake, IL 60014
Vendor # 17435
------------- ------------ ----------- --------------- ----------------------- --------------------------------------- -------------
6/1/99 - KHCharters, ALL Insurance Professional Evanston Insurance Company $0.00
6/1/00 KH Charters Policy liability insurance C/o The Aviation Agency
Dba 500 Coventry Lane, Suite 140
Kalitta Crystal Lake, IL 60014
Flying Svc, Vendor # 17435
KHInt'l dba
AIA, KH
Medflight
------------- ------------ ----------- --------------- ----------------------- --------------------------------------- -------------
4/1/00 - KHInc, et ALL Insurance Property insurance Northern Assurance Company of America $0.00
4/1/01 al Policy C/o The Aviation Agency
500 Coventry Lane, Suite 140
Crystal Lake, IL 60014
Vendor # 17435
------------- ------------ ----------- --------------- ----------------------- --------------------------------------- -------------
5/10/99 - KHInt'l dba ALL Insurance Storage tank Zurich Insurance Company $0.00
5/10/00 AIA, KH Policy pollution liability C/o The Aviation Agency
Cargo insurance 500 Coventry Lane, Suite 140
Crystal Lake, IL 60014
Vendor # 17435
------------- ------------ ----------- --------------- ----------------------- --------------------------------------- -------------
5/20/99 - KHInt'l ALL Insurance War hull insurance Underwriters at Lloyds & various $0.00
6/1/00 KHAC Policy companies
C/o The Aviation Agency
500 Coventry Lane, Suite 140
Crystal Lake, IL 60014
Vendor # 17435
</TABLE>
Exhibit "B" - Agreements to Be Assumed Page 44
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
------------- ------------ ----------- --------------- ----------------------- --------------------------------------- -------------
<S> <C> <C> <C> <C> <C> <C>
1/1/00 - KHInc & ALL Insurance Workers Comp/ The Insurance Company of the State of $0.00
1/1/01 all subs Policy Employers Liability Pennsylvania
insurance C/o The Aviation Agency
500 Coventry Lane, Suite 140
Crystal Lake, IL 60014
Vendor # 17435
------------- ------------ ----------- --------------- ----------------------- --------------------------------------- -------------
4/1/00 KHInc ALL Insurance Letter agreement ReliaStar Life Insurance Company $0.00
(annual) Reimbursement 2/23/00 5080 Spectrum Dr.
Excess risk insurance Suite 711-West
(medical) Addison, TX 75001
Attn: Mark E. Stecklein
------------- ------------ ----------- --------------- ----------------------- --------------------------------------- -------------
4/7/00 KHCargo FWA Maintenance Sharp fax equipment Copelco Capital, Inc. $274.05
(12 mos) Agreement maintenance agmt PO Box 41647
Vendor # 22795 Philadelphia, PA 19101-1647
------------- ------------ ----------- --------------- ----------------------- --------------------------------------- -------------
KHCargo FWA - MX Maintenance Copier maintenance Imaging Office Systems $0.00
Agreement (annual) PO Box 80250
Vendor # 73453 FT. Wayne IN 46898-0250
</TABLE>
Exhibit "B" - Agreements to Be Assumed Page 45
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
------------- ------------ ----------- --------------- ----------------------- --------------------------------------- -------------
<S> <C> <C> <C> <C> <C> <C>
All ALL Miscellaneous: Various Various None
Entities All Federal,
State and
Local
Governmental
Permits,
Licenses,
Approvals,
Authorizations,
Registrations
Protected
Trademarks,
Protected
Servicemarks,
and State
Qualifications
in place at
5/1/00
------------- ------------ ----------- --------------- ----------------------- --------------------------------------- -------------
KH Inc, KH ALL Miscellaneous: Various Various None
Aircargo, All Software
KH Cargo, Licenses and
KH Agreements in
Charters, place at 5/1/00
O.K.
Turbines
------------- ------------ ----------- --------------- ----------------------- --------------------------------------- -------------
2/1/98 - KHInc DFW (1535) Real Property Sublease Agreement - Sky Chefs, Inc. Rent
4/30/03 Lease 1535 W. 20th Street 524 East Lamar Blvd. $0.00
Arlington, TX 76011
Vendor #37364
1/08/98 KHInc Option Option Agreement for Dallas/Fort Worth International $0.00
Agreement on Sky Chefs' Property Airport Board
Real Property East Airfield Drive
Lease at 3/1/03 DFW Airport, Texas 75261
</TABLE>
Exhibit "B" - Agreements to Be Assumed Page 46
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
------------- ------------ ----------------- --------------- ------------------- ------------------------------------- -------------
<S> <C> <C> <C> <C> <C> <C>
12/31/99 AIA (KH Newark, NJ Real Property Supplemental The Port Authority of New York and Rent
Int'l) Lease Agreement and New Jersey $100,772.64
Assignment with One World Trade Center
Assumption and New York, NY 10048
Consent Agreement PO Box 17309
(bldg. 153) Zip Code-07194
Vendor # 42171
------------- ------------ ----------------- --------------- ------------------- ------------------------------------- -------------
2/1/00 - KHC Albuquerque, NM Real Property South Air Cargo Director of Aviation Rent
1/31/01 d/b/a Lease Building Lease and Albuquerque International Sunport $0.00
KHAC Agreement P. O. Box 9948
Albuquerque, NM 87119
------------- ------------ ----------------- --------------- ------------------- ------------------------------------- -------------
2/1/99 AIA (KH Anchorage Int'l Real Property Terminal building State of Alaska Rent
(mo-to-mo) Int'l) Airport Lease lease Anchorage Int'l Airport $0.00
Vendor # 64154 P. O. Box 196960
Anchorage, AK 99519
------------- ------------ ----------------- --------------- ------------------- ------------------------------------- -------------
10/7/99 KHAC Anchorage, AK Real Property Ramp Sublease Alaska Cargoport, LLC Parking
(mo-to-mo) Lease Vendor # 77916 Lynxs Holdings LLC $38,700
1301 Capital of Texas Hwy. South
Suite B-125
Austin, TX 78746
Attn: Raymond J. Brimble
Mapco Lynxs Alaska Cargoport LLC
9501 Cargo Ave STE 100
Austin, TX 78719
</TABLE>
Exhibit "B" - Agreements to Be Assumed Page 47
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
------------- --------- ----------------- --------------- --------------------- --------------------------------------- ------------
<S> <C> <C> <C> <C> <C> <C>
6/1/93 AIF (KH Atlanta, GA Real Property Lease Agreement Airport Group International, Inc. $0 Rent due
(mo-to-mo) Int'l) Lease between Lockheed Wm. B. Hartsfield International
Air Terminal, Inc. Airport
and AIA at Atlanta P. O. Box 45568
Hartsfield Atlanta, GA 30320
International
Airport File # 54603
Los Angeles, CA 90074-4603
Letter dtd
10/23/98 indicating
lease effective
until 01/01/01
Vendor # 81730 &
55631
------------- --------- ----------------- --------------- --------------------- --------------------------------------- ------------
9/15/99 KHAC Billings, MT Real Property Office Space Lease Corporate Air Rent
and Lease Agreement, as amended P. O. Box 81050 $0.00
2/1/00 Vendor # 74298 Billings, MT 59108-1050
Attn: Linda Overstreet
------------- --------- ----------------- --------------- --------------------- --------------------------------------- ------------
11/20/99 - KHAC Blytheville, AR Real Property Facilities Lease Blytheville-Gosnell Regional Utilities
12/31/99 (Postal) Lease Agreement Airport Authority $2085.55
Vendor #20685 P. O. Box 166
Blytheville, AK 72316-0166
------------- --------- ----------------- --------------- --------------------- --------------------------------------- ------------
1/15/98 - KHAC Blytheville, AR Real Property Sublease Agreement Blytheville-Gosnell Regional Rent
10/15/98 Lease building 214 space Airport Authority $0.00
(extended) Vendor # 20685 P. O. Box 166
Blytheville, AK 72316-0166
</TABLE>
Exhibit "B" - Agreements to Be Assumed Page 48
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
-------------- ------- -------------- --------------- ----------------------- --------------------------------------- --------------
<S> <C> <C> <C> <C> <C> <C>
11/12/99 KHAC Boise, ID Real Property Letter agreement Boise Air Service, Inc. Grnd
coterminous Lease Vendor # 58041 4125 W. Wright St. Handling
with US Postal Boise, ID 83705 $28,728.38
Service
-------------- ------- -------------- --------------- ----------------------- --------------------------------------- --------------
11/9/98- Kitty Denver, CO Real Property Warehouse/Premise Miami Aircraft Support, Inc. Rent
11/30/99 Hawk Lease Lease 9100 S. Dadeland Blvd. $0.00
One Datran Center, Suite 1250
Miami, FL 33156
-------------- ------- -------------- --------------- ----------------------- --------------------------------------- --------------
KHInc. DFW (1501) Real Property Rental of warehouse/ Robert Grammer Rent
Lease office space (1501 W. 950 Hwy 98 E Unit 7052 $6652.00
20th St.) Destin, FL 32541
Vendor # 57418
-------------- ------- -------------- --------------- ----------------------- --------------------------------------- --------------
12/15/99 KHInc. DFW (1515) Real Property Agreement and DFW Int'l Airport Board V# 24361
Lease Assumption of Lease/ East Airfield Drive Util $2335.40
Lease Amendment P. O. Drawer DFW Finance Chrg
(1515 W. 20th) Dallas/Ft. Worth Airport, TX 75261 $125.78
Misc.'99
$3836.00
V# 61126
Rent $6481.95
Util $2607.61
Finance Chrg
$30.45
-------------- ------- -------------- --------------- ----------------------- --------------------------------------- --------------
11/29/99 Kitty Ft. Wayne, IN Real Property Apartment Lease Willows of Coventry $0.00
11/30/00 Hawk Lease (4713 Coventry 4499 Coventry Parkway
Parkway) Ft. Wayne, IN 46804
Vendor # 77000
</TABLE>
Exhibit "B" - Agreements to Be Assumed Page 49
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
------------- ------------ ----------------- --------------- -------------------- ------------------------------------- ------------
<S> <C> <C> <C> <C> <C> <C>
7/1/92 - OKT Hollister, CA Real Property Lease Agreement - City of Hollister $0.00
6/30/97 Lease Hollister Municipal 375 Fifth St.
(mo-to-mo) Airport Hollister, CA 95023
------------- ------------ ----------------- --------------- -------------------- ------------------------------------- ------------
6/1/94 AIA Honolulu, HI Real Property Airport Base Administrator Back Rent,
(27 years) (KH Int'l) Lease Facilities Area, Airports Division Late Charges
South Ramp, Honolulu Honolulu International Airport and Past Due
Int'l Airport 400 Rodgers Blvd., Suite 700 Landing Fees
Vendor # 61811 Honolulu, HI 96819-1880 under
unassumed
operating
agreements
Approx.
$587,000
4/1/98 - Same - as Real Property Partial Sublease RPS, Inc. $0.00
3/31/2001 sublessor Sublease and License 1000 RPS Dr.
(exercised Corapolis, PA 15108
option to
renew)
6/1/98 - Same - as Real Property Partial Sublease Federal Express Corporation $0.00
5/31/2003 sublessor Sublease and License Airport Relations and Development
Delivery Code 7752
U.S. Mail P.O. Box 727
Memphis, TN 38194-7752
------------- ------------ ----------------- --------------- -------------------- ------------------------------------- ------------
3/1/2000 KHAC Houston, TX Real Property Rent Agreement Genesis Aircraft Support, Inc. $0.00
(mo-to-mo) Lease Vendor # 82857 P. O. Box 91835
Elk Grove Village, IL 60009
</TABLE>
Exhibit "B" - Agreements to Be Assumed Page 50
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
----------- --------- ----------------- --------------- ----------------------- --------------------------------------- ------------
<S> <C> <C> <C> <C> <C> <C>
2/1/99 KHInc. Kansas City, MO Real Property Letter agreement Air Freight Center, Inc. Rent
(mo-to-mo) Lease Vendor # 15464 Kansas City International Airport $0.00
P. O. Box 20104
Kansas City, MO 64195
----------- --------- ----------------- --------------- ----------------------- --------------------------------------- ------------
KH Int'l Los Angeles, CA Real Property Bldg lease, 5628 City of Los Angeles Rent $0.00
Lease Century Blvd. Dept. of Airports, One World Way
(executed?) P.O. Box 92216
Vendor # 61102 Los Angeles, CA 90009-2216
----------- --------- ----------------- --------------- ----------------------- --------------------------------------- ------------
12/20/99 KHAC Memphis, TN Real Property Lease Agreement for Memphis-Shelby County Airport Rent
(mo-to-mo) Lease Air Cargo Bldg. No. 1 Authority $2187.15
Vendor # 42163 Director of Properties
2491 Winchester Road, Suite 113
Memphis, TN 38116
----------- --------- ----------------- --------------- ----------------------- --------------------------------------- ------------
KHAC Minneapolis/St. Real Property Office and Hangar AirVantage, LLC Rent
Paul , MN Lease Space Lease P. O. Box 17010 $660.00
Vendor # 16125 Minneapolis, MN 55417
6401 34th Ave South
Zip- 55450
----------- --------- ----------------- --------------- ----------------------- --------------------------------------- ------------
1991 AIA (KH Morristown, TN Real Property Construction, City of Morristown #1
(5 years -- Int'l) Lease Purchase and Lease PO Box 1654 $6451.03
extended) Agreement Morristown, TN 37816-1654 #2
Vendor # 64772 $1300.00
</TABLE>
Exhibit "B" - Agreements to Be Assumed Page 51
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
------------ --------- --------------- --------------- ---------------------- --------------------------------------- --------------
<S> <C> <C> <C> <C> <C> <C>
12/1/98 KHAC Orlando, FL Real Property Letter agreement Cargex Orlando II Limited $0.00
(mo-to-mo) Lease office and warehouse Partnership
space c/o Cargex Properties
Vendor # 57521 49 Atlantic Place
South Portland, ME 04106
------------ --------- --------------- --------------- ---------------------- --------------------------------------- --------------
3/1/94 AIA (KH Philadelphia Real Property Lease Agreement Ridgely/Philadelphia Ltd. Taxes
(7 years) Int'l) Int'l Airport, Lease Vendor # 67781 Partnership $7413.99
PA 7-I Gwynns Mill Court Rent
Owings Mills, MD 21117 $3548.01
------------ --------- --------------- --------------- ---------------------- --------------------------------------- --------------
5/1/99 Kitty Phoenix, AZ Real Property Commercial Lease - Cutter Aviation Rent
Hawk Lease hangar offices 2802 E. Old Tower Road $802.50
Airlines Vendor # 63921 Phoenix, AZ 85034
------------ --------- --------------- --------------- ---------------------- --------------------------------------- --------------
1/21/99- KHInc. Portland, OR Real Property South Cargo Complex Port of Portland Landing
3/31/99 Lease Interim Facility Lease P. O. Box 5095 $101,323.04
Vendor # 29559 Portland, OR 97208-5095 Finance Charge
$269.37
------------ --------- --------------- --------------- ---------------------- --------------------------------------- --------------
3/28/00 KHAC Sacramento, CA Real Property Agreement for Director of Airports Rent
Lease Sublease of Property Sacramento County Department of $10,005.71
Mather Airport Airports
Vendor # 57712 6900 Airport Blvd.
Sacramento, CA 95837
------------ --------- --------------- --------------- ---------------------- --------------------------------------- --------------
9/8/99 - KHAC San Diego, CA Real Property Office Space Rental Jimsair Aviation Services, Inc. Rent
9/8/2002 Lease Agreement 2904 Pacific Highway $1180.00
Vendor # 74612 San Diego, CA 92101 Parking
Attn: Phil Bracamonte $9200.00
------------ --------- --------------- --------------- ---------------------- --------------------------------------- --------------
KHAC SEATAC Real Property Lease of 22,048 sq ft Transiplex (Seattle) Inc. Rent Deposit
Lease bldg E Unit E-102 & P. O. Box 68515 $19,625.34
E-104 Seattle, WA 98168
Vendor # 44492
</TABLE>
Exhibit "B" - Agreements to Be Assumed Page 52
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
------------ --------- --------------- --------------- ---------------------- --------------------------------------- --------------
<S> <C> <C> <C> <C> <C> <C>
12/12/89 - Connie Willow Run Real Property Lease of Building No. County of Wayne, Michigan Rent and
4/30/2009 Kalitta Airport Lease 2613 and 2607 600 Randolph other
Services -Ypsilanti, MI Vendor # 44231 Detroit, MI 48226 charges
(KH Vendor # 61093 to be
Int'l) Wayne County Treasurer determined
801 Willow Run Airport $__________
Ypsilanti, MI 48198-0801
------------ --------- --------------- --------------- ----------------------- -------------------------------------- --------------
6/30/99 KHCargo Ft. Wayne, IN Real Property Restaurant Facility Only Boys, Inc. Meals
5/31/01 Sub-Lease Sublease 6206 Midwood Drive $22,702.69
(portion of Vendor # 66506 Ft. Wayne, IN 46835
Fort Wayne
Bldg.)
------------ --------- --------------- --------------- ----------------------- -------------------------------------- --------------
KHAC ALL Service Radio communication ARINC KHAC Acct#
Agreement services Communication by Proxy $11,958.78
(multiple accounts), PO Box 277217
vendor #17021 Atlanta, GA 30384-7217
KHAC Acct #
KITHAWAIR01
------------ --------- --------------- --------------- ----------------------- -------------------------------------- --------------
8/15/99 - KHInc DFW Service Agreement for The Network, Inc. $0.00
8/15/00 Agreement Information Services 333 Research Court
(annual) dated 8/1/99 Norcross, GA 30092
Vendor # 71633 Attn: Julio Cantillo
</TABLE>
Exhibit "B" - Agreements to Be Assumed Page 53
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
------------- --------- ----------------- --------------- --------------------- ------------------------------------- --------------
<S> <C> <C> <C> <C> <C> <C>
3/15/00 KHInc DFW Service Subscriber Agreement Database Technologies, Inc. $0.00
Agreement dated 3/15/00 (not 4530 Blue Lake Dr.
executed by DBT) Boca Raton, FL 33431
Vendor # 89317 Attn: Ann McNamara, Contracts Mgr.
------------- --------- ----------------- --------------- --------------------- ------------------------------------- --------------
KHInc. DFW Service Beverage service, Executive Coffee Service $1998.87
Agreement vendor #55601 PO Box 223721
Dallas, TX 75222
------------- --------- ----------------- --------------- --------------------- ------------------------------------- --------------
1/1/98 - KHAC DFW Simulator Agreement btwn KHAC FlightSafety Boeing $449,000 (1/3
12/31/03 Lease and Marine Air Terminal payable at
(to be Agreement FlightSafetyBoeing LaGuardia Airport execution of
amended) Training Flushing, NY 11371 amendment,
International, LLC Attn: Legal Dept. remaining 2/3
for 727-200 Simulator over 12
Use - ASSUMED AS months)
AMENDED AND MODIFIED
------------- --------- ----------------- --------------- --------------------- ------------------------------------- --------------
2/19/99 - KHAC ANC/SEA/ANC USPS USPS #D5A-94-03 United States Postal Service $0.00
1/31/01 USPS #D1E-94-03
------------- --------- ----------------- --------------- --------------------- ------------------------------------- --------------
12/14/96 - KHAC CNNET USPS USPS #96-01 (CNNET) United States Postal Service $0.00
9/30/97
------------- --------- ----------------- --------------- --------------------- ------------------------------------- --------------
5/4/98 - KHAC PDX/GEG USPS USPS #99-04 (PDX) United States Postal Service $0.00
4/27/01
------------- --------- ----------------- --------------- --------------------- ------------------------------------- --------------
2/10/98 - KHAC SEA/IND/SEA USPS USPS #SEASEG 98-01 United States Postal Service $0.00
10/27/00
------------- --------- ----------------- --------------- --------------------- ------------------------------------- --------------
7/11/98 - KHAC SFO/IND/SFO USPS USPS #HQ98-04 United States Postal Service $0.00
6/24/00 LAX/IND/LAX
DEN/IND/DEN
SAT/DFW/ORD
</TABLE>
Exhibit "B" - Agreements to Be Assumed Page 54
<PAGE>
AGREEMENTS TO BE ASSUMED
<TABLE>
<CAPTION>
DATE ENTITY LOCATION TYPE DOCUMENT NAME/ADDRESS OF NON-KH PARTY CURE AMOUNT
------------ ------------ ----------------- --------------- -------------------- ------------------------------------ --------------
<S> <C> <C> <C> <C> <C> <C>
4/18/98 - KHAC TYS/DFW/SEA/ USPS USPS #HQ98-03 United States Postal Service $0.00
4/27/00 GEG
------------ ------------ ----------------- --------------- -------------------- ------------------------------------ --------------
6/10/00 - KHAC Various USPS USPS #ASYS-99-01 United States Postal Service $0.00
9/8/00 Domestic Air and R-99-01
Stops
------------ ------------ ----------------- --------------- -------------------- ------------------------------------ --------------
8/28/99 - KHAC WNET USPS USPS #HQ99-05 United States Postal Service $0.00
8/26/05 (WNET)
</TABLE>
Exhibit "B" - Agreements to Be Assumed Page 55
