JOINT WRITTEN CONSENT
Exhibit 10.1
JOINT WRITTEN CONSENT
WHEREAS, Hawker Beechcraft, Inc., a corporation organized under the laws of Delaware, 1597257 Ontario Inc., Onex Partners II LP, Onex Partners II GP LP, Onex US Principals LP, Onex HBI Holdings II Limited S.a.r.l., GS Capital Partners VI Fund, L.P., GS Capital Partners VI Offshore Fund, L.P., GS Capital Partners VI Parallel, L.P., GS Capital Partners VI GmbH & Co., KG, and the individuals listed on the Shareholder Schedule to and the individuals who have subsequently entered into Joinder Agreements to become shareholders, have entered into that certain Amended and Restated Shareholders Agreement dated as of May 3, 2007;
WHEREAS, Section 8.9(a) of the Amended and Restated Shareholders Agreement provides that such agreement may be amended only by a written instrument duly executed by Shareholders holding more than 65% of the Common Shares;
WHEREAS, Shareholders of more than 65% of the Common Shares in the aggregate desire to amend the Amended and Restated Shareholders Agreement in the form attached hereto as Exhibit A.
RESOLVED, that the Shareholders of more than 65% of the Common Shares in the aggregate hereby agree to amend the Amended and Restated Shareholders Agreement in the form attached hereto as Exhibit A.
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EXHIBIT A
This Amendment (this Amendment) to the Amended and Restated Shareholders Agreement of Hawker Beechcraft, Inc., a Delaware corporation (the Company), is made as of July 9, 2009.
WITNESSETH
WHEREAS, the Company and the Shareholders party thereto are parties to the Amended and Restated Shareholders Agreement, dated as of May 3, 2007 (the Shareholders Agreement).
WHEREAS, the Company and the holders of at least 65% of the Common Shares in the aggregate have agreed to amend the Shareholders Agreement as hereinafter set forth. All capitalized terms used but not defined in this Amendment shall have the meanings given to them in the Shareholders Agreement.
NOW THEREFORE, the parties hereto agree as follows:
1. | Section 6.1(b) is hereby deleted in its entirety and replaced as follows: |
If the Company desires to exercise the Equity Call Option, it shall deliver written notice thereof (a Call Notice) to the Management Shareholder no later than the first anniversary of the Termination Date (the Call Period), which notice shall set forth the number of and identify the Call Equity Securities of the Management Shareholder the Company desires to repurchase, the Equity Call Purchase Price for each such Call Equity Security, and the proposed closing date of the transaction; provided, however, that for the avoidance of doubt if at the end of the Call Period such Management Shareholder continues to have the right to acquire any Shares pursuant to any convertible security, option, warrant or other right to acquire Common Shares or other shares of the Company, the Call Period with respect to such Management Shareholder shall be extended to the date that is 30 days following the expiration of such option, warrant or other right to acquire Shares or with respect to convertible securities, the date that is 30 days from date of acquisition by such Management Shareholder of Shares of the Company.
2. | Except as expressly set forth herein, the Shareholders Agreement remains in full force and effect without amendment or modification. |
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3. | This Amendment shall be governed by, and construed and enforced in accordance with the internal laws of the State of Delaware applicable to contracts made and intended to be performed in such state. |
4. | This Amendment may be executed in counterparts, and such counterparts, when taken together shall constitute one and the same Amendment, valid and binding upon each of the parties to the Shareholders Agreement. |
[Signature pages follow]
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IN WITNESS WHEREOF, the parties have entered into the Amendment as of the date first above written.
THE COMPANY: | ||||||
HAWKER BEECHCRAFT, INC. | ||||||
Date: July 9, 2009 | By: | /s/ Gail E. Lehman | ||||
Name: | Gail E. Lehman | |||||
Title: | Vice President, General Counsel and Secretary | |||||
STOCKHOLDERS: | ||||||
GS CAPITAL PARTNERS VI FUND, L.P. | ||||||
By: | GSCP VI Advisors, L.L.C. its General Partner | |||||
Date: July 9, 2009 | By: | /s/ John Bowman | ||||
GS Capital Partners VI Offshore Fund, L.P. | ||||||
By: | GSCP VI Offshore Advisors, L.L.C. its General Partner | |||||
Date: July 9, 2009 | By: | /s/ John Bowman | ||||
GS Capital Partners VI GmbH & Co. KG | ||||||
By: | GS Advisors VI, L.L.C. its Managing Limited Partner | |||||
Date: July 9, 2009 | By: | /s/ John Bowman | ||||
GS Capital Partners VI Parallel, L.P. | ||||||
By: | GS Advisors VI, L.L.C. its General Partner | |||||
Date: July 9, 2009 | By: | /s/ John Bowman |
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ONEX PARTNERS II LP | ||||||
By: | Onex Partners II GP LP, its General Partner | |||||
By: | Onex Partners Manager LP, its Agent | |||||
By: | Onex Partners Manager GP ULC, its General Partner | |||||
Date: July 9, 2009 | By: | /s/ Robert M. LeBlanc | ||||
Name: | Robert M. LeBlanc | |||||
Title: | Managing Director | |||||
Date: July 9, 2009 | By: | /s/ Donald F. West | ||||
Name: | Donald F. West | |||||
Title: | Vice President and Secretary | |||||
ONEX PARTNERS II GP LP | ||||||
By: | Onex Partners GP Inc., its General Partner | |||||
Date: July 9, 2009 | By: | /s/ Robert M. LeBlanc | ||||
Name: | Robert M. LeBlanc | |||||
Title: | President | |||||
Date: July 9, 2009 | By: | /s/ Donald F. West | ||||
Name: | Donald F. West | |||||
Title: | Vice President |
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ONEX US PRINCIPALS LP | ||||||
By: | Onex American Holdings GP LLC, its General Partner | |||||
Date: July 9, 2009 | By: | /s/ Robert M. LeBlanc | ||||
Name: | Robert M. LeBlanc | |||||
Title: | Director | |||||
Date: July 9, 2009 | By: | /s/ Donald F. West | ||||
Name: | Donald F. West | |||||
Title: | Director | |||||
ONEX HBI Holdings II Limited S.a.r.l. | ||||||
Date: July 9, 2009 | By: | /s/ Donald F. West | ||||
Name: | Donald F. West | |||||
Title: | Type A Manager | |||||
Date: July 9, 2009 | By: | /s/ Olivier Dorier | ||||
Name: | Olivier Dorier | |||||
Title: | Type B Manager | |||||
1597257 Ontario Inc. | ||||||
Date: July 9, 2009 | By: | /s/ Christopher A. Govan | ||||
Name: | Christopher A. Govan | |||||
Title: | Managing Director | |||||
Date: July 9, 2009 | By: | /s/ Andrea E. Daly | ||||
Name: | Andrea E. Daly | |||||
Title: | Vice President and General Counsel |
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