Non-Qualified Stock Option Agreement [Addendum] - Aviall Inc. and Paul E. Fulchino
ADDENDUM TO THE
NON-QUALIFIED STOCK OPTION AGREEMENT
This Addendum to the Non-Qualified Stock Option Agreement (this "Addendum") is
made and entered into effective as of this 21st day of December, 2001, by and
between Aviall, Inc., a Delaware corporation (the "Company") and Paul E.
Fulchino (the "Optionee"). Terms used in this Addendum with initial capital
letters that are defined in the 1998 Stock Incentive Plan (the "Plan") or are
defined in the Non-Qualified Stock Option Agreement between the Company and the
Optionee dated as of January 19, 2001 (collectively referred to herein as the
"Option Agreement") are used in this Addendum as so defined.
WHEREAS, Section 13 of the Option Agreement provides that any amendment to the
Plan is deemed an amendment to the Option Agreement and that no such amendment
shall adversely affect the rights of the Optionee under the Option Agreement
without the Optionee's consent; and
WHEREAS, Section 7 of the Option Agreement provides for the acceleration of any
Option granted under the Option Agreement in the event of a Change of Control;
and
WHEREAS , the Company adopted Amendment Number One to the Plan, amending the
Plan to revise the definition of "Change of Control;" and
WHEREAS, the parties desire to amend the Option Agreement to modify the
provision regarding the acceleration of options and the Optionee desires to
consent to have Amendment Number One to the Plan apply to rights of the Optionee
under the Option Agreement.
NOW, THEREFORE, for good and valuable consideration, the Company and the
Optionee agree as follows:
1. Section 7 of the Option Agreement is amended by adding the following to the
end of said Section:
Notwithstanding any provision to the contrary herein, following
Stockholder Approval, a "Change of Control" shall not be deemed to have
occurred for purposes of this Agreement if (i) Carlyle, alone or
together with its affiliates (as such term is defined for purposes of
Rule 12b-2 of the General Rules and Regulations of the Exchange Act,
"Affiliates") and associates (as such term is defined for purposes of
Rule 12b-2 of the General Rules and Regulations of the Exchange Act,
("Associates"), becomes the beneficial owner of 20% or more of the
Common Stock then outstanding (either through the acquisition of the
Investor Shares or the exercise or conversion of the Bridge Preferred
Stock, the Permanent Preferred Stock or the Carlyle Shares), or (ii) a
person becomes the beneficial owner of any Investor Shares, provided,
however, that if such
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person, together with all Affiliates and Associates of such person,
shall become after acquiring the Investor Shares, or is at the time of
the acquisition of any Investor Shares, the beneficial owner of 5% or
more of the Common Stock then outstanding (in addition to any Investor
Shares held by such person or any Affiliate or Associate of such
person) then a "change of control" shall be deemed to have occurred
upon the later of (A) the date such person's acquisition of the
Investors Shares or (B) the date such person became the beneficial
owner of 5% or more of the Common Stock. Notwithstanding any provision
to the contrary herein, prior to Stockholder Approval, for the purpose
of this Agreement, Carlyle shall not be deemed to be the beneficial
owner of (i) any shares of Permanent Preferred Stock, (ii) any shares
of Common Stock issuable upon conversion of the Permanent Preferred
Stock or (iii) any Carlyle Shares. For purposes of this Section 7, the
following definitions shall apply:
(i) "Bridge Preferred Stock" shall mean the Series B Senior
Convertible Participating Preferred Stock, par value $0.01 per share,
of the Company.
(ii) "Carlyle" shall mean collectively, Carlyle Partners III,
L.P., a Delaware limited partnership, CP III Coinvestment, a Delaware
limited partnership, together with their Affiliates and Associates.
(iii) "Carlyle Securities Purchase Agreement" shall mean that
certain Securities Purchase Agreement, dated as of December 17, 2001,
by and among the Company and Carlyle.
(iv) "Carlyle Shares" shall mean any Common Stock issuable to
Carlyle pursuant to the Note Purchase Agreement and any Common Stock
issuable upon exercise of warrants issuable to Carlyle pursuant to the
Note Purchase Agreement.
(v) "Common Stock" shall mean the shares of common stock, par
value $0.01 per share, of the Company.
(vi) "Investor Shares" shall mean the shares of (A) the
Permanent Preferred Stock, (B) the Bridge Preferred Stock, (C) the
Carlyle Shares, (D) the Common Stock issuable on conversion of the
Permanent Preferred Stock or the Bridge Preferred Stock and (E) any
shares issued as dividends or on conversion or exchange or otherwise in
respect of the securities referred to in the foregoing clauses (A)
through (D).
(vii) "Note Purchase Agreement" shall mean that certain
Securities Purchase Agreement, dated as of December 17, 2001, by and
among the Company, Aviall Services, Inc., J.H. Whitney Mezzanine Fund,
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L.P., Whitney Private Debt Fund, L.P., Blackstone Mezzanine Partners,
L.P., Blackstone Mezzanine Holdings, L.P., Carlyle High Yield Partners,
L.P. and Oak Hill Securities Fund, L.P. and among other entities.
(viii) "Permanent Preferred Stock" shall mean the Series D
Senior Convertible Participating Preferred Stock, par value $0.01 per
share, of the Company.
(ix) "Stockholder Approval" shall mean the affirmative vote of
a majority of the Common Stock of the Company represented in person or
by proxy at a meeting of the Company's stockholders in favor of
approval of the issuance of the Permanent Preferred Stock issuable upon
conversion of the Bridge Preferred Stock and the issuance of Common
Stock of the Company issuable upon conversion of the Permanent
Preferred Stock.
2. The Optionee consents and agrees to have Amendment Number One to the Plan
apply to the rights of the Optionee under the Option Agreement.
3. The Option Agreement, as modified by this Addendum, remains in full force and
effect.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the Company and the Optionee have executed or
caused to be executed, this Addendum effective as of the day and year first
written above.
AVIALL, INC.
By: /s/ Jeffrey J. Murphy
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Dated: December 19, 2001
OPTIONEE
By: /s/ Paul E. Fulchino
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Paul E. Fulchino
Dated: December 19, 2001
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