EXHIBIT 4.2
VOTING AGREEMENT
THIS VOTING
AGREEMENT (this “ Agreement ”), dated as
of May 8, 2004, is made by and between Kitty Hawk, Inc., a
Delaware corporation (the “ Company ”),
and
, a
(collectively with its affiliates, the “
Stockholder ”).
RECITALS:
WHEREAS,
concurrently herewith, the Company and the Stockholder are entering
into a Registration Rights Agreement, dated as of the date hereof
(the “ Registration Rights Agreement ”),
which provides for the grant by the Company of certain registration
rights to the Stockholder, upon the terms and subject to the
conditions set forth therein; and
WHEREAS, as of the
date hereof, the Stockholder owns that number of shares of common
stock, par value $0.000001 per share, of the Company (the “
Common Stock ”) and/or that number of warrants
to purchase that number of shares of Common Stock (the “
Warrants ”) set forth opposite its name on
Exhibit A hereto (such shares of Common Stock, together with
any other shares of Common Stock acquired, whether upon exercise of
the Warrants or otherwise, by the Stockholder after the date hereof
and during the term of this Agreement, being collectively referred
to herein as the “ Subject Shares ” of
the Stockholder); and
WHEREAS, as a
condition to its willingness to enter into the Registration Rights
Agreement, the Company has requested that the Stockholder enter
into this Agreement.
NOW, THEREFORE, to
induce the Company to enter into, and in consideration of its
entering into, the Registration Rights Agreement, and in
consideration of the mutual promises and the representations,
warranties, covenants and agreements contained herein, the parties
hereto, intending to be legally bound, agree as follows:
SECTION 1.
Representations and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to the Company as of the date hereof
as follows:
(a) Authority,
Execution and Delivery; Enforceability. The Stockholder has full
power and authority to enter into this Agreement and to perform the
Stockholder’s obligations hereunder. This Agreement has been
duly and validly authorized, executed and delivered by the
Stockholder and constitutes the legal, valid and binding obligation
of the Stockholder, enforceable against the Stockholder in
accordance with its terms. No other action on the part of the
Stockholder is necessary to authorize the execution and delivery of
this Agreement or the consummation of the transactions contemplated
hereby. The execution and delivery of this Agreement by the
Stockholder do not, and the consummation of the transactions
contemplated hereby and compliance with the terms hereof will not,
conflict with, or result in any violation of, or default (with or
without due notice or lapse of time or both) under, (i) any
contract to which the Stockholder is a party or by which the
Stockholder or any of the Subject Shares of the Stockholder are
bound or (ii) any order, rule, regulation or law applicable to
the Stockholder or the Subject Shares of the Stockholder. No
consent, approval, order or
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authorization of, action by or in
respect of, or registration, declaration or filing with, any
governmental authority is required to be obtained or made by or
with respect to the Stockholder in connection with the execution,
delivery and performance of this Agreement or the consummation of
the transactions contemplated hereby.
(b) The
Subject Shares. The Stockholder is the sole beneficial owner of the
Common Stock and the Warrants (if any) set forth opposite its name
on Exhibit A attached hereto and has the sole right to vote
such Subject Shares. Without limiting the generality of the
foregoing, the Stockholder has not entered into any voting
agreement (other than this Agreement) with any person or entity
with respect to any of the Subject Shares, granted any person or
entity any proxy (revocable or irrevocable) or power of attorney
with respect to any of the Subject Shares, deposited any of the
Subject Shares in a voting trust or entered into any arrangement or
agreement with any person or entity limiting or affecting his legal
power, authority or right to vote the Subject Shares on any
matter.
(c) Other
Proxies. The Stockholder represents that no proxies have heretofore
been given in respect of the Stockholder’s Subject
Shares.
(d) U.S.
Citizen. The Stockholder represents and warrants that the
information regarding whether the Stockholder and its affiliates
are U.S. citizens as defined by 49 U.S.C. § 40102(a)(15) on
Exhibit A is true and correct.
SECTION 2.
Covenants of the Stockholder. The Stockholder agrees as
follows:
(a) Prior
to the termination of this Agreement and without in any way
limiting the Stockholder’s right to vote its Subject Shares
in its sole discretion with respect to any other matters, at every
meeting of the stockholders of the Company called, and at every
adjournment or postponement thereof, and on every action or
approval by written consent of the stockholders of the Company, the
Stockholder shall either appear at the meeting or otherwise cause
the Subject Shares to be present thereat for purposes of
establishing a quorum and, to the extent not voted by persons
appointed as proxies, shall vote or consent (or cause to be voted
or consented to) the Subject Shares in favor of any proposal or
resolutions that would cause, or help to cause, the actions
described on Exhibit B hereto (the “
Proposals ”), solely to the extent that the
Company elects to submit any or all of the Proposals to a
stockholder vote for approval.
(b) At
any meeting of stockholders of the Company or at any adjournment
thereof or in any other circumstances upon which the
Stockholder’s vote, consent or other approval is sought, the
Stockholder shall vote (or cause to be voted) the Subject Shares
against, or shall not consent to, any proposal that would in any
manner impede, frustrate, prevent or nullify the
Proposals.
(c) Prior
to the termination of this Agreement and except as otherwise
permitted by this Agreement or prohibited by order of a court of
competent jurisdiction, the Stockholder will not commit, and will
not permit any entity controlled by the Stockholder to commit, any
act that could restrict or otherwise affect its legal power,
authority and right to vote
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all of the Subject Shares then
owned of record or beneficially by it. Without limiting the
generality of the foregoing, prior to the termination of this
Agreement, the Stockholder will not, and will not permit any entity
controlled by it, to enter into any voting agreement with any
person or entity with respect to any of the Subject Shares, grant
any person or entity any proxy (revocable or irrevocable) or power
of attorney with respect to any of the Subject Shares (except in
favor of the Proposals), deposit any of the Subject Shares in a
voting trust or otherwise enter into any agreement or arrangement
with any person or entity limiting or affecting the
Stockholder’s legal power, authority or right to vote the
Subject Shares in favor of the Proposals.
(d) The
Stockholder shall not sell, transfer, pledge, assign or otherwise
dispose of (including by gift) (collectively, “
Transfer ”), consent to any Transfer of, or
enter into any contract, option or other arrangement (including any
profit sharing arrangement) with respect to the Transfer of, any
Subject Shares (or any interest therein) to any person prior to
June 8, 2004 (the “ Termination Date
”), without the prior written consent of the Company;
provided, however, that nothing in this Section 2(d) shall prohibit
the Stockholder from (x) selling, transferring, pledging,
assigning or otherwise disposing of (including by gift) the
Warrants (if any) to a third party, so long as such third party
agrees in writing to be bound by the terms of this Agreement or
(y) selling up to 430,000 shares of Common Stock pursuant to
Rule 144 promulgated under the Securities Act of 1933, as amended;
provided, further, that if the Company’s proxy statement
related to the Proposals is reviewed by the staff of the Securities
and Exchange Commission, the Termination Date can be extended by up
to 30 days at the sole election of the Company to accommodate
the setting of a new record date. Any such extension will be
communicated to the Stockholder in writing prior to June 8,
2004.
SECTION 3. Further
Assurances. The Stockholder will, from time to time, execute and
deliver, or cause to be executed and delivered,
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