exv4w2



 





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, all such additional
or further consents, documents and other instruments as the Company may
reasonably request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.



     SECTION 4. Additional Matters.



          (a) The Stockholder agrees that this Agreement and the obligations
hereunder shall attach to the Stockholder’s Subject Shares and shall be binding
upon any person or entity to which legal or beneficial ownership of such
Subject Shares shall pass, whether by operation of law or otherwise, including
the Stockholder’s heirs, guardians, administrators or successors, and that each
certificate representing such Subject Shares has been or will be inscribed with
a legend to such effect.



          (b) The Stockholder agrees that the Stockholder will tender to the
Company, within 10 business days after the date hereof (or, in the event
Subject Shares are acquired subsequent to the date hereof within 10 business
days after the date of such acquisition), any and
all certificates representing the Stockholder’s Subject Shares in order
that the Company may inscribe upon such certificates the legend in accordance
with SECTION 4(a) hereof.



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          (c) The parties hereto agree that this Agreement is not a solicitation of
a proxy as such terms are used in Section 14 of the Securities Exchange Act of
1934, as amended.



     SECTION 5. Termination. This Agreement shall terminate, and the provisions
hereof shall be of no further force or effect, upon the earlier to occur of (i)
September 1, 2004, (ii) the date that the Proposals described on Exhibit B
hereto that the Company decides to submit for stockholder approval have been
approved by the stockholders of the Company or (iii) the date on which the
Stockholder does not own, either of record or beneficially, the Subject Shares.
Nothing in this SECTION 5 shall relieve or otherwise limit the liability of
any party for breach of this Agreement. Notwithstanding the foregoing, the
Company may terminate this Agreement at any time upon written notice to the
Stockholder.



     SECTION 6. General Provisions.



          (a) Expenses. Each of the parties hereto shall bear and pay all costs and
expenses incurred by it or on its behalf in connection with the negotiation of
this Agreement, including fees and expenses of its own financial consultants,
investment bankers, accountants and counsel.



          (b) Amendments. This Agreement may not be amended except by an instrument
in writing signed by each of the parties hereto.



          (c) Interpretation. When a reference is made in this Agreement to a
Section, such reference shall be to a Section of this Agreement unless
otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Wherever the words “include”, “includes” or
“including” are used in this Agreement, they shall be deemed to be followed by
the words “without limitation”.



          (d) Counterparts. This Agreement may be executed in one or more
counterparts (including by facsimile), all of which shall be considered one and
the same agreement. This Agreement shall become effective against the Company
when one or more counterparts have been signed by the Company and delivered to
the Stockholder. This Agreement shall become effective against the Stockholder
when one or more counterparts have been executed by the Stockholder and
delivered to the Company. Each party need not sign the same counterpart.



          (e) Entire Agreement. This Agreement and the Registration Rights
Agreement and the documents and instruments referenced herein constitute the
entire agreement and understanding of the parties hereto in respect of the
subject matter contained herein or
therein and supersede all prior agreements and understandings, both
written and oral, among the parties with respect to such subject matter.



          (f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, REGARDLESS OF THE LAWS THAT
MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAW THEREOF.



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     SECTION 7. Specific Enforcement. The parties agree that irreparable damage
would occur and that the parties would not have any adequate remedy at law in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in the courts of the State of Texas,
County of Dallas or, if it has or can acquire jurisdiction, in the United
States District Court for the Northern District of Texas, Dallas Division, this
being in addition to any other remedy to which they are entitled at law or in
equity. In addition, each of the parties hereto (i) consents to submit itself
to the personal jurisdiction of such courts (and of the appropriate appellate
courts) in the event any dispute arises out of this Agreement or the
transactions contemplated by this Agreement, (ii) agrees that it will not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court and (iii) agrees that it will not bring any
action relating to this Agreement or the transactions contemplated by this
Agreement in any other court.



     SECTION 8. Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by the Stockholder, on the one hand,
without the prior written consent of the Company nor by the Company, on the
other hand, without the prior written consent of the Stockholder, and any
assignment without such consent shall be null and void. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit
of and be enforceable by the parties and their respective successors and
assigns.



     SECTION 9. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible to the fullest
extent permitted by applicable Law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.



(Signature page follows)




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     IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by
its officer thereunto duly authorized and the Stockholder has signed this
Agreement, all as of the date first written above.



	 	 	 	 	 
	 	 	KITTY HAWK, INC.
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	
 
	

	 	Name:	 	 
	

	 	 	 	
 
	

	 	Title:	 	 
	

	 	 	 	
 
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	
 
	

	 	Name:	 	 
	

	 	 	 	
 
	

	 	Title:	 	 
	

	 	 	 	
 







 









 





Exhibit A




(Please complete for each Stockholder and Each of its Affiliates)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Is Beneficial Owner a U.S.
	Beneficial	 	 	 	 	 	Citizens (as defined by
	Owner Name
	 	Common Stock
	 	Warrants
	 	49 U.S.C. § 40102(a)(15))?1

	

	 	 	 	 	 	Yes
	 	No
	

	 	 	 	 	 	o
	 	o
	
 
	 
	 	 	 	 	 	 	 	 
	

	 	 	 	 	 	Yes
	 	No
	

	 	 	 	 	 	o
	 	o
	
 
	 
	 	 	 	 	 	 	 	 
	

	 	 	 	 	 	Yes
	 	No
	

	 	 	 	 	 	o
	 	o
	
 
	 
	 	 	 	 	 	 	 	 
	

	 	 	 	 	 	Yes
	 	No
	

	 	 	 	 	 	o
	 	o
	
 
	 
	 	 	 	 	 	 	 	 
	

	 	 	 	 	 	Yes
	 	No
	

	 	 	 	 	 	o
	 	o
	
 
	 
	 	 	 	 	 	 	 	 
	

	 	 	 	 	 	Yes
	 	No
	

	 	 	 	 	 	o
	 	o
	
 
	 
	 	 	 	 	 	 	 	 
	

	 	 	 	 	 	Yes
	 	No
	

	 	 	 	 	 	o
	 	o
	
 
	 
	 	 	 	 	 	 	 	 
	

	 	 	 	 	 	Yes
	 	No
	

	 	 	 	 	 	o
	 	o
	
 
	 
	 	 	 	 	 	 	 	 













	 	 	1 Under 49 U.S.C. § 40102(a)(15), a “citizen of the United States” is:






	 	(i)	 	an individual who is a citizen of the United States;
	 
	 	(ii)	 	a partnership each of whose partners is an individual who is a
“citizen of the United States” as such term is defined in 49
U.S.C. § 40102(a)(15); or
	 
	 	(iii)	 	a corporation or association organized under the laws of the
United States or a State, the District of Columbia, or a
territory or possession of the United States, of which the
president and at least two-thirds of the board of directors and
other managing officers are “citizens of the United States” (as
such term is defined in 49 U.S.C. § 40102(a)(15)), and in which
at least 75 percent of the voting interest is owned or
controlled by persons that are “citizens of the United States”
(as such term defined in 49 U.S.C. § 40102(a)(15)).




 









 





Exhibit B




     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 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 the persons appointed as proxies, shall vote or consent (or cause
to be voted or consented to) the Subject Shares in favor of the following
(solely to the extent that the Company elects to submit any or all of the
following to a stockholder vote for approval):



	 	 	 	 	 
	1.

	 	Classification of Directors:
	 	Amendments to the Company’s
Certificate of Incorporation
(the “Charter”) and Bylaws (the
“Bylaws”) to classify the
Company’s Board of Directors
(the “Board”) into three
classes of directors, with each
director serving a three-year
term, and with one class being
elected each year.
	 
	 	 	 	 
	2.

	 	Removal of Directors only for Cause
and Definition of Cause:
	 	 Amendments to the Charter and
the Bylaws to provide that
directors of the Company may be
removed by the stockholders
only for cause.
Amending the Charter to provide
that “cause” for removal of a
director will exist only if the
director:
	 
	 	 	 	 
	

	 	 	 	        (a) has been convicted of a
felony by a court of competent
jurisdiction and such
conviction is no longer subject
to direct appeal;
	 
	 	 	 	 
	

	 	 	 	        (b) has been adjudged by a
court of competent jurisdiction
to be liable for gross
negligence or misconduct in the
performance of the duties of
such director to the Company
in connection with a matter of
substantial importance to the
Company, and such adjudication
has become final and
non-appealable; or
	 
	 	 	 	 
	

	 	 	 	        (c) has missed six (6)
consecutive meetings of the
Board of Directors.
	 
	 	 	 	 
	

	 	 	 	The foregoing definition of
cause may be changed in the
sole discretion of the Board.
Any such changes shall not
affect the Stockholders’
covenant to vote in favor of
this amendment.
	 
	 	 	 	 
	3.

	 	Amendments to Charter and Bylaws:
	 	Amendments to the Charter to
require that certain amendments
to the Charter or Bylaws put to
a stockholder vote must be
approved by the vote of holders
of at least 66 2/3% of the
outstanding voting stock.







 









 





	 	 	 	 	 
	4.

	 	Action by Written Consent:
	 	Amendments to the Charter and
Bylaws to permit stockholders
to act only at annual or
special meetings of
stockholders and not by written
consent.
	 
	 	 	 	 
	5.

	 	Increase Shares Under the Equity

Incentive Plan:
	 	An amendment to the Company’s
equity incentive plan (“Plan”)
to increase the number of
shares of common stock issuable
under the Plan by up to 500,000
effective June 30, 2005. The
amendment would eliminate the
current provisions limiting
grants to those persons who
received three-years worth of
options pursuant to the initial
grants under the Plan until
September 30, 2005 or September
30, 2007, as applicable,
subject to specified
exceptions.
	 
	 	 	 	 
	6.

	 	Increase Capitalization:
	 	An amendment to the Charter
increasing the number of
authorized shares common stock
up to 100,000,000 and the
number of authorized shares of
preferred stock up to
10,000,000.
	 
	 	 	 	 
	7.

	 	Section 203 of DGCL:
	 	An amendment to the Charter to
make Section 203 of the
Delaware General Corporation
Law applicable to the Company.