Common use of Effect of Certain Transactions Clause in Contracts

Effect of Certain Transactions. Notwithstanding any provision in this Option to the contrary, this Option will become exercisable in full immediately if, subsequent to the Grant Date set forth above, any of the following events shall occur while the Optionee is an employee of or providing services to the Company or an Affiliate: a. The sale, lease, exchange or other transfer, directly or indirectly, of all or substantially all of the assets of the Company (in one transaction or in a series of related transactions) to a person or entity that is not controlled by the Company, b. The approval by the Company’s shareholders of any plan or proposal for the liquidation or dissolution of the Company; c. Any persons or entities become the owner, directly or indirectly, of more than fifty percent (50%) of the combined voting power of the outstanding securities of the Company ordinarily having the right to vote at elections of directors who were not owners of at least fifty percent (50%) of such combined voting power as of the Grant Date; and d. A merger or consolidation to which the Company is a party if the shareholders of the Company immediately prior to the effective date of such merger or consolidation have, solely on account of ownership of securities of the Company at such time, ownership immediately following the effective date of such merger or consolidation of securities of the surviving company representing less than fifty percent (50%) of the combined voting power of the surviving corporation’s then outstanding securities ordinarily having the right to vote at elections of directors. Notwithstanding any provision in the Option Plan or this Option Agreement to the contrary, the Board of Directors or the Committee shall not have the power or right, either before or after the occurrence of an event described in subparagraphs a. through d. above, to rescind, modify or amend the provisions of this Section without the consent of the Optionee. Provided, however, in the sole discretion of the Board of Directors or Committee, this Option and all Option Shares granted hereunder will terminate upon the closing of an event described in subparagraphs a. through d. above, with such termination to be deemed to occur immediately after Optionee is provided with the opportunity to exercise the Optionee’s right to purchase any Option Shares that are then exercisable under the Option.

Effect of Certain Transactions. Notwithstanding any provision in this Option to the contrary, this Option will become exercisable in full immediately if, subsequent to the Grant Date set forth above, any of the following events shall occur while the Optionee is an employee of or providing services to the Company or an Affiliate: a. (a) The sale, lease, exchange or other transfer, directly or indirectly, of all or substantially all of the assets of the Company (in one transaction or in a series of related transactions) to a person or entity that is not controlled by the Company, b. (b) The approval by the Company’s shareholders of any plan or proposal for the liquidation or dissolution of the Company; c. (c) Any persons or entities become the owner, directly or indirectly, of more than fifty percent (50%) of the combined voting power of the outstanding securities of the Company ordinarily having the right to vote at elections of directors who were not owners of at least fifty percent (50%) of such combined voting power as of the Grant Date; and d. (d) A merger or consolidation to which the Company is a party if the shareholders of the Company immediately prior to the effective date of such merger or consolidation have, solely on account of ownership of securities of the Company at such time, ownership immediately following the effective date of such merger or consolidation of securities of the surviving company representing less than fifty percent (50%) of the combined voting power of the surviving corporation’s then outstanding securities ordinarily having the right to vote at elections of directors. Notwithstanding any provision in the Option Plan or this Option Agreement to the contrary, the Board of Directors or the Committee shall not have the power or right, either before or after the occurrence of an event described in subparagraphs a. subparagraph (a) through d. (d) above, to rescind, modify or amend the provisions of this Section 10 without the consent of the Optionee. Provided, however, in the sole discretion of the Board of Directors or Committee, this Option and all Option Shares granted hereunder will terminate upon the closing of an event described in subparagraphs a. through d. above, with such termination to be deemed to occur immediately after Optionee is provided with the opportunity to exercise the Optionee’s right to purchase any Option Shares that are then exercisable under the Option.

Effect of Certain Transactions. Notwithstanding any provision in this Option to Upon the contraryoccurrence of a Sale Event (as defined below), this Option will become exercisable in full immediately if, subsequent to the Grant Date set forth above, any of the following events shall occur while the Optionee is an employee of or providing services to the Company or an Affiliate: a. The sale, lease, exchange or other transfer, directly or indirectly, of all or substantially all of the assets of the Company (in one transaction or in a series of related transactions) to a person or entity that is not controlled by the Company, b. The approval by the Company’s shareholders of any plan or proposal for the liquidation or dissolution of the Company; c. Any persons or entities become the owner, directly or indirectly, of more than fifty percent (50%) of the combined Option Shares that have not yet vested shall be deemed vested and exercisable as of the closing or consummation of such Sale Event, provided that such acceleration and any notice of exercise of options that become vested as of such closing or consummation shall in all cases be subject to and contingent upon such closing or consummation. From and after the closing or consummation of any such Sale Event, this Stock Option shall terminate and no longer be exercisable as to any Option Shares unexercised on or prior to the closing or consummation date of such Sale Event, unless provision is made in such transaction, in the sole discretion of the parties thereto, for the assumption of this Stock Option or the substitution for this Stock Option of a new stock option of the successor person or entity or a parent or subsidiary thereof, if any, with such adjustment as to the number and kind of shares and the per share exercise price as such parties shall agree. In the event of any transaction subject to this Section 8, the Company shall give to the Optionee written notice thereof at least thirty (30) days prior to the closing or anticipated consummation date, or the record date for such transaction, if earlier. As used herein, a Sale Event means any of the following transactions: (i) a merger or consolidation of the Company with or into another corporation (with respect to which less than a majority of the outstanding voting power of the outstanding securities of the Company ordinarily having the right to vote at elections of directors who were not owners of at least fifty percent (50%) of such combined voting power as of the Grant Date; and d. A merger surviving or consolidation to which the Company consolidated corporation is a party if the held by shareholders of the Company immediately prior to such event), (ii) the effective date sale or transfer of such merger all or consolidation have, solely on account substantially all of ownership of securities the properties and assets of the Company at such timeand its subsidiaries or (iii) any purchase by any party (or group of affiliated parties) other than an Investor (as defined in that certain Stockholders' Agreement dated as of February 18, ownership immediately following the effective date 1998) of such merger or consolidation shares of securities capital stock of the surviving company representing less than fifty percent Company (50%either through a negotiated stock purchase or a tender for such shares), the effect of which is that such party (or group of affiliated parties) that did not beneficially own a majority of the combined voting power of the surviving corporation’s then outstanding securities ordinarily having shares of capital stock of the right Company immediately prior to vote such purchase beneficially owns at elections least a majority of directors. Notwithstanding any provision such voting power immediately after such purchase, so long as, in the Option Plan or this Option Agreement to the contraryeach case, the Board holders of Directors or the Committee shall not have the power or right, either before or after the occurrence of an event described in subparagraphs a. through d. above, to rescind, modify or amend the provisions of this Section without the consent all outstanding shares of the Optionee. Provided, however, Company's Series A 8% Redeemable Preferred Stock and Convertible Participating Preferred Stock shall have received prior to such event or in the sole discretion connection therewith full payment in respect of the Board of Directors or Committee, this Option and all Option Shares granted hereunder will terminate upon the closing of an event described such shares in subparagraphs a. through d. above, with such termination to be deemed to occur immediately after Optionee is provided accordance with the opportunity to exercise the Optionee’s right to purchase any Option Shares that are then exercisable under the Optionterms thereof.

Effect of Certain Transactions. Notwithstanding any provision In the event of a Change in Control (as hereinafter defined), the Change in Control Price of each Phantom Share held by you shall automatically be paid to you in cash. As used in this Option Section 6(a), a "Change of Control" shall be deemed to have occurred if: 3 3 (a) any "person" or "group" (within the contrarymeaning of Sections 13(d) and 14(d)(2) of the Securities and Exchange Act of 1934, this Option will become exercisable in full immediately ifas amended (the "1934 Act")), subsequent to other than a trustee or other fiduciary holding securities under an employee benefit plan of the Grant Date set forth above, Company or any of the following events shall occur while Airline Shareholders (an "Acquiring Person"), is or becomes the Optionee is an employee of or providing services to "beneficial owner" (as defined in Rule 13d-3 under the Company or an Affiliate: a. The sale, lease, exchange or other transfer, directly or indirectly, of all or substantially all of the assets of the Company (in one transaction or in a series of related transactions) to a person or entity that is not controlled by the Company, b. The approval by the Company’s shareholders of any plan or proposal for the liquidation or dissolution of the Company; c. Any persons or entities become the owner1934 Act), directly or indirectly, of more than fifty percent 33-1/3% of the then outstanding voting stock of the Company (50%49% of the then outstanding voting stock of the Company if such person or group includes any of the Airline Shareholders); (b) the shareholders of the Company and a majority of the non-employee directors of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least 66-2/3% of the combined voting power of the outstanding voting securities of the Company ordinarily having Company, such surviving entity or the right to vote at elections of directors who were not owners of at least fifty percent (50%) parent of such combined voting power as of the Grant Date; and d. A surviving entity outstanding immediately after such merger or consolidation to which the Company is a party if consolidation; (c) the shareholders of the Company immediately prior to approve a plan of reorganization (other than a reorganization or liquidation under the effective date of such merger United States Bankruptcy Code or consolidation have, solely on account of ownership of securities complete liquidation of the Company) or an agreement for the sale or disposition by the Company at such time, ownership immediately following the effective date of such merger all or consolidation of securities substantially all of the surviving company representing less than fifty percent Company's assets; (50%d) during any period of the combined voting power of the surviving corporation’s then outstanding securities ordinarily having the right to vote at elections of directors. Notwithstanding any provision in the Option Plan or this Option Agreement to the contrary, the Board of Directors or the Committee shall not have the power or right, either before two consecutive years (beginning on or after the occurrence Date of Issuance), individuals who at the beginning of such period constitute the Board and any new director (other than a director who is a representative or nominee of an event described in subparagraphs a. through d. above, to rescind, modify Acquiring Person) whose election by the Board or amend nomination for election by the provisions Company's shareholders was approved by a vote of this Section without the consent at least a majority of the Optionee. Provideddirectors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved no longer constitute a majority of the Board; provided, however, that a Change in the sole discretion of the Board of Directors or Committee, this Option and all Option Shares granted hereunder will terminate upon the closing of an event described in subparagraphs a. through d. above, with such termination to Control shall not be deemed to occur have occurred in the event of (i) a sale or conveyance in which the Company continues as a holding company of an entity or entities that conduct the business or businesses formerly conducted by the Company if such sale or conveyance does not materially affect the beneficial ownership of the Company's capital stock; or 4 EXHIBIT 10.43 (ii) any transaction undertaken for the purpose of reincorporating the Company under the laws of another jurisdiction, if such sale or conveyance does not materially affect the beneficial ownership of the Company's capital stock. As used in this Section 6, Change in Control Price means, as determined by the Board, (i) the Fair Market Value on the close of the day immediately after Optionee is provided preceding the date of determination of the Change in Control Price by the Board, or (ii) the highest price paid, as determined by the Board, in any bona fide transaction or bona fide offer related to the Change in Control of the Company, at any time within the 60-day period immediately preceding the date of determination of the Change in Control Price, as determined by the Board. For the purposes of this letter, Airline Shareholders means any of United Airlines, USA Airways or KLM Royal Dutch Airlines. If the Board shall receive an opinion from a nationally recognized firm of accountants to the Company that the cash-out provisions in this Section 6 with respect to the payment of Phantom Shares in cash by the Company in accordance with this Section 6 will prohibit the utilization of "pooling of interests" accounting in connection with the opportunity transaction resulting in the Change in Control of the Company, then the following shall apply, but only to exercise the Optionee’s right extent necessary to purchase any Option permit such accounting treatment, the Phantom Shares shall be settled in shares of Common Stock on the date that are then exercisable under such opinion is received by the OptionBoard.