EXHIBIT 10(L)
AGREEMENT RELATING TO 1996 ANNUAL MEETING
This Agreement Relating to 1996 Annual Meeting (this "AGREEMENT") is made as
of May 19, 1996 by and among PS Group, Inc., a Delaware corporation ("GROUP"),
PS Group Holdings, Inc., a Delaware corporation ("HOLDINGS"), and Xxxxxx X.
Xxxxxxx ("JP").
WHEREAS, a stockholder of Group has nominated JP (the "JP NOMINATION") for
election as a member of the Board of Directors of Group (the "GROUP BOARD") at
the 1996 Annual Meeting of Stockholders of Group to be held on May 28, 1996
(the "1996 ANNUAL MEETING") in opposition to the current members of the
Company Board who have been nominated for election to the same class of
directors at the 1996 Annual Meeting (the "BOARD NOMINEES");
WHEREAS, JP has submitted a stockholder proposal at the 1996 Annual Meeting
(the "JP PROPOSAL"); and
WHEREAS, JP has announced his opposition to the proposed holding company
reorganization (the "REORGANIZATION"), provided for in the Restated Agreement
and Plan of Reorganization dated as of January 31, 1996, as amended (the
"REORGANIZATION AGREEMENT"), by and among the Company, Holdings and PSG Merger
Subsidiary, Inc., which is to be submitted for adoption at the 1996 Annual
Meeting;
NOW, THEREFORE, in consideration of the mutual promises of the parties
contained herein and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties to this Agreement
(the "PARTIES") hereby agree as follows:
1 Provisions Relating to the JP Nomination and Related Matters
1.1 JP hereby withdraws the JP Nomination and agrees that Group is not
required to submit it for a vote at the 1996 Annual Meeting.
1.2 Group hereby represents and warrants to JP that the Group Board has
adopted a resolution to increase its size from five to six effective at the
organizational meeting of the Group Board to be held immediately following the
conclusion of the 1996 Annual Meeting (the "1996 ORGANIZATIONAL MEETING") and
that both the Group Board as a whole, and X. X. Xxxxxx as the sole director in
the class whose terms of office will expire at the 1997 Annual Meeting of
Stockholders of Group, have adopted resolutions pursuant to which JP will be
appointed to the vacancy so created at the 1996 Organizational Meeting.
1.3 Holdings hereby represents and warrants to JP that the Board of
Directors of Holdings (the "HOLDINGS BOARD") has adopted a resolution to the
effect that, if the Reorganization is consummated, the size of the Holdings
Board will be increased from five to six and JP will be appointed as a member
of the class of directors of Holdings whose terms of office will expire at the
1997 Annual Meeting of Stockholders of Holdings.
1.4 As a member of the Group Board or the Holdings Board, as applicable
(the "APPLICABLE BOARD"), JP will be entitled to the same rights (including
indemnification rights) as are provided to all other directors of Group or
Holdings, as applicable (the "APPLICABLE COMPANY"), in respect of their
service as such under Delaware law, the certificate of incorporation and
bylaws of the Applicable Company, any indemnification agreements in effect
with the other directors of the Applicable Company and any policies or
resolution of the Applicable Board regarding director compensation and
reimbursement of expenses.
1.5 Nothing in this Agreement is intended to limit the discretion of the
Applicable Board to expand its respective size by creating vacancies and
appointing directors to fill them. Prior to any such expansion that is to be
effective before JP becomes a director of either Applicable Board under this
Agreement, JP shall be given reasonable notice of the Applicable Company's
intention to effect such expansion.
1.6 Group and Holdings each represents and warrants to JP, with respect to
the Applicable Board, that the Applicable Board will continue to hold regular
meetings no less frequently than quarterly and that its Executive Committee
will not exercise its powers to bind the Applicable Company with respect to
any material
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decision unless, in the reasonable good faith judgment of such Executive
Committee, the interests of the Applicable Company or its stockholders would be
materially jeopardized by deferring the matter pending a decision of the full
Applicable Board.
2 Provisions Relating to the JP Proposal and Related Matters
2.1 JP hereby withdraws the JP Proposal.
2.2 Group represents and warrants that the Group Board has adopted a
resolution to the effect that, unless the Reorganization is consummated within
30 days of the 1996 Organizational Meeting, a Strategic Planning Committee of
the Group Board will be formed and JP will be a member of it, together with two
other directors (who will be Xxxxxxx X. Xxxxxxxxxxxxx, Xx., if he is re-elected
to the Group Board at the 1996 Annual Meeting, and X. X. Xxxxxx).
2.3 Holdings represents and warrants to JP that the Holdings Board has
adopted a resolution to the effect that, if JP becomes a member of the Holdings
Board as provided in Section 1.3 and the Reorganization is consummated, then
the provisions of Section 2.2 shall apply as if references therein to a
Strategic Planning Committee of the Company Board were references to a
Strategic Planning Committee of the Holdings Board.
2.4 The charter of the Strategic Planning Committee referred to in Sections
2.2 and 2.3 shall be to explore alternatives for enhancing stockholder value,
including, without limitation, alternatives that would enable the Applicable
Company to make prudent distributions to its stockholders in the future. Such
Strategic Planning Committee shall be directed to continue to work with the
specialized investment banking firm that has been assisting Group in evaluating
the feasibility of a sale of some or all of its aircraft and to consider, in
the good faith exercise of its business judgment, whether its work in
evaluating all of the Applicable Company's businesses would be enhanced by
retaining additional investment banking assistance. Such Strategic Planning
Committee shall be a deliberative, not a decision-making, body and it shall be
directed to make periodic reports to the Applicable Board and submit any
recommendations for Applicable Board review and appropriate action.
3 Provisions Relating to the Reorganization
3.1 Group and Holdings hereby agree that, prior to the consummation of the
Reorganization and following the filing with the Secretary of State of Delaware
of the Restated Certificate of Incorporation of Holdings pursuant to Section
1.6 of the Reorganization Agreement, all necessary action will have been taken
by the Holdings Board and by Group as the sole stockholder of Holdings to
approve an amendment to such Restated Certificate of Incorporation providing
for the changes set forth in Annex A hereto (the "POST-CLOSING CERTIFICATE
AMENDMENTS") and Holdings covenants that, promptly following the consummation
of the Reorganization, a further Restated Certificate of Incorporation of
Holdings reflecting only the Post-Closing Certificate Amendments shall be filed
in accordance with Delaware law.
3.2 Holdings shall cause the legend affixed to certificates representing
shares of its Common Stock issued pursuant to, and following the consummation
of, the Reorganization to read in its entirety in the amended form set forth as
Annex B hereto.
4 Provisions Relating to the 1996 Annual Meeting and Related Matters
4.1 JP shall provide to Group and Holdings such information as they may
reasonably request for inclusion in supplemental materials to be disseminated
in connection with the 1996 Annual Meeting under the Securities Act of 1933, as
amended, and/or the Securities Exchange Act of 1934, as amended, and the
regulations promulgated each of those statutes (collectively, the "SECURITIES
ACTS") in order to comply with the disclosure requirements of the Securities
Acts regarding the respective agreements of Group and Holdings in Section 2
with respect to the appointment of JP to the Applicable Board. JP represents
and warrants to Holdings and Group that such information shall not contain any
material misstatement or omission.
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4.2 All press releases, other formal public statements, and filings with
the Securities and Exchange Commission (the "SEC") to be made either by the
Companies or JP from the date hereof until the conclusion of the 1996 Annual
Meeting, shall, to the extent that they refer to this Agreement, the Disputed
Matters or the respective positions of the Companies or JP with respect
thereto, be subject to the approval of all Parties (not to be unreasonably
withheld or delayed); provided, however, that if either of the Companies
determines, with the advice of its counsel, that under the requirements of the
Securities Acts, other applicable federal or state law or the requirements of
any national securities exchange, it is required to issue a press release or
other formal public statement or make a filing with the SEC that contains
material covered by the preceding sentence and time will not permit submission
thereof for JP's approval, it may nevertheless take the action it determines
to be required. The Parties acknowledge that documents provided to one another
for review under this Section 4.2 may contain non-public confidential
information which shall not be used for any purpose other than fulfillment of
the provision of this Section 4.2.
4.3 JP shall vote, or cause to be voted, at the 1996 Annual Meeting all
shares of the Common Stock of Group over which he exercises sole or shared
voting power in favor of the adoption of the Reorganization Agreement and in
favor of the election to the Company Board of both Board Nominees. JP
represents and warrants that he has sole or shared voting power over
approximately 1.00% of the outstanding shares of Common Stock of Group.
4.4 JP shall, to the fullest extent consistent with the Securities Acts,
make such solicitations of proxies as he determines appropriate and useful in
favor of the adoption of the Reorganization Agreement and the election of the
Board Nominees.
4.5 As soon as practicable following the execution of this Agreement, Group
shall issue a press release in the form of Annex C hereto and file with the
SEC a Current Report on Form 8-K containing only the text set forth in Annex D
hereto and the exhibits referred to therein. JP agrees to such issuance and
filing pursuant to Section 4.2.
5 Certain Representations and Warranties
5.1 Group and Holdings each hereby represents and warrants to JP that: (a)
its respective execution, delivery and performance of this Agreement has been
approved by the Applicable Board and does not violate its respective
certificate of incorporation, bylaws or any agreement to which it is a party;
and (b) this Agreement constitutes its respective binding and enforceable
agreement.
5.2 JP hereby represents to Group and Holdings that: (a) the execution,
delivery and performance of this Agreement does not violate any agreement to
which he is a party; (b) this Agreement constitutes his binding and
enforceable agreement; and (c) he has consulted with counsel of his choice in
connection with his decision to enter into and be bound by this Agreement.
6 General Provisions
6.1 This Agreement constitutes the entire agreement of the Parties and
supersedes any and all prior agreements or understandings (whether written or
oral and whether or not entered into with intent to be legally bound) between
or among any of them with respect to the subject matter hereof.
6.2 This Agreement is made for the benefit exclusively of the Parties and
is not intended to confer any rights or impose any obligations on any other
person or entity.
6.3 This Agreement shall be governed by, and construed in accordance with,
the law of the State of Delaware without regard to the conflict-of-law
principles of such State.
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6.4 Exclusive Jurisdiction to resolve any dispute arising under or in
connection with this Agreement is hereby conferred on the Chancery Court of
the State of Delaware or, if the dispute involves issues of federal law or
which such Chancery Court lacks or declines jurisdiction, on the U.S. federal
district court located in the State of Delaware. The Parties hereby submit to
the exclusive jurisdiction of said Courts.
6.5 This Agreement shall be binding upon, and enure to the benefit of, the
respective legal successors of the Parties; provided, however, that the
provisions of this Agreement relating to the nomination of, election to and
membership of the Applicable Board and the Strategic Planning Committee
thereof by JP are for the exclusive and personal benefit of JP.
6.6 This Agreement may be executed in counterparts, each of which shall
constitute an original but all of which shall together constitute a single
instrument.
6.7 Promptly following the date of this Agreement, Group shall pay JP the
amount of $10,000 in respect of reimbursement of his actual out-of-pocket
expenses in connection with the JP Nomination, the JP Proposal and this
Agreement.
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IN WITNESS WHEREOF, this Agreement has been executed by each of the Parties
as of the date first above written.
PS GROUP, INC. XXXXXX X. XXXXXXX
By: /s/ Xxxxxxx X. Xxxxxxxxxxxxx, Xx. /s/ Xxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxxxxxxxx, Xx.
Chairman and
Chief Executive Officer
PS GROUP HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxxxx, Xx.
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Xxxxxxx X. Xxxxxxxxxxxxx, Xx.
Chairman and
Chief Executive Officer
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