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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of report (date of earliest event reported): November 20, 1998
NORTHWEST AIRLINES CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 0-23642 41-1905580
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
2700 Lone Oak Parkway
Eagan, Minnesota 55121
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (612) 726-2111
(Former name or former address, if changed since last report):
Exhibit Index Appears on Page 6. Page 1 of 6 pages
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ITEM 5. Other Events
(a) On November 20, 1998, pursuant to the terms of (i) the
Investment Agreement dated as of January 25, 1998, as amended by Amendment No. 1
dated as of February 27, 1998, and Amendment No. 2 dated as of November 20, 1998
(the "Investment Agreement"), among Northwest Airlines Holdings Corporation
(formerly known as Northwest Airlines Corporation, "Holdings"), Northwest
Airlines Corporation (formerly known as Newbridge Parent Corporation,
"Northwest"), Air Partners, L.P. ("Air Partners"), the partners of Air Partners
, 1998 CAI Partners, L.P., Bonderman Family Limited Partnership, 1992 Air, Inc.
and Air Saipan, Inc. ("Air Saipan") and (ii) the Purchase Agreement dated as of
March 2, 1998 (the "Barlow Agreement"), among Northwest, Holdings, Barlow
Investors III, LLC ("Barlow") and the Guarantors that are signatory thereto,
Northwest has acquired the outstanding interests in Air Partners, certain shares
of the Class A Common Stock, par value $.01 per share (the "Class A Common
Shares"), of Continental Airlines, Inc. ("Continental") held by Air Saipan and
by Barlow, resulting in Northwest's ownership of an aggregate of 8,661,224 Class
A Common Shares (the "Acquired Shares").
The Acquired Shares represent 14.6% of Continental's common
stock equity and 53.4% of its outstanding common stock voting power. Northwest
has also acquired beneficial ownership through a limited proxy of an additional
853,644 Class A Common Shares. In exchange for the Acquired Shares, Northwest
issued to certain partners of Air Partners an aggregate of 2,631,784 shares of
its common stock, par value $ .01 per share ("Northwest Common Stock"), paid to
certain partners of Air Partners and Air Saipan an aggregate of $308,256,261,
including interest, and paid to Barlow $61,474,612.42, including interest.
(b) On November 20, 1998, Northwest Airlines, Inc., an
indirect wholly owned subsidiary of Northwest, and Continental announced the
implementation of their global strategic operating alliance, in accordance
with the terms of the Master Alliance Agreement between them, dated as of
January 25, 1998 (the "Alliance Agreement"). The Alliance Agreement will
connect the two carriers' networks and will include code-sharing, frequent
flyer program reciprocity, cooperation between Continental and KLM, and other
cooperative activities as well as offering consumers the benefits of new
on-line connections with ease of ticketing, check-in and luggage handling.
The two airlines have no plans to merge their operations and will retain
separate boards, managements and headquarters. No layoffs, mergers of
workforces, transfers of flying or other assets, or closures of facilities
have occurred as a result of the Alliance Agreement or are planned.
(c) Also on November 20, 1998, concurrently with the closing
of the transactions described in (a) above, Newbridge Merger Corporation, at the
time a wholly-owned subsidiary of Northwest, was merged with and into Holdings
(the "Merger"), as a result of which Holdings (formerly Northwest Airlines
Corporation) has become a wholly-owned subsidiary of Northwest (formerly
Newbridge Parent Corporation). In the Merger, each outstanding share of Common
Stock, par value $ .01 per share, of Holdings was exchanged for one share of
Northwest Common Stock. The Merger was accomplished without a vote of the
stockholders of Northwest in accordance with Section 251(g) under the Delaware
General Corporation Law.
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3
(d) In conjunction with the closing of the transactions
described above, Continental, Holdings and Northwest also entered into a Second
Amendment to the Governance Agreement (which was entered into as of January 25,
1998, among Northwest, Holdings and Continental) dated as of November 20, 1998
(the "Second Amendment") and a Supplemental Agreement, dated as of November 20,
1998 (the "Supplemental Agreement"). The Supplemental Agreement governs the
period from the sixth anniversary of the Closing until the tenth anniversary of
the closing (the "Supplemental Period").
The Second Amendment, among other things, (i) eliminates
Northwest's right under the Governance Agreement to appoint a designee to
Continental's Board of Directors; and (ii) requires that, other than with
respect to extraordinary transactions and the election of directors, Northwest
will vote its Continental shares on all matters submitted to stockholders in
proportion to the votes cast by other holders of voting securities.
The Supplemental Agreement extends for an additional four
years the voting and transfer restrictions, as well as provides Northwest with
an extension of certain protections, set forth in the Governance Agreement,
except that Northwest will have full discretion to vote up to 20% of the total
outstanding voting power of Continental. It also provides, among other things,
that, during the Supplemental Period, Northwest will take all such actions as
are necessary to cause Continental's Board of Directors to consist of a majority
of Independent Directors (as defined in the Supplemental Agreement) subject to
certain exceptions in the case of proxy contests.
Copies of the Second Amendment to the Governance Agreement,
the Supplemental Agreement, Amendment No. 2 to the Investment Agreement and the
Voting Trust Agreement are attached hereto as Exhibits 2.1, 2.2, 2.3 and 2.4,
respectively. The foregoing descriptions of the Second Amendment to the
Governance Agreement, the Supplemental Agreement, Amendment No. 2 to the
Investment Agreement and the Voting Trust Agreement are qualified in their
entirety by reference to the full text of such exhibits, which are incorporated
herein by reference.
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ITEM 7. Financial Statements and Exhibits
(c) Exhibits
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
2.1 Second Amendment to the Governance Agreement, among
Continental Airlines, Inc., Northwest Airlines Corporation
(formerly known as Newbridge Parent Corporation, "Northwest")
and Northwest Airlines Holdings Corporation (formerly known as
Northwest Airlines Corporation, "Holdings"), dated as of
November 20, 1998.
2.2 Supplemental Agreement, among Continental Airlines, Inc.
("Continental"), Northwest and Holdings, dated as of November 20, 1998.
2.3 Amendment No. 2 to the Investment Agreement among Northwest, Holdings, Air
Partners, L.P., the partners of Air Partners, L.P., 1998 CAI Partners, L.P.,
Bonderman Family Limited Partnership, 1992 Air, Inc. and Air Saipan, Inc., dated
as of November 20, 1998.
2.4 Northwest Airlines/Air Partners Voting Trust Agreement by and among
Continental, Holdings, Air Partners, L.P., and Wilmington Trust Company, dated
November 20, 1998.
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
NORTHWEST AIRLINES CORPORATION
By: /s/ Douglas M. Steenland
---------------------------------------------------
Its: Executive Vice President, General Counsel and
Secretary
Date: November 20, 1998
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
2.1 Second Amendment to the Governance Agreement, among
Continental Airlines, Inc., Northwest Airlines Corporation
(formerly Newbridge Parent Corporation, "Northwest") and
Northwest Airlines Holdings Corporation (formerly Northwest
Airlines Corporation, "Holdings"), dated as of November 20,
1998.
2.2 Supplemental Agreement, among Continental Airlines, Inc.
("Continental"), Northwest and Holdings, dated as of November 20, 1998.
2.3 Amendment No. 2 to the Investment Agreement among Northwest, Holdings, Air
Partners, L.P., the partners of Air Partners, L.P., 1998 CAI Partners, L.P.,
Bonderman Family Limited Partnership, 1992 Air, Inc. and Air Saipan, Inc., dated
as of November 20, 1998.
2.4 Northwest Airlines/Air Partners Voting Trust Agreement by and among
Continental, Holdings, Air Partners, L.P., and Wilmington Trust Company, dated
November 20, 1998.
</TABLE>
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Exhibit 2.1
SECOND AMENDMENT
TO THE
GOVERNANCE AGREEMENT
This Second Amendment to the Governance Agreement dated as of November
20, 1998, is by and among Continental Airlines, Inc., a Delaware corporation
(the "Company"), Newbridge Parent Corporation, a Delaware corporation (the
"Stockholder"), and Northwest Airlines Corporation, a Delaware corporation that
is the holder of all of the outstanding stock of the Stockholder (the "Parent").
WHEREAS, the Company, the Stockholder and the Parent have entered into
that certain Governance Agreement dated as of January 25, 1998, as amended by
the First Amendment dated as of March 2, 1998 (the "Governance Agreement"),
pursuant to which, among other things, (i) the Parent and the Stockholder have
agreed to deposit immediately following the Closing the Voting Securities
Beneficially Owned by them or any of their Affiliates into a voting trust (the
"Voting Trust") to be established by them with an independent voting trustee
that will provide that such Voting Securities will be voted as specified in the
Governance Agreement and (ii) the Company has agreed to cause a person
designated by the Stockholder to be elected to the Company's board of directors
immediately following the Closing;
WHEREAS, the Parent has been in discussions with the United States
Department of Justice ("DOJ") regarding the terms of the Investment Agreement,
and the Parent and the Company have been in discussions with DOJ regarding the
terms of the Alliance Agreement and the Governance Agreement (the Investment
Agreement, the Alliance Agreement and the
<PAGE>
Governance Agreement together, the "Agreements") in connection with DOJ's
antitrust review of the transactions contemplated by the Investment Agreement;
WHEREAS, the Parent and the Company believe that the transactions
contemplated by the Agreements are procompetitive and beneficial to consumers;
WHEREAS, DOJ has expressed concerns about the effect on competition of
certain terms of the Agreements;
WHEREAS, the Parent and the Stockholder believe that certain changes
to the Governance Agreement with respect to the provisions described above are
desirable to obviate the concerns of DOJ;
WHEREAS, the Parent and the Stockholder have requested that the
Company agree to amend such provisions of the Governance Agreement to obviate
the concerns of DOJ; and
WHEREAS, the Company is willing to agree to these amendments to
facilitate the prompt closing of the transactions contemplated by the Investment
Agreement and the subsequent realization by the Company and its stockholders of
the expected benefits of the Alliance Agreement.
NOW THEREFORE, the Company, the Stockholder and the Parent, intending
to be legally bound, hereby agree as follows:
1. Capitalized terms not otherwise defined herein shall have their
respective meanings set forth in the Governance Agreement.
2. All references in Sections 1 through 9 of the Governance Agreement
to the "Investment Agreement" are hereby modified to refer to the
Investment Agreement as amended
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by Amendment No. 1 thereto dated February 27, 1998 and Amendment No. 2
dated as of November 20, 1998.
3. Section 1.02 of the Governance Agreement is amended by renumbering
clause (vi) as clause (vii) and adding a new clause (vi) with the following
text: "Transfers of Voting Securities to the B/C/P Group."
4. The following definition shall be added to Section 9 (which,
pursuant to Section 7 hereof, is to be renumbered as Section 8) after the
definition of "Associate": "`B/C/P Group'" shall mean David Bonderman, James
Coulter or William S. Price, III, or any Person with respect to which one or
more of them (i) directly or indirectly controls at least 50.1% of the voting
power, (ii) directly or indirectly controls at least 50.1% of the equity, or
(iii) directly or indirectly controls in a manner substantially similar to the
control that the general partner of Air Partners has over Air Partners pursuant
to and as provided in the "Partnership Agreement" (as defined in the Investment
Agreement), which Persons described in clause (iii) shall include 1998 CAI
Partners, L.P., a Texas limited partnership, under its partnership agreement and
ownership structure in effect on the date hereof."
5. The definition of "Beneficially Own" and "Beneficial Ownership" is
hereby amended by adding the following at the end thereof: "; for the avoidance
of doubt, securities with respect to which the Stockholder or the Parent has
been granted a proxy pursuant to the Investment Agreement shall be deemed to be
beneficially owned by the Stockholder or the Parent."
6. Section 1.03 of the Governance Agreement is amended and restated to
read in its entirety as set forth below:
Section 1.03. Voting Trust. Immediately following the
Closing, the Stockholder and the Parent shall cause AP to
deposit the Shares, and the Stockholder and the Parent shall
deposit any other shares of Voting Securities Beneficially
Owned by either of them or any of their Affiliates, into a
voting trust (the "Voting Trust") to be established pursuant
to a voting trust agreement (the
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"Voting Trust Agreement") with an independent voting trustee
in a form reasonably satisfactory to Parent and the Company
and which shall include the following provisions for the
voting of the shares of Voting Securities deposited therein:
until the Standstill Termination Date, all such shares shall
(a) be voted or consented on all matters submitted to a vote
of the Company's stockholders, other than the election of
directors, either (i) in the case of votes at a stockholders
meeting, in the same proportion as the votes cast by other
holders of Voting Securities, or (ii) in the case of
consents, so that the percentage of Stockholder Voting Power
consented to on any matter equals the percentage of all
other outstanding Voting Securities so consented; provided,
that with respect to (x) any vote on a merger,
reorganization, share exchange, consolidation, business
combination, recapitalization, liquidation, dissolution or
similar transaction involving the Company, any sale of all
or substantially all of the Company's assets or any issuance
of Voting Securities that would represent in excess of 20%
of the Voting Power prior to such issuance, including any of
the foregoing involving the Stockholder or the Parent, or
(y) any amendment to the Company's amended and restated
certificate of incorporation or by-laws that would
materially and adversely affect the Stockholder (including
through its effect on the Alliance Agreement and the rights
of the Voting Securities Beneficially Owned by the
Stockholder), such shares may be voted as directed by the
Stockholder and (b) in the election of directors, for the
election of the Independent Directors nominated by the Board
of Directors of the Company determined by a Majority Vote;
provided, that with respect to any election of directors in
respect of which any Person other than the Company is
soliciting proxies, the Stockholder and the Parent shall
cause all such shares to be voted, at the option of the
Stockholder, either (i) as recommended by the Board of
Directors or (ii) in the same proportion as the votes cast
by the other holders of Voting Securities. The Voting Trust
Agreement shall also provide that the Voting Trust shall not
issue voting trust certificates or any interest in the
Voting Trust to a Person other than the Stockholder or any
of its Affiliates.
7. Section 1.04 of the Governance Agreement is amended by (a) deleting
from clause (a) thereof the words "by virtue of the Stockholder's representation
on the Board of Directors of the Company, if any," (b) replacing the language in
the parenthetical expression at the end of clause (a) thereof with the words "it
being agreed that this paragraph shall not prohibit the Parent and its
Subsidiaries, and their respective directors, officers and employees, from
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engaging in ordinary course business activities with the Company or having
periodic discussions with directors, officers and employees of the Company
regarding the Company's business, it being understood that such matters shall
not include matters that, under applicable antitrust laws, could not be
discussed among competitors" and (c) replacing the language in clause (ii) of
the proviso at the end of Section 1.04 in its entirety with the words
"[intentionally omitted]".
8. Section 2.01 of the Governance Agreement is amended and restated to
read in its entirety as set forth below:
Section 2.01. Composition of Board of Directors.
(a) The individuals listed on Exhibit 2.01 hereto shall, for
purposes of this Agreement, constitute the Independent Directors
immediately after the consummation of the Stock Purchase (the
"Closing").
(b) Following the Closing, and until the Standstill Termination
Date, the Company, the Parent, the Stockholder and their respective
Affiliates shall take all such actions as are required under
applicable law to cause Independent Directors to constitute at all
times at least a majority of the Board of Directors. At each annual
meeting of stockholders of the Company following the Closing, or at
any time that a vacancy in a seat previously occupied by an
Independent Director on the Board of Directors is to be filled, the
identity of the Independent Director or Directors to stand for
election to the Board of Directors or to fill the vacancy, as the case
may be, shall be determined by a Majority Vote.
(c) Without the prior written consent of the Parent, the Company
shall not amend, alter or repeal its amended and restated certificate
of incorporation or by-laws so as to eliminate or diminish the ability
of stockholders of the Company to act by written consent or Section
1.10 of the Company's by-laws.
9. Section 7 of the Governance Agreement ("Post-Standstill Termination
Date Board Composition") is deleted, Section 8, Section 8.01, and Section 9 are
renumbered as Section 7, Section 7.01 and Section 8 respectively, references in
the Governance Agreement to Section 8, Section 8.01 and Section 9 shall be
modified accordingly, the phrase "except the
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obligations of the Stockholder and the Parent pursuant to Section 7" is deleted
from Section 6.07(c) and the phrase "(other than their obligations pursuant to
Section 7)" is deleted from Section 8.01(c) (renumbered as Section 7.01(c)) the
two times it appears.
10. The phrase "no less than 15% of the Voting Securities" in the last
sentence of Section 8.01(c) of the Governance Agreement shall be changed to
"Voting Securities representing no less than 15% of the Total Voting Power".
11. The Company hereby represents and warrants to the Parent and the
Stockholder that this Second Amendment to the Governance Agreement has been
approved by a Majority Vote.
12. This Second Amendment may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
13. Except as expressly modified by this Second Amendment to the
Governance Agreement, all of the terms, conditions and provisions of the
Governance Agreement shall remain unchanged and in full force and effect.
[The remainder of this page has intentionally been left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to the Governance Agreement to be executed as of the date first
referred to above.
Northwest Airlines Corporation
By: /s/ Douglas M. Steenland
------------------------------------------
Douglas M. Steenland
Executive Vice President, General Counsel
and Secretary
Newbridge Parent Corporation
By: /s/ Douglas M. Steenland
------------------------------------------
Douglas M. Steenland
Vice President, Secretary and
Assistant Treasurer
Continental Airlines, Inc.
By: /s/ Jeffery A. Smisek
------------------------------------------
Jeffery A. Smisek
Executive Vice President,
General Counsel and Secretary
[Signature Page to Second Amendment]
<PAGE>
Exhibit 2.2
SUPPLEMENTAL AGREEMENT
Supplemental Agreement dated as of November 20, 1998, among
Continental Airlines, Inc., a Delaware corporation (the "Company"), Newbridge
Parent Corporation, a Delaware corporation (the "Stockholder"), and Northwest
Airlines Corporation, a Delaware corporation that is the holder of all of the
outstanding stock of the Stockholder ("Parent").
WHEREAS, the Parent, the Stockholder and Air Partners, L.P., a Texas
limited partnership ("AP"), have entered into an Investment Agreement dated as
of January 25, 1998, as amended by Amendment No. 1 dated February 27, 1998 and
Amendment No. 2 dated as of the date hereof (the "Investment Agreement"), to
which the Company is not a party and, pursuant to which, among other things, the
Stockholder has acquired the outstanding interests in AP and certain shares of
Class A Common Stock, par value $.01 per share ("Class A Common Stock"), held by
certain affiliates of AP resulting in its Beneficial Ownership of 8,535,868
shares of Class A Common Stock of the Company (the "Stock Purchase");
WHEREAS, the Stockholder and the Parent Beneficially Own an additional
979,000 shares of Class A Common Stock (the "Additional Shares") pursuant to a
Purchase Agreement dated as of March 2, 1998, among the Stockholder, the Parent,
Barlow Investors III, LLC, a California limited liability company, and the
guarantors signatory thereto;
WHEREAS, Northwest Airlines, Inc., an indirect wholly owned subsidiary
of Parent, and the Company have entered into a Master Alliance Agreement dated
as of January 25, 1998 (the "Alliance Agreement");
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WHEREAS, as a condition to entering into the Alliance Agreement, the
Company required that the Parent and the Stockholder enter into the Governance
Agreement with the Company dated as of January 25, 1998, which agreement was
subsequently amended by a First Amendment to the Governance Agreement dated as
of March 2, 1998 and is being amended by a Second Amendment dated as of the date
hereof;
WHEREAS, the Parent has been in discussions with the United States
Department of Justice ("DOJ") regarding the terms of the Investment Agreement,
and the Parent and the Company have been in discussions with DOJ regarding the
terms of the Alliance Agreement, and the Governance Agreement (the Investment
Agreement, the Alliance Agreement and the Governance Agreement together, the
"Agreements") in connection with DOJ's antitrust review of the transactions
contemplated by the Agreements;
WHEREAS, the Parent and the Company believe that the transactions
contemplated by the Agreements are procompetitive and beneficial to consumers;
WHEREAS, the DOJ has expressed concerns about the effect on
competition of certain terms of the Agreements;
WHEREAS, the Parent and the Stockholder believe that it is desirable
that certain of the terms and conditions of the Governance Agreement be
supplemented and extended to obviate the concerns of DOJ;
WHEREAS, the Parent and the Stockholder have requested that the
Company enter into this Agreement to obviate the concerns of DOJ; and
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WHEREAS, the Company is willing to agree to enter into this Agreement
to facilitate the prompt closing of the transactions contemplated by the
Investment Agreement and the subsequent realization by the Company and its
stockholders of the expected benefits of the Alliance Agreement.
NOW, THEREFORE, the Company, the Stockholder and the Parent, intending
to be legally bound, hereby agree as follows:
Section 1. Defined Terms. Capitalized terms not otherwise defined
herein shall have their respective meanings set forth in Section 28 of this
Agreement.
Section 2. Independent Directors. During the Supplemental Period,
except in accordance with the proviso to Section 5, the Company, the Parent, the
Stockholder and their respective Affiliates shall take all such actions as are
required under applicable law to cause Independent Directors to constitute at
all times at least a majority of the Board of Directors. At each annual meeting
of stockholders of the Company, or at any time that a vacancy in a seat
previously occupied by an Independent Director on the Board of Directors is to
be filled, the identity of the Independent Director or Directors to stand for
election to the Board of Directors or to fill the vacancy, as the case may be,
shall be determined by a Majority Vote.
Section 3. Transactions Involving the Stockholder. During the
Supplemental Period, any material transaction between the Company and the
Parent, the Stockholder or any of their respective Affiliates, or relating to
this Agreement or the Alliance Agreement, including without limitation, any
amendment, modification or waiver of any provision hereof or thereof, shall not
be taken without the prior approval thereof by a Majority Vote.
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Section 4. Significant Actions. During the Supplemental Period, no
action described in Exhibit 4 of this Agreement may be taken without the prior
approval thereof by a Majority Vote.
Section 5. Voting Generally. During the Supplemental Period, subject
to their obligations in Section 2 above, on all matters other than an
Extraordinary Transaction, and except as permitted by Section 7, the
Stockholder, the Parent and its Affiliates (a) may vote Voting Securities
Beneficially Owned by them representing up to 20% of the Total Voting Power in
their sole discretion and (b) shall cast any remaining Stockholder Voting Power
(i) in the case of votes at a stockholders meeting, in the same proportion as
the votes cast by the other holders of Voting Securities and (ii) in the case of
action by written consent, so that such percentage of Stockholder Voting Power
consented to on any matter equals the percentage of all other outstanding Voting
Securities so consented; provided, that with respect to any election of
directors in respect of which any Person other than the Company is soliciting
proxies, (x) all shares referred to in clause (a) shall no longer be subject to
Section 2, and (y) the Stockholder and the Parent shall cause all shares
referred to in clause (b) to be voted, at the option of the Stockholder, either
(i) as recommended by the Board of Directors or (ii) in the same proportion as
the votes cast by the other holders of Voting Securities.
Section 6. Extraordinary Transactions. During the Supplemental Period,
the Stockholder, the Parent and their respective Affiliates may vote the Voting
Securities Beneficially Owned by them in their sole discretion with respect to
any Extraordinary Transaction.
Section 7. Rights Plan. If, during the Supplemental Period, the
Company redeems the rights issued under the Rights Plan or amends the Rights
Plan to permit a third party
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to acquire Beneficial Ownership of Voting Securities in excess of the 15%
limitation set forth in the definition of "Acquiring Person" in the Rights Plan,
the Stockholder, the Parent and their Affiliates may, after such redemption or
amendment, vote the Voting Securities Beneficially Owned by them in their sole
discretion; provided, that if thereafter no third party has exceeded the 15%
limitation and the Company either adopts a new Eligible Rights Plan or amends
the Rights Plan such that a third party may not acquire Beneficial Ownership of
Voting Securities in excess of the 15% limitation, then the voting restrictions
in Section 2 and Section 5 shall be reinstated.
Section 8. Restrictions on Transfer. During the Supplemental Period,
neither the Stockholder nor the Parent will Transfer or permit any of their
respective Affiliates to Transfer any Voting Securities to any transferee who,
together with its Affiliates and Associates, would, to the knowledge of the
Parent or the Stockholder, Beneficially Own in excess of 10% of the Total Voting
Power as a result of such Transfer; provided, however, that the foregoing shall
not restrict (a) Transfers of Voting Securities by the Stockholder to any of its
controlled Affiliates provided that any such controlled Affiliate agrees in
writing to be bound by the provisions of this Agreement applicable to the
Stockholder, (b) Transfers of Voting Securities pursuant to any tender or
exchange offer to acquire Voting Securities approved and recommended by the
Company's Board of Directors (which recommendation has not been withdrawn), (c)
Transfers of Voting Securities to the Stockholder provided that such Voting
Securities are immediately transferred to the public stockholders of the
Stockholder by means of a pro rata dividend or other pro rata distribution, (d)
Transfers of the Shares by the Voting Trust to the Stockholder upon termination
of the Voting Trust, and (e) Transfers of Voting Securities to the B/C/P Group.
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Section 9. Issuance of Class A Common Stock. During the Supplemental
Period, the Company shall not issue any additional shares of Class A Common
Stock or securities convertible into or exercisable or exchangeable for shares
of Class A Common Stock or enter into any agreement or arrangement to do the
same without giving the Stockholder pre-emptive rights which shall permit the
Stockholder to acquire shares of Class A Common Stock concurrently with any such
issuance.
Section 10. Issuance of Class B Common Stock. During the Supplemental
Period, the Company shall not, without giving the Stockholder pre-emptive
rights, issue shares of Class B Common Stock or securities convertible into or
exercisable or exchangeable for shares of Class B Common Stock except to the
extent that such shares (including underlying shares, in the case of securities
convertible into or exercisable or exchangeable for shares of Class B Common
Stock) (a) in the case of such shares or convertible securities issued for the
purpose of fulfillment of the Company's obligations under any present or future
stock option plan, do not exceed the number of shares issued under such plans
consistent with past practices (which practices, for this purpose, are
understood by the parties to include the issuance of the number of shares of
Class B Common Stock authorized under the Company's 1998 Stock Incentive Plan),
(b) in the case of such shares or convertible securities issued for any other
purpose, do not exceed in the aggregate 10% of the number of shares of Class B
Common Stock outstanding on January 25, 1998 or (c) are issued pursuant to
options, warrants or convertible securities issued and outstanding on, or
commitments to issue such shares that are in effect on, January 25, 1998, and
which were disclosed in Section 4.01(b) of the disclosure schedule to the
Governance Agreement.
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Section 11. Certain Adverse Actions. During the Supplemental Period,
the Company shall not, without the prior written consent of the Parent, amend,
alter or repeal its amended and restated certificate of incorporation or by-laws
so as to eliminate or diminish the ability of stockholders of the Company to act
by written consent or Section 1.10 of the Company's by-laws.
Section 12. No Amendment. During the Supplemental Period, the Company
shall not seek a vote of its stockholders approving any amendment to the
Company's amended and restated certificate of incorporation or by-laws, nor
shall it take any other action, without the consent of the Parent, that would
(a) eliminate Air Partner's right in Section 2(e) of the Company's amended and
restated certificate of incorporation to convert shares of Class A Common Stock
into shares of Class D Common Stock, (b) cause Section 203 of the Delaware
General Corporation Law to be applicable to the Company or (c) adopt an
"interested stockholder" provision.
Section 13. Executive Committee. During the Supplemental Period, the
authority of the Executive Committee of the Company's Board of Directors shall
not be amended or modified from that set forth in the attached "Executive
Committee Charter" without the prior consent of the Parent.
Section 14. Eligible Rights Plan. The Company covenants and agrees
that, during the Supplemental Period, so long as the Parent Beneficially Owns no
less than 15% of the Total Voting Power, the Company shall not (a) amend the
Rights Plan so as to cause it not to constitute an Eligible Rights Plan or (b)
adopt a shareholder rights plan that is not an Eligible Rights Plan.
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Section 15. Post-Ten Year Anniversary Board Composition. After the
earlier to occur of the (a) tenth anniversary of the Closing and (b) a
termination of Sections 2 through 14 of this Agreement under Section 25(b), and
until this Agreement terminates as provided in Section 25(a) (the "Post-Ten Year
Anniversary Period"), the Parent and the Stockholder shall take, and shall cause
to be taken, such actions as are necessary to cause the Board of Directors to
include at least five directors who are independent of and otherwise
unaffiliated with the Parent or the Company and shall not be an officer or an
employee, consultant or advisor (financial, legal or otherwise) of the Parent or
the Company or any of their respective Affiliates, or any person who shall have
served in such capacity within the three-year period immediately preceding the
date such determination is made.
Section 16. Post-Ten Year Anniversary Board Power. During the Post-Ten
Year Anniversary Period, any material transaction between the Company and the
Parent, the Stockholder or any of their respective Affiliates, or relating to
this Agreement or the Alliance Agreement, including without limitation, any
amendment, modification or waiver of any provision hereof or thereof, shall not
be taken without the prior approval thereof by a majority of the five
independent directors described in Section 15.
Section 17. Representations and Warranties of the Company. The Company
represents and warrants to the Parent and the Stockholder that (a) the Company
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has the corporate power and authority to enter
into this Agreement and to carry out its obligations hereunder, (b) the
execution and delivery of this Agreement by the Company and the consummation by
the Company of the transactions contemplated hereby have been duly authorized by
all necessary corporate action on the part of the Company and by Majority Vote
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and no other corporate proceedings on the part of the Company are necessary to
authorize this Agreement or any of the transactions contemplated hereby, and (c)
this Agreement has been duly executed and delivered by the Company and
constitutes a valid and binding obligation of the Company, and is enforceable
against the Company in accordance with its terms (subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors' rights generally from time to time in
effect and to general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether in a
proceeding at equity or at law).
Section 18. Representations and Warranties of the Parent. The Parent
represents and warrants to the Company that (a) it and the Stockholder are
corporations duly organized, validly existing and in good standing under the
laws of the State of Delaware and each has the power and authority to enter into
this Agreement and to carry out its respective obligations hereunder, (b) the
execution and delivery of this Agreement by the Parent and the Stockholder and
the consummation by each of them of the transactions contemplated hereby have
been duly authorized by all necessary action on their parts and no other
proceedings on their parts are necessary to authorize this Agreement or any of
the transactions contemplated hereby, and (c) this Agreement has been duly
executed and delivered by the Parent and the Stockholder and constitutes a valid
and binding obligation of each of them, and is enforceable against each of them
in accordance with its terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity, including concepts of materiality, reasonableness, good
faith and fair dealing, regardless of whether in a proceeding at equity or at
law).
9
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Section 19. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including telecopy) and shall be given,
if to the Company, to:
Continental Airlines, Inc.
Dept. HQS-EO
Continental Tower
1600 Smith Street
Houston, Texas 77002
Attention: General Counsel
Fax: (713) 324-2687
with a copy to:
Morris, Nichols, Arsht & Tunnell
1201 N. Market Street
P.O. Box 1347
Wilmington, DE 19899-1347
Attention: A. Gilchrist Sparks, III
Fax: (302) 658-3989
if to the Parent, to:
Northwest Airlines Corporation
5101 Northwest Drive
St. Paul, Minnesota 55111
Attention: General Counsel
Fax: (612) 726-7123
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3954
Attention: Robert L. Friedman, Esq.
Fax: (212) 455-2502
if to the Stockholder, to:
Newbridge Parent Corporation
5101 Northwest Drive
St. Paul, Minnesota 55111
Attention: General Counsel
Fax: (612) 726-7123
10
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with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3954
Attention: Robert L. Friedman, Esq.
Fax: (212) 455-2502
or such address or telecopy number as such party may hereafter specify for the
purpose by notice to the other parties hereto. Each such notice, request or
other communication shall be effective when delivered personally, telegraphed,
or telecopied, or, if mailed, five business days after the date of the mailing.
Section 20. Amendments; No Waivers.
(a) Any provision of this Agreement may be amended or waived if, and
only if, such amendment or waiver has been approved pursuant to Section 3 (or,
during the Post-Ten Year Anniversary Period, pursuant to Section 16) and is in
writing and signed, in the case of an amendment, by the parties hereto, or in
the case of a waiver, by the party against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 21. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
11
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Section 22. Governing Law; Consent to Jurisdiction. (a) This Agreement
shall be construed in accordance with and governed by the internal laws of the
State of Delaware.
(b) Any suit, action or proceeding seeking to enforce any provision
of, or based on any matter arising out of or in connection with, this Agreement
or the transactions contemplated hereby may be brought in any federal court
located in the State of Delaware or any Delaware state court, and each of the
parties hereby consents to the exclusive jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is being brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 19 shall be deemed
effective service of process on such party.
Section 23. Counterparts; Effectiveness. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by the other party hereto.
Section 24. Specific Performance. The parties hereto each acknowledge
and agree that the parties' respective remedies at law for a breach or
threatened breach of any of the provisions of this Agreement would be inadequate
and, in recognition of that fact, agree that, in
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the event of a breach or threatened breach by any of them of the provisions of
this Agreement, in addition to any remedies at law, the aggrieved party, without
posting any bond and without any showing of irreparable injury shall be entitled
to obtain equitable relief in the form of specific performance, a temporary
restraining order, a temporary or permanent injunction or any other equitable
remedy which may then be available.
Section 25. Termination. (a) This Agreement shall terminate upon the
Stockholder and its Affiliates ceasing to Beneficially Own Voting Securities
representing at least 10% of the Fully Diluted Voting Power.
(b) Sections 2 through 14 of this Agreement shall terminate upon (i) a
termination by the Company of the Alliance Agreement other than a bona fide
termination in accordance with Section 16(b) of Exhibit C thereto, or (ii) a
final determination in an arbitration conducted in accordance with Section 22(c)
of the Alliance Agreement that the Company has breached any material provision
of the Alliance Agreement and that such breach gives rise to the right of
Northwest Airlines, Inc. to terminate the Alliance Agreement in accordance with
Section 16(b)(i) of Exhibit C thereto.
Section 26. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, provided that
the parties hereto shall negotiate in good faith to attempt to place the parties
in the same position as they would have been in had such provision not been held
to be invalid, void or unenforceable.
13
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Section 27. Non-Exclusivity. No action or transaction taken in
accordance with the express provisions of, and as expressly permitted by, any
provision of this Agreement shall be treated as a breach of any other provision
of this Agreement, notwithstanding that such action or transaction shall not
have been expressly excepted from such latter provision.
Section 28. Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
"Affiliate" shall have the meaning set forth in Rule 12b-2 under the
Exchange Act (as in effect on January 25, 1998).
"Alliance Agreement" shall have the meaning set forth in the recitals
hereto.
"Associate" shall have the meaning set forth in Rule 12b-2 under the
Exchange Act (as in effect on January 25, 1998).
"B/C/P Group" shall mean David Bonderman, James Coulter or William S.
Price, III, or any Person with respect to which one or more of them (i) directly
or indirectly controls at least 50.1% of the voting power, (ii) directly or
indirectly controls at least 50.1% of the equity, or (iii) directly or
indirectly controls in a manner substantially similar to the control that the
general partner of Air Partners has over Air Partners pursuant to and as
provided in the "Partnership Agreement" (as defined in the Investment
Agreement), which Persons described in clause (iii) shall include 1998 CAI
Partners, L.P., a Texas limited partnership, under its partnership agreement and
ownership structure in effect on the date hereof.
"Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to
any agreement, arrangement or understanding, whether or not in writing.
14
<PAGE>
"Board of Directors" shall mean the board of directors of the Company.
"Class A Common Stock" shall mean the Class A Common Stock, par value
$0.01 per share, of the Company.
"Class B Common Stock" shall mean the Class B Common Stock, par value
$0.01 per share, of the Company.
"Class D Common Stock" shall mean the Class D Common Stock, par value
$0.01 per share, of the Company.
"Closing" shall mean the closing of the Stock Purchase under the
Investment Agreement.
"Company Common Stock" shall mean Class A Common Stock, Class B Common
Stock or Class D Common Stock.
"Eligible Rights Plan" shall have the meaning set forth in Section
8.01(c) of the Governance Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934.
"Extraordinary Transaction" shall mean (a) a merger, reorganization,
share exchange, consolidation, business combination, recapitalization,
liquidation, dissolution or similar transaction involving the Company, any sale
of all or substantially all of the Company's assets or any issuance of Voting
Securities that would represent in excess of 20% of the Total Voting Power prior
to such issuance, including any of the foregoing involving the Stockholder or
the Parent or (b) any amendment to the Company's amended and restated
certificate of
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<PAGE>
incorporation or by-laws that would materially and adversely affect the
Stockholder (including through its effect on the Alliance Agreement and the
rights of the Voting Securities Beneficially Owned by the Stockholder).
"Fully Diluted Voting Power" of any Person shall be calculated by
dividing (a) the sum of (i) ten times the aggregate number of shares of Company
Class A Common Stock beneficially owned by such Person (assuming exercise of all
outstanding securities held by such Person that are convertible into or
exercisable or exchangeable for shares of Company Class A Common Stock) and (ii)
the number of shares of Company Class B Common Stock beneficially owned by such
Person (assuming exercise of all outstanding securities held by such Person that
are convertible into or exercisable or exchangeable for shares of Company Class
B Common Stock) by (b) the sum of (i) ten times the aggregate number of
outstanding shares of Company Class A Common Stock (assuming the exercise of all
outstanding securities convertible into or exercisable or exchangeable for
shares of Company Class A Common Stock) and (ii) the aggregate number of
outstanding shares of Company Class B Common Stock (assuming the exercise of all
outstanding securities convertible into or exercisable or exchangeable for
shares of Company Class B Common Stock).
"Governance Agreement" shall mean the Governance Agreement between the
Company, the Parent and the Stockholder dated as of January 25, 1998, as amended
by the First Amendment to the Governance Agreement dated as of March 25, 1998
and the Second Amendment to the Governance Agreement dated as of the date
hereof.
"Independent Director" shall mean any person listed on Exhibit 2.01 to
the Governance Agreement, (ii) and any other person selected as an Independent
Director in
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accordance with Section 2 of this Agreement and (iii) any other person, who
is elected to the Board of Directors in an election of directors in respect of
which any Person other than the Company is soliciting proxies; provided that any
such other person so selected shall be independent of and otherwise unaffiliated
with the Parent or the Company (other than as an Independent Director), and
shall not be an officer or an employee, consultant or advisor (financial, legal
or other) of the Parent or the Company or any of their respective Affiliates, or
any person who shall have served in any such capacity within the three-year
period immediately preceding the date such determination is made.
"Investment Agreement" shall have the meaning set forth in the
recitals hereto.
"Majority Vote" shall mean the affirmative vote of a majority of the
Board of Directors, including the affirmative vote of a majority of the
Independent Directors.
"Person" shall mean any individual, partnership (limited or general),
joint venture, limited liability company, corporation, trust, business trust,
unincorporated organization, government or department or agency of a government.
"Rights Plan" shall mean the Rights Agreement dated as of November 20,
1998 between the Company and Harris Trust and Savings Bank.
"Stockholder Voting Power" at any time shall mean the aggregate voting
power in the general election of directors of all Voting Securities then
Beneficially Owned by the Stockholder and its Affiliates.
"Stock Purchase" shall have the meaning set forth in the recitals
hereto.
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"Subsidiary" shall mean, as to any Person, any Person at least a
majority of the shares of stock or other equity interests of which having
general voting power under ordinary circumstances to elect a majority of the
board of directors (or comparable governing body) thereof (irrespective of
whether or not at the time stock or equity of any other class or classes shall
have or might have voting power by reason of the happening of any contingency)
is, at the time as of which the determination is being made, owned by such
Person, or one or more of its Subsidiaries or by such Person and one or more of
its Subsidiaries.
"Supplemental Period" shall mean the period beginning on the sixth
anniversary of the Closing and ending on the tenth anniversary of the Closing.
"Total Voting Power" at any time shall mean the total combined
voting power in the general election of directors of all the Voting
Securities then outstanding.
"Transfer" shall mean any sale, exchange, transfer, pledge,
encumbrance or other disposition, and "to Transfer" shall mean to sell,
exchange, transfer, pledge, encumber or otherwise dispose of.
"Voting Securities" shall mean at any time shares of any class of
capital stock of the Company which are then entitled to vote generally in the
election of directors including, without limitation, the Class A Common Stock
and the Class B Common Stock.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first referred to above.
NORTHWEST AIRLINES CORPORATION
By: /s/ Douglas M. Steenland
-----------------------------------
Douglas M. Steenland
Executive Vice President, General Counsel
and Secretary
NEWBRIDGE PARENT CORPORATION
By: /s/ Douglas M. Steenland
-----------------------------------
Douglas M. Steenland
Vice President, Secretary and Assistant
Treasurer
CONTINENTAL AIRLINES, INC.
By: /s/ Jeffery A. Smisek
-----------------------------------
Jeffery A. Smisek
Executive Vice President, General Counsel
and Secretary
[Signature Page for Supplemental Agreement]
<PAGE>
EXHIBIT 4 TO SUPPLEMENTAL AGREEMENT
(Significant Actions)
1. Any amendment to the certificate of incorporation or by-laws of the
Company.
2. Any reclassification, combination, split, subdivision, redemption,
purchase or other acquisition, directly or indirectly, of any debt or equity
security of the Company or any Subsidiary of the Company (other than pursuant to
existing stock option plans or agreements or by or on behalf of any existing
employee benefit plan of the Company).
3. Any sale, lease, transfer or other disposition (other than in the
ordinary course of business consistent with past practice), in one or more
related transactions, of the assets of the Company or any Subsidiary, the book
value of which assets exceeds 5% of the consolidated assets of the Company and
its Subsidiaries.
4. Any merger, consolidation, liquidation or dissolution of the
Company or any Subsidiary of the Company, other than any such merger or
consolidation of any Subsidiary of the Company with and into the Company or
another wholly-owned Subsidiary of the Company.
5. Any acquisition of any other business which would constitute a
"Significant Subsidiary" (as defined in Section 1.02 of Regulation S-X under the
Exchange Act) of the Company.
6. Any acquisition by the Company or any Subsidiary of the Company of
assets (not in the ordinary course of business consistent with past practice) in
one or more related
<PAGE>
transactions which assets have a value which exceeds 5% of the consolidated
assets of the Company and its Subsidiaries.
7. Any issuance or sale of any capital stock of the Company or any
Subsidiary of the Company, other than issuance of capital stock of the Company
authorized for issuance pursuant to stock plans or agreements in effect, or
securities issued and outstanding, at the date of Closing.
8. Any declaration or payment of any dividend or distribution with
respect to shares of the capital stock of the Company or any Subsidiary (other
than wholly-owned Subsidiaries of the Company).
9. Any incurrence, assumption or issuance by the Company or its
Subsidiaries of any indebtedness for money borrowed, not in the ordinary course
of business consistent with past practice, if, immediately after giving effect
thereto and the application of proceeds therefrom, the aggregate amount of such
indebtedness of the Company and its Subsidiaries would exceed $500 million.
10. Establishment of, or continued existence of, any committee of the
Board of Directors with the power to approve any of the foregoing.
11. The termination or election or appointment of executive officers
of the Company.
<PAGE>
Exhibit 2.3
This AMENDMENT NO. 2 to the Investment Agreement, dated as of November
20, 1998 (this AMENDMENT ), is by and among NORTHWEST AIRLINES CORPORATION, a
Delaware corporation ( PARENT ), NEWBRIDGE PARENT CORPORATION, a Delaware
corporation and, as of the execution of this Agreement, a wholly owned
subsidiary of Parent ( HOLDCO SUB ), AIR PARTNERS, L.P., a Texas limited
partnership (the PARTNERSHIP ), the partners of the Partnership identified on
the signature pages hereof (the PARTNERS ), 1998 CAI Partners, L.P., a Texas
limited partnership ( CAIPAR ), BONDERMAN FAMILY LIMITED PARTNERSHIP, a Texas
limited partnership ( TRANSFEROR I ), 1992 AIR, INC., a Texas corporation
( TRANSFEROR II ), and AIR SAIPAN, INC., a CNMI corporation ("TRANSFEROR III"
and, collectively with Transferor I and Transferor II, the TRANSFERORS ).
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Parent, Holdco Sub, the Partnership, the Partners and the
Transferors have entered into the Investment Agreement, dated as of January 25,
1998 (as amended as of February 27, 1998, the INVESTMENT AGREEMENT ), pursuant
to which, among other things, (i) the Partners, Parent and Holdco Sub agreed to
exchange all of the Partnership Interests for shares of Common Stock, par value
$.01 per share of Holdco Sub ( HOLDCO SUB COMMON STOCK ; all references in the
Investment Agreement to Holdco Sub Class A Common Stock shall be deemed to be
references to Holdco Sub Common Stock) and cash upon the terms and subject to
the conditions set forth therein and (ii) the Transferors, Parent and Holdco Sub
agreed to exchange all of the Transferors shares of Class A Common Stock, par
value $.01 per share (the COMPANY CLASS A COMMON STOCK ) of Continental
Airlines, Inc. (the COMPANY ) for shares of Holdco Sub Common Stock and cash
upon the terms and subject to the conditions set forth therein; and
WHEREAS, Parent, Holdco Sub, the Partnership, the Partners and the
Transferors desire to amend the Investment Agreement to add CAIPar as a party to
the Investment Agreement, to permit the Partnership to distribute certain shares
of Company Class A Common Stock to CAIPar and to permit Transferor I and
Transferor II (the RETAINING TRANSFERORS ) to retain all of the shares of
Company Class A Common Stock held by them.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
SECTION 1. Capitalized terms not otherwise defined herein shall
have the meanings set forth in the Investment Agreement.
SECTION 2. Section 2.1 of the Investment Agreement is hereby
amended by adding at the end thereof the following:
<PAGE>
Each of Parent, Holdco Sub, the Partnership, the Partners, CAIPar and
the Transferors hereby agrees, subject to the terms and conditions hereof, to
the transfer by the Partnership of 624,134 shares of Company Class A Common
Stock to CAIPar (the PRE-CLOSING TRANSFER ) and acknowledges, based on the
representation set forth herein, that after such transfers, the Partnership
owns, of record and beneficially, 7,678,552 shares of Company Class A Common
Stock.
SECTION 3. (a) Section 1.1 of the Investment Agreement is hereby
amended by adding the following defined terms thereto in the appropriate
alphabetical order:
CAIPAR means 1998 CAI Partners, L.P., a Texas limited
partnership.
GOVERNANCE AGREEMENT shall mean the Governance Agreement,
dated as of January 25, 1998, among the Company, Parent, Holdco Sub and the
Partnership as amended by Amendment No. 1, dated as of March 2, 1998, and
as amended by Amendment No. 2, dated as of November 20, 1998.
PURCHASE AGREEMENT means the Purchase Agreement dated as of
March 2, 1998 among Parent, Holdco Sub, Barlow Investors III, LLC, a
California limited liability company and the guarantors signatory thereto.
RETAINED SHARES means the shares of Company Class A Common
Stock which were transferred to CAIPar pursuant to the Pre-Closing Transfer
and the shares of Company Class A Common Stock which are owned by the
Retaining Transferors as of the Effective Time of the Merger, in each case
as set forth on Annex A hereto.
SUPPLEMENTAL AGREEMENT means the Supplemental Agreement dated
as of November 20, 1998, among the Company, Parent, Holdco Sub and the
Partnership.
(b) Section 1.1 of the Investment Agreement is hereby amended by
substituting the following definitions for the following terms in Section 1.1:
MERGER AGREEMENT means the Amended and Restated Agreement and
Plan of Merger dated as of October 30, 1998, in the form of Exhibit A among
Parent, Holdco Sub and Merger Sub.
PARTNERSHIP AGREEMENT means the Amended and Restated Limited
Partnership Agreement of Air Partners, L.P., dated as of November 9, 1992,
as amended by the First Amendment, dated as of July 25, 1995, the Second
Amendment, dated as of August 7, 1996, the Third Amendment, dated as of May
22, 1997 and the Fourth Amendment, dated as of November 20, 1998.
RESTATED PARTNERSHIP AGREEMENT means the Second Amended and
Restated Limited Partnership Agreement of Air Partners, L.P., in the form
of Exhibit B to be executed by the Partners, Parent and Holdco Sub.
2
<PAGE>
SECTION 4. Section 2.1 of the Investment Agreement is hereby amended
by deleting the second sentence thereof and substituting therefor the following:
Upon the terms and subject to the conditions of this Agreement,
each of Parent and Holdco Sub agrees to exchange, and Transferor III agrees
to exchange, each of the 3,702 shares of Company Class A Common Stock held
by Transferor III free and clear of any Lien or Restriction created by
Transferor III or otherwise binding upon any such shares (other than any
Lien or Restriction imposed pursuant to the terms of this Agreement) for
cash, as more fully set forth in this Article II.
SECTION 5. (a) Schedule 2.2(a) and Schedule 2.2(b) of the Investment
Agreement are hereby amended by substituting therefor Schedule 2.2(a) and
Schedule 2.2(b), respectively, attached hereto.
(b) Section 2.2 of the Investment Agreement is hereby amended by
deleting Section 2.2(a) thereof and substituting therefor the following:
2.2 CASH ELECTION SHARE PRICE; EXCHANGE RATIO. (a) Subject to
adjustment in accordance with Section 2.3, Parent or Holdco Sub shall pay
to each Partner set forth on Schedule 2.2(a) (each a CASH ELECTING
PARTNER ) in exchange for all of such Partner s Partnership Interests and
to Transferor III, as set forth on Schedule 2.2(a), $60.82 (the CASH
ELECTION SHARE PRICE ) in respect of each share of Company Class A Common
Stock owned by the Partnership immediately prior to the Closing and
allocable to such Cash Electing Partner in accordance with the Partnership
Agreement (each an ALLOCABLE COMPANY CLASS A SHARE ) and each share of
Company Class A Common Stock owned by Transferor III.
(c) Section 2.2 of the Investment Agreement is hereby amended by
deleting the first sentence of Section 2.2 (b) and substituting therefor
the following:
Subject to adjustment in accordance with Section 2.3, Holdco Sub
shall issue to each Partner set forth on Schedule 2.2(b) (each a SHARE
ELECTING PARTNER ) in exchange for all of such Partner's Partnership
Interests in respect of each Allocable Company Class A Share of such Share
Electing Partner, as set forth on Schedule 2.2(b), 1.2079 shares (the
SHARE EXCHANGE RATIO ) of fully paid and non-assessable Holdco Sub Common
Stock.
SECTION 6. Section 2.4 of the Investment Agreement is hereby amended
by deleting Section 2.4(b) (iv) thereof and substituting therefor the following:
(iv) Each of the Partners and Transferor III shall
deliver to Parent and Holdco Sub or their designee such documents as Parent
and Holdco Sub may reasonably request, including certificates for all
shares of Company Class A Common Stock owned by the Partnership, to
evidence the transfer to Parent and Holdco Sub or their designee of good
and marketable title in and to all of the Partnership Interests being
conveyed pursuant to this Agreement and the absence of any Liens or
Restrictions on such shares of Company Class A Common Stock (other than any
Lien or Restriction imposed pursuant to the terms
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<PAGE>
of this Agreement), and all the shares of Company Class A Common Stock
owned by Transferor III free and clear of any Lien or Restriction (other
than any Lien or Restriction imposed pursuant to the terms of this
Agreement); and
SECTION 7. (a) Section 3.2 of the Investment Agreement is hereby
amended by deleting the introductory paragraph and substituting therefor the
following:
3.2 REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP AND THE
PARTNERS. The Partnership and each Partner, severally and not jointly,
represents and warrants to Parent and Holdco Sub as of January 25, 1998
(except for Section 3.2(d)), and as of the Closing Date as follows:
(b) Section 3.2(d) of the Investment Agreement is hereby amended by
deleting Section 3.2(d) and substituting therefor the following:
(d) OWNERSHIP OF SHARES OF COMPANY COMMON STOCK; NO OTHER
OPERATIONS. Following the Pre-Closing Transfer, the Partnership is the
direct and record owner of (i) 7,678,522 shares of Company Class A Common
Stock and (ii) no shares of Class B Common Stock, par value $.01 per share,
of the Company ( COMPANY CLASS B COMMON STOCK and, together with the
Company Class A Common Stock, the COMPANY COMMON STOCK ). Except as set
forth in the immediately preceding sentence, (i) the Partnership does not
own or have the right to acquire, whether presently exercisable or at any
time in the future, any shares of Company Common Stock or any securities
convertible into or exercisable or exchangeable for shares of Company
Common Stock or any other equity securities of the Company and (ii) the
Partnership does not own any other assets or conduct any other business.
Except as permitted by this Agreement, no Person has the right to acquire,
and neither CAIPar, the Partnership nor any of the Partners is a party to
any contract, understanding, commitment, arrangement or other agreement to
sell, transfer or otherwise dispose of, any shares of Company Common Stock
owned by or issuable to CAIPar, the Partnership or to such Partners. To
the best knowledge of the Partnership and the Partners, based solely on
inquiry of appropriate officers of the Company, as of December 31, 1997,
the shares of Company Class A Common Stock described in the first sentence
of this Section 3.2(d), together with the 624,134 shares of Company Class A
Common Stock to be transferred to CAIPar in the Pre-Closing Transfer,
constituted 13.9% of the outstanding shares of Company Common Stock and
50.4% of the Voting Power represented by the outstanding shares of Company
Common Stock. To the best knowledge of the Partnership and the Partners,
based solely on inquiry of appropriate officers of the Company, after
giving effect to the issuance of shares of Company Common Stock pursuant to
all securities described in the second sentence of Section 3.3(h), such
shares would have constituted 9.6% of the outstanding shares of Company
Common Stock and 43.9% of the Fully Diluted Voting Power at December 31,
1997. The Partnership has, and at the Closing will have, good and valid
title to the shares of Company Class A Common Stock described in the first
sentence of this Section 3.2(d) free and clear of any Liens or
Restrictions, except those arising under this Agreement. Except as set
forth herein, the Partnership has sole voting power, ad sole power of
disposition, with respect to all shares of Company Class A Common Stock
described in
4
<PAGE>
the first sentence of this 3.2(d) and there are no restrictions on the
Partnership's ability to transfer such shares.
SECTION 8. The Investment Agreement is hereby amended by adding a new
Section 3.5 thereto as follows:
3.5 REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. None
of the shares of Company Class A Common Stock held by the Partnership after
the Pre-Closing Transfer has a lower per share tax basis than any of the
Retained Shares.
SECTION 9. The Investment Agreement is hereby amended by adding a new
Section 3.6 thereto as follows:
3.6 REPRESENTATIONS AND WARRANTIES OF CAIPAR. CAIPar
represents and warrants to Parent and Holdco Sub as of the Closing Date as
follows:
(a) ORGANIZATION, STANDING AND POWER OF CAIPAR. CAIPar is duly
organized, validly existing and in good standing under the laws of the
State of Texas and has the requisite partnership power and authority to
carry on its business as now being conducted. CAIPar is duly qualified or
licensed to do business and is in good standing in each jurisdiction in
which the nature of its business or the ownership or leasing of its
properties makes such qualification or licensing necessary, other than in
such jurisdictions where the failure to be so qualified or licensed
(individually or in the aggregate) could not reasonably be expected to have
a material adverse effect with respect to CAIPar.
(b) CAIPAR AUTHORIZATION. The execution, delivery and
performance by CAIPar of this Agreement and the consummation by CAIPar of
the transactions contemplated hereby have been duly authorized by all
necessary partnership action. This Agreement has been duly executed and
delivered by CAIPar and constitutes a valid and binding agreement of
CAIPar, enforceable against CAIPar in accordance with its terms (subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other similar laws affecting creditors' rights generally from
time to time in effect and to general principles of equity, including
concepts of materiality, reasonableness, good faith and fair dealing,
regardless of whether in a proceeding at equity or at law).
(c) CAIPAR CAPITALIZATION. The authorized and issued equity
capital of CAIPar consists solely of the general partnership interests and
limited partnership interests described on Schedule 3.6(c). The Share
Electing Partners own, and at the Closing Date the Share Electing Partners
will own, of record and beneficially, collectively 100% of the general and
limited partnership interests of CAIPar, free and clear of all Liens and
Restrictions (other than any Liens or Restrictions imposed pursuant to the
terms of this Agreement or disclosed on Schedule 3.6(c)).
(d) OWNERSHIP OF SHARES. Following the Pre-Closing Transfer,
CAIPar is the direct and record owner of 624,134 shares of Company Class A
Common Stock, and has good and valid title to such shares, free and clear
of any Liens or Restrictions, except
5
<PAGE>
those arising under this Agreement. Except as set forth herein, CAIPar has
sole voting power, and sole power of disposition, with respect to all such
624,134 shares of Company Class A Common Stock and there are no
restrictions on CAIPar s ability to transfer such shares.
(e) NO CONFLICT. No permit, authorization, consent or approval
of, any Governmental Authority is necessary for the execution of this
Agreement by CAIPar or the consummation by CAIPar of the transactions
contemplated hereby, including the Pre- Closing Transfer, except for such
filings the failure of which to be made, individually or in the aggregate,
could not reasonably be expected to have a material adverse effect on
CAIPar or to prevent or materially delay the consummation of the
transactions contemplated hereby. Neither the execution and delivery of
this Agreement by CAIPar nor the consummation by CAIPar of the transactions
contemplated hereby nor compliance by CAIPar with any of the provisions
hereof conflicts with or results in any breach of any applicable trust or
other organizational documents applicable to CAIPar.
SECTION 10. (a) Section 4.2 of the Investment Agreement is hereby
amended by deleting Section 4.2(b) and substituting therefor the following:
(b) RESTRICTION ON TRANSFER OF COMPANY SHARES, PROXIES AND
NON-INTERFERENCE; RESTRICTION ON WITHDRAWAL. (i) PRE-CLOSING. Prior to
the Closing, neither the Partnership, CAIPar nor any Partner or Transferor
shall, directly or indirectly, without the prior written consent of Parent:
(A) except pursuant to or as expressly contemplated hereby, offer for sale,
sell (including short sales), transfer, tender, pledge, encumber, assign or
otherwise dispose of (including by gift), or enter into any contract,
option or other arrangement or understanding (including any profit-sharing
arrangement) with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of,
(1) any or all of the shares of Company Class A Common Stock owned by it
(or, in the case of any Partner, allocable to it) or (2) in the case of any
Partner, all or any portion of its Partnership Interest, or any interest in
any thereof; (B) except as expressly contemplated hereby, grant any proxies
or powers of attorney (other than to CAIPar, a Partner or Transferor),
deposit any shares of Company Class A Common Stock into a voting trust or
enter into any other voting arrangement with respect to any shares of
Company Class A Common Stock; (C) except as otherwise provided in this
Agreement, take any action that would make any representation or warranty
of the Partnership, CAIPar or any Partner or Transferor contained herein
untrue or incorrect or have the effect of preventing or disabling the
Partnership, CAIPar or any Partner or Transferor from performing its
obligations under this Agreement; or (D) except for the Pre-Closing
Transfer, in the case of the Partners, withdraw any of its Allocable
Company Class A Shares from the Partnership or elect to have any of its
Allocable Company Class A Shares distributed to it; or commit or agree to
take any of the foregoing actions; PROVIDED, HOWEVER, that in the event
that, (x) a third party commences a bona fide tender offer for shares of
Company Class A Common Stock, (y) neither the Partnership, CAIPar nor any
Partner or Transferor is in breach in any material respect of its
representations and warranties or its obligations (including its obligation
to effect the Closing) under this Agreement and (z) all of the other
conditions to Parent's and Holdco Sub's obligations to close the
Transactions set forth in Sections 5.1 and 5.2 have been satisfied, unless
Parent
6
<PAGE>
and Holdco Sub cause the Closing to occur within five Business Days
following receipt of written notice from the Partnership, CAIPar or any of
the Transferors of their intention to tender their shares, the Partnership,
CAIPar and the Transferors will be permitted to tender their shares of
Company Class A Common Stock in such tender offer, unless such Closing
shall not have occurred as a result of facts or occurrences not within the
control of Parent and Holdco Sub (including the failure of any of the
conditions set forth in Section 5.1 or Section 5.3 to be satisfied).
(ii) POST-CLOSING. Subsequent to the Closing,
until such time as neither the Governance Agreement nor Sections 2 through
14 of the Supplemental Agreement are in effect, neither CAIPar, any Share
Electing Partner nor any Retaining Transferor shall, directly or
indirectly, without the prior written consent of Parent: (A) except as
expressly contemplated hereby, offer for sale, sell (including short
sales), transfer, tender, pledge, encumber, assign or otherwise dispose of
(including by gift), or enter into any contract, option or other
arrangement or understanding (including any profit-sharing arrangement)
with respect to or consent to the offer for sale, sale, transfer, tender,
pledge, encumbrance, assignment or other disposition of, any or all of the
Retained Shares owned by it (except that CAIPar may transfer shares of
Company Class A Common Stock held by it to any Share Electing Partner)
unless prior to such transfer (or, in the case of a pledge, before any
foreclosure or any other transfer of ownership resulting from such pledge)
such shares are converted into shares of Company Class B Common Stock,
except that such conversion shall not be required if Parent, Holdco Sub and
the Partnership shall have disposed of shares of Company Common Stock or
converted shares of Company Class A Common Stock into shares of Company
Class B Common Stock such that they Beneficially Own (as defined in the
Governance Agreement) shares of Company Common Stock representing, in the
aggregate, less than 20% of the Total Voting Power (as defined in the
Governance Agreement) (the Threshold ); provided, that if, as a result of
a Government Order, Parent, Holdco Sub and the Partnership are required to
dispose of shares of Company Common Stock or take such other action so that
they Beneficially Own, in the aggregate, shares of Company Common Stock
representing less than 20% of the Total Voting Power and, in order to do
so, Parent, Holdco Sub and the Partnership elect to convert all shares of
Company Class A Common Stock Beneficially Owned by them into shares of
Company Class B Common Stock, the Threshold shall be reduced to 7.5% or (B)
except as expressly contemplated hereby, grant any proxies or powers of
attorney (other than to Parent or Holdco Sub), deposit any Retained Shares
into a voting trust or enter into any other voting arrangement with respect
to any Retained Shares; PROVIDED that CAIPar and any Share Electing Partner
or Retaining Transferor shall give prompt notice to Holdco Sub in
accordance with Section 7.4 of this Agreement of any action taken pursuant
to this Section 4.2(b)(ii)(A) or (B) and shall certify as to the compliance
of such action with this Section 4.2(b)(ii). Any calculations made
pursuant to the foregoing shall not take into effect any shares of Company
Common Stock issued after the date hereof other than upon the exercise of
securities described in the second sentence of Section 3.3(h).
(b) Section 4.2 of the Investment Agreement is hereby amended by
deleting Section 4.2(c) thereof and substituting therefor the following:
8
<PAGE>
(c) VOTING. (i) PRE-CLOSING. The Partnership, CAIPar, each
Transferor and each Partner (with respect to its right to direct the vote
of the shares of Company Class A Common Stock owned by the Partnership in
accordance with the terms of the Partnership Agreement) hereby agree that,
during the time this Agreement is in effect prior to the Closing, at any
meeting of the stockholders of the Company (or at any adjournments or
postponements thereof), however called, or in any other circumstances upon
which the Partnership's, CAIPar s or such Transferor's vote, consent or
other approval is sought or otherwise eligible to be given, the
Partnership, CAIPar each Transferor and such Partners shall vote (or cause
to be voted) the shares of Company Class A Common Stock owned by the
Partnership, CAIPar, such Partner or such Transferor, as the case may be,
(A) against any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation or agreement of the Partnership, CAIPar or the Partners or such
Transferor under this Agreement; and (B) except as otherwise agreed to in
writing in advance by Parent, against the following actions: (1) any
Business Combination (other than a Business Combination with Parent or its
affiliates); and (2) (v) any change in the majority of the board of
directors of the Company; (w) any material change in the present
capitalization of the Company or any amendment of the Company's Certificate
of Incorporation or By-laws; (x) any other material change in the Company's
corporate structure or business; (y) any other action which is intended, or
could reasonably be expected, to (I) prevent, (II) delay or postpone or
(III) impede, frustrate or interfere with (in the case of this clause
(III), in a manner that could reasonably be expected to substantially
deprive Parent and Holdco Sub of the material benefits of any of) the
Transactions or the entry by the Company and Northwest Airlines, Inc. into
an Operating Alliance or their execution of an Alliance Agreement, or (z)
except as otherwise permitted in this Agreement, any action that would
cause the Fully Diluted Voting Power represented by the shares of Company
Class A Common Stock held by the Partnership, CAIPar and the Transferors to
be less than that percentage of the Fully Diluted Voting Power of the
Company represented by such shares on the date of this Agreement other than
grants by the Company to its employees in accordance with its past
practices of options and other stock-based compensation. Neither the
Partnership, CAIPar nor any Partner or Transferor shall enter into any
agreement or understanding with any Person or entity prior to the
termination of this Agreement to vote or give instructions after such
termination in a manner inconsistent with clauses (A) or (B) of the
preceding sentence.
(ii) POST-CLOSING. CAIPar and each Share Electing Partner and
each Retaining Transferor hereby agree that, until such time as neither the
Governance Agreement nor Sections 2 through 14 of the Supplemental
Agreement are in effect at any meeting of the stockholders of the Company
(or at any adjournments or postponements thereof), however called, or in
any other circumstances upon which CAIPar, such Share Electing Partner or
Retaining Transferor's vote, consent or other approval is sought or
otherwise eligible to be given (A) with respect to (x) any vote on a
merger, reorganization, share exchange, consolidation, business
combination, recapitalization, liquidation, dissolution or similar
transaction involving the Company, any sale of all or substantially all of
the Company s assets or any issuance of Voting Securities that would
represent in excess of 20% of the Voting Power prior to such issuance,
including any of the foregoing involving Holdco Sub or the Parent or (y)
any amendment to the Company s amended and restated
8
<PAGE>
certificate of incorporation or by-laws that would materially and adversely
affect Holdco Sub (including through its effect on the Alliance Agreement
and the rights of the Voting Securities Beneficially Owned (as such terms
are defined in the Governance Agreement) by Holdco Sub), CAIPar, such Share
Electing Partner or Retaining Transferor shall vote (or cause to be voted)
any Retained Shares owned by it as directed by Holdco Sub and (B) with
respect to any election of directors of the Company in respect of which any
Person other than the Company is soliciting proxies, CAIPar, such Share
Electing Partner or Retaining Transferor shall vote or cause all such
shares to be voted as recommended by the Board of Directors, but only if
Holdco Sub votes the shares of Company Class A Common Stock Beneficially
Owned by it in such election as recommended by the Board of Directors.
(c) Section 4.2 of the Investment Agreement is hereby amended by
deleting Section 4.2(d) thereof and substituting therefor the following:
(d) PROXY. (i) PRE-CLOSING. The Partnership (and, to the
extent provided by the Partnership Agreement, the Partners), CAIPar and
each Retaining Transferor hereby grant to, and appoint, Robert L. Friedman
and any other designee of Parent, individually, its irrevocable proxy and
attorney-in-fact (with full power of substitution) to vote the shares of
Company Class A Common Stock owned by the Partnership, CAIPar or such
Transferor as indicated in, and solely for the purposes of, Section
4.2(c)(i). The Partnership (and the Partners), CAIPar and each Transferor
intend this proxy to be irrevocable and coupled with an interest and will
take such further action and execute such other instruments as may be
necessary to effectuate the intent of this proxy and hereby revoke any
proxy previously granted by it with respect to the matters set forth in
Section 4.2(c) with respect to the shares of Company Class A Common Stock
owned by the Partnership. Notwithstanding the foregoing, Parent agrees
that the proxy granted by this Section 4.2(d)(i) shall be deemed to be
revoked upon the termination of this Agreement in accordance with its
terms.
(ii) POST-CLOSING. CAIPar, each Share Electing Partner and each
Retaining Transferor hereby grants to, and appoints, John H. Dasburg,
Mickey A. Foret and Douglas M. Steenland any other designee of Holdco Sub
from time to time, individually, its irrevocable proxy and attorney-in-fact
(with full power of substitution) to vote any Retained Shares owned by such
CAIPar, Share Electing Partner or Retaining Transferor as directed by
Holdco Sub (in the case of Section 4.2(c)(ii)(A)) and as recommended by the
Board of Directors of the Company (in the case of Section 4.2(c)(ii) (B))
as indicated in, and solely for the purposes of, Section 4.2(c)(ii).
CAIPar, each Share Electing Partner and each Retaining Transferor intend
this proxy to be irrevocable and coupled with an interest and will take
such further action and execute such other instruments as may be necessary
to effectuate the intent of this proxy and hereby revoke any proxy
previously granted by it with respect to any Retained Shares owned by
CAIPar, such Share Electing Partner and such Retaining Transferor with
respect to the matters set forth in Section 4.2(c)(ii). Notwithstanding
the foregoing, Holdco Sub agrees that the proxy granted by this Section
4.2(d)(ii) shall be deemed to be revoked upon such time as neither the
Governance Agreement nor Sections 2 through 14 of the Supplemental
Agreement are in effect.
9
<PAGE>
(d) Section 4.2 of the Investment Agreement is hereby amended by
deleting Section 4.2(f) thereof and substituting therefor the following:
(f) NO CONVERSIONS. Prior to the Closing, the Partnership,
CAIPar and each Transferor agree not to convert any shares of Company Class
A Common Stock into shares of Company Class B Common Stock. Following the
Closing, CAIPar, the Share Electing Partners and the Retaining Transferors
agree not to convert any shares of Company Class A Common Stock into
Company Class B Common Stock unless such conversion occurs immediately
prior to the transfer of such shares to a third party as permitted by
Section 4.2(b).
(e) Section 4.2(g) of the Investment Agreement is hereby amended by
deleting the words the Transferors in the seventh line thereof and
substituting therefor the words Transferor III .
(f) Section 4.2 of the Investment Agreement is hereby amended by
deleting Section 4.2(h) thereof and substituting therefor the following:
(h) TRANSFER OF SHARES OF HOLDCO SUB COMMON STOCK. Until the
earlier of (i) the date that is two years after the Closing Date and (ii)
such time as Holdco Sub has failed to ensure that a Transferor II Designee
is elected to the Holdco Sub Board of Directors when the right of
Transferor II pursuant to Section 4.1(b) (A) remains in effect, (B) has
been terminated by virtue of a written instrument executed by Transferor II
or its assignee and Holdco Sub in connection with an order, ruling,
decision, judgment, consent decree or other decree of a court or
Governmental Authority (a GOVERNMENT ORDER ), or (C) would violate a
Government Order, each of the Share Electing Partners agrees that it shall
not, directly or indirectly, offer, sell, transfer, tender, pledge or
encumber, assign or otherwise dispose of any Exchange Shares other than in
connection with bona fide pledges of such Exchange Shares to secure bona
fide borrowings or in connection with bona fide hedging transactions
executed by registered broker-dealers; PROVIDED, HOWEVER, that the Share
Electing Partners shall be permitted to offer, sell, transfer, tender,
pledge or encumber, assign or otherwise dispose of, during such two-year
period (x) in the aggregate, such percentage of the aggregate number of
Exchange Shares issued to the Share Electing Partners at the Closing as is
equal to the percentage of the aggregate shares of Holdco Sub Common Stock
beneficially owned by Alfred Checchi, Gary Wilson and Richard Blum on the
Closing Date that are sold, transferred, assigned or otherwise actually
disposed of by Alfred Checchi, Gary Wilson and Richard Blum in the
aggregate during such two-year period; (y) in the event that the Offeree
acquires Offered Securities under Section 4.1(d), in the aggregate, such
percentage of the aggregate number of Exchange Shares issued to the Share
Electing Partners at the Closing as is represented by the percentage such
Offered Securities acquired by the Offeree bears to the total number of
shares of Company Class A Common Stock the beneficial ownership of which is
acquired by Parent and Holdco Sub at the Closing and (z) Exchange Shares to
one or more of its affiliates that is directly or indirectly controlled by
it. Nothing in this Section 4.2(h) shall be construed as being or
providing the sole or exclusive remedy for a breach by Parent or Holdco Sub
of Section 4.1(b) (it being understood that a termination of Transferor
II s
10
<PAGE>
right under Section 4.1(b) under the circumstances described in clause (ii)
(B) or (C) of this Section 4.2(h) shall not be a breach of such Section.)
(g) Section 4.2 of the Investment Agreement is hereby amended by
adding a new Section 4.2(k) thereto as follows:
(k) If subsequent to the Closing Parent, Holdco Sub
or their respective Affiliates purchase or otherwise acquire shares of
Company Class A Common Stock or Company Class B Common Stock such that
Parent, Holdco Sub and their Affiliates would, after giving effect to such
acquisition, Beneficially Own (as such term is defined in the Governance
Agreement) more than the Permitted Percentage (as such term is defined in
the Governance Agreement), a number of shares of Company Class A Common
Stock equal to the number of shares of Voting Securities Beneficially Owned
by such Persons that exceed the Permitted Percentage shall be released from
the transfer restrictions of Section 4.2(b)(ii) of this Agreement, the
voting restrictions of Section 4.2(c)(ii) of this Agreement and the proxy
arrangements of Section 4.2(d)(ii) of this Agreement, in each case on a
vote for vote basis, effective upon the consummation of such purchase, and
Holdco Sub shall promptly notify the Partner s Representative of any such
acquisition.
SECTION 11. Section 7.14 of the Investment Agreement is hereby
amended by changing the heading to read Survival and adding at the end thereof
the following:
Following the Closing, except as set forth above, the individual
covenants and other provisions set forth in this Agreement shall survive in
accordance with their respective terms.
SECTION 12. COUNTERPARTS. This Amendment may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become a binding agreement when one or more counterparts have been
signed by each party and delivered to the other parties.
SECTION 13. NOTICES. All notices, requests, demands or other
communications provided herein shall be made in writing and shall be deemed to
have been duly given if delivered as follows:
If to Parent or Holdco Sub:
Northwest Airlines Corporation
5101 Northwest Drive
St. Paul, Minnesota 55111-3034
Attention: General Counsel
Fax: (612) 726-7123
11
<PAGE>
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3954
Attention: Robert L. Friedman, Esq.
Fax: (212) 455-2502
If to the Partnership, CAIPar, the Partners or the Transferors:
1992 Air, Inc.
201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James J. O'Brien
Fax: (817) 871-4010
with a copy to:
Kelly, Hart & Hallman
201 Main Street, Suite 2500
Fort Worth, Texas 76102
Attention: Clive D. Bode, Esq.
F. Richard Bernasek, Esq.
Fax: (817) 878-9280
or to such other address as any party shall have specified by notice in writing
to the other parties. All such notices, requests, demands and communications
shall be deemed to have been received on (i) the date of delivery if sent by
messenger, (ii) on the Business Day following the Business Day on which
delivered to a recognized courier service if sent by overnight courier or (iii)
on the date received, if sent by fax.
SECTION 14. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AS APPLIED TO
CONTRACTS ENTERED INTO AND TO BE PERFORMED IN NEW YORK.
SECTION 15. RATIFICATION OF INVESTMENT AGREEMENT. Except as
expressly amended hereby, the Investment Agreement is in all respects ratified
and confirmed and all the terms, conditions and provisions thereof shall remain
in full force and effect.
12
<PAGE>
IN WITNESS WHEREOF, the parties have executed, delivered and entered
into this Amendment as of the day and year first above written.
NORTHWEST AIRLINES CORPORATION
By: /s/ Douglas M. Steenland
--------------------------------
Name: Douglas M. Steenland
Title: Executive Vice President, General
Counsel and Secretary
NEWBRIDGE PARENT CORPORATION
By: /s/ Douglas M. Steenland
--------------------------------
Name: Douglas M. Steenland
Title: Vice President, Secretary
and Assistant Treasurer
13
<PAGE>
AIR PARTNERS, L.P.
1992 AIR GP, a Texas general partnership
By: 1992 Air, Inc., a Texas corporation,
general partner
By: /s/ James J. O'Brien
-------------------------------
Name: James J. O'Brien
Title: Vice President
THE PARTNERS:
GENERAL PARTNER:
1992 AIR GP, a Texas general partnership
By: 1992 Air, Inc., a Texas corporation,
general partner
By: /s/ James J. O'Brien
-------------------------------
Name: James J. O'Brien
Title: Vice President
14
<PAGE>
LIMITED PARTNERS:
DAVID BONDERMAN
BONDERMAN FAMILY LIMITED
PARTNERSHIP
By: BondCo, Inc.
ESTATE OF LARRY LEE HILLBLOM
By: Russel K. Snow, Jr.
Managing Executor
Bank of Saipan, Executor
DHL MANAGEMENT SERVICES, INC.
LECTAIR PARTNERS LIMITED PARTNERSHIP
By: Planden Corp., general partner
SUNAMERICA INC. (Formerly Broad, Inc.)
ELI BROAD
AMERICAN GENERAL CORPORATION
DONALD STURM
CONAIR LIMITED PARTNERS, L.P.
BONDO AIR LIMITED PARTNERSHIP
By: 1992 Air, Inc.
AIR SAIPAN, INC.
By: 1992 AIR GP, as attorney-in-fact
for the foregoing
By: 1992 Air, Inc., a Texas
corporation, general partner
By: /s/ James J. O'Brien
-------------------------------
Name: James J. O'Brien
Title: Vice President
CAIPAR:
1998 CAI Partners, L.P., a Texas limited
partnership
By: 1992 Air GP, its general partner
By: 1992 Air, Inc., its general partner
By: /s/ James J. O'Brien
-------------------------------
Name: James J. O'Brien
Title: Vice President
15
<PAGE>
TRANSFERORS:
AIR SAIPAN, INC., a CNMI corporation
By: 1992 AIR GP, as attorney-in-fact
for the foregoing
By: 1992 Air, Inc., a Texas
corporation, general partner
By: /s/ James J. O'Brien
-------------------------------
Name: James J. O'Brien
Title: Vice President
BONDERMAN FAMILY LIMITED
PARTNERSHIP
By: BondCo, Inc.
By: 1992 AIR GP, as attorney-in-fact
for the foregoing
By: 1992 Air, Inc., a Texas
corporation, general partner
By: /s/ James J. O'Brien
--------------------------
Name: James J. O'Brien
Title: Vice President
1992 AIR, INC., a Texas corporation
By: /s/ James J. O'Brien
-------------------------------
Name: James J. O'Brien
Title: Vice President
16
<PAGE>
Schedule 2.2(a)
Cash Electing Partners and Transferors
Allocable Company Class A Shares
Partner or Transferor or Transferor Exchange Shares
--------------------- --------------------------------
Estate of Larry Hillblom 969,171
DHL Management Services, Inc. 940,920
Sun America, Inc. 352,849
American General Corp. 1,264,898
Conair, L.P. 105,857
Bondo Air L.P. 1,077,400
Air Saipan, Inc. 28,694
1992 Air GP 377,803
Air Saipan, Inc. 3,702
<PAGE>
Schedule 2.2(b)
Share Electing Partners and Transferors
Allocable Company Class A Shares
Partner or Transferor or Transferor Exchange Shares
--------------------- --------------------------------
David Bonderman 304,270
Bonderman Family Limited Partnership 100,510
Lectair Partners 476,341
Eli Broad 176,421
Donald Sturm 441,059
1992 Air GP 1,062,329
1992 Air, Inc. 0
Bonderman Family 0
Limited Partnership
<PAGE>
Schedule 3.6(c)
1998 CAI Partners, L.P.
General and Limited Partner Interests
General Partner
- ---------------
1992 Air GP 22.5913%
Limited Partners
- ----------------
David Bonderman 16.2504
Bonderman Family Limited Partnership 2.7404
Lectair Partners Limited Partnership 25.44
Eli Broad 9.4222
Donald Sturm 23.5557
---------
100.000%
<PAGE>
ANNEX A
Partner or Transferor
- ---------------------
Shares transferred to:
CAIPar: 624,134
Shares retained by:
1992 Air, Inc. 213,110
Bonderman Family
Limited Partnership 16,400
<PAGE>
Exhibit 2.4
Execution Copy
NORTHWEST AIRLINES/AIR PARTNERS VOTING TRUST AGREEMENT
This Northwest Airlines/Air Partners Voting Trust Agreement (this
"Agreement") dated as of the 20th day of November, 1998, by and among (i)
Continental Airlines, Inc., a Delaware corporation ("Continental" or the
"Company"), (ii) Northwest Airlines Corporation, a Delaware corporation
(formerly Newbridge Parent Corporation, "NPC"), and Northwest Airlines Holdings
Corporation, a Delaware corporation (formerly Northwest Airlines Corporation,
"NWA"), (iii) Air Partners, L.P., a Texas limited partnership ("Air Partners"
and, together with NPC and NWA, the "Stockholders" and each, a "Stockholder"),
and (iv) Wilmington Trust Company, a Delaware banking corporation.
W I T N E S S E T H:
WHEREAS, pursuant to the Investment Agreement dated as of January 25,
1998, among NWA, NPC, Air Partners, the partners of Air Partners that are
signatories to the Investment Agreement, Bonderman Family Limited Partnership,
1992 Air, Inc. and Air Saipan, Inc., as amended by Amendment No. 1 thereto dated
as of February 27, 1998 and as further amended by Amendment No. 2 thereto dated
as of the date hereof (the "Investment Agreement"), NWA and NPC have acquired
Beneficial Ownership of 8,535,868 shares (the "AP Shares") of the Company's
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Class A Common Stock, par value $.01 per share (the "Class A Common Stock"); and
WHEREAS, NPC and NWA Beneficially Own an additional 979,000 shares of
Class A Common Stock (the "Additional Shares") pursuant to the Barlow Agreement;
and
WHEREAS, the Governance Agreement dated as of January 25, 1998, among
the Company, NWA and NPC, as amended by the First Amendment thereto dated as of
March 2, 1998 and the Second Amendment thereto dated as of the date hereof (such
agreement, as so amended, the "Governance Agreement"), requires NWA and NPC to
cause Air Partners to deposit the shares of Class A Common Stock of which NWA
and NPC have acquired beneficial ownership pursuant to the Investment Agreement
(except for such 853,644 shares with respect to which NWA and NPC or their
designees have been granted a proxy pursuant to the Investment Agreement) in a
voting trust;
WHEREAS, the Governance Agreement also requires NWA and NPC to deposit
any other Voting Securities Beneficially Owned by either of them or any of their
Affiliates (except for such 853,644 shares with respect to which NWA and NPC or
their designees have been granted a proxy pursuant to the Investment Agreement)
into the same voting trust;
WHEREAS, the parties hereto desire to establish the voting trust
contemplated in the Governance Agreement and to
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deposit into such trust the AP Shares and the Additional Shares; and
WHEREAS, each Stockholder has advised the Trustee that it intends to
file all required disclosure information and other filings as required by
applicable securities law and regulations relating to its respective beneficial
ownership of the Shares, including but not limited to the Securities Act of 1933
and the Exchange Act of 1934.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and using capitalized terms to have their respective
meanings set forth in Section 14 hereof, the parties hereto agree as follows:
Section 1. Creation of Voting Trust. Subject to the terms and
conditions hereof, there is hereby created and established a voting trust in
respect of the Shares to be known as the "Northwest Airlines/Air Partners Voting
Trust." The Trustee hereby accepts the trust created hereby and agrees to serve
as trustee hereunder. The Trustee promptly shall file an executed copy of this
Agreement at the registered office of the Company in the State of Delaware,
which copy shall be open to the inspection of any stockholder of the Company, or
any beneficiary of the Trust, daily during business hours, as provided in
Section 218 of the Delaware General Corporation Law.
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Section 2. Deposit of Shares. (a) Subject to the provisions of Section
2(b) hereof, each of Air Partners, NWA and NPC shall, simultaneously with the
consummation on the date hereof of the transactions contemplated by the
Investment Agreement and the Barlow Agreement, transfer and deliver to the
Trustee, to be held by it pursuant to the provisions of this Agreement, the
certificate or certificates representing all of the Shares Beneficially Owned by
the Stockholders (except that for purposes of the foregoing, any shares
Beneficially Owned by the Stockholders solely as a result of any proxy granted
to them pursuant to the Investment Agreement shall not be required to be so
deposited), duly endorsed in blank or to the Trustee, or accompanied by proper
instruments of assignment and transfer duly executed in blank or to the Trustee.
After the filing of a copy of this Agreement in the registered office of the
Company in the State of Delaware as provided in Section 1 hereof, each
certificate representing Shares so transferred to the Trustee shall be
surrendered to the Company and cancelled, and new certificates therefor shall be
issued to, and in the name of, the Trustee. Such certificates shall state that
they have been issued pursuant to this Agreement and that fact shall be noted in
the stock ledger of the Company as required by Section 218 of the Delaware
General Corporation Law. The shareholdings of each
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of the Stockholders of Company Common Stock as of the date hereof are set forth
in Schedule I attached hereto.
(b) All certificates for Shares at any time delivered to the Trustee
hereunder shall be held by the Trustee under and pursuant to the terms and
conditions of this Agreement. The Trustee shall not have the authority to, and
shall not, sell, transfer, assign, pledge, hypothecate, or otherwise dispose of
or encumber the Shares or any rights therein or thereto, except to the extent
otherwise specifically provided in this Agreement. The Trustee shall have no
beneficial interest in or discretionary authority with respect to the Shares,
its interest being limited solely to that necessary to carry out its obligations
under this Agreement.
(c) The Trustee, in exchange for the certificate or certificates so
deposited hereunder, will cause to be issued and delivered to each Stockholder a
voting trust certificate or certificates issued hereunder substantially in the
form attached hereto as Exhibit A (the "Voting Trust Certificates") for the
appropriate number of Shares. The Trustee, under such rules and regulations as
it in its discretion may prescribe with respect to indemnity or otherwise, may
provide for the issuance and delivery of new Voting Trust Certificates in lieu
of lost, stolen or destroyed Voting Trust Certificates or in exchange for
mutilated Voting Trust Certificates.
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(d) Except as would be permitted by Section 1.02(iii) of the
Governance Agreement with respect to the Shares, as provided in Section 3.05 of
the Governance Agreement, until the Standstill Termination Date, the Voting
Trust Certificates shall not be sold, assigned, transferred, pledged,
hypothecated, given away or in any other manner disposed of or encumbered,
whether voluntarily, involuntarily or by operation of law, and the Trustee shall
not register any such transfer. Each Voting Trust Certificate issued pursuant to
this Agreement shall have the following legend noted conspicuously upon its face
or reverse side:
"This Voting Trust Certificate is subject to restrictions on sale,
assignment, transfer, pledge, hypothecation, gift or other disposition,
as set forth in the Voting Trust Agreement referred to below."
(e) The Trustee shall not issue Voting Trust Certificates, or any
interest in the Trust, to any Person other than NWA, NPC, Air Partners, or any
of their Depositing Affiliates.
(f) The Stockholders each hereby covenant and agree promptly to
deposit into the Trust any Voting Securities acquired by any of them after the
date hereof. The Trustee shall issue to each depositing Stockholder a Voting
Trust Certificate in respect of such securities as provided in Section 2(a)
hereof.
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(g) The Stockholders each hereby covenant and agree to cause their
controlled Affiliates, and to use their best efforts to cause each other
Affiliate, to deposit into the Trust any Voting Securities acquired by such
Affiliate after the date hereof and to execute a supplement to this Agreement
evidencing each such Affiliate's agreement to be bound by, and subject to the
terms of, this Agreement. Upon delivery of such supplement to the Company and
the Trustee, and the deposit of Voting Securities, the Trustee shall issue
Voting Trust Certificates in respect of such securities to the Depositing
Affiliate as provided in Section 2(a) hereof.
(h) Each Stockholder hereby represents, warrants and covenants to the
Trustee, with respect to Voting Securities it owns, that (i) it has all
requisite power and authority to execute, deliver and perform its obligations
under this Agreement, (ii) it is and, except as permitted by the Governance
Agreement, shall be during the term of this Agreement the sole legal and
beneficial owner of the Voting Securities, and (iii) it has not sold, assigned,
pledged, created a lien or security interest in, or otherwise transferred any
interest in, the Voting Securities to any other person or entity (with the
exception of the transfers contemplated by this Agreement), and (iv) the
transfers of Voting Securities from each Stockholder to the Trustee and from the
Trustee to the Stockholders
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contemplated by this Trust Agreement do not require registration under
applicable federal or state securities laws.
Section 3. Voting. The Stockholders hereby direct the Trustee to vote
the Shares as follows:
(a) Except as provided in (c) below, until the Standstill Termination
Date, the Trustee shall vote (or submit its written consent with respect to) the
Shares on all matters submitted to a vote of the Company's stockholders other
than an election of directors, whether at a meeting of stockholders or by
written consent, either (i) in the case of a vote taken at a stockholders
meeting, in the same proportion as the votes cast by other holders of Voting
Securities or (ii) in the case of action taken by written consent, so that the
percentage of Stockholder Voting Power consented to on a matter equals the
percentage of all other outstanding Voting Securities so consented.
(b) Except as provided in (d) below, until the Standstill Termination
Date, in any election of directors, the Trustee shall vote the Shares for the
election of the Independent Directors nominated by the Board of Directors by a
Majority Vote, and, unless otherwise directed by NPC, for the election of the
other persons nominated by the Board of Directors.
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(c) Until the Standstill Termination Date, with respect to any vote or
consent of the Company's stockholders (i) on a merger, reorganization, share
exchange, consolidation, business combination, recapitalization, liquidation,
dissolution or similar transaction involving the Company, any sale of all or
substantially all of the Company's assets or any issuance of Voting Securities
that would represent in excess of 20% of the Voting Power prior to such
issuance, including any of the foregoing involving NPC or NWA or (ii) on any
amendment to the Company's amended and restated certificate of incorporation or
its bylaws that would materially and adversely affect NPC (including through its
effect on the Alliance Agreement and the rights of the Voting Securities
Beneficially Owned by NPC), the Shares shall be voted by the Trustee as directed
by NPC and, in the absence of such direction, shall not be voted.
(d) (i) Until the Standstill Termination Date, with respect to any
election of directors in respect of which any Person other than the Company is
soliciting proxies, the Trustee shall vote the Shares, at the election of NPC,
either (A) as recommended by the Board of Directors or (B) in the same
proportion as the votes cast by the other holders of Voting Securities.
(ii) Upon learning that a Person other than the Company is soliciting
proxies in any election of directors,
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the Company shall promptly notify the Trustee and NPC. Not later than five
(5) Business Days prior to the date of the stockholders meeting at which
the proxies solicited by such other person are to be voted, NPC shall
notify the Trustee and the Company of its election under Section 3(d)(i).
If no election is timely made by NPC, the Trustee shall vote the Shares in
the same proportion as the votes cast by the other holders of Voting
Securities. NPC may instruct the Trustee to change the vote cast at any
time before the close of business two (2) days before a stockholders
meeting by giving notice to the Trustee and the Company.
(e) In the event the Trustee is required under this Voting Trust
Agreement to vote the Shares in the same proportion as the votes cast by other
holders of Voting Securities, the Trustee may discharge its obligation so to
vote the Shares by delivering to the Company a proxy or written consent (as the
case may be) providing that the Shares are to be so voted, in which event the
Trustee shall have no duty to ascertain the actual votes cast by other holders
of Voting Securities.
Section 4. Dividends and Distributions. (a) The parties hereto agree
that, unless otherwise directed by Air Partners, NWA, NPC or a Depositing
Affiliate, the Company shall pay all dividends or other distributions (other
than dividends or distributions paid in Voting Securities or the dividend of
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the Rights) in respect of the Shares directly to Air Partners, NWA, NPC or the
Depositing Affiliate, as the case may be. The Trustee shall have no liability
with regard to the payment of such dividends or other distributions.
Notwithstanding the foregoing, if the Trustee receives payments of dividends or
other distributions (other than dividends or distributions paid in Voting
Securities and the dividend of the Rights) in respect of the Shares, it shall
promptly distribute such dividends or distributions to Air Partners, NWA, NPC or
the Depositing Affiliate, as applicable, promptly after the receipt of such
dividends or other distributions.
(b) In the event the Trustee receives any Voting Securities by means
of a dividend or other distribution in respect of the Shares (including the
Rights), the Trustee shall hold such securities subject to this Agreement and
such securities shall become subject to all of the terms and conditions of this
Agreement to the same extent as if they were Shares deposited with the Trustee
pursuant to Section 2(a) hereof. The Trustee shall issue Voting Trust
Certificates in respect of such securities to Air Partners, NWA, NPC or the
Depositing Affiliate, as applicable, in accordance with Section 2(c) hereof.
(c) In the event of a merger to which the Company is a party, the sale
of all or substantially all of the
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assets of the Company, the dissolution or total or partial liquidation of the
Company, or the sale of any or all of the Shares, the Trustee shall receive the
money, securities, rights or property which are distributed or are distributable
in respect of the Shares, or which are received in exchange for the Shares, and,
after paying (or reserving for payment thereof) any expenses incurred pursuant
to this Agreement, shall promptly distribute such money, securities, rights or
property to Air Partners, NWA, NPC and any Depositing Affiliate, as applicable.
(d) If, at any time during the term of this Agreement, the Trustee
shall receive or collect any money or other property (other than Voting
Securities or the Rights but including stock in subsidiaries or Affiliates of
the Company) through distribution by the Company to its stockholders, other than
as set forth in paragraph (a), (b) or (c) of this Section 4, the Trustee shall
promptly distribute such money or other property to Air Partners, NWA, NPC and
any Depositing Affiliate, as applicable.
(e) Upon the receipt by the Trustee of a "Right Certificate" (as
defined in the Rights Agreement) following the "Distribution Date" (as defined
in the Rights Agreement), the Trustee shall promptly distribute such certificate
to Air Partners, NWA, NPC and any Depositing Affiliate, as applicable.
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Section 5. The Trustee. (a) Subject to the provisions of this
Agreement, the Trustee shall manage the voting trust created hereby.
(b) The Trustee shall be entitled to receive compensation for services
as trustee hereunder as set forth in the fee schedule previously provided to the
parties hereto. As between NPC and the Company, fifty percent of such
compensation shall be paid by NPC and fifty percent shall be paid by the
Company; provided that their obligation to the Trustee to pay such compensation
shall be joint and several.
(c) The Trustee is expressly authorized to incur and pay all
reasonable, properly documented charges and other expenses that the Trustee
deems necessary and proper in the performance of the Trustee's duties under this
Agreement. NPC and the Company, as between themselves, shall each be responsible
to reimburse the Trustee for one-half of such expenses; provided that their
obligation to the Trustee to reimburse such charges and expenses shall be joint
and several. NPC and the Company, as between themselves, shall each be
responsible to indemnify the Trustee for one-half of any and all claims, costs
of defense of claims (including reasonable attorney's fees and disbursements),
expenses and liability incurred by the Trustee in connection with the
performance of the Trustee's duties under this Agreement, except those incurred
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as a result of the Trustee's gross negligence, wilful misconduct or other
malfeasance; provided that NPC's and the Company's obligation to the Trustee to
pay such amounts shall be joint and several. This Section 5(c) shall survive the
termination of this Agreement.
(d) In acting hereunder, the Trustee shall have only such duties as
are specified herein and no implied duties shall be read into this Agreement,
and the Trustee shall not be liable for any act done, or omitted to be done, by
it in the absence of its gross negligence or willful misconduct. The Trustee
shall be free from liability to Air Partners, NWA, NPC and any Depositing
Affiliate in acting or relying upon any writing, notice, certificate or document
believed by the Trustee in good faith after reasonable inquiry to be genuine and
to have been signed by an authorized officer of the Company, NPC, NWA or any
Depositing Affiliate, as the case may be, or with respect to Air Partners, an
authorized officer of the general partner of Air Partners, including, without
limitation, any certificate or document from the Company regarding the Fully
Diluted Voting Power, the identity of the Independent Directors, the Beneficial
Ownership of Voting Securities of NPC and its Affiliates, the Stockholder Voting
Power, the Total Voting Power, the Voting Securities and whether a particular
vote of the Company's stockholders is with respect to a matter described in
Section
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3(c). In making such inquiry, the Trustee shall be entitled to rely upon
certificates of incumbency provided by the entity providing such certificates
executed by a person authorized to do so on behalf of such entity. The Company
shall send a copy of any such writing, notice, certificate or document to NPC
concurrently with sending it to the Trustee. The Trustee may consult with legal
counsel, who shall have no business, financial, or other relationship with Air
Partners, NWA, NPC, a Depositing Affiliate or the Company, or any of their
respective Affiliates, and any action under this Agreement taken or suffered in
good faith by the Trustee in accordance with the advice of the Trustee's counsel
shall be conclusive on the parties to this Agreement absent manifest error,
gross negligence, wilful misconduct or other malfeasance and the Trustee shall
not be the subject of any claim by or liability to Air Partners, NPC, NWA or any
Depositing Affiliate, or their successors and assigns except for any claim or
liability resulting from its gross negligence, wilful misconduct or other
malfeasance. This Section 5(d) shall survive the termination of this Agreement.
(e) (i) The Trustee may resign by giving 30 days' advance written
notice of resignation to the Company and NPC provided that at the end of the 30
day period, a successor Trustee has been appointed by NPC and approved by the
Company by
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Majority Vote in accordance with Section 5(f) hereof. NPC shall not unreasonably
delay the appointment of, and the Company shall not unreasonably delay the
approval of, a successor Trustee.
(ii) NPC may remove the Trustee at any time upon 90 days' notice to
the Trustee and the Company if at the end of the 90 day period, a successor
Trustee has been appointed and approved in accordance with Section 5(f)
hereof.
(f) In the event of resignation or removal of the Trustee pursuant to
Section 5(e), the Trustee shall be succeeded by a successor Trustee chosen by
NPC and approved by the Company by the Majority Vote. In connection therewith,
the Trustee shall, simultaneously with the execution by the successor Trustee of
a counterpart of this Agreement, transfer and deliver (or cause to be
transferred and delivered) to the successor Trustee the Shares that are held in
the name of the Trustee immediately prior to such execution. The successor
Trustee shall file an executed copy of this Agreement, as amended, at the
registered office of the Company in the State of Delaware, which copy shall be
open to the inspection of any stockholder of the Company, or any beneficiary of
the Trust, daily during business hours, as provided in Section 218 of the
Delaware General Corporation Law, and thereafter the successor Trustee shall
become the Trustee for all purposes of this Agreement, and shall succeed to all
of the rights and
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obligations of the Trustee hereunder. Each certificate representing Shares so
transferred to the successor Trustee shall be surrendered and canceled, and new
certificates therefor shall be issued in the name of the successor Trustee. Such
certificates shall state that they have been issued pursuant to this Agreement,
as amended, and that fact shall be noted in the stock ledger of the Company, as
required by Section 218 of the Delaware General Corporation Law. In the event a
successor Trustee shall be appointed after a record date has passed with respect
to any vote of the stockholders of the Company and prior to the stockholders
meeting or the taking of action by written consent relating to such record date,
the Trustee as of such record date shall vote the Shares and/or execute a
written consent or proxy with respect thereto in accordance with the
instructions of the successor Trustee in accordance with the terms of this
Agreement.
(g) The Stockholders and the Company each hereby acknowledge that the
Trustee has had, presently may have and may in the future have other business
relationships with any one or more of the Stockholders and the Company that are
unrelated to its duties and obligations under this Agreement, and hereby waive
and release the Trustee from any conflict of interest which such relationship
may create; provided, that in the event such conflict of interest results in or
arises in connection
17
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with litigation between any such Stockholder and the Company or any other
Stockholder, the Stockholder or the Company shall have the right immediately to
remove the Trustee within ten (10) business days following notice of such
conflict to them from the Trustee or notice of such conflict from either of them
to the Trustee (the "Conflict Notice"). Notwithstanding an election by the
Stockholder or Company to remove the Trustee as provided in the previous
sentence, the foregoing waiver and release shall apply to any actions taken by
the Trustee or which the Trustee refrains from taking in accordance with
instructions authorized under this Trust Agreement during the period between
delivery of such Conflict Notice and the Trustee's removal.
(h) The Trustee represents that it is acquiring the Shares only in its
capacity as trustee to hold in trust and not with a view to distribution.
(i) In the event the Trustee receives conflicting instructions under
this Trust Agreement, the Trustee shall be fully protected in refraining from
acting until such conflict is resolved to the satisfaction of the Trustee except
that if such conflict arises by virtue of the receipt of later dated
instructions from the same party, the Trustee shall follow the later dated
instructions in accordance with this Agreement. The Trustee shall be obligated
to contact promptly the party giving the conflicting instructions to ascertain
the nature of
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any conflict, and in the event such conflict cannot be resolved, the Trustee
shall have the right to institute a bill of interpleader in any court referred
to in Section 11(b) of this Agreement to determine the rights and obligations of
the parties, and the parties shall pay all costs, expenses and disbursements in
connection therewith, including reasonable attorneys' fees.
Section 6. Term; Termination. (a) Except to the extent earlier
terminated with respect to all or a portion of the Shares in accordance with
Section 6(d), the Trust shall be effective as of the date hereof, and this
Agreement and the Trust shall remain in full force and effect until the
Standstill Termination Date. This Agreement and the Trust may be terminated at
any time with the consent in writing of the Company and NPC; provided that, the
consent of the Company shall have been given with the Majority Vote.
(b) Upon termination of this Agreement in accordance with Section 6(a)
with respect to all the Shares or in accordance with Section 6(d) with respect
to all or a portion of the Shares, and following delivery to the Trustee of each
Stockholder's Voting Trust Certificate, and payment in full of all fees and
expenses of the Trustee then outstanding, the Trustee shall promptly deliver to
Air Partners, NWA, NPC, and each Depositing Affiliate, as applicable, the
certificates
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representing the Shares deposited in the Trust with respect to which this
Agreement shall have been terminated, duly endorsed for transfer by the Trustee,
or with duly executed stock powers attached, and shall take all such other
actions as are appropriate to cause the transfer of such Shares deposited in the
Trust, together with all other property relating to or allocable to such Shares
and held by the Trustee for the benefit of Air Partners, NWA, NPC and any
Depositing Affiliate, as applicable, pursuant to this Agreement, to Air
Partners, NWA, NPC or such Depositing Affiliate, as the case may be. Upon
delivery of the certificates in accordance with the foregoing, except as
provided in Section 6(c) below, the Trustee shall be released from any further
obligation or duty under this Agreement.
(c) In connection with any action submitted to a vote of the Company's
stockholders, whether at a meeting of stockholders or by written consent,
following the termination of this Agreement but prior to the delivery to Air
Partners, NWA, NPC or any Depositing Affiliate of the certificates representing
the Shares deposited in the Trust, and having a record date prior to such
delivery, the Trustee shall vote the Shares as directed in writing by Air
Partners, NWA, NPC or such Depositing Affiliate, as the case may be, in respect
of the Shares
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beneficially owned by them, and in the absence of any such direction, the
Trustee shall not vote such Shares.
(d) In the event that prior to the Standstill Termination Date NWA,
NPC, Air Partners or any Depositing Affiliate is permitted to transfer any of
the Shares in accordance with and pursuant to clauses (i), (ii), (v) and (vi) of
Section 1.02 of the Governance Agreement, this Agreement shall immediately
terminate and be of no further force and effect with respect to such Shares.
Section 7. Benefit and Binding Effect; Assignment. This Agreement and
all covenants herein contained shall be binding upon and shall inure to the
benefit of each of the parties hereto and their respective heirs, executors,
administrators and personal representatives and their successors and assigns;
provided, however, that, except for assignments by NPC, NWA or Air Partners to a
controlled Affiliate of NPC as permitted by Section 1.02(iii) of the Governance
Agreement, this Agreement shall not be assigned by any party hereto without the
prior written consent of the Trustee, the Company and NPC, which consent, in the
case of the Company, shall have been given with the Majority Vote.
Section 8. Notices. All notices, elections, requests, demands or other
communications provided for herein
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shall be made in writing, including by facsimile, and shall be deemed to have
been duly given:
If to NWA, NPC or Air Partners, to:
Northwest Airlines Corporation
5101 Northwest Drive
St. Paul, Minnesota 55111
Attention: General Counsel
Fax: (612) 726-7123
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3954
Attention: Robert L. Friedman, Esq.
Fax: (212) 455-2502
If to the Company, to:
Continental Airlines, Inc.
Dept. HQS-EO
Continental Tower
1600 Smith Street
Houston, Texas 77002
Fax: (713) 324-2687
Attention: General Counsel
With a copy to:
Morris, Nichols, Arsht & Tunnell
1201 N. Market Street
P.O. Box 1347
Wilmington, Delaware 19899-1347
Fax: (302) 658-3989
Attention: A. Gilchrist Sparks, III, Esquire
If to the Trustee, to:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Fax: (302) 651-8882
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or such other address or fax number as such party may hereafter specify for such
purpose by notice to the other parties hereto.
Section 9. Amendments. This Agreement and the Voting Trust
Certificates issued hereunder may be amended upon the consent in writing of (a)
the Company (with the Majority Vote) and (b) NPC acting on behalf of all of the
holders of Voting Trust Certificates then issued and outstanding under this
Agreement.
Section 10. Enforceability. In the event that any part of this
Agreement shall be held to be invalid or unenforceable, the remaining parts
thereof shall nevertheless continue to be valid and enforceable as though the
invalid portions were not a part hereof.
Section 11. Governing Law; Consent to Jurisdiction.
(a) This Agreement shall be construed in accordance with and governed
by the internal laws of the State of Delaware.
(b) Any suit, action or proceeding seeking to enforce any provision
of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby may be brought in any
federal court located in the State of Delaware or any Delaware state court,
and each of the parties hereby consents to the exclusive jurisdiction of
such courts (and of the appropriate appellate courts therefrom)
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in any such suit, action or proceeding and irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such suit, action or
proceeding in any such court or that any such suit, action or proceeding
which is being brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be
served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each party
agrees that service of process on such party as provided in Section 8 shall
be deemed effective service of process on such party.
Section 12. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same instrument.
Section 13. Expenses. In the event that the Trustee pays (or reserves
for payment thereof) any expenses incurred pursuant to this Agreement out of any
moneys received by it in accordance with Section 4(c) or otherwise deducts from
any amounts payable to NPC, NWA, Air Partners or any Depositing Affiliate any
expenses incurred by the Trustee, the Company shall promptly reimburse NPC, NWA,
Air Partners or such
24
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Depositing Affiliate, as the case may be, in an amount equal to 50% of such
expenses so paid or deducted.
Section 14. Definitions; Interpretation. (a) For purposes of this
Agreement, the following terms shall have the following meanings:
"Additional Shares" shall have the meaning set forth in the second
recital hereto.
"Affiliate" shall have the meaning set forth in Rule 12b-2 under the
Exchange Act (as in effect on the date of this Agreement).
"Air Partners" shall mean Air Partners, L.P., a Texas limited
partnership.
"Alliance Agreement" shall mean the Master Alliance Agreement dated as
of January 25, 1998 by and between Continental and Northwest Airlines, Inc., an
indirect wholly owned subsidiary of NWA.
"AP Shares" shall have the meaning set forth in the first recital
hereto.
"Barlow Agreement" shall mean the Purchase Agreement dated as of
March 2, 1998, among NPC, NWA, Barlow Investors III, LLC, a California limited
liability company, and the guarantors signatory thereto.
"Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial
25
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ownership" of such securities (as determined pursuant to Rule 13d-3 under the
Exchange Act), including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Without limiting the foregoing, any
Voting Securities owned by the Trust shall be deemed to be Beneficially Owned by
the Stockholders.
"Board of Directors" shall mean the board of directors of the Company.
"Business Day" shall mean any day other than a Saturday, Sunday or
legal holiday.
"Class A Common Stock" shall have the meaning set forth in the first
recital hereto.
"Class B Common Stock" shall mean the Class B Common Stock, par value
$.01 per share, of the Company.
"Closing" shall mean the closing of the transactions provided for in
the Investment Agreement.
"Conflict Notice" shall have the meaning set forth in Section 5(g) of
this Agreement.
"Continental" or "Company" shall mean Continental Airlines, Inc., a
Delaware corporation.
"Depositing Affiliate" shall mean any Affiliate of Air Partners, NPC
or NWA that has deposited Voting Securities with the Trustee, and become bound
by, and subject to the terms of, this Agreement, as provided in Section 2(g) of
this Agreement,
26
<PAGE>
and any controlled Affiliate of Air Partners, NPC or NWA to which any of the
Shares are transferred in accordance with Section 1.02(iii) of the Governance
Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Fully Diluted Voting Power" of any Person with reference to the
Company shall be calculated by dividing (i) the sum of (A) ten times the
aggregate number of shares of Company Class A Common Stock Beneficially Owned by
such Person (assuming exercise of any outstanding securities held by such Person
that are convertible into or exercisable or exchangeable for shares of Company
Class A Common Stock) and (B) the number of shares of Company Class B Common
Stock Beneficially Owned by such Person (assuming exercise of any outstanding
securities held by such Person that are convertible into or exercisable or
exchangeable for shares of Company Class B Common Stock) by (ii) the sum of (A)
ten times the aggregate number of outstanding shares of Company Class A Common
Stock (assuming the exercise of all outstanding securities convertible into or
exercisable or exchangeable for shares of Company Class A Common Stock) and (B)
the aggregate number of outstanding shares of Company Class B Common Stock
(assuming the exercise of all outstanding securities convertible into or
exercisable or exchangeable for shares of Company Class B Common Stock).
27
<PAGE>
"Governance Agreement" shall have the meaning set forth in the third
recital hereto.
"Independent Director" shall mean (i) any person listed on Exhibit
2.01 of the Governance Agreement, (ii) any other person selected as an
Independent Director in accordance with Section 2.01(b) of the Governance
Agreement and (iii) any other person, who is elected to the Board of Directors
in an election of directors in respect of which any Person other than the
Company is soliciting proxies; provided that any such other person so selected
shall be independent of and otherwise unaffiliated with NWA, NPC, Air Partners
or the Company (other than as an Independent Director), and shall not be an
officer or an employee, consultant or advisor (financial, legal or other) of NWA
or the Company or any of their respective Affiliates, or any person who shall
have served in any such capacity within the three-year period immediately
preceding the date such determination is made.
"Investment Agreement" shall have the meaning set forth in the first
recital hereto.
"Majority Vote" shall mean the affirmative vote of a majority of the
Board of Directors, including the affirmative vote of a majority of the
Independent Directors.
"NPC" shall mean Newbridge Parent Corporation, a Delaware corporation.
28
<PAGE>
"NWA" shall mean Northwest Airlines Corporation, a Delaware
corporation.
"Person" shall mean any individual, partnership (limited or general),
joint venture, limited liability company, corporation, trust, business trust,
unincorporated organization, government or department or agency of a government.
"Rights" shall mean the rights issued pursuant to the Rights
Agreement.
"Rights Agreement shall mean the Rights Agreement dated as of
November 20, 1998, between the Company and Harris Trust and Savings Bank, as
rights agent.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
"Shares" shall mean the AP Shares, the Additional Shares and any other
Voting Securities required to be deposited in the Trust in accordance with the
terms hereof.
"Standstill Termination Date" shall mean the earlier of (i) the sixth
anniversary of the Closing and (ii) the date on which NPC and its Affiliates
cease to Beneficially Own Voting Securities representing at least 10% of the
Fully Diluted Voting Power, unless the Governance Agreement shall have otherwise
terminated, in which event the Standstill Termination Date shall mean the date
of such termination.
29
<PAGE>
"Stockholder Voting Power" at any time shall mean the aggregate voting
power in the general election of directors of all Voting Securities then
Beneficially Owned by NPC and its Affiliates.
"Stockholders" shall mean Air Partners, NWA and NPC.
"Total Voting Power" at any time shall mean the total combined voting
power in the general election of directors of all the Voting Securities then
outstanding.
"Trust" shall mean the Northwest Airlines/Air Partners Voting Trust
created by this Voting Trust Agreement.
"Trustee" shall mean initially Wilmington Trust Company, a Delaware
banking corporation, not in its individual capacity but solely as trustee, and
any successor trustee thereto appointed and approved in accordance with Section
5(f) hereof.
"Voting Securities" shall mean at any time shares of any class of
capital stock of the Company, which are then entitled to vote generally in the
election of directors including, without limitation, the Class A Common Stock
and the Class B Common Stock.
"Voting Trust Certificates" shall have the meaning set forth in
Section 2(c) hereof.
(b) The definitions herein shall apply equally to both the singular
and plural forms of the terms defined.
30
<PAGE>
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms.
[The remainder of this page intentionally left blank]
31
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Voting Trust
Agreement to be duly executed as of the date first above written.
CONTINENTAL AIRLINES, INC.
By: /s/ Jeffery A. Smisek
-----------------------
Jeffery A. Smisek
Executive Vice President,
General Counsel and Secretary
AIR PARTNERS, L.P.
By: Northwest Airlines
Corporation, as general
partner
By: /s/ Douglas M. Steenland
-------------------------
Douglas M. Steenland
Executive Vice President,
General Counsel and Secretary
NORTHWEST AIRLINES HOLDINGS
CORPORATION
By: /s/ Douglas M. Steenland
-------------------------
Douglas M. Steenland
Executive Vice President,
General Counsel and Secretary
[Signature Page to Voting Trust Agreement]
32
<PAGE>
NORTHWEST AIRLINES CORPORATION
By: /s/ Douglas M. Steenland
-------------------------
Douglas M. Steenland
Executive Vice President,
General Counsel and Secretary
WILMINGTON TRUST COMPANY
By: /s/ W. Chris Sponenberg
-------------------------
W. Chris Sponenberg
Assistant Vice President
[Signature Page to Voting Trust Agreement]
33
<PAGE>
Schedule I
<TABLE>
<S> <C>
Air Partners 7,678,522* shares of
Class A Common Stock
Northwest Airlines Corporation 982,702 shares of
Class A Common Stock
</TABLE>
- ---------------
* Does not include 853,644 shares of which NPC has acquired Beneficial
Ownership pursuant to a proxy granted in the Investment Agreement.
<PAGE>
Exhibit A
NORTHWEST AIRLINES/AIR PARTNERS VOTING TRUST CERTIFICATE
THIS VOTING TRUST CERTIFICATE IS SUBJECT
TO RESTRICTIONS ON SALE, ASSIGNMENT, TRANSFER,
PLEDGE, HYPOTHECATION, GIFT OR OTHER DISPOSITION
AS SET FORTH IN THE VOTING TRUST AGREEMENT
REFERRED TO BELOW
No. __________ ________ Shares of
[Class A] [Class B] Common Stock
Continental Airlines, Inc.
Incorporated under the Laws of the State of Delaware.
THIS IS TO CERTIFY THAT, subject to the provisions hereof and of the
Northwest Airlines/Air Partners Voting Trust Agreement dated as of the 20th day
of November, 1998 (the "Voting Trust Agreement") among Continental Airlines,
Inc., a Delaware corporation (the "Company"), Air Partners, L.P., a Texas
limited partnership, Newbridge Parent Corporation, a Delaware corporation,
Northwest Airlines Corporation, a Delaware corporation, and Wilmington Trust
Company (the "Trustee"), not in its individual capacity but solely as Trustee,
on the surrender hereof, properly endorsed, ____________________ (the
"Depositing Stockholder") will be entitled to receive on the Standstill
Termination Date (as defined in the Voting Trust Agreement) a certificate or
certificates, expressed to be fully paid and non-assessable, for __________
shares of [Class A] [Class B] Common Stock, represented by this Certificate, of
the Company, or its successor, and in the meantime, subject to the provisions of
the Voting Trust Agreement, is entitled to receive payments equal and of like
character to the dividends, if any, received by the Trustee, if any, upon the
number of shares of [Class A] [Class B] Common Stock held by the Trustee for the
Depositing Stockholder, less such charges and expenses as are authorized by the
Voting Trust Agreement to be deducted therefrom and less any income or other
taxes required by law to be deducted therefrom.
Until actual delivery of the stock certificates called for hereby
following the termination of the Voting Trust Agreement, the Trustee, upon the
terms and subject to the
<PAGE>
provisions stated in the Voting Trust Agreement, shall possess and shall be
entitled to exercise all rights and powers of the owners of such [Class A]
[Class B] Common Stock to vote for every purpose and to consent to any and all
corporate acts of the Company; it being expressly stipulated that except as
expressly provided in the Voting Trust Agreement, no right to vote such [Class
A] [Class B] Common Stock and no right to consent in respect of such [Class A]
[Class B] Common Stock is created or passes to any holder hereof by or under
this Certificate or by or under any agreement express or implied.
This Certificate is issued under and pursuant to, and the rights of
each successive holder hereof are subject to and limited by, the terms and
provisions of a certain Voting Trust Agreement, one copy of which is on file at
the principal office of the Company at Continental Tower, 1600 Smith Street,
Houston, Texas 77002, and one copy of which is on file in the registered office
of the Company in the State of Delaware. Each holder of this Certificate by the
acceptance hereof assents and agrees to be bound by all the provisions of the
Voting Trust Agreement.
This Certificate shall not be sold, assigned, transferred, pledged,
hypothecated, given away or in any other manner disposed of or encumbered,
whether voluntarily, involuntarily or by operation of law, except as may be
permitted pursuant to the terms of the Voting Trust Agreement, subject to such
regulations as may be established by the Trustee for that purpose, upon
surrender hereof at the office of the Trustee, properly endorsed for transfer,
and the Trustees may treat the holder of record hereof as the owner of this
Certificate for all purposes. Every transferee of this Certificate shall by the
acceptance hereof become a party to the Voting Trust Agreement with like force
and effect as though an original party thereto and shall be included within the
meaning of the term "Depositing Stockholders" wherever used therein.
As a condition of making or permitting any transfer or delivery of
stock certificates or Voting Trust Certificates, the Trustee may require the
payment of a sum sufficient to pay or reimburse it for any stamp tax or other
governmental charge in connection therewith, or any other charges applicable to
such transfer or delivery.
The Voting Trust Agreement and this Certificate may be amended at any
time and from time to time in the manner provided in the Voting Trust Agreement.
The Voting Trust Agreement and
2
<PAGE>
the trust created thereunder shall remain in full force and effect until the
Standstill Termination Date.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
signed on its behalf by one of its number.
Dated: ______________________
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Trustee
By:_________________________
Name:
Title:
3
