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EXHIBIT 10.2
BUY/SELL/OFFERING AGREEMENT
This BUY/SELL/OFFERING AGREEMENT, dated as of this 6th day of October,
1995 (the "Agreement"), is made and entered into by and between Dart Group
Corporation, a Delaware corporation ("Dart"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇ ("RSH").
WITNESSETH:
WHEREAS, pursuant to that certain Settlement Agreement, of even date
herewith, between Dart and RSH (the "Settlement Agreement"), Dart is loaning
$37,740,162 to RSH and RSH is executing and delivering to Dart that certain
promissory note, of even date herewith, in favor of Dart for such principal
amount (the "$37 Million Note");
WHEREAS, Dart has two authorized classes of Common Stock, its Class A
Common Stock, $1.00 par value per share ("Class A Common Stock"), and its Class
B Common Stock ("Class B Common Stock");
WHEREAS, pursuant to the Settlement Agreement, Dart is issuing to RSH
197,048 shares of Class B Common Stock (the "Option Shares") in consideration
of (i) the payment of $197,048 by RSH to Dart and (ii) delivery of a promissory
note executed by RSH in favor of Dart in the principal amount of $27,389,672
(collectively with the $37 Million Note, the "Promissory Notes");
WHEREAS, pursuant to that certain Subscription Agreement, of even date
herewith, between Dart and RSH (the "Subscription Agreement"), RSH has
subscribed for, and Dart has agreed to issue to RSH, subject to the terms and
conditions thereof, 288,312 shares of Class A Common Stock (the "New Class A
Shares");
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WHEREAS, pursuant to the Settlement Agreement RSH is assigning and
transferring to the Voting Trustee under that certain Voting Trust Agreement
(the "Voting Trust Agreement"), of even date herewith, by and among RSH, Dart
and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ as initial Voting Trustees (a
copy of which Voting Trust Agreement is attached hereto as Exhibit A), the
following: (i) the Option Shares; (ii) an additional 25,246 shares of Dart
Class B Common Stock owned by RSH (the "RSH Class B Shares"); (iii) 28,144
shares of Class A Common Stock owned by RSH (the "RSH Class A Shares"); (iv) an
additional 58,029 shares of Class A Common Stock that are subject to competing
claims by ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇ and, in part, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
(the "RSH Contested Class A Shares"); and (v) immediately upon their issuance
pursuant to the Subscription Agreement, the New Class A Shares;
WHEREAS, pursuant to the Settlement Agreement RSH is to assign and
transfer to the Voting Trustee(s) an additional 33,333 shares of Dart Class A
Common Stock that are subject to a pledge to First Union National Bank (the
"RSH Pledged Class A Shares"), immediately upon the release of that pledge;
WHEREAS, pursuant to that certain Stock and Trust Certificate Pledge
Agreement, of even date herewith, between RSH and Dart (and acknowledged by the
initial Voting Trustees), as security for the payment and performance of RSH's
obligations under the Promissory Notes, RSH is pledging and granting to Dart a
security interest in all of his right, title and interest in and to the Option
Shares, the RSH Class B Shares, the RSH Class A Shares, the RSH Contested Class
A Shares, the New Class A Shares
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and the trust certificates issued to him under the Voting Trust Agreement; and
WHEREAS, pursuant to the Settlement Agreement, RSH and Dart have
agreed to enter into this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and in consideration of the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the meanings set forth below:
"Buy/Sell Class B Shares" shall mean, collectively, the Option Shares
and the RSH Class B Shares.
"Buy/Sell Class A Shares" shall mean, at any time, collectively: (i)
the RSH Class A Shares; (ii) the RSH Contested Class A Shares; (iii) the New
Class A Shares; and (iv) the RSH Pledged Class A Shares; provided, however,
that the term "Buy/Sell Class A Shares" shall not include the RSH Contested
Class A Shares at any time, and to the extent, that neither RSH nor the Voting
Trustee(s) can then transfer record ownership thereof because of the adverse
claims of ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇ or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ thereto; and
provided further, that the term "Buy/Sell Class A Shares" shall not include the
New Class A Shares at any time such shares have not been issued pursuant to the
Subscription Agreement or, after being issued, such shares have been redeemed
by Dart pursuant to Section 5.3 of the Settlement Agreement; and provided
further, that the "Buy/Sell Class A Shares" shall not include the RSH Pledged
Class A Shares at any time that such shares are subject to any pledge to First
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Union National Bank or any affiliate, successor or assign thereof.
"Buy/Sell Shares" shall mean, at any time, the Buy/Sell Class B Shares
and the Buy/Sell Class A Shares, collectively. For all purposes under this
Agreement, all dividends and distributions paid upon or in respect of any of
the Buy/Sell Shares, to the extent held by the Voting Trustee(s) under the
Voting Trust Agreement, and all trust certificates representing any of the
Buy/Sell Shares that are issued pursuant to the Voting Trust Agreement, shall
be deemed to be part of such Buy/Sell Shares.
2. Public Offering and Grant of Put Option. (a) At any time
after December 31, 1996 and prior to January 1, 2000, RSH may deliver to Dart
and the Voting Trustee(s) written notice (the "Offering/Put Exercise Notice")
that he elects to exercise one of the following options (specifying which
option he elects): (i) the option (the "Public Offering Option"), which Dart
hereby irrevocably grants to RSH, to require Dart to exchange (the "Exchange")
the Buy/Sell Class B Shares for 244,523 shares of Class A Common Stock (the
"Public Offering Class A Shares") and to exercise the demand registration
rights, subject to the terms and conditions thereof, set forth in Schedule 2(a)
attached hereto, pursuant to which RSH may sell all of the Public Offering
Class A Shares in an underwritten public offering (the "Public Offering"); or
(ii) the option (the "Put Option"), which Dart hereby irrevocably grants to
RSH, to require Dart to purchase all of his right, title and interest in and to
the Buy/Sell Shares
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and for the Aggregate Purchase Price (as hereinafter defined) of the shares
purchased subject to the terms and conditions hereof.
(b) Except as provided in the next sentence, RSH's
exercise of the Public Offering Option or the Put Option, as the case may be,
shall be effective thirty (30) days after the date of Dart's receipt of the
Offering/Put Exercise Notice, unless Dart, within thirty (30) days after
receiving the Offering/Put Exercise Notice, provides written notice to RSH and
the Voting Trustee(s) (a "Challenge Notice") that there exists pending or
threatened litigation challenging RSH's title to any of the Buy/Sell Class B
Shares, the right of the Voting Trustee(s) to vote the Buy/Sell Class B Shares
or any action taken by Dart's Board of Directors granting voting rights to the
Class A Common Stock or relating to any other recapitalization plan of Dart
that materially changes Dart's corporate governance structure; provided,
however, that any Challenge Notice delivered by Dart to RSH shall not be
effective any time after November 30, 1999. RSH's exercise of the Public
Offering Option or the Put Option, as the case may be, at any time after
November 30, 1999 and prior to January 1, 2000, shall be effective immediately
upon Dart's receipt of the Offering/Put Exercise Notice. RSH shall have an
absolute right to sell the Buy/Sell Shares, on the terms and subject to the
conditions set forth in this Agreement, upon any exercise of the Public
Offering Option or the Put Option that becomes effective; provided, however,
that nothing herein shall give rise to any implication that Dart is a guarantor
of the closing or the success of any Public Offering. Except as otherwise
provided herein, if Dart delivers a valid Challenge
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Notice to RSH, then RSH's exercise of the Public Offering Option or Put Option
will not be effective. If Dart delivers a valid Challenge Notice to RSH, then
Dart shall promptly notify RSH in writing once there no longer exists any basis
for a Challenge Notice. If Dart delivers a written notice to RSH that there no
longer exists any basis for a previously delivered Challenge Notice, or if a
previously delivered Challenge Notice otherwise becomes ineffective under the
terms hereof, then RSH shall be entitled to deliver another Offering/Put
Exercise Notice to Dart. Any period of time from the delivery of a Challenge
Notice by Dart to RSH until the earlier of the delivery of a subsequent notice
by Dart to RSH that there no longer exists any basis for a Challenge Notice or
December 1, 1999, is herein referred to as a "Denial Period."
(c) Any exercise of the Public Offering Option or the Put
Option that becomes effective shall be irrevocable and any attempted exercise
of the Public Offering Option or the Put Option subsequent to such
effectiveness shall be ineffective, provided, however, that if in any effective
Offering/Put Exercise Notice RSH elects the Public Offering Option, he may
thereafter by written notice to Dart cancel such election and instead elect the
Put Option so long as the Exchange has not been effected and RSH reimburses
Dart for all fees and expenses theretofore incurred by Dart in connection with
the proposed Public Offering.
(d) If RSH exercises the Public Offering Option, then
Dart shall effect the Exchange no later than the date on which the registration
statement related to the proposed Public
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Offering is declared effective by the U.S. Securities and Exchange Commission.
(e) If RSH exercises the Public Offering Option and the
proposed Public Offering pursuant thereto does not close by July 15, 2000, then
Dart shall (i) if the Exchange has not been effected, purchase the Buy/Sell
Class B Shares on or about August 1, 2000 at a price per share equal to the
price of Buy/Sell Class B Shares set forth in Section 5(b) or (ii) if the
Exchange has been effected, purchase the Public Offering Class A Shares on or
about August 1, 2000 at a price per share equal to the price of Buy/Sell Class
B Shares set forth in Section 5(b) hereof less ten percent (10%).
3. Grant of Call Option. Dart shall have the option (the "Call
Option"), which RSH hereby irrevocably grants to Dart, to require RSH to sell
to Dart all of RSH's right, title and interest in and to the Buy/Sell Shares
and to require RSH to sell to Dart all of RSH's right, title and interest in
and to the RSH Pledged Class A Shares, for the Aggregate Purchase Price of such
shares, in accordance with the terms and subject to the conditions set forth in
this Agreement. The Call Option shall be exercisable as and when specified in
Section 7 of this Agreement, and Dart's right to exercise the Call Option with
respect to the Buy/Sell Shares shall be separate and independent from Dart's
right to exercise the Call Option with respect to the RSH Pledged Class A
Shares.
4. Buy/Sell Class A Shares. On the date of the closing of the
Public Offering, Dart shall purchase from RSH, and RSH shall sell to Dart, all
of RSH's right, title and interest in and to
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the Buy/Sell Class A Shares for the Aggregate Purchase Price of such shares in
accordance with the terms and subject to the conditions hereof (the
"Simultaneous Purchase").
5. Purchase Price. The Aggregate Purchase Price applicable in
the case of any purchase of shares by Dart pursuant to the Put Option, the Call
Option or the Simultaneous Purchase shall be the number of Buy/Sell Class A
Shares, Buy/Sell Class B Shares and/or RSH Pledged Class A Shares (as may be
adjusted for any stock dividend, stock split or combination of shares)
purchased by Dart multiplied by the respective purchase price as determined as
follows:
(a) Price of Buy/Sell Class A Shares. The purchase price
for each of the Buy/Sell Class A Shares or RSH Pledged Class A Shares shall be
equal to $83.875 (the "Buy/Sell Class A Share Price") plus interest (compounded
annually) accrued at a rate of eight percent (8.0%) per annum from the date
hereof through the closing of the purchase of such shares by Dart, provided,
however, that in connection with any closing of Dart's purchase of the RSH
Pledged Class A Shares pursuant to Section 6(b) or Section 7, the purchase
price per RSH Pledged Class A Share shall be equal to the purchase price per
share paid by Dart for Buy/Sell Class A Shares in the first closing of the Put
Option, the Call Option or the Simultaneous Purchase, as the case may be, it
being understood that no interest shall accrue on the purchase price with
respect to the RSH Pledged Class A Shares after the date of such prior closing.
(b) Price of Buy/Sell Class B Shares. The purchase price
for each of the Buy/Sell Class B Shares shall be equal to
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$154.13 plus interest (compounded annually) accrued at a rate of eight percent
(8.0%) per annum for the duration of any Denial Period(s).
(c) Price Adjustments. Adjustments to the per share
prices set forth in this Section 5 shall be made as Dart may in good faith
determine to be equitably required in order to prevent any dilution or
expansion of the value of Dart's rights or obligations, or the value of RSH's
rights or obligations, under this Agreement, as the result of any stock
dividend, stock split or combination of shares that occurs on or after the date
of this Agreement.
(d) Interest. For purposes of paragraphs (a) and (b) of
this Section 5, interest shall be computed on the basis of a three hundred
sixty (360) day year and the actual number of days elapsed.
6. Exercise of Put Option. (a) In the event RSH elects to
exercise the Put Option, RSH shall notify Dart and the Voting Trustee(s) that
he will sell the Buy/Sell Shares to Dart and specify a date for the closing of
such sale between 45 and 60 days after the date of the Offering/Put Exercise
Notice at a location in Washington, D.C. specified in the Offering/Put Exercise
Notice or such other place or time as the parties may mutually agree. Upon the
effectiveness of the exercise of the Put Option, RSH shall be obligated to
deliver, or to cause the Voting Trustee(s) to deliver, the Buy/Sell Shares to
Dart in accordance with Section 8 of this Agreement, on the later of the date
specified in the Offering/Put Exercise Notice or the first day on which the
following conditions are satisfied: (i) no
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preliminary or permanent injunction or other order against the delivery of the
Buy/Sell Shares issued by any federal or state court of competent jurisdiction
in the United States shall be in effect, and (ii) any applicable waiting period
under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, and
the rules and regulations promulgated thereunder (the "HSR Act") shall have
expired or been terminated. Upon such delivery to Dart of the Buy/Sell Shares,
Dart shall purchase such shares for the Aggregate Purchase Price.
(b) In the event that any of the RSH Pledged Class A
Shares are not purchased by Dart together with the Buy/Sell Shares at the
closing of the Put Option or the Simultaneous Purchase, then RSH shall have the
option, which Dart hereby irrevocably grants to RSH, to require Dart on one
additional occasion to purchase any of the RSH Pledged Class A Shares that can
be delivered free of Encumbrances (as hereinafter defined), subject to the
terms and conditions hereof. In the event RSH wishes to exercise such option,
RSH shall send a written notice to Dart at least fifteen (15) days prior to the
closing notifying Dart that he will sell such shares and specifying a date for
the closing. Upon delivery of the such notice, RSH shall be obligated to
deliver, or to cause the Voting Trustees to deliver, such shares to Dart in
accordance with Section 8 of this Agreement, on the later of the date specified
in such notice or the first day on which the following conditions are
satisfied: (i) no preliminary or permanent injunction or other order against
the delivery of such shares issued by any federal or state court of competent
jurisdiction in the United States shall be in
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effect, and (ii) any applicable waiting period under the HSR Act shall have
expired or been terminated. Upon such delivery to Dart of the RSH Pledged
Class A Shares, Dart shall purchase such shares for the Aggregate Purchase
Price. RSH's right to exercise the option granted under this Section 6(b)
shall expire on July 15, 2000.
7. Exercise of Call Option. (a) Dart may exercise the Call
Option, no more than once with respect to the Buy/Sell Shares and once with
respect to the RSH Pledged Class A Shares, at any time (i) after the death of
RSH, (ii) after a court of competent jurisdiction has determined that RSH lacks
the requisite physical or mental capacity to exercise his powers under this
Agreement, (iii) after December 31, 1996, if the Consolidated Net Worth (as
defined in the $37 Million Note) of Dart as of the end of its last fiscal
quarter ending prior to the exercise of the Call Option is less than $80
million; (iv) after the occurrence of an Event of Default (as defined in the
Promissory Notes); or (v) after December 31, 1999; provided, however, that Dart
may not exercise the Call Option at any time after July 15, 2000, except to the
extent that the delay is the result of any injunction or other court order
preventing exercise of the Call Option on or prior to July 15, 2000; and
provided, further, that the Call Option may not be exercised with respect to
the Buy/Sell Shares at any time after an Offering/Put Exercise Notice has
become effective; and provided, further, that the Call Option may not be
exercised with respect to the RSH Pledged Class A Shares unless there has been
a closing of the Simultaneous
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Purchase or the Put Option or there has been an exercise of the Call Option
with respect to the Buy/Sell Shares.
(b) In the event Dart wishes to exercise the Call Option,
Dart shall send a written notice (the "Call Exercise Notice"), which shall be
irrevocable, to RSH and the Voting Trustee(s) notifying each of them that Dart
will purchase the Buy/Sell Shares or any of the RSH Pledged Class A Shares, as
the case may be, and specifying a date for the closing of such purchase within
fifteen (15) days of the date of the Call Exercise Notice at a location in
Washington, D.C. specified in the Exercise Notice or such other place or time
as the parties may mutually agree. Upon receipt of the Call Exercise Notice,
RSH shall be obligated to deliver to Dart the Buy/Sell Shares or any of the RSH
Pledged Class A Shares, as the case may be, in accordance with Section 8 of
this Agreement, on the later of the date specified in the Call Exercise Notice
or the first day on which the following conditions are satisfied: (i) no
preliminary or permanent injunction or other order against the delivery of the
Buy/Sell Shares issued by any federal or state court of competent jurisdiction
in the United States shall be in effect, and (ii) any applicable waiting period
under the HSR Act shall have expired or been terminated. Upon such delivery to
Dart of the Buy/Sell Shares or the RSH pledged Class A Shares, as the case may
be, Dart shall purchase such shares for the Aggregate Purchase Price.
8. Payment of Purchase Price; Closing. At the closing of the
Simultaneous Purchase, the Put Option or the Call Option, as the case may be,
Dart may pay the Aggregate Purchase Price by
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offsetting any unpaid principal and accrued but unpaid interest on the
Promissory Notes against the Aggregate Purchase Price, as follows:
(a) If the aggregate amount of unpaid principal and
accrued but unpaid interest on the Promissory Notes is less than or
equal to the Aggregate Purchase Price, then in lieu of any payment of
the Aggregate Purchase Price by Dart to RSH, Dart shall deem RSH to
have made payment in full of RSH's obligations under the Promissory
Notes, and Dart shall cancel the Promissory Notes and pay to RSH, by a
certified or bank check payable to RSH, the amount, if any, by which
the Aggregate Purchase Price exceeds the aggregate amount of unpaid
principal and accrued but unpaid interest on the Promissory Notes.
(b) If the aggregate amount of unpaid principal and
accrued but unpaid interest on the Promissory Notes is greater than
the Aggregate Purchase Price, then in lieu of any payment of the
Aggregate Purchase Price by Dart to RSH, Dart shall deem RSH to have
made a partial prepayment, in the amount of the Aggregate Purchase
Price, in respect of RSH's obligations under the Promissory Notes.
At the closing of the Simultaneous Purchase, the Put Option or the Call Option,
as the case may be, RSH shall cause the Voting Trustee(s) to deliver the
Buy/Sell Shares, the Buy/Sell Class A Shares or the RSH Pledged Class A Shares,
as the case may be, to Dart, free and clear of all liens, claims (except for
claims of any Haft family member relating to the RSH Contested Class A Shares
and claims made after the date hereof that challenge the
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transactions contemplated hereby), charges and encumbrances of any kind or
nature whatsoever, and RSH shall cause the Voting Trustee(s) to deliver to Dart
certificates representing the number of such shares so purchased and endorsed
in blank. In addition to the Buy/Sell Shares, Dart shall be entitled to
receive at any such closing, without the payment of any additional
consideration other than the Aggregate Purchase Price, any and all other cash,
securities or rights then held pursuant to the Voting Trust Agreement by the
Voting Trustee(s) in the Trust Accounts (as defined in the Voting Trust
Agreement) or otherwise held as part of the Trust Shares (as defined in the
Voting Trust Agreement).
9. Representations and Warranties of RSH. RSH represents and
warrants to Dart the following:
(a) The Buy/Sell Shares, the Buy/Sell Class A Shares or
the RSH Pledged Class A Shares, as the case may be, when sold and delivered by
RSH to Dart upon the closing of the Simultaneous Purchase, the Put Option or
the Call Option, as the case may be, will be free and clear of all restrictions
(except for restrictive legends on stock certificates representing the Buy/Sell
Class B Shares and the New Class A Shares), liens, encumbrances, charges,
pledges, adverse claims, options, calls, trusts and other commitments,
agreements or arrangements (collectively, "Encumbrances") and shall not be
subject to any preemptive rights; provided, that the RSH Contested Class A
Shares may be subject to the adverse claims of ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇
and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ that exist as of the date of this Agreement and the RSH
Pledged Class A Shares may be subject
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to the pledge to First Union National Bank (or any affiliate thereof) that
exists on the date of this Agreement (the "Permitted Encumbrances").
(b) Except as otherwise required by the HSR Act, the
execution, delivery and performance of this Agreement by RSH and the
consummation by him of the transactions contemplated hereby do not require the
consent, waiver, approval, license or authorization of or any filing with any
person or public authority and will not violate, result in a breach or
acceleration of any obligation under, or constitute a default under, any
provision of any indenture, mortgage, lien, lease, agreement, contract,
instrument, order, judgment, ordinance, regulation or decree, or any
restriction to which any property of RSH is bound.
10. Representations and Warranties of Dart. Dart represents and
warrants to RSH that except as otherwise required by the HSR Act, the
execution, delivery and performance of this Agreement by Dart and the
consummation by it of the transactions contemplated hereby do not require the
consent, waiver, approval, license or authorization of or any filing with any
person or public authority and will not violate, result in a breach or
acceleration of any obligation under, or constitute a default under, any
provision of any indenture, mortgage, lien, lease, agreement, contract,
instrument, order, judgment, ordinance, regulation or decree, or any
restriction to which any property of Dart is bound.
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11. Conditions to Closing. For purposes of this Section 11,
closing is defined as the closing of the Simultaneous Purchase, the Put Option
or the Call Option, as the case may be.
(a) Conditions Precedent to Obligations of Dart. Dart's
obligation to purchase the Buy/Sell Shares, the Buy/Sell Class A Shares or the
RSH Pledged Class A Shares, as the case may be, from RSH in accordance with
this Agreement shall be subject to the satisfaction (or waiver in writing by
Dart), at or prior to the closing, of each of the following conditions:
(i) The closing of the Public Offering or the due
exercise of the Call Option by Dart or the Put Option by RSH.
(ii) There shall be tendered for delivery to Dart
certificates representing the Buy/Sell Shares, the Buy/Sell Class A
Shares or the RSH Pledged Class A Shares, as the case may be, and all
trust certificates issued to RSH pursuant to Section 2 of the Voting
Trust Agreement in respect of such shares, duly endorsed (or
accompanied by appropriate stock powers duly endorsed) in blank by the
registered holder thereof for transfer and, if any of such shares are
subject to any Encumbrance, then together with such supporting
documents, endorsements, assignments, affidavits and other good and
sufficient instruments of sale and transfer, in form and substance
reasonably satisfactory to Dart and its counsel, as are necessary to
permit Dart to acquire all of such shares free and clear of all
Encumbrances (except the Permitted Encumbrances).
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(iii) Dart shall receive a letter, dated the date of
the closing, of counsel to RSH, that, based upon a certificate from
RSH, such counsel has no knowledge that immediately prior to the
closing, RSH did not have good and valid title, free and clear of all
Encumbrances (except the Permitted Encumbrances) with full lawful
right, power and capacity to sell, assign, transfer and deliver such
shares to Dart pursuant to this Agreement.
(iv) The representations and warranties of RSH
contained in this Agreement shall be true and correct on the date of
closing (as if made anew on and as of the closing); RSH shall have, in
all material respects, performed and complied with all agreements,
undertakings and obligations which are required by this Agreement and
the Settlement Agreement to be performed or complied with by him at or
prior to the closing; and there shall have been delivered to Dart a
certificate to that effect, dated the date of the closing and executed
by RSH.
(v) No preliminary or permanent injunction or other
order (including a temporary restraining order) of any governmental
authority of competent jurisdiction shall be in effect as of the
closing which enjoins, restrains or prohibits any of the transactions
contemplated by this Agreement and no proceeding instituted by any
third party or any governmental authority shall be pending or
threatened against or affecting Dart or any of its subsidiaries or any
of their respective assets or RSH that seeks to enjoin or
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restrain any of the transactions contemplated by this Agreement.
(b) Conditions Precedent to Obligations of RSH. The
obligation of RSH to sell the Buy/Sell Shares, the Buy/Sell Class A Shares or
the RSH Pledged Class A Shares, as the case may be, to Dart in accordance with
this Agreement shall be subject to the satisfaction, at or prior to the
closing, of each of the following conditions:
(i) The closing of the Public Offering or the due
exercise of the Call Option by Dart or the Put Option by RSH.
(ii) Dart shall pay to RSH the Aggregate Purchase
Price for the Buy/Sell Shares, the Buy/Sell Class A Shares or the RSH
Pledged Class A Shares, as the case may be, delivered to Dart at the
closing in accordance with Section 8 of this Agreement.
(iii) The representations and warranties of Dart
contained in this Agreement shall be true and correct on the date of
closing (as if made anew on and as of the closing); Dart shall have,
in all material respects, performed and complied with all agreements,
undertakings and obligations which are required by this Agreement and
the Settlement Agreement to be performed or complied with by it at or
prior to the closing; and there shall have been delivered to RSH a
certificate to that effect, dated the date of the closing and executed
by Dart.
(iv) No preliminary or permanent injunction or other
order (including a temporary restraining order) of any
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governmental authority of competent jurisdiction shall be in effect as
of the closing which enjoins, restrains or prohibits any of the
transactions contemplated by this Agreement and no proceeding
instituted by any third party or any governmental authority shall be
pending or threatened against or affecting RSH or his assets or Dart
that seeks to enjoin or restrain any of the transactions contemplated
by this Agreement.
12. Miscellaneous.
(a) Transfer Prohibition. RSH agrees that he will not
(i) sell or otherwise dispose of, or grant any option with respect to, any of
the Option Shares, RSH Class B Shares, RSH Class A Shares, RSH Contested Class
A Shares, New Class A Shares, RSH Pledged Class A Shares or the Voting Trust
Certificates without the prior written consent of Dart, except as provided in
this Agreement, or (ii) create or permit to exist any Encumbrance (other than a
Permitted Encumbrance) upon or with respect to any of the Buy/Sell Shares or
the Voting Trust Certificates, except as provided in the Stock and Trust
Certificate Pledge Agreement.
(b) Substitution Prohibition. RSH agrees that he may not
substitute any shares for any of the Buy/Sell Shares or the Public Offering
Class A Shares, and that the Put Option may only be exercised with respect to
the Buy/Sell Shares and the Public Offering Option may be exercised only with
respect to the Public Offering Class A Shares.
(c) Cross-Default. This Agreement, the Voting Trust
Agreement, the Settlement Agreement and all other agreements and documents
relating thereto (collectively, the "Agreements")
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constitute one integrated whole. RSH agrees that a material breach by RSH
under any of the Agreements shall constitute a material breach under each of
the Agreements. Dart agrees that a material breach by Dart under any of the
Agreements shall constitute a material breach under each of the Agreements.
(d) Notice. Notices under this Agreement shall be deemed
duly given (if so given) if delivered in person, by facsimile, registered or
certified mail (postage prepaid, return receipt requested) to the respective
parties as follows:
If to Dart:
Dart Group Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
If to RSH:
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of changes of address shall
only be effective upon receipt.
(e) Further Assurances. Dart and RSH will execute and
deliver all such further documents and instruments and take all such further
action as may be necessary in order to consummate the transactions contemplated
hereby.
(f) Assignment. No party hereto may assign any of
his/its rights or obligations under this Agreement without the prior written
consent of the other party. Without limiting the generality of the foregoing,
RSH shall not assign or transfer the
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Put Option or the Public Offering Option, or any part thereof or any interest
therein.
(g) Binding Effect. This Agreement, and the documents
and instruments delivered pursuant hereto, shall inure to the benefit of, and
shall be binding upon, the respective parties hereto, their heirs, executors,
administrators, successors and assigns.
(h) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware, without
regard to its conflict of laws principles.
(i) Severability of Provisions. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall not be affected, impaired or invalidated.
(j) Headings. The descriptive headings contained herein
are for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(k) Amendment in Writing. In accordance with its terms,
this Agreement may be amended, but only in a writing that is signed by each of
the parties hereto.
(l) Waiver. The waiver by any party hereto of any matter
provided for herein shall not be deemed to be a waiver of any other matter
provided for herein.
(m) Integration. This Agreement and all the other
Agreements set forth the entire understanding of the parties hereto and
supersedes all prior understandings or agreements,
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whether written or oral, with respect to the subject matter hereof.
(n) Counterparts. This Agreement may be executed in two
counterparts, each of which shall be deemed to be an original, but each of
which together shall constitute one and the same document.
IN WITNESS WHEREOF, each of RSH and Dart has executed and delivered
this Agreement on the day and year first above written.
DART GROUP CORPORATION
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------- ----------------------------------
Attest Name:
Title:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------- -------------------------------------
Witness ▇▇▇▇▇▇ ▇. ▇▇▇▇
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SCHEDULE 2(a)
REGISTRATION RIGHTS
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to them in the Buy/Sell/Offering Agreement to which this Schedule 2(a)
is attached.
1. Demand Registration.
(a) Request for Registration. If any exercise by RSH of
the Public Offering Option becomes effective (and as long as such exercise
remains effective) pursuant to Section 2 of the Buy/Sell/Offering Agreement,
RSH may once, in connection with an underwritten public offering of the Public
Offering Class A Shares, request registration under the Securities Act of 1933,
as amended (the "Securities Act"), of all Public Offering Class A Shares on
Form S-1 or any similar long-form registration or on Form S-2 or S-3 or any
similar short-form registration, if available (in either case, the "Demand
Registration").
(b) Restrictions on Registrations. The Company may
postpone the filing of a registration statement in response to any request for
a Demand Registration for up to 90 calendar days after receipt of such request
if, in the good faith judgment of the Company's board of directors, such
postponement would be in the best interests of the Company; provided, however,
that the Company may not exercise such right more than once.
(c) Selection of Underwriters. Each of RSH and the
Company may select one investment banker to act as co-manager in administering
the offering.
2. Holdback Agreement. The Company agrees not to effect any
public sale or distribution of its equity securities, or any securities
convertible into or exchangeable or exercisable for such securities, during the
seven days prior to and during the 90-day period beginning on the effective
date of any underwritten Demand Registration (except pursuant to registrations
on Form S-8 or any successor form), or for such longer or shorter period as the
underwriters managing the registered public offering agree.
3. Registration Procedures. Whenever RSH has requested that the
Public Offering Class A Shares be registered pursuant to this Agreement, the
Company will use reasonable efforts to timely effect the registration and the
sale of the Public Offering Class A Shares. Pursuant to such request, the
Company shall as expeditiously as possible:
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(a) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Public Offering Class
A Shares and use reasonable efforts to cause such registration statement to
become effective, provided, however, that before filing a registration
statement or prospectus or any amendments or supplements thereto, the Company
will furnish to RSH's counsel copies of all such documents proposed to be
filed;
(b) prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than six months and
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement during
such period in accordance with the intended methods of disposition set forth in
such registration statement;
(c) furnish to RSH such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary prospectus)
and such other documents as he may reasonably request in order to facilitate
the disposition of the Public Offering Class A Shares;
(d) use reasonable efforts to register or qualify such
Public Offering Class A Shares under such other securities or blue sky laws of
such jurisdictions as RSH or the underwriters reasonably request and do any and
all other acts and things which may be reasonably necessary or advisable to
enable RSH to consummate the disposition in such jurisdictions of the Public
Offering Class A Shares, provided, however, that the Company will not be
required to (i) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this subparagraph, (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to general
service of process in any such jurisdiction;
(e) notify RSH at any time when a prospectus relating to
the Public Offering Class A Shares is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading and, at the request of RSH, prepare a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of the
Public Offering Class A Shares, such prospectus will not contain an untrue
statement of a material fact or omit to state any fact necessary to make the
statements therein not misleading;
(f) cause the Public Offering Class A Shares to be listed
on the Nasdaq National Market, if other Company shares of the same class are
then listed on the Nasdaq National Market, or
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a securities exchange, if any, on which other Company shares of the same class
are then listed;
(g) enter into customary agreements (including an
underwriting agreement in customary form) and take all such other actions as
the underwriters reasonably request in order to expedite or facilitate the
disposition of the Public Offering Class A Shares;
(h) make available for inspection by RSH, any underwriter
participating in any disposition pursuant to such registration statement, and
any attorney, accountant or other agent retained by RSH, all financial and
other pertinent records and documents of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any underwriter, attorney, accountant or
agent in connection with such registration statement; and
(i) obtain a "comfort letter" from the Company's
independent public accountants in customary form.
4. Registration Expenses.
(a) The Company shall pay all expenses incident to the
Company's performance of or compliance with this Agreement, including all
registration and filing fees, fees and expenses of compliance with securities
or blue sky laws, printing expenses, messenger and delivery expenses, and fees
and disbursements of counsel for the Company and all independent certified
public accountants, underwriters (excluding discounts and commissions) and
other persons retained by the Company.
(b) In connection with any Demand Registration, RSH shall
pay all underwriters' discounts and commissions, all fees and expenses of his
counsel, and all of his incidental expenses.
5. Indemnification.
(a) The Company agrees to indemnify RSH, to the extent
permitted by law, against all losses, claims, damages, liabilities and expenses
caused by any untrue or alleged untrue statement of material fact contained in
any registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of
a material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by RSH expressly for use
therein or by RSH's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company has
furnished RSH with a sufficient number of copies of the same. The Company also
will indemnify the
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underwriters participating in such offering to the same extent as provided
above with respect to the indemnification of RSH.
(b) RSH will furnish to the Company in writing such
information and affidavits as the Company reasonably requests for use in
connection with any registration statement or prospectus and, to the extent
permitted by law, agrees to indemnify the Company, its directors and officers
and each person who controls the Company (within the meaning of the Securities
Act) against any losses, claims, damages, liabilities and expenses caused by
any untrue or alleged untrue statement of material fact contained in the
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, but only to the extent that such untrue statement or omission is
contained in any information or affidavit so furnished in writing by RSH or his
representatives.
(c) Any person entitled to indemnification hereunder will
(i) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification and (ii) unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to
such claim.
(d) The indemnification provided for hereunder will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling person
of such indemnified party and will survive the transfer of securities.
6. Participation in Underwritten Registrations. RSH agrees to
(a) sell his securities on the basis provided in any underwriting arrangement
approved by him and the Company and (b) complete and execute all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
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