EX-99 4 s15-3115_ex99d.txt EXHIBIT 99D EXHIBIT D VOTING AGREEMENT This VOTING AGREEMENT (the "Agreement"), dated as of this 9th day of May, 2002, is entered into by and among VTF CorpORATION, a Delaware corporation (together with its successors or assigns, "Purchaser"), and DAVID E. SANDLIN (the "Stockholder"). W I T N E S S E T H: WHEREAS, Purchaser, THE FLIGHT INTERNATIONAL GROUP, INC., a Georgia corporation (the "Company"), FLIGHT INTERNATIONAL, INC., a Georgia corporation, FLIGHT INTERNATIONAL AVIATION, INC., a Georgia corporation, FLIGHT INTERNATIONAL SALES AND LEASING, INC., a Delaware corporation, FLIGHT ALASKA, INC., a Delaware corporation and FLIGHT INTERNATIONAL OF FLORIDA, INC., a Florida corporation, have entered into an Asset Purchase Agreement of even date herewith (as the same may be amended from time to time, the "Asset Purchase Agreement"), pursuant to which the Purchaser has agreed, upon the terms and subject to the conditions set forth therein, to purchase the Assets and assume the Assumed Liabilities of Company and certain of its subsidiaries (the "Acquisition"); WHEREAS, as of the date hereof, the Stockholder is the record and Beneficial Owner of the number of shares (the "Shares") of New Common Stock, par value $0.01 per share, of the Company (the "Company Common Stock") set forth on Schedule I attached hereto; and WHEREAS, as a condition to its willingness to enter into the Asset Purchase Agreement, Purchaser has required that the Stockholder agree, and the Stockholder is willing to agree, to the matters set forth herein. NOW, THEREFORE, in consideration of the foregoing and the agreements set forth below, the parties hereto agree as follows: 1. Definitions. Capitalized terms not expressly defined in this Agreement shall have the meanings ascribed to them in the Asset Purchase Agreement. For purposes of this Agreement: (a) "Affiliate" of any Person means another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person. (b) "Beneficially Own" or "Beneficial Ownership" with respect to any securities shall mean having voting power with respect to such securities (as determined pursuant to Rule 13d-3(a)(1) under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), including pursuant to any agreement, arrangement or understanding, whether or not in writing. (c) "Person" shall mean an individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization or other entity. 2 2. Voting Agreement. From the date of this Agreement and ending on the earlier of (i) the date the Asset Purchase Agreement is terminated pursuant to Article VIII thereto and (ii) the date the transactions pursuant to the Asset Purchase Agreement are consummated (the "Termination Date"), the Stockholder hereby agrees to vote (or cause to be voted) all of the Shares (and any and all securities issued or issuable in respect thereof) which such Stockholder is entitled to vote (or to provide his written consent thereto), at any annual, special or other meeting of the stockholders of the Company, and at any adjournment or adjournments thereof, or pursuant to any consent in lieu of a meeting or otherwise: (a) in favor of the Acquisition and the approval and adoption of the terms contemplated by the Asset Purchase Agreement and any actions required in furtherance thereof; (b) against any action or agreement that is reasonably likely to result in a breach in any material respect of any covenant, representation or warranty or any other obligation of the Company under the Asset Purchase Agreement; and (c) except for all such actions which the Company may undertake under the Asset Purchase Agreement, against (i) any extraordinary corporate transaction, such as an acquisition, rights offering, tender offer, reorganization, recapitalization or liquidation involving the Company or any of its subsidiaries, other than the Acquisition, (ii) a sale or transfer (other than to FII, FIA, FIS, FAI or FIOF) of assets of the Company or any of its subsidiaries comprising more than 15% of the assets of the Company on a consolidated basis, (iii) any change in a majority of the Board of Directors of the Company other than in connection with an annual meeting of the shareholders of the Company with respect to the slate of directors proposed by the incumbent Board of Directors of the Company (in which case he agrees to vote for the slate proposed by the incumbent Board) or (iv) any action that is reasonably likely to materially impede, interfere with, delay, postpone or adversely affect in any material respect the Acquisition and the transaction contemplated by the Asset Purchase Agreement. 3. Covenants, Representations and Warranties of the Stockholder and ---------------------------------------------------------------- Purchaser. ---------- (a) The Stockholder hereby represents, warrants and covenants to Purchaser as follows: (i) Ownership. As of the date of this Agreement, the Stockholder is the record and Beneficial Owner of the number of issued and outstanding Shares set forth on Part A of Schedule I hereto and the stock options set forth on Part B of Schedule I hereto. As of the date of this Agreement, the Shares set forth on Part A of Schedule I hereto constitute all of the issued and outstanding Shares owned of record or Beneficially Owned by the Stockholder. Except as otherwise set forth in Part A to Schedule I, the Stockholder has the sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the Shares set forth on Part A of Schedule I hereto, with no material limitations, qualifications or restrictions on such rights, subject to applicable securities laws and the terms of this Agreement. 3 (ii) Power; Binding Agreement. The Stockholder has the legal capacity, power and authority to enter into and perform all of the Stockholder's obligations under this Agreement. This Agreement has been duly and validly executed and delivered by the Stockholder and constitutes a valid and binding agreement of the Stockholder, enforceable against the Stockholder in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law)). There is no beneficiary or holder of a voting trust certificate or other interest of any trust of which the Stockholder is trustee whose consent is required for the execution and delivery of this Agreement or the consummation by the Stockholder of the transactions contemplated hereby. If the Stockholder is married and the Stockholder's Shares constitute community property, this Agreement has been duly authorized, executed and delivered by, and constitutes a valid and binding agreement of, the Stockholder's spouse, enforceable against such person in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law)). (iii) No Conflicts. As of the date of this Agreement, except for filings under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), if applicable, no filing with, and no permit, authorization, consent or approval of, any state or federal public body or authority is necessary for the execution of this Agreement by the Stockholder and the consummation by the Stockholder of the transactions contemplated hereby, except where the failure to obtain such consent, permit, authorization, approval or filing would not materially interfere with the Stockholder's ability to perform his obligations hereunder, and none of the execution and delivery of this Agreement by the Stockholder, the consummation by the Stockholder of the transactions contemplated hereby or compliance by the Stockholder with any of the provisions hereof shall (A) result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise to any third party right of termination, cancellation, material modification or acceleration) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, license, contract, commitment, arrangement, understanding, agreement or other instrument or obligation of any kind to which the Stockholder is a party or by which the Stockholder or any of his properties or assets may be bound, or (B) violate any order, writ, injunction, decree, judgment, order, statute, rule or regulation applicable to the Stockholder or any of the Shares, in each such case except to the extent that any conflict, breach, default or violation would not interfere with the ability of the Stockholder to perform his obligations hereunder. 4 (iv) No Encumbrances. Except as required by Section 2, at all times during the term hereof, all of the Shares will be held by the Stockholder, or by a nominee or custodian for the benefit of the Stockholder, or by a family member or Affiliate of the Stockholder (subject to the conditions set forth in clause (vi) below) free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, understandings or arrangements or any other encumbrances whatsoever, except for any liens, claims, understandings or arrangements that do not limit or impair the Stockholder's ability to perform his obligations under this Agreement. (v) No Solicitation. The Stockholder shall comply with the terms of Section 5.7 of the Asset Purchase Agreement to the extent such terms would be applicable to him. (vi) Restriction on Transfer, Proxies and Non-Interference. Except as otherwise contemplated by the Asset Purchase Agreement or this Agreement, from and after the date of this Agreement and ending on the Termination Date, the Stockholder shall not, directly or indirectly, without the consent of Purchaser in respect of any Transaction Proposal or otherwise: (A) offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to or consent to the offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or other disposition of (each, a "Transfer"), any or all of the Shares, or any interest therein, (B) grant any proxies or powers of attorney, deposit any Shares into a voting trust or enter into a voting agreement with respect to any Shares, (C) enter into any agreement or arrangement providing for any of the actions described in clause (A) or (B) above or (D) take any action that would reasonably be expected to have the effect of preventing or disabling the Stockholder from performing the Stockholder's obligations under this Agreement; provided, however, the Stockholder may, without the consent of Purchaser, Transfer his Shares to members of his family and/or Affiliates, further provided, however, that such transferees agree to be bound by the terms of this Agreement. (vii) Further Assurances. From time to time, at Purchaser's request and without further consideration, the Stockholder shall execute and deliver such additional documents as may be reasonably necessary or desirable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement. (b) Purchaser hereby represents, warrants and covenants to the Stockholder as follows: (i) Organization, Standing and Corporate Power. Purchaser is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, with full power and authority to own its properties and carry on its business as presently conducted. Purchaser has the necessary power and authority to enter into and perform all of its obligations under this Agreement and to consummate the transactions contemplated hereby. (ii) Execution, Delivery and Performance by Purchaser. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by Purchaser, do not require any authorization, consent or approval of, exemption or other action by, or notice to, any third party and Purchaser has taken all other actions required by law and its organizational documents to consummate the transactions contemplated by this Agreement. This Agreement constitutes the valid and binding obligation of Purchaser and is enforceable in accordance with its terms, except as enforceability may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally. 4. Recapitalization; Option Exercise. In the event of a stock dividend or distribution, or any change in the Shares (or any class thereof) by reason of any split-up, recapitalization, combination, exchange of shares or the like, the term "Shares" shall include, without limitation, all such stock dividends and distributions and any shares into which or for which any or all of the Shares (or any class thereof) may be changed or exchanged as may be appropriate to reflect such event. The term "Shares" shall also include any shares of Company Common Stock acquired by the Stockholder after the date of this Agreement and before the Termination Date. 6 5. Stockholder Capacity. The Stockholder does not make any agreement or understanding herein in the Stockholder's capacity as a director or officer of the Company. The Stockholder executes this Agreement solely in his capacity as a record owner and/or Beneficial Owner of the Shares and nothing herein shall limit or affect any actions taken by the Stockholder or any designee of the Stockholder in his capacity as an officer or director of the Company or any of its subsidiaries. 6. Miscellaneous. ------------- (a) Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. (b) Amendments, Waivers, Etc. This Agreement may not be amended, changed, supplemented, waived or otherwise modified or terminated, except upon the execution and delivery of a written agreement executed by the parties hereto. (c) Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly received if so given) by hand delivery, telegram, telex or telecopy, or by mail (registered or certified mail, postage prepaid, return receipt requested) or by any courier service, such as Federal Express, providing proof of delivery. All communications hereunder shall be delivered to the respective parties at the following addresses or the addresses set forth on the signature pages hereto: If to Stockholder: David E. Sandlin 19 Wesley Street Newnan, GA 30263 with a copy to: Parks, Chesin, Walbert & Miller, P.C. 75 Fourteenth Street 26th Floor Atlanta, Georgia 30309 Attention: Lee Parks, Esq. Facsimile No: (404) 873-8050 If to Purchaser: VTF Corporation c/o Veritas Capital Fund L.P. 660 Madison Avenue 14th Floor New York, New York 10021 Attention: Thomas J. Campbell Facsimile No.: (212) 688-9411 with a copy to: Winston & Strawn 200 Park Avenue New York, New York 10166 Attention: Benjamin Polk, Esq. Daniel A. Ninivaggi, Esq. Facsimile No.: (212) 294-4700 or to such other address as the person to whom notice is given may have previously furnished to the others in writing in the manner set forth above. (d) Severability. Whenever possible, each provision or portion of any provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or portion of any provision in such jurisdiction, and this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein. 7 (e) Specific Performance. The Stockholder recognizes and acknowledges that a breach by the Stockholder of any covenants or agreements contained in this Agreement will cause the Purchaser to sustain damages for which it would not have an adequate remedy at law for money damages, and therefore the Stockholder agrees that in the event of any such breach Purchaser shall be entitled to the remedy of specific performance of such covenants and agreements and injunctive and other equitable relief in addition to any other remedy to which it may be entitled, at law or in equity. (f) Assignability. Neither this Agreement nor any right or obligation hereunder is assignable in whole or in part, whether by operation of law or otherwise, by any party without the express written consent of the other parties hereto and any such attempted assignment shall be void and unenforceable; provided, however, that Purchaser may transfer or assign this Agreement or any right or obligation hereunder to any of its Affiliates or any financing source at any time prior to or after the Termination Date. This Agreement and the rights and obligations hereunder shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors or assignees, and no other person shall acquire or have any rights under or by virtue of this Agreement. (g) Remedies Cumulative. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any thereof by any party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such party. (h) No Waiver. The failure of any party hereto to exercise any right, power or remedy provided under this Agreement or otherwise available in respect hereof at law or in equity, or to insist upon compliance by any other party hereto with its obligations hereunder, and any custom or practice of the parties at variance with the terms hereof, shall not constitute a waiver by such party of its right to exercise any such or other right, power or remedy or to demand such compliance. (i) No Third Party Beneficiaries. This Agreement is not intended to be for the benefit of, and shall not be enforceable by, any person or entity who or which is not a party hereto; provided that, in the event of the Stockholder's death, the benefits and obligations of the Stockholder hereunder shall inure to his successors and heirs. (j) Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without giving effect to the principles of conflicts of law thereof. (k) Jurisdiction. Each party hereby irrevocably submits to the exclusive jurisdiction of the Federal and State Courts in the City of New York in any action, suit or proceeding arising in connection with this Agreement, and agrees that any such action, suit or proceeding shall be brought only in such court (and waives any objection based on forum non conveniens or any other objection to venue therein); provided, however, that such consent to jurisdiction is solely for the purpose referred to in this paragraph and shall not be deemed to be a general submission to the jurisdiction of said Courts or in the State of New York other than for such purposes. Each party hereto hereby waives any right to a trial by jury in connection with any such action, suit or proceeding. 8 (l) Descriptive Headings. The descriptive headings used herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. (m) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same Agreement. This Agreement shall not be effective as to any party hereto until such time as this Agreement or a counterpart thereof has been executed and delivered by each party hereto. 7. Termination. This Agreement shall terminate without any further action on the part of any party hereto on the Termination Date. 9 VOTING AGREEMENT SIGNATURE PAGE IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the Stockholder and a duly authorized officer of Purchaser on the day and year first written above. PURCHASER: VTF CORPORATION By: /s/ Robert B. McKeon Name: Robert B. McKeon Title: President STOCKHOLDER: /s/ David E. Sandlin David E. Sandlin SCHEDULE I* Part A Name of Owner Shares ------------- --------- David E. Sandlin 230,000 shares of New Common Stock Maritime Sales & Leasing Co.* 108,993 shares of New Common Stock Part B Name of Owner Other Securities ------------ ----------------- David E. Sandlin 173,000 options to purchase shares of New Common Stock * Stockholder shares voting power on these shares with John R. Bone