EXHIBIT (c)(1)
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT dated June 11, 1986 (the "Agreement"), between
DELTA AIR LINES, INC., a Delaware corporation (the "Purchaser"), and COMAIR,
INC., an Ohio corporation (the "Company").
WHEREAS, the Purchaser and the Company are parties to a joint marketing
arrangement known as the "Delta Connection," which has been and continues to be
mutually beneficial to the Purchaser and the Company;
WHEREAS, the Purchaser and the Company deem it desirable and in their
respective best interests that the Purchaser acquire a significant equity
interest in the Company; and
WHEREAS, the Company desires to issue and sell to the Purchaser, and the
Purchaser desires to purchase from the Company, 1,850,000 shares (the "Shares")
of the Company's authorized but unissued common stock, no par value (the
"Common Stock"), at the price and on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, the parties hereto agree as follows:
I. SALE AND PURCHASE OF THE SHARES
1.1 Shares to Be Sold. Subject to the terms and conditions of this
Agreement, at the closing provided for in Section 1.3 hereof (the "Closing"),
the Company will issue, sell and
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deliver to the Purchaser, and the Purchaser will purchase from the Company, the
Shares for a purchase price of $9.125 per share.
1.2 Consideration. Subject to the terms and conditions of this Agreement,
in reliance on the representations, warranties and agreements of the Company
contained herein and in full payment for the Shares, at the Closing the
Purchaser will deliver to the Company, in immediately available funds by wire
transfer into an account designated by the Company at least one day in advance
of the Closing, the sum of $16,881,250. At the Closing, the Company will
deliver to the Purchaser certificates representing the Shares, duly executed by
the Company and registered in the name of the Purchaser or its designee, such
shares to bear the legend provided for in Section 8.5 hereof.
1.3 Closing. The Closing of the purchase and sale of the Shares
contemplated by this Agreement shall take place at the offices of the Purchaser
at 10:00 A.M., local time, on the next business day following the satisfaction
(or, if permitted, waiver) of the conditions set forth in Article V hereof or
at such other time and place as the parties shall mutually agree.
II. REPRESENTATION AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser as follows:
2.1 Organization and Qualification. The Company is a duly incorporated and
validly existing corporation in good standing under the laws of the State of
Ohio and has the requisite power and authority (corporate and otherwise) to
own, operate and lease the properties it now
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owns, operates and leases and to conduct its business as it is now being
conducted. The Company is duly qualified to do business as a foreign
corporation and is in good standing in each of the jurisdictions in which the
character of its properties owned or held under lease or the nature of its
activities makes such qualification necessary, except where failure to be so
qualified would not, either individually or in the aggregate, have a material
adverse effect on the business, financial condition or results of operations of
the Company. The Company has previously delivered to the Purchaser accurate and
complete copies of its Articles of Incorporation and Regulations as in effect
on the date hereof.
2.2 Authority Relative to this Agreement. The Company has the requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by the Board of Directors of the Company and no other
corporate proceedings on the part of the Company are necessary to authorized
this Agreement and the transactions contemplated hereby. This Agreement has
been duly and validly executed and delivered by the Company and (assuming that
this Agreement is a valid and binding agreement of the Purchaser) constitutes a
valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms.
2.3 Capitalization. The authorized capital stock of the Company consists
of 10,000,000 shares of Common Stock and 100,000 shares of preferred stock, no
par value (the "Preferred Stock"), of the Company. As of the date of this
Agreement, 7,709,425 shares of
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Common Stock are issued and outstanding, no shares of Common Stock are held in
the Company's treasury, and no shares of the Preferred Stock are outstanding.
In addition, as of the date of this Agreement, 130,044 shares of Common Stock
are reserved for issuance upon the exercise of outstanding stock options
granted under the Company's Employees Stock Option Plan -- 1981. All of the
issued and outstanding shares of capital stock of the Company are validly
issued, fully paid and nonassessable and are not subject to, nor were they
issued in violation of, any preemptive rights. Except as set forth above, there
are no outstanding options, warrants or other rights, agreements or commitments
of any kind obligating the Company to issue any additional shares of its
capital stock.
2.4 Validity of the Shares; Etc. The Shares have been duly authorized for
issuance and, when issued and paid for in accordance with the terms of this
Agreement, will be validly issued, fully paid and nonassessable. The Purchaser
will acquire good and valid title to the Shares, free of all claims, liens,
options, charges, encumbrances and restrictions of any kind whatsoever, except
as provided herein and restrictions on their transferability under the
Securities Act of 1933, as amended (the "Securities Act").
2.5 SEC Reports and Financial Statements. The Company has previously
delivered to the Purchaser true and complete copies of its (i) Annual Reports
on Form 10-K for the years ended March 31, 1984 and March 31, 1985, as filed
with the Securities and Exchange Commission (the "SEC"); (ii) Quarterly Reports
on Form 10-Q for the three months ended June 30, 1985, for the six months ended
September 30, 1985 and for the nine months ended December
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31, 1985, as filed with the SEC; (iii) proxy statements relating to all
meetings of its shareholders (whether annual or special) held or scheduled to
be held since April 1, 1983; and (iv) all other reports, statements and
registration statements (including Current Reports on Form 8-K) filed by it
with the SEC since April 1, 1983 (collectively, the "SEC Filings"). As of their
respective dates, the SEC Filings did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. The financial statements of the
Company included in the SEC Filings were prepared in accordance with generally
accepted accounting principles applied on a consistent basis (except as
otherwise indicated in such financial statements or the notes thereto) and
present fairly the financial condition, results of operations and changes in
financial position of the Company as at the dates or for the periods indicated
therein.
2.6 Absence of Certain Changes or Events. Except as set forth in the SEC
Filings, since December 31, 1985, the Company has conducted its business only
in the ordinary and usual course and there has not been any event, change, or
development which has affected or may affect materially and adversely the
business, financial condition or results of operations of the Company.
2.7 No Violation. Neither the execution and delivery of this Agreement by
the Company, nor the consummation of the transactions contemplated hereby, will
(i) violate, conflict with or result in a breach or any of the provisions of
the Articles of Incorporation or
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Regulations of the Company or any note, bond, mortgage, indenture, deed of
trust or other material agreement to which the Company is a party or to which
the Company or any of its properties or assets may be subject or bound or (ii)
violate any judgment, ruling, order, writ, injunction, decree, statute,
ordinance, law, rule or regulation applicable to the Company or any of its
properties or assets; except in each case, for such violations, conflicts or
breaches which, either individually or in the aggregate, would not have any
material adverse effect on the business, financial condition or results of
operations of the Company.
2.8 Governmental Approvals. No notice to, filing or registration with, or
permit, authorization, consent or approval of, any governmental or regulatory
agency or authority is necessary or required in connection with the execution
and delivery of this Agreement by the Company or the consummation by the
Company of the transactions contemplated hereby, except for (i) filings
required under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 0000 (xxx
"XXX Xxx"), (xx) filings with the Securities and Exchange Commission, and (iii)
other filings, registrations, permits, authorizations, consents or approvals
relating to matters which, either individually or in the aggregate, are not
material to the business, financial condition or results of operations of the
Company.
III. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser hereby represents and warrants to the Company as follows:
3.1 Authority Relative to this Agreement. The Purchaser has the requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions
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contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by the Board of Directors of the Purchaser and no other corporate proceedings
on the part of the Purchaser are necessary to authorize this Agreement and the
transactions contemplated hereby. This Agreement had been duly and validly
executed and delivered by the Purchaser and (assuming that this Agreement is a
valid and binding agreement of the Company) constitutes a valid and binding
agreement of the Purchaser, enforceable against the Purchaser in accordance
with its terms.
3.2 Investment Intent. The Purchaser understands that the Shares and any
other voting securities issued pursuant to this Agreement will not be
registered under the Securities Act of 1933 and may not be sold or transferred
for value without a registration or pursuant to an exemption from registration
under that Act. Sales made under Securities and Exchange Commission Rule 144
may be made only under the applicable volume and other limitations of that
Rule. Furthermore, Purchaser understands that the Company has no plans or
obligations to register such Shares or other voting securities except as set
forth in this Agreement.
IV. COVENANTS
4.1 The Company's Board of Directors. The Company agrees that, if the
Purchaser shall so request, (i) as promptly as practicable after the Closing,
it will take such action as may be necessary to cause the election to the
Company's Board of Directors of one designee selected by the Purchaser and
reasonably acceptable to the Company and (ii) for as long as the Purchaser owns
at least 10% of the outstanding Common Stock, the Company will include at least
one
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designee of the Purchaser reasonably acceptable to the Company on the slate of
nominees for election as directors nominated by the Company's Board of
Directors and will use its reasonable best efforts to assure that such
individual is elected to the Company's Board of Directors (including, without
limitation, by soliciting proxies in favor of such election).
4.2 Equity Accounting. The Company will furnish to the Purchaser all
information that is required by generally accepted accounting principles to
enable the Purchaser to account for its investment in the Company pursuant to
the equity method if the Purchaser elects or is required by generally accepted
accounting principles to do so. To the extent reasonably requested by the
Purchaser, the Company will, and will cause its employees, independent public
accountants and other representatives to, provide information regarding the
Company to, and otherwise cooperate with, the Purchaser so as to enable the
Purchaser to prepare financial statements in accordance with generally accepted
accounting principles and to comply with its reporting requirements and other
disclosure obligations under applicable Federal securities laws and
regulations.
4.3 Registration Rights.
(a) Demand Rights. If, at any time following the Closing, the Purchaser
shall desire to sell any or all of the Shares or any voting securities acquired
by the Purchaser pursuant to Section 4.4 hereof (for purposes of this Section
4.3 "Shares" shall include such voting securities), under circumstances
requiring registration under the Securities Act, and shall so advise the
Company by written notice (which notice shall specify the number of Shares
proposed
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to be sold, describe the method of proposed sale and contain an undertaking by
the Purchaser to provide all such information and to take all such action as
may be required in order to permit the Company to comply with all applicable
requirements of the SEC and to obtain acceleration of the effective date of
such registration statement), the Company shall promptly prepare and file a
registration statement with the SEC relating to such Shares and use its
reasonable best efforts to cause such registration statement to become
effective and remain effective for a period of not less than six months (or
such lesser period as the parties may agree); provided, however, that the
Company shall not be obligated to effect more than two such registrations. If
the plan of distribution specified by the Purchaser with respect to any such
registration involves the selection of a managing underwriter or underwriters,
such managing underwriter or underwriters shall be chosen by the Purchaser,
subject to the approval of the Company, which approval shall not be
unreasonably withheld. In connection with any such registration, the Company
will make such filings, and will use its reasonable best efforts to cause such
filings to become effective, so that the Shares proposed to be sold shall be
registered or qualified for sale under the securities or Blue Sky laws of such
jurisdictions as shall be reasonably appropriate for the distribution of the
Shares covered by the registration statement; provided, however, that the
Company shall not be required to register as a broker or dealer in any
jurisdiction where it is not then so registered or to qualify to do business as
a foreign corporation in any jurisdiction where it is not then so qualified or
to file any general consent to service of process.
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(b) Piggyback Rights. If, at any time following the Closing, the Company
shall propose the registration under the Securities Act of an underwritten
offering of shares of capital stock, the Company shall give written notice to
the Purchaser of such proposed registration and will use its reasonable best
efforts to include in such registration such number of Shares as the Purchaser
shall request in writing within 15 days after the receipt of the Company's
notice and to cause such Shares to be offered to the public on the same terms
(including the method of distribution and, in the case of shares of the same
class of stock, the offering price) applicable to the other shares of capital
stock to be included in such offering; provided, however, that if the managing
underwriter or underwriters of such offering shall determine in good faith and
so advise the Company in writing that the number of shares of capital stock
proposed to be sold in such offering (including the Shares proposed to be sold
by the Purchaser) exceeds the number which can be sold in such offering, the
Company shall be required to include in such offering only such number of
Shares, which, when added to the number of shares of capital stock proposed to
be sold by the Company in such offering, can, in the good faith judgment of the
managing underwriter or underwriters, be sold without adversely affecting the
success of the offering (in being understood, however, that if other holders of
capital stock of the Company shall have requested the inclusion of their shares
in such registration, the number of Shares held by the Purchaser and the number
of shares of capital stock of the Company held by such other holders to be
included in such offering shall be determined on a pro-rata basis).
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(c) Expenses. The Company shall pay all fees and expenses in connection
with any registration effected pursuant to this Section 4.3, except for
underwriting discounts and commissions to brokers or dealers attributable to
the Shares being sold by the Purchaser and the fees and disbursements of any
counsel and accountants retained by the Purchaser in connection with such
registration.
(d) Indemnification. In the case of any registration effected pursuant to
this Section 4.3, the Company and the Purchaser will each provide the other and
any underwriter retained in connection therewith with customary indemnities.
4.4. Preemptive Rights
(a) If at any time after the issuance and sale of the Shares and for so
long as the Purchaser owns at least 10% of the outstanding Common Stock, the
Company proposes to issue any additional voting securities (excluding, however,
up to 472,500 shares of Common Stock issuable pursuant to the Comair, Inc.
Employees Stock Option Plan - 1981), the Company shall promptly advise the
Purchaser in writing of the terms on which such voting securities are to be
issued. The Purchaser shall have the right, which may be exercised at any time
within 15 days following receipt of such notice, to acquire on the same terms
and conditions as such proposed issuance (or, in the case of the issuance of
any voting securities for consideration other than cash, at a cash price equal
to the fair market value of such non-cash consideration on the date that the
Company first agrees to issue such voting securities) the number of similar
voting securities set forth hereinafter. The number of voting securities
covered by each such right of the Purchaser
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shall be that number which, when added to all voting securities then owned by
the Purchaser, would provide the Purchaser with the number of votes equal to
the Purchaser's Current Percent of the total number of votes represented by all
outstanding voting securities, after giving effect to the issuance of the
voting securities giving rise to the operation of this Section 4.4 and the
voting securities issuable to the Purchaser pursuant to this Section 4.4.
(b) Notwithstanding the foregoing, the Company need not notify the
Purchaser of the issuance of voting securities which in the aggregate represent
less than 1% of the total number of votes represented by all then outstanding
voting securities, but shall notify the Purchaser within 15 days after the end
of each fiscal quarter of the Company (or more frequently if requested by the
Purchaser) as to the number of voting securities so issued during such quarter.
The Purchaser's right to purchase additional voting securities under this
Section 4.4 by reason of the issuance of such voting securities may, at the
election of the Purchaser, be exercised at any time within 30 days following
receipt of such notice or shall cumulate and may be carried forward and
exercised by the Purchaser at the time of and together with the subsequent
purchase of additional voting securities by the Purchaser pursuant to the next
notice received by the Purchaser under Section 4.4(a).
(c) For purposes of this Section 4.4, (i) the term "voting securities"
shall mean any securities of the Company entitled to vote generally in the
election of directors; (ii) the term "Purchaser's Current Percent" shall mean
that percentage derived by dividing the total number of votes represented by
all voting securities then held by the Purchaser by the total number of votes
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represented by all of the Company's outstanding voting securities immediately
prior to the issuance of voting securities giving rise to the operation of this
Section 4.4; and (iii) the term "fair market value" of any non-cash
consideration on the date in question shall mean the fair market value of such
consideration as mutually agreed by the Company and the Purchaser, or if such
parties are unable to agree, as determined by an investment banking firm
mutually agreeable to both parties. In the event that the parties are unable to
agree on an investment banking firm, then each party shall name its own
investment banking firm and such firms shall select a third investment banking
firm to determine the "fair market value" of any non-cash consideration. The
fees and expenses of such third investment firm shall be borne equally by the
Company and the Purchaser.
(d) If and when Purchaser exercises any purchase rights under this Section
4.4, the purchase shall be closed within 20 days of the date of the notice of
such exercise.
4.5 Right of First Refusal. If at a time when the Purchaser owns at least
5% of the outstanding Common Stock, the Purchaser proposes to sell any voting
securities (as defined in Section 4.4(c)) then owned by it either (i) to five
or fewer persons pursuant to a registration statement prepared as a result of
Purchaser's exercise of its demand rights under Section 4.3(a), or (ii) in a
private sale without registration under the Securities Act, the Purchaser shall
promptly advise the Company in writing of the price and terms on which such
voting securities are to be sold and, if known, the intended purchaser of such
voting securities. The Company or its designee shall have the right, which may
be exercised at any time within 15 days following
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receipt of such notice, to purchase all, but not less than all, of the voting
securities proposed to be sold at the same price and on the same terms as such
proposed sale; provided, however, that if such price is payable in whole or in
part in consideration other than cash, the price payable by the Company shall
be payable in cash and shall be equal to the fair market value of such non-cash
consideration on the date the Purchaser first agrees to sell such voting
securities, determined as provided in Section 4.4(c). If and when the Company
exercises any purchase rights under this Section 4.5, the purchase shall be
closed within 20 days of the date of the notice of such exercise. If the
Company does not exercise its right to purchase the voting securities proposed
to be sold, the Purchaser shall be free to sell such voting securities at the
same price and on the same terms contained in the Purchaser's written notice to
the Company within the one hundred twenty (120) day period following the
expiration of the Company's fifteen (15) day exercise period.
4.6 Limitation on Future Purchases.
(a) The Purchaser agrees that, without the prior written consent of the
Company (specifically expressed in a resolution adopted by a majority of the
Company's Board of Directors other than the Purchaser's designee), neither it
nor any corporation or any entity controlled by it (collectively, the
"Purchaser Group"), will, directly or indirectly, acquire any shares of Common
Stock (except by way of stock dividends, stock splits or other stock
distributions made available to holders of Common Stock generally) if the
effect of such acquisition would be to increase the aggregate ownership of
shares of Common Stock then owned by all members of the Purchaser Group to
greater than 25% of all shares of Common
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Stock then outstanding; provided, however, that: (i) it shall not be a
violation of the foregoing limitation if the number of shares of Common Stock
shall have decreased (by reason of repurchases of shares or other action taken
by the Company) and the Purchaser Group shall thereby become the beneficial
owner of more than 25% of the then outstanding shares of Common Stock and (ii)
the foregoing limitation shall terminate and be of no further force and effect
if any of the following events shall occur: (A) a tender or exchange offer is
made or publicly proposed to be made by any person, entity or group (other than
the Purchaser, any other member of the Purchaser Group or any other person,
entity or group with whom the Purchaser or any other member of the Purchaser
Group has any agreement or understanding or has communicated, either directly
or indirectly, for the purposes of encouraging such offer) for shares of Common
Stock which, if successful, would result in such person, entity or group
beneficially owning more than 20% of the shares of Common Stock then
outstanding, (B) any person, entity or group shall have acquired or publicly
proposed to acquire beneficial ownership of more than 20% of the shares of
Common Stock then outstanding, (C) any person, entity or group shall have
entered into a definitive agreement or agreement in principle with the Company
with respect to the acquisition of all or substantially all of the assets of
the Company or all of the outstanding shares of Common Stock by means of a
merger, consolidation or other business combination with or involving the
Company or (D) the Company shall have failed to comply in any material respect
with its obligations under this Agreement.
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(b) For purposes of this Section 4.6, (i) the term "beneficial ownership"
shall have the meaning set forth in Rule 13d-3 under the Securities Exchange
Act of 1934 (the "Exchange Act") and (ii) the term "group" shall have the
meaning set forth in Section 13(d)(3) of the Exchange Act.
(c) The Company hereby agrees that if it shall appear to the Purchaser
that shareholder approval may be required under applicable law for the
Purchaser to acquire additional voting securities as permitted under the terms
of this Agreement, and the Purchaser so requests in writing, the Company will
use its reasonable best efforts to obtain such approval as expeditiously as
possible; such efforts shall include but shall not be limited to the calling of
a special meeting of shareholders and soliciting proxies from shareholders in
favor of such proposed acquisition; provided, however, that such action shall
not be required if the Company shall provide to the Purchaser an opinion of
counsel satisfactory to the Purchaser to the effect that shareholder approval
of the proposed acquisition is not required under applicable law.
4.7 Covenant to Satisfy Conditions. Each of the parties hereto will use
their respective reasonable best efforts, and cooperate with the other, to
insure that the conditions set forth in Article V hereof are satisfied as
promptly as practicable.
V. CONDITIONS
5.1 Conditions to Each Party's Obligations. The respective obligations of
the Purchaser and the Company under this Agreement are subject to the
satisfaction, at or prior to the Closing, of each of the following conditions:
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(a) no preliminary or permanent injunction or other order, decree or
ruling issued by any court of competent jurisdiction nor any statute, rule,
regulation or order promulgated or enacted by any governmental, regulatory or
administrative agency or authority shall be in effect which would prevent the
consummation of the transactions contemplated hereby; and
(b) all applicable waiting periods under the HSR Act relating to the
purchase and sale of the Shares pursuant to this Agreement shall have expired
or been terminated.
5.2 Conditions to Obligation of the Company. The obligations of the
Company under this Agreement are subject to the satisfaction, at or prior to
the Closing, of each of the following additional conditions:
(a) the Purchaser shall have performed and complied in all material
respects with all obligations and agreements required by this Agreement to be
so performed and complied with by it at or prior to the Closing;
(b) the representations and warranties of the Purchaser contained in this
Agreement shall be true and correct in all material respects at and as of the
Closing as if made at and as of such date; and
(c) no action, suit, claim, investigation or proceeding before any court,
governmental agency, commission, or administrative or regulatory authority,
domestic or foreign, shall have been commenced and be pending which seeks to
restrain, prevent or delay or to change the transactions contemplated hereby or
which otherwise questions the validity or
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legality of any such transactions; provided, however, that in the case of any
action, suit, claim or proceeding brought by a person other than a governmental
or regulatory authority, the condition set forth in this Section 5.2(c) shall
be deemed to have been satisfied if the Company shall have received an opinion
of counsel, reasonably satisfactory to the Company, to the effect that it is
more likely than not that the relief sought therein will not be granted.
5.3 Conditions to Obligations of the Purchaser. The obligations of the
Purchaser under this Agreement are subject to the satisfaction, at or prior to
the Closing, of each of the following additional conditions:
(a) the Company shall have performed or complied in all material respects
with all obligations and agreements required by this Agreement to be so
performed or complied with by it at or prior to the Closing;
(b) the representations and warranties of the Company contained in this
Agreement shall be true and correct in all material respects at and as of the
Closing as if made at and as of such date; and
(c) no action, suit, claim, investigation or proceeding before any court,
governmental agency, commission, or administrative or regulatory authority,
domestic or foreign, shall have been commenced and be pending which seeks to
restrain, prevent or delay or to change the transactions contemplated hereby or
which otherwise questions the validity or legality of any such transactions;
provided, however, that in the case of any action, suit, claim or proceeding
brought by a person other than a governmental or regulatory authority, the
condition
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set forth in this Section 5.3(c) shall be deemed to have been satisfied if the
Purchaser shall have received an opinion of counsel, reasonably satisfactory to
the Purchaser, to the effect that it is more likely than not that the relief
sought therein will not be granted.
VI. TERMINATION
6.1 Termination. This Agreement may be terminated and the purchase and
sale of the Shares contemplated hereby may be abandoned at any time prior to
the Closing:
(a) by mutual consent of the Purchaser and the Company;
(b) by the Purchaser, on or after six months from the date of this
Agreement, if any of the conditions to its obligations hereunder have not been
met or waived by the Purchaser prior to such date;
(c) by the Company, on or after six months from the date of this
Agreement, if any of the conditions to its obligations hereunder have not been
met or waived by the Company prior to such date; or
(d) by the Purchaser if, after the date of this Agreement, there shall
have occurred any event, change, or development which has affected or may
affect materially and adversely the business, financial condition or results of
operations of the Company.
6.2 Effect of Termination. In the event of the termination of this
Agreement by either the Purchaser or the Company as provided above, this
Agreement shall thereafter become void and there shall be no liability on the
part of either party hereto or their respective directors, officers
stockholders or agents, except that any such termination shall be without
prejudice to the
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rights of either party hereto arising out of the willful breach by the other
party of any covenant or agreement contained in this Agreement.
VII. MISCELLANEOUS
7.1 Brokers. The Company and the Purchaser each represent and warrant to
the other that neither has employed any broker or finder or incurred any
liability for any brokerage fees, commissions or finders' fees in connection
with the transactions contemplated hereby, except that Purchaser has retained
Xxxx Xxxxxx Xxxxxxxx, Inc., as its financial advisor and the Company has
retained PaineWebber Incorporated as its financial advisor. The Purchaser and
the Company each agree to indemnify and hold each other harmless from and
against any and all claims, liabilities or obligations with respect to any such
fees or commissions asserted by any person on the basis of any act or statement
alleged to have been made by such party.
7.2 Expenses. Each party shall pay its own expenses incurred in connection
with this Agreement and the obligations contemplated hereby.
7.3 Survival of Representations. All representations, warranties and
agreements made by the Company and the Purchaser in this Agreement shall
survive the Closing hereunder and any investigation at any time made by or on
behalf of any party hereto.
7.4 Adjustments. In the event of any change in the Common Stock by reason
of stock dividend, split-up, recapitalization, combination, exchange of shares
or the like, the number and kind of shares subject to this Agreement and the
price per Share to be paid hereunder shall be appropriately adjusted.
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7.5 Legend. The certificates representing the Shares and the Option Shares
to be issued and delivered to the Purchaser pursuant to this Agreement shall
bear a legend in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED FOR SALE, SOLD
OR TRANSFERRED EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER
SUCH ACT OR (ii) AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT, AND IN
COMPLIANCE WITH THE APPLICABLE LAWS OF ANY STATE OR OTHER JURISDICTION. THE
SALE, TRANSFER OR OTHER DISPOSITION OF THE SHARES REPRESENTED BY THIS
CERTIFICATE IS ALSO SUBJECT TO RESTRICTIONS CONTAINED IN A STOCK PURCHASE
AGREEMENT DATED ___________________, 1986, BETWEEN DELTA AIR LINES, INC. AND
THE COMPANY, A COPY OF WHICH IS ON FILE AT THE OFFICE OF THE SECRETARY OF THE
COMPANY AND WILL BE MAILED TO ANY SHAREHOLDER WITHOUT CHARGE WITHIN 5 DAYS
AFTER RECEIPT OF A WRITTEN REQUEST THEREFOR.
7.6 Entire Agreement. This Agreement contains the entire understanding of
the parties hereto with respect to its subject matter. There are no
restrictions, agreements, promises, warranties, covenants or undertakings with
respect to the subject matter hereof other than those
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expressly set forth herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to its subject matter.
7.7 Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
7.8 Amendment, Waiver. This Agreement may be amended only by a written
instrument duly executed by both the parties hereto. To the extent permitted by
law, any condition to a party's obligations hereunder may be waived in writing
by such party.
7.9 Parties in Interest. This Agreement will be binding upon, inure to the
benefit of and be enforceable by the Company and the Purchaser and their
respective successors and assigns. This Agreement may not be assigned by the
parties hereto, except that the Purchaser may assign its rights hereunder to
any directly or indirectly wholly owned subsidiary of Purchaser; provided,
however, that no such assignment shall relieve the Purchaser of any of its
obligations hereunder.
7.10 Specific Performance. The Company acknowledges and agrees that the
Purchaser would not have an adequate remedy at law and would be irreparably
harmed in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that the Purchaser shall be entitled to injunctive
relief to prevent breaches of this Agreement and to specifically enforce the
terms and provisions hereof, in addition to any other remedy to which it may be
entitled, at law or in equity.
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7.11 Notices. All notices, claims, certificates, requests, demands and
other communications hereunder ("notices") will be given in writing and will be
deemed to have been duly given if delivered or mailed (registered or certified
mail, postage prepaid, return receipt requested) as follows:
(a) If to the Purchaser, to:
Delta Air Lines, Inc.
Xxxxxxxxxx Atlanta International Airport
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Copy to:
Senior Vice President-General Counsel & Secretary
Delta Air Lines, Inc.
Xxxxxxxxxx Xxxxxxx Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
(b) If to the Company:
Comair, Inc.
Greater Xxxxxxxxxx Xxxxxxx
X.X. Xxx 00000
Xxxxxxxxxx, Xxxx 00000
Attention: Chief Executive Officer
Copy to:
Xxxxxxx, Muething & Xxxxxxx
18th Floor, Provident Tower
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
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or, in either case, such other address as the person to whom notice is to be
given may have previously furnished to the others in the manner set forth
above.
7.12 Governing Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of Delaware, without regard to
the principles of conflicts of law.
7.13 Counterparts. This Agreement may be executed simultaneously in
counterparts, each of which will be deemed to be an original but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
DELTA AIR LINES, INC.
By
-----------------------------------
Title
------------------------------
COMAIR, INC.
By
-----------------------------------
Title
------------------------------
"Delta Connection" Program
to be Enhanced.
DELTA AIR LINES TO ACQUIRE
SIGNIFICANT EQUITY INTEREST
IN CINCINNATI-BASED COMAIR, INC.
ATLANTA, GA, May 29, 1986 -- Delta Air Lines, Inc. and Comair, Inc., a
Cincinnati-based regional airline, jointly announced today that the Boards of
Directors of each company have approved a purchase by Delta of approximately 20
percent of the voting securities of Comair. The purchase involves 1,850,000
newly-issued shares of Comair's common stock, at a price of $9.125 per share,
for a total consideration to Comair of $16,881,250. The purchase remains
subject to execution of a definitive purchase agreement, the normal waiting
period under the Xxxx-Xxxxx-Xxxxxx Act, and certain other customary conditions.
The transaction does not require approval by the Department of Transportation,
and is expected to be concluded by the end of next month.
Delta's Chairman of the Board and Chief Executive Officer Xxxxx X.
Xxxxxxx, Xx., said, "We are making this sizeable investment in Comair to
solidify and enhance The Delta Connection program in which the two companies
have successfully engaged during the past two years. This transaction, along
with the purchase of an equity interest in Atlanta-based Atlantic Southeast
Airlines announced earlier, is further evidence of our commitment to The Delta
Connection program and is consistent with our objective of protecting and
improving out strong position in the marketplace."
Under The Delta Connection marketing program, Comair's flights in-and-out
of its Cincinnati hub are timed to provide minimum connecting times to Delta's
flights at that city, thereby providing passengers with excellent access to the
entire systems of both carriers. Comair's flights are also shown under the
Delta code designation in computer-automated reservations systems and in the
Official Airline Guide, in order to make the coordinated schedules quickly
available for travel agents and airline reservations personnel booking such
flights. Passengers utilizing these Comair connecting flights are also given
the advantage of cost-breaks inherent in through fares, and are offered a full
range of promotional fares provided by Delta. In addition, passengers traveling
on Comair's flights receive Delta Frequent Flyer credits.
Xxxxx X. Xxxxxxx, President and Chief Executive Officer of Comair, said,
"We are extremely pleased with this strong commitment and vote of confidence by
Delta. The capital infusion will facilitate our continued growth and rapid
expansion. We are dedicated to protecting our respective positions of strength
as major and regional airlines in the Midwest. We have been
pleased with The Delta Connection program since its inception and feel this
commitment by Delta reflects the extraordinary success both companies have
enjoyed as a result of this marketing strategy. We are confident this
transaction will prove beneficial to our employees and our shareholders as
well."
Comair will continue to operate as a wholly-separate company with its own
management and operating policies. Comair stated that it presently plans no
major change in the basic character of its operations but does plan to use the
additional capital for more rapid growth.
