Exhibit 10.65
THE WARRANT ISSUED PURSUANT TO THIS AMENDED PARTICIPATION WARRANT AGREEMENT HAS
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES
LAWS. IT MAY NOT BE SOLD OR OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT
AND APPLICABLE STATE SECURITIES LAWS UNLESS THE COMPANY HAS RECEIVED AN OPINION
OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED TO EFFECTUATE SUCH TRANSACTION.
AMENDED PARTICIPATION WARRANT AGREEMENT
To Purchase
Four Million Six Hundred and Seventy Five Thousand
Shares of Common Stock
Dated as of November 2, 2000
▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED
a Delaware Corporation
Issue Date: November 17, 1999
Amendment Date: November 2, 2000
THIS CERTIFIES THAT, Delta Air Lines, Inc. (the "Warrant Holder"), with a place
of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ International Airport,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, for value received, is entitled, upon the terms and
subject to the conditions of this Amended Participation Warrant Agreement (this
"Warrant Agreement"), to subscribe for and purchase fully-paid and
non-assessable shares of common stock, par value $.008 per share (the "Common
Stock"), of ▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated, a Delaware corporation (the "Company").
1. Issuance of Warrants. On the Issue Date, the Company issued to the
Warrant Holder warrants (the "Original Warrants") to acquire Five Million Five
Hundred Thousand (5,500,000) shares of the Common Stock at an exercise price of
$56.625 (subject to adjustment). On the Amendment Date, the Company canceled
Original Warrants to purchase Eight Hundred and Twenty Five Thousand (825,000)
shares of the Common Stock and reduced the exercise price of the remaining
warrants (the "Warrants") to purchase Four Million Six Hundred and Seventy Five
Thousand (4,675,000) shares of the Common Stock (the "Shares") to the price set
forth in Section 2 below.
2. Exercise Price. The Warrants have an exercise price equal to the
closing sales price per share of the Company's Common Stock on the NASDAQ
National Market on November 3, 2000, but in no event shall exceed $5.5626 per
share of Common Stock, as may be adjusted pursuant to the provisions of Section
10 of this Warrant Agreement (the "Exercise Price").
3. Term. The Warrants are fully vested on the Issue Date. Except as
otherwise provided herein, the term of the Warrants and the right to purchase
Shares as granted herein shall be exercisable on the fifth (5th) anniversary of
the Issue Date; provided, further, that if any of the Warrants first become
exercisable on the fifth (5th) anniversary of the Issue Date, the Warrant Holder
will have an additional six months thereafter to exercise its purchase rights in
respect of those Warrants (the end of such five year period and additional six
months, if applicable, being referred to herein as the "Termination Date").
4. Exercise Events.
(a) General. Unless otherwise exercisable at an earlier date, in
accordance with this Section 4, all of the Warrants shall be fully exercisable
commencing of the fifth anniversary of the Issue Date.
(b) Early Exercise Rights.
(i) If, at any point during the period between November 17,
1999 and November 16, 2000 (the "First Measuring
Period"), the Company receives Net Revenue (as defined
in Section 4(c)) of at least $180 million (the "First
Measuring Period Net Revenue Benchmark") from tickets
sold during the First Measuring Period for travel on the
Warrant Holder, its subsidiaries and/or on the Warrant
Holder's code share partners using Warrant Holder's code
(collectively, "Warrant Holder and its Code Share
Partners"), the Warrant Holder will thereupon and
thereafter have the right to exercise Warrants, subject
to adjustment as provided in Section 10 hereof, equal to
50% of the Shares. In the event that the Company does
not achieve the First Measuring Period Net Revenue
Benchmark during the First Measuring Period, the Warrant
Holder will still be entitled to exercise Warrants,
subject to adjustment as provided in Section 10 hereof,
equal to 50% of the Shares upon the expiration of the
First Measuring Period and thereafter if, during the
entire term of the First Measuring Period, Warrant
Holder does not voluntarily participate in any
name-your-price airline ticket service other than the
Company's and its affiliates' airline ticket services.
(ii) In addition to Warrant Holder's early exercise rights
under Section 4(b)(i), if during the period between
January 1, 2000 and December 31, 2000 (the "Second
Measuring Period"), the Company receives Net Revenue (as
defined in Section 4(c)) of at least $80 million (the
"Second Measuring Period Net Revenue Benchmark") from
tickets sold during the Second Measuring Period for
travel on the Warrant Holder and its Code Share
Partners, the Warrant Holder will on January 1, 2001 and
thereafter have the right to exercise Warrants, subject
to adjustment as provided in Section 10 hereof, equal to
100% of the Shares.
(c) Net Revenue. As used in this Warrant Agreement, the term
"Net Revenue" shall mean the total ticket revenue received by the Company from
tickets sold for travel on the Warrant Holder and its Code Share Partners, net
of federal excise and segment taxes, passenger facility charges and related
fees. The parties acknowledge that credit card processing fees, and any
processing fees or similar fees charged by the Company to the consumer in
connection with the sale of a ticket shall not be included in the calculation of
Net Revenue. Attached hereto as Exhibit D is an example of the calculation of
Net Revenue.
5. Exercise of Purchase Rights.
(a) Subject to the provisions of Section 4 of this Warrant Agreement,
the purchase rights represented by this Warrant Agreement are exercisable by the
Warrant Holder, in whole or in part, at any time, or from time to time during
the period set forth in Section 3 above, by tendering to the Company at its
principal office a duly completed and executed notice of exercise in the form
attached hereto as Exhibit A (the "Notice of Exercise"), the Warrants and the
Exercise Price. Upon receipt of such items, the Company shall issue to the
Warrant Holder a certificate for the number of shares of Common Stock purchased.
The Warrant Holder, upon exercise of the Warrants, shall be deemed to have
become the holder of the Shares represented thereby (and such Shares shall be
deemed to have been issued) immediately prior to the close of business on the
date or dates upon which the Warrants are exercised. In the event of any
exercise of the rights represented by the Warrants, certificates for the Shares
so purchased shall be delivered to the Warrant Holder or its designee as soon as
practical and in any event within ten (10) business days after receipt of such
notice and, unless the Warrants have been fully exercised or expired, new
Warrants representing the remaining portion of the Warrants and the underlying
Shares, if any, with respect to which this Warrant
Agreement shall not then have been exercised shall also be issued to the Warrant
Holder as soon as possible and in any event within such ten-day period.
(b) Net Issue Exercise. Notwithstanding any provisions herein to the
contrary, if the fair market value of one share of the Company's Common Stock is
greater than the Exercise Price (at the date of calculation as set forth below),
in lieu of exercising the Warrants for cash, the Warrant Holder may elect to
receive shares of Common Stock equal to the value (as determined below) of the
Warrants (or portion thereof being exercised) by surrender of the Warrant
Agreement at the principal office of the Company together with the duly executed
Notice of Exercise in which event the Company shall issue to the Warrant Holder
a number of shares of Common Stock computed using the following formula:
X=Y(A-B)/ A WHERE X= the number of shares of Common Stock to be issued to the
Warrant Holder; Y= the number of shares of the Common Stock purchasable under
the Warrants or, if only a portion of the Warrants is being exercised, the
portion of the Warrants being exercised; A= the fair market value of one share
of the Company's Common Stock (at the date of such calculation); and B= Exercise
Price (at the date of such calculation). For purposes of this Section 5(b), the
calculations contemplated by this Section 5(b) shall be made as of the close of
business on the trading day immediately preceding the date of the delivery of
this Warrant Agreement and the related Notice of Exercise and the fair market
value of one share of the Common Stock shall be equal to the sales price,
regular way, as reported on Nasdaq or if no such reported sale takes place, the
average of the closing bid and asked prices, regular way, as reported on Nasdaq
or if no such bid or ask prices are reported, the average of the bid and ask
prices of a New York Stock Exchange member. The Company shall deliver, or cause
to be delivered, the shares of Common Stock issuable upon a net issue exercise
pursuant this Section 5(b) within two business days of the surrender of this
Warrant Agreement and related Exercise Notice.
6. Reservation of Shares. The Company will at all times have authorized
and reserved a sufficient number of shares of Common Stock to provide for the
exercise of the rights to purchase the Shares as provided in this Warrant
Agreement. All of the Shares shall be duly authorized and, when issued upon such
exercise, shall be validly issued, fully paid and nonassessable, and free and
clear of all preemptive rights.
7. No Fractional Shares. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of the Warrant Holder's
rights to purchase the Shares.
8. No Rights as Shareholder. This Warrant Agreement does not entitle the
Warrant Holder to any voting rights or other rights as a shareholder of the
Company with respect to the underlying Shares prior to the exercise of the
Warrant Holder's rights to purchase the Shares as provided for herein.
9. Redemption. The Warrants represented by this Warrant Agreement are not
redeemable by the Company.
10. Adjustment Rights. The Exercise Price and the number of shares of
Common Stock purchasable hereunder are subject to adjustment from time to time,
as follows:
(a) Merger. If at any time there shall be a merger or consolidation
of the Company with or into another corporation when the Company is not the
surviving corporation, then, as part of such merger or consolidation, lawful
provision shall be made so that the holder of the Warrants evidenced hereby
shall thereafter be entitled to immediately exercise the Warrants upon payment
of the aggregate Exercise Price, the number of shares of stock or other
securities or property of the successor corporation resulting from such merger
or consolidation, to which a holder of the stock deliverable upon exercise of
the rights granted in this Warrant Agreement would have been entitled in such
merger or consolidation if such rights had been exercised immediately before
such merger or consolidation. In any such case, appropriate adjustment shall be
made in the application of the provisions of this Warrant Agreement with respect
to the rights and interests of the holder after the merger or consolidation. The
Company will not effect any such merger or consolidation unless, prior to the
consummation thereof, the successor corporation shall assume, by written
instrument reasonably satisfactory in form and substance to the Warrant Holder,
the obligations of the Company under the Warrants and this Warrant Agreement.
(b) Reclassification, Etc. If the Company at any time shall, by
subdivision, combination or reclassification of securities or otherwise, change
any of the securities as to which purchase rights under this Warrant Agreement
exist into the same or a different number of securities of any other class or
classes, this Warrant Agreement shall thereafter represent the right to acquire
such number and kind of securities as would have been issuable as the result of
such change with respect to the securities which were subject to the purchase
rights under this Warrant Agreement immediately prior to such subdivision,
combination, reclassification or other change.
(c) Split, Subdivision or Combination of Shares. If the Company at
any time shall split or subdivide its Common Stock, the Exercise Price shall be
proportionately decreased and the number of Shares issuable pursuant to this
Warrant Agreement shall be proportionately increased. If the Company at any time
shall combine or reverse split its Common Stock, the Exercise Price shall be
proportionately increased and the number of Shares issuable pursuant to this
Warrant Agreement shall be proportionately decreased.
(d) Stock Dividends. If the Company at any time shall pay a dividend
payable in Common Stock, then the Exercise Price shall be adjusted, from and
after the date of determination of stockholders entitled to receive such
dividend, to that price determined by multiplying the Exercise Price in effect
immediately prior to such date of determination by a fraction (i) the numerator
of which shall be the total number of shares of Common Stock outstanding
immediately prior to such dividend and (ii) the denominator of which shall be
the total number of shares of Common Stock outstanding immediately after such
dividend. The Warrant Holder shall thereafter be entitled to purchase, at the
Exercise Price resulting from such adjustment, the number of shares of Common
Stock (calculated to the nearest whole share) obtained by multiplying (i) the
Exercise Price in effect immediately prior to such adjustment by (ii) the number
of shares of Common Stock issuable upon the exercise hereof immediately prior to
such adjustment and dividing the product thereof by the Exercise Price resulting
from such adjustment.
(e) Other Changes. If any change in the outstanding Common Stock of
the Company or any other event occurs as to which the other provisions of this
Section 10 are not strictly applicable or if strictly applicable, would not
fairly protect the purchase rights of the Warrant Holder in accordance with such
provisions, then the Board of Directors of the Company shall make an adjustment
in the number of and class of shares available under the Warrants, the Exercise
Price or the application of such provisions, so as to protect the purchase
rights of the Warrant Holder. The adjustment shall be such as will give the
Warrant Holder upon exercise for the same aggregate Exercise Price the total
number, class and kind of shares or other property as the Warrant Holder would
have owned had the Warrants been exercised prior to the event and had the
Warrant Holder continued to hold such shares until after the event requiring
adjustment.
(f) Notice of Adjustments; Notices. Whenever the Exercise Price or
number of shares purchasable hereunder shall be adjusted pursuant to Section 10
hereof, the Company shall issue a certificate signed by its Chief Executive
Officer or Chief Financial Officer setting forth, in reasonable detail, the
event requiring the adjustment, the amount of the adjustment, the method by
which such adjustment was calculated and the Exercise Price and number of shares
purchasable hereunder after giving effect to such adjustment, and shall cause a
copy of such certificate to be mailed (by first class mail, postage prepaid) to
the holder of this Warrant. The Company shall give written notice to the Warrant
Holder at least 10 days prior to the date on which the Company closes its books
or takes a record for determining rights to receive any dividends or
distributions. The Company shall also give written notice to the Warrant Holder
at least 30 business days prior to the date on which a merger or consolidation
of the Company with or into another corporation when the Company is not the
surviving corporation shall take place.
(g) No Change of Warrant Necessary. Irrespective of any adjustment
in the Exercise Price or in the number or kind of securities issuable upon
exercise of the Warrant, unless the Warrant Holder otherwise requests, this
Warrant Agreement may continue to express the same price and number and kind of
shares of Common Stock as are stated in this Warrant Agreement as initially
executed.
11. Representations and Warranties of the Warrant Holder.
The Warrant Holder hereby represents and warrants to the Company as
follows:
(a) Existence and Power. The Warrant Holder is a (i) is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation and (ii) has the corporate power and
authority to execute, deliver and perform its obligations under this Warrant
Agreement.
(b) Authorization; No Contravention. The execution, delivery and
performance by the Warrant Holder of this Warrant Agreement and the transactions
contemplated hereby (i) have been duly authorized by all necessary corporate
action of the Warrant Holder and (ii) do not contravene the terms of the
Certificate of Incorporation or By-laws of the Warrant Holder, each as amended
as of and through the Issue Date.
(c) Governmental Authorization; Third Party Consents. No approval,
consent, compliance, exemption or authorization of any governmental authority or
agency, or of any other person or entity, is necessary or required in connection
with the execution, delivery or performance by, or enforcement against, the
Warrant Holder of this Warrant Agreement or the transactions contemplated
hereby.
(d) Binding Effect. This Warrant Agreement has been duly executed
and delivered by the Warrant Holder and constitutes the valid and binding
obligations of the Warrant Holder, enforceable against it in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting the enforcement of creditors' rights generally or by
equitable principles relating to enforceability (regardless of whether
considered in a proceeding at law or in equity).
(e) Purchase for Own Account. The Warrants issued to the Warrant
Holder pursuant to this Warrant Agreement, and the Shares to be issued upon
vesting and exercise thereof, are being or will be acquired for the Warrant
Holder's own account and with no intention of distributing or reselling such
securities or any part thereof in any transaction that would be in violation of
the securities laws of the United States of America, or any state.
(f) Restricted Securities. The Warrant Holder understands that the
Warrants and the Shares issuable upon vesting and exercise of the Warrants, will
not be registered at the time of their issuance under the Securities Act for the
reason that the sale provided for in this Agreement is exempt pursuant to
Section 4(2) of the Securities Act and that reliance of the Company on such
exemption is predicated in part on such Warrant Holder's representations set
forth herein. The Warrant Holder represents that it is experienced in evaluating
companies such as the Company, has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of its
investment and has the ability to suffer the total loss of the investment. The
Warrant Holder further represents that it has had the opportunity to ask
questions of and receive answers from the Company concerning the terms and
conditions of the Warrants, the business of the Company, and to obtain
additional information to such Warrant Holder's satisfaction.
(g) Accredited Investor. The Warrant Holder is an "Accredited
Investor" within the meaning of Rule 501 of Regulation D under the Securities
Act, as presently in effect.
12. Compliance with Securities Act; Transferability of Warrant or Shares
of Common Stock.
(a) Compliance with Securities Act. The Warrant Holder, by
acceptance hereof, agrees that the Warrants, and the shares of Common Stock to
be issued upon exercise of the Warrants, are being acquired for investment and
that such Warrant Holder will not offer, sell or otherwise dispose of the
Warrants, or any shares of Common Stock to be issued upon exercise of the
Warrants except under circumstances which will not result in a violation of the
Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws. The Warrants and all shares of
Common Stock issued upon exercise of the Warrants (unless registered under) the
Securities Act and any applicable state securities laws) shall be stamped or
imprinted with a legend in substantially the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW. THEY MAY NOT BE
SOLD OR OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS
OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL THAT SUCH
REGISTRATION IS NOT REQUIRED TO EFFECTUATE SUCH TRANSACTION."
(b) Exchange, Transfer, Assignment. The Warrants cannot be exchanged,
transferred or assigned otherwise than in accordance with applicable law.
Warrant Holder shall not sell, hedge or transfer, directly or indirectly
(whether through establishment of an offsetting derivative position, or
otherwise), more than 50% of the Warrants or any interest therein or in the
Shares issued or issuable upon exercise thereof for a period of one year from
the Amendment Date. Upon compliance with applicable law and the terms of the
Warrant Agreement and surrender of the Warrants to the Company with the
Assignment Form annexed hereto as Exhibit B duly executed, and funds sufficient
to pay any transfer tax, the Company shall, without charge, execute and deliver
a new Warrant Agreement in the name of the heir, devisee or assignee named in
such instrument of assignment and this Warrant Agreement shall promptly be
canceled. Subject to the terms hereof, the Warrants may be assigned in whole or
in part.
13. Registration Rights. Upon the parties' execution of this Warrant
Agreement and the Acknowledgment and Agreement to the Amended and Restated
Registration Rights Agreement attached hereto as Exhibit C, Warrant Holder shall
be made a party to that certain Amended and Restated Registration Rights
Agreement, dated as of December 8, 1998, by and among the Company, the
stockholders of the Company named therein and such other stockholders and
warrant holders of the Company made a party thereto. In addition, within 30 days
of the execution of this Warrant Agreement, the Company agrees to enter into an
agreement with Warrant Holder, in form and substance reasonably satisfactory to
Warrant Holder, which shall grant Warrant Holder the right to transfer its
registration rights pursuant to such Amended and Restated Registration Rights
Agreement dated as of December 8, 1998 to any assignee or assignees of all or
any part of this Warrant or the Shares issuable upon exercise hereof, which
assignees, upon their execution and delivery of an Acknowledgment and Agreement
to the Amended and Restated Registration Rights Agreement substantially in the
form of Exhibit C hereto (with appropriate changes therein) shall each have all
the rights and obligations of a Demand Stockholder (as defined in such
Agreement) under such Agreement; provided that no registration statement with
respect to less than a minimum of 250,000 Shares shall be required to be
effected by the Company thereunder for the benefit of any such assignee.
14. Miscellaneous.
(a) No Consequential Damages. No party hereto shall be entitled to
consequential damages as a result of any breach of a covenant, representation or
warranty contained herein.
(b) Notices. All notices, demands and other communications provided
for or permitted hereunder shall be made in writing and shall be by registered
or certified first-class mail, return receipt requested, telecopier, courier
service or personal delivery:
(i) if to the Company, to:
▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
and to:
Skadden, Arps, Slate, Meagher, & ▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Chuff, Esq.
(ii) if to the Warrant Holder, to:
Delta Air Lines, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ International Airport
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Executive Vice President -
Chief Financial Officer
and to:
Delta Air Lines, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ International Airport
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Senior Vice President -
General Counsel
All such notices and communications shall be deemed to have been
duly given when delivered by hand, if personally delivered; when delivered by
courier, if delivered by commercial courier service; five (5) business days
after being deposited in the mail, postage prepaid, if mailed; and when receipt
is mechanically acknowledged, if telecopied.
(d) Successors and Assigns; Third Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of the parties hereto. No person, other than the parties
hereto and their successors and permitted assigns, is intended to be a
beneficiary of this Agreement.
(e) Amendment and Waiver.
(i) No failure or delay on the part of the Company, or the
Warrant Holder in exercising any right, power or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to the
Company and the Warrant Holder at law, in equity or otherwise.
(ii) Any amendment, supplement or modification of or to any
provision of this Warrant Agreement, any waiver of any provision of this Warrant
Agreement, and any consent to any departure by the Company or the Warrant Holder
from the terms of any provision of this Agreement, shall be effective only if it
is made or given in writing and signed by the Company and the Warrant Holder.
(f) Counterparts. This Warrant Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Warrant Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) GOVERNING LAW. THIS WARRANT AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAW OF ANY JURISDICTION.
(i) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
(j) Entire Agreement. This Warrant Agreement, together with the
exhibits hereto is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein. This Warrant Agreement, together with the exhibits hereto,
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
(k) Publicity. Except as may be required by law, none of the parties
hereto shall issue a publicity release or public announcement or otherwise make
any disclosure concerning this Warrant Agreement or the transactions
contemplated hereby, without prior approval by the other party (which approval
shall not be unreasonably withheld); provided, however, that nothing in this
Warrant Agreement shall restrict the Warrant Holder from disclosing information
(a) that is already publicly available and (b) to its attorneys, accountants,
consultants and other advisors to the extent necessary to obtain their services
in connection with the Warrant Holder's investment or participation in the
Company. If any announcement is required by law to be made by any party hereto
concerning this Warrant Agreement or the transactions contemplated hereby, prior
to making such announcement such party will deliver a draft of such announcement
to the other parties and shall give the other parties an opportunity to comment
thereon.
(l) Charges; Taxes and Expenses. Issuance of certificates for shares
upon the exercise of the Warrants shall be made without charge to the Warrant
Holder for any issue or transfer tax or other incidental expense in respect of
the issuance of such certificates, all of which taxes and expenses shall be paid
by the Company.
(m) Saturdays, Sundays, Holidays, Etc. If the last or appointed day
for the taking of any action or the expiration of any right required or granted
herein shall be a Saturday, Sunday or a legal holiday, then such action may be
taken or such right may be exercised on the next succeeding day not a Saturday,
Sunday or a legal holiday.
(n) Lost Warrants. The Company covenants to the Warrant Holder that,
upon receipt of evidence reasonably satisfactory to the Company of the loss,
theft, destruction or mutilation of this Warrant Agreement and, in the case of
any such loss, theft or destruction, upon receipt of an indemnity reasonably
satisfactory to the Company, or in the case of any such mutilation, upon
surrender and cancellation of this Warrant Agreement, the Company will make and
deliver a new Warrant Agreement of like tenor, in lieu of the lost, stolen,
destroyed or mutilated document.
(o) Further Assurances. Each of the parties shall execute such
documents and perform such further acts (including, without limitation,
obtaining any consents, exemptions, authorizations
or other actions by, or giving any notices to, or making any filings with, any
governmental authority or any other person, and otherwise fulfilling, or causing
the fulfillment of, the various obligations made herein), as may be reasonably
required or desirable to carry out or to perform the provisions of this Warrant
Agreement and to consummate and make effective as promptly as possible the
transactions contemplated by this Warrant Agreement.
IN WITNESS WHEREOF, this Warrant Agreement has been duly executed and delivered
by the authorized officers of each of the undersigned.
▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED
By:_________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
DELTA AIR LINES, INC.
By:_________________________________
Name:
Title:
EXHIBIT A
NOTICE OF EXERCISE
To: ▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated
1. The undersigned hereby elects to purchase __________ shares of
the Common Stock of ▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated pursuant to the terms of the
Amended Participation Warrant Agreement, dated as of November 2, 2000, by and
between ▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated and the undersigned (the "Warrant
Agreement"), and tenders herewith payment of the purchase price of such shares
in full.
2. The undersigned hereby elects to convert ___________ percent
(____%) of the value of the Warrants pursuant to the provisions of Section 5(b)
of the Warrant Agreement.
3. Please issue a certificate or certificates representing said
shares in the name of the undersigned.
DELTA AIR LINES, INC.
By:
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(Print Name of Signatory)
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(Title of Signatory)
Date:_____________________
EXHIBIT B
ASSIGNMENT FORM
TO: ▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated
The undersigned hereby assigns and transfers unto _____________________________
of _________________________________________________________________ (Please
typewrite or print in block letters) the right to purchase ____________ shares
of the common stock of ▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated subject to the Amended
Participation Warrant Agreement, dated as of November 2, 2000, by and between
▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated and the undersigned (the "Warrant Agreement").
This assignment complies with the provisions of Section 12(b) of the Warrant
Agreement and is accompanied by funds sufficient to pay all applicable transfer
taxes.
DELTA AIR LINES, INC.
By:
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-----------------------------------
(Print Name of Signatory)
-----------------------------------
(Title of Signatory)
Date:_____________________
Exhibit C
ACKNOWLEDGMENT AND AGREEMENT
TO THE AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
WHEREAS, pursuant to an Amended Participation Warrant Agreement, the
undersigned received a warrant to purchase 4,675,000 shares of common stock, par
value $.008 per share (the "Shares"), of ▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated, a Delaware
corporation (the "Company"); and
WHEREAS, the undersigned wishes to receive certain registration rights
with respect to such Shares; and
WHEREAS, the undersigned has reviewed a copy of that certain Amended and
Restated Registration Rights Agreement, dated as of December 8, 1998 (the
"Agreement"), among the Company, General Atlantic Partners 48, L.P., GAP
Coinvestment Partners, L.P., General Atlantic Partners 50, L.P. and the
stockholders named therein and has been given a copy of the Agreement and
afforded ample opportunity to read and to have counsel review it, and the
undersigned is thoroughly familiar with its terms.
NOW, THEREFORE, in consideration of the mutual premises contained herein
and in the Agreement and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the undersigned hereby
acknowledges and agrees that (i) the undersigned has been given a copy of the
Agreement and afforded ample opportunity to read and to have counsel review it,
and the undersigned is thoroughly familiar with its terms, (ii) the Shares are
subject to terms and conditions set forth in the Agreement, (iii) the
undersigned does hereby agree fully to be bound by the Agreement as a "Demand
Stockholder" (as therein defined), and upon the execution and delivery of this
Acknowledgment and Agreement by the Company, the undersigned shall have all the
rights and obligations under the Agreement as a Demand Stockholder, and (iv) the
undersigned does hereby name _________________to serve as their representative
under the Agreement.
This 2nd day of November, 2000.
Acknowledged and agreed:
▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED DELTA AIR LINES, INC.
By: _______________________________ By:_____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name:
Title: Chief Executive Officer Title:
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