EXHIBIT 2.2
GOVERNANCE AGREEMENT
Agreement dated as of January 25, 1998, among Continental Airlines,
Inc., a Delaware corporation (the "Company"), Newbridge Parent Corporation, a
Delaware corporation (the "Stockholder"), and Northwest Airlines Corporation, a
Delaware corporation that is the holder of all of the outstanding stock of the
Stockholder ("Parent").
WHEREAS, the Parent, the Stockholder and Air Partners, L.P., a Texas
limited partnership ("AP"), propose to enter into an Investment Agreement (the
"Investment Agreement") dated as of the date hereof, to which the Company is not
a party and, pursuant to which, among other things, and subject to the terms and
conditions to be contained in the Investment Agreement, the Stockholder would
acquire the outstanding interests in AP and the shares of Class A Common Stock,
par value $.01 per share ("Class A Common Stock"), held by certain affiliates of
AP resulting in its Beneficial Ownership of 8,535,868 shares of Class A Common
Stock of the Company (the "Stock Purchase"), and
WHEREAS, Northwest Airlines, Inc., an indirect wholly owned subsidiary
of Parent, and the Company have negotiated a Master Alliance Agreement (the
"Alliance Agreement") dated as of the date hereof and the Company has
conditioned its entering into the Alliance Agreement on the Parent and the
Stockholder entering into this Agreement with the Company.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the Company, the Parent and the Stockholder hereby agree as follows:
SECTION 1
STANDSTILL AND VOTING
Section 1.01. ACQUISITION OF VOTING SECURITIES.
(a) Until the Standstill Termination Date, the Parent and the
Stockholder each covenant and agree that they and their respective Affiliates
will not Beneficially Own any Voting Securities in excess of the Permitted
Percentage; PROVIDED that if any of the following events shall occur: (A) it is
publicly disclosed that Voting Securities representing 15% or more of the Total
Voting Power have been acquired subsequent to the date hereof by any Person or
13D Group (other than (1) any Subsidiary of the Company, any employee benefit
plan of the Company or of any of its Subsidiaries or any Person holding Voting
Securities for or pursuant to the terms of any such employee benefit plan) or
(2) the Parent or the Stockholder, or an Affiliate of, or any Person acting in
concert with, the Parent or the Stockholder, or any Person that has been
induced, in whole or in part, directly or indirectly, by the Parent, the
Stockholder or the Voting Trust to make such acquisition), or (B) a bona fide
tender or exchange offer is made by any Person (other than the Company, the
Parent, the Stockholder, or an Affiliate of, or any Person acting in concert
with, or induced by, directly or indirectly, any of them) to purchase
outstanding shares of Voting Securities representing 15% or more of the Total
Voting Power and such offer is not withdrawn or terminated prior to the
Stockholder acquiring additional Voting Securities, or (C) the Board of
Directors shall approve the acquisition by any Person or 13D
Group of Voting Securities that would otherwise trigger the adverse consequences
of any stockholder rights plan of the Company that may at the time be in effect,
then in any event referred to in clauses (A), (B) or (C) above, notwithstanding
the foregoing provisions of this Section 1.01(a) or any other provisions of this
Agreement, the Parent, the Stockholder and their Affiliates may acquire
additional Voting Securities in any manner, whether in market purchases,
privately negotiated transactions, a tender or exchange offer on any terms or in
any other manner, and the Parent or the Stockholder may submit a competing
proposal or a proposal for a merger or any other type of business combination.
(b) Notwithstanding the provisions of Section 1.01(a), following the
Closing and until the Standstill Termination Date, the Stockholder may purchase
shares of Voting Securities in any manner in order to maintain at the Permitted
Percentage its percentage of the Fully Diluted Voting Power.
(c) Except as expressly provided herein, the Parent and the
Stockholder shall not permit any Affiliate to Beneficially Own any Voting
Securities in excess of the Permitted Percentage.
(d) Except as set forth in the next sentence, if at any time the
Parent or the Stockholder becomes aware that it and its Affiliates Beneficially
Own more than the Permitted Percentage, then the Parent shall promptly notify
the Company, and the Parent and the Stockholder, as appropriate, shall promptly
take all action necessary to reduce the amount of Voting Securities Beneficially
Owned by such Persons to an amount not greater than the Permitted Percentage.
If Voting Securities Beneficially Owned by the Stockholder and its Affiliates
exceed the Permitted Percentage (i) solely by reason of repurchases of Voting
Securities by the Companyor (ii) as a result of the transactions otherwise
permitted by the terms of this Agreement, then the Stockholder shall not be
required to reduce the amount of Voting Securities Beneficially Owned by such
Persons and the percentage of the Fully Diluted Voting Power represented by the
Voting Securities Beneficially Owned by such Persons shall become the Permitted
Percentage.
Section 1.02. RESTRICTIONS ON TRANSFER. Prior to the Standstill
Termination Date, neither the Stockholder nor the Parent will Transfer or permit
any of their respective Affiliates to Transfer any Voting Securities except for:
(i) Transfers of Voting Securities pursuant to any tender or exchange offer to
acquire Voting Securities approved and recommended by the Company's Board of
Directors (which recommendation has not been withdrawn); (ii) Transfers of
Voting Securities to the Stockholder provided that such Voting Securities are
immediately transferred to the public stockholders of the Stockholder by means
of a PRO RATA dividend or other PRO RATA distribution; (iii) Transfers of Voting
Securities by the Stockholder to any of its controlled Affiliates, provided that
such Affiliate agrees to be bound by the provisions of this Agreement applicable
to the Stockholder; (iv) Transfers of the Shares by the Voting Trust to the
Stockholder upon termination of the Voting Trust; (v) Transfers of Voting
Securities by the Stockholder pursuant to Section 4.1(d) of the Investment
Agreement or Section 5 of this Agreement; and (vi) Transfers of Voting
Securities by the Stockholder to any transferee who, together with its
Affiliates and Associates, would not, to the knowledge of Parent or the
Stockholder, Beneficially Own in excess of 10% of the Voting Power as a result
of such
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Transfer; PROVIDED that no such Transfers under clauses (i) or (iii) of this
Section 1.02 may be made to any Person (including such Person's Affiliates and
any Person or entities which are part of any 13D Group which includes such
transferee or any of its Affiliates) that, after giving effect to such Transfer,
would to the knowledge of Parent or the Stockholder Beneficially Own Voting
Securities representing more than 10% of the Total Voting Power.
Section 1.03. VOTING TRUST. Immediately following the Closing, the
Stockholder and the Parent shall cause AP to deposit the Shares, and the
Stockholder and the Parent shall deposit any other shares of Voting Securities
Beneficially Owned by either of them or any of their Affiliates, into a voting
trust (the "Voting Trust") to be established pursuant to a voting trust
agreement (the "Voting Trust Agreement") with an independent voting trustee in a
form reasonably satisfactory to Parent and the Company and which shall include
the following provisions for the voting of the shares of Voting Securities
deposited therein: until the Standstill Termination Date, all such shares shall
(a) be voted or consented on all matters submitted to a vote of the Company's
stockholders, other than the election of directors, at the option of the
Stockholder, either (i) as recommended by the Board of Directors or (ii) (A) in
the case of votes at a stockholders meeting, in the same proportion as the votes
cast by other holders of Voting Securities, and (B) in the case of consents, so
that the percentage of Stockholder Voting Power consented to on any matter
equals the percentage of all other outstanding Voting Securities so consented;
PROVIDED, that with respect to (x) any vote on a merger, reorganization, share
exchange, consolidation, business combination, recapitalization, liquidation,
dissolution or similar transaction involving the Company, any sale of all or
substantially all of the Company's assets or any issuance of Voting Securities
that would represent in excess of 20% of the Voting Power prior to such
issuance, including any of the foregoing involving the Stockholder or the
Parent, or (y) any amendment to the Company's amended and restated certificate
of incorporation or by-laws that would materially and adversely affect the
Stockholder (including through its effect on the Alliance Agreement and the
rights of the Voting Securities Beneficially Owned by the Stockholder), such
shares may be voted as directed by the Stockholder and (b) in the election of
directors, for the election of the Independent Directors nominated by the Board
of Directors of the Company determined by a Majority Vote; PROVIDED, that with
respect to any election of directors in respect of which any Person other than
the Company is soliciting proxies, the Stockholder and the Parent shall cause
all such shares to be voted, at the option of the Stockholder, either (i) as
recommended by the Board of Directors or (ii) in the same proportion as the
votes cast by the other holders of Voting Securities. The Voting Trust
Agreement shall also provide that the Voting Trust shall not issue voting trust
certificates or any interest in the Voting Trust to a Person other than the
Stockholder or any of its Affiliates.
Section 1.04. FURTHER RESTRICTIONS ON CONDUCT. The Parent and the
Stockholder, as applicable, covenant and agree that until the Standstill
Termination Date:
(a) except by virtue of the Stockholder's representation on the Board
of Directors of the Company, if any, in connection with the performance of the
Alliance Agreement and the subsequent negotiations and agreements contemplated
thereby, neither the Parent, the Stockholder nor any of their respective
Affiliates will otherwise act, alone or in concert with others, to seek to
affect or influence the Board of Directors or the control of the management of
the Company or the businesses, operations, affairs, financial matters or
policies of the Company
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(it being agreed that this paragraph shall not prohibit the Parent and its
Subsidiaries, and their respective employees from engaging in ordinary course
business activities with the Company);
(b) other than in connection with the deposit of the Shares and other
Voting Securities into the Voting Trust as required by Section 1.03, the
Stockholder shall not deposit any Voting Securities into any voting trust or
subject any Voting Securities to any proxy (other than any revocable proxy to
vote the Shares in a manner consistent with Sections 1.03 and 2.01 hereof),
arrangement or agreement with respect to the voting or consenting with respect
to such Voting Securities or other agreement having similar effect;
(c) neither the Parent, the Stockholder nor any of their respective
Affiliates shall initiate or propose any stockholder proposal or action or make,
or in any way participate in or encourage, directly or indirectly, any
"solicitation" of "proxies" to vote or written consents, or seek to influence
any Person with respect to the voting of or consenting with respect to, any
Voting Securities, or become a "participant" in a "solicitation" (as such terms
are defined in Regulation 14A under the Exchange Act, as in effect on the date
hereof) in any election contest with respect to the election or removal of the
Independent Directors or in opposition to the recommendation of the majority of
the directors of the Company with respect to any other matter;
(d) other than as is contemplated by this Agreement, neither the
Parent, the Stockholder, the Voting Trust nor any of their respective Affiliates
shall join a partnership, limited partnership, syndicate or other group, or
otherwise act in concert with any other Person, for the purpose of acquiring,
holding, voting or disposing of Voting Securities, or, otherwise become a
"person" within the meaning of Section 13(d)(3) of the Exchange Act;
(e) neither the Parent nor the Stockholder shall transfer its
partnership interests in AP, nor cause or permit AP to admit new partners;
(f) each of the Parent and the Stockholder shall, and shall cause its
Affiliates to, deposit into the Voting Trust such additional shares of Voting
Securities as they may acquire after the Closing; and
(g) neither the Parent nor the Stockholder nor any of their
respective Affiliates shall take any action inconsistent with the foregoing;
PROVIDED that the restrictions set forth in Sections 1.04 (a), (b), (c) and (d)
of this Agreement shall not apply to (i) any vote by the Parent or the
Stockholder described in clauses (x), (y) or (z) of Section 1.03 of this
Agreement, (ii) any Stockholder Designee acting in his or her capacity as a
director of the Company, (iii) Northwest Airlines, Inc. acting as an alliance
partner pursuant to the Alliance Agreement, (iv) the Parent or the Stockholder
seeking a merger with the Company following the Company's delivery of a
Termination Notice pursuant to Section 21 of the Alliance Agreement or (v) any
action taken as permitted by Section 1.01(a).
Section 1.05 REPORTS. During the term of this Agreement, the
Stockholder shall deliver to the Company, promptly after any Transfer of Voting
Securities by the Stockholder, the Voting Trust or their respective Affiliates,
an accurate written report specifying the amount and
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class of Voting Securities so Transferred and the amount of each class of Voting
Securities owned by them after giving effect to such Transfer; PROVIDED,
HOWEVER, that such reporting obligation may be satisfied with respect to any
such Transfer that is reported in a statement on Schedule 13D pursuant to the
Exchange Act and the rules thereunder by delivering promptly to the Company a
copy of such Schedule 13D statement. The Company shall be entitled to rely on
such reports and statements on Schedule 13D for all purposes of this Agreement.
SECTION 2
BOARD OF DIRECTORS AND RELATED MATTERS
Section 2.01. COMPOSITION OF BOARD OF DIRECTORS.
(a) Immediately after the consummation of the Stock Purchase (the
"Closing"), the Board of Directors shall take such corporate actions as are
necessary to cause an individual designated by the Stockholder and reasonably
acceptable to the Board of Directors, which designee shall not be an officer or
an employee of the Parent, the Stockholder or the Company or any of their
respective Affiliates, or any person who shall have served in any such capacity
within the three-year period immediately preceding the date such determination
is made (the "Stockholder Designee"), to be appointed to the Board of Directors.
The directors comprising the Board of Directors immediately after the Closing
shall be otherwise unchanged from those as of the date of this Agreement, and
the individuals listed on Exhibit 2.01 hereto shall, for the purposes of this
Agreement, constitute the Independent Directors at such time.
(b) Following the Closing and until the Standstill Termination Date,
the Company, the Parent, the Stockholder and their respective Affiliates shall
take all such actions as are required under applicable law to cause Independent
Directors to constitute at all times at least a majority of the Board of
Directors. At each annual meeting of stockholders of the Company following the
Closing, or at any time that a vacancy in a seat previously occupied by an
Independent Director on the Board of Directors is to be filled, the identity of
the Independent Director or Directors to stand for election to the Board of
Directors or to fill the vacancy, as the case may be, shall be determined by a
Majority Vote.
(c) Following the Closing and until the Standstill Termination Date,
upon the death, resignation or disability of any Stockholder Designee, the
Company shall take all such corporate actions as are necessary to cause a
successor individual designated by the Stockholder and reasonably acceptable to
the Board of Directors of the Company by a Majority Vote, which designee shall
not be an officer or an employee of the Parent, the Stockholder or the Company
or any of their respective Affiliates, or any person who shall have served in
any such capacity within the three-year period immediately preceding the date
such determination is made, to be appointed to the Board of Directors.
(d) Without the prior written consent of the Parent, the Company
shall not amend, alter or repeal its amended and restated certificate of
incorporation or by-laws so as to eliminate or diminish the ability of
stockholders of the Company to act by written consent or Section 1.10 of the
Company's by-laws.
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Section 2.02. TRANSACTIONS INVOLVING THE STOCKHOLDER. The parties
agree that any material transaction between the Company and the Parent, the
Stockholder or any of their respective Affiliates, or relating to this Agreement
or the Alliance Agreement, including without limitation, any amendment,
modification or waiver of any provision hereof or thereof, shall not be taken
without the prior approval thereof by a Majority Vote.
Section 2.03. SIGNIFICANT ACTIONS. Promptly following the Closing,
the Company shall amend its by-laws to provide that no action described in
Exhibit 2.03 hereto may be taken without prior approval thereof by a Majority
Vote.
Section 2.04. MANAGEMENT OF THE BUSINESS. Following the Closing and
until the Standstill Termination Date, except as indicated in Section 2.02
above, management of the Company will continue to have full authority to operate
the day-to-day business affairs of the Company to the same extent as prior to
the Closing. In this regard, the Chief Executive Officer of the Company shall
continue to be in charge of all matters within his authority on the date hereof,
subject, as required by Delaware law, to the requirement that the business and
affairs of the Company shall be managed by or under the direction of the Board
of Directors.
Section 2.05. EXECUTIVE COMMITTEE. Prior to the Closing, the Company
shall cause the authority of the Executive Committee of the Company's Board of
Directors to be modified to the reasonable satisfaction of the Parent, to permit
such committee to approve only ordinary course transactions in which the Company
engages from time to time, but which nonetheless require approval by the Board
of Directors.
SECTION 3
COVENANTS
Section 3.01. LEGENDS. The Company shall cooperate and instruct its
transfer agent and registrar to place legends on all shares of Class A Common
Stock (and the Warrants) held by AP or any of its Affiliates to reflect that
such shares are subject to the restrictions on voting and transfer set forth in
the Investment Agreement and in this Agreement.
Section 3.02. ISSUANCE OF CLASS A COMMON STOCK. The Company shall
not issue any additional shares of Class A Common Stock (except upon exercise of
the Warrants outstanding as of the date hereof) or securities convertible into
or exercisable or exchangeable for shares of Class A Common Stock or enter into
any agreement or arrangement to do the same without giving the Stockholder pre-
emptive rights which shall permit the Stockholder to acquire shares of Class A
Common Stock concurrently with any such issuance.
Section 3.03. ISSUANCE OF CLASS B COMMON STOCK. The Company shall
not, without giving the Stockholder pre-emptive rights, issue shares of Class B
Common Stock, par value $.01 per share, of the Company (the "Class B Common
Stock"), or securities convertible into or exercisable or exchangeable for
shares of Class B Common Stock except to the extent that such shares (including
underlying shares, in the case of securities convertible into or exercisable or
exchangeable for shares of Class B Common Stock) (a) in the case of such shares
or convertible securities issued for the purpose of fulfillment of the Company's
obligations under
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any present or future stock option plan, do not exceed the number of shares
issued under such plans consistent with past practices, (b) in the case of such
shares or convertible securities issued for any other purpose, do not exceed in
the aggregate 5% of the outstanding shares of Class B Common Stock on the date
of the Investment Agreement or (c) are issued pursuant to options, warrants or
convertible securities issued and outstanding on, or commitments to issue such
shares that are in effect on, the date hereof and which are disclosed in Section
4.01(b).
Section 3.04. CONVERSION; INTERESTED STOCKHOLDERS. The Company shall
not seek a vote of its stockholders, approving any amendment to the Company's
amended and restated certificate of incorporation or by-laws, nor shall it take
any other action, that would, without the consent of the Parent, (a) eliminate
AP's right in Section 2(e) of the Company's amended and restated certificate of
incorporation to convert shares of Class A Common Stock into shares of Class D
Common Stock, par value $.01 per share, (b) cause Section 203 of the Delaware
General Corporation laws to be applicable to the Company or (c) adopt an
"interested stockholders" provision.
Section 3.05. TRANSFER OF VOTING TRUST CERTIFICATES. Prior to the
Standstill Termination Date, the Stockholder shall not Transfer the voting trust
certificates issued to it by the Voting Trust or any interest in the Voting
Trust represented thereby.
Section 3.06. CONDUCT. Each of the Company, the Parent and the
Stockholder agrees that from the date hereof until the Closing, except as
otherwise contemplated by this Agreement or with the prior written consent of
the other, it and its subsidiaries shall not (a) change its principal line of
business, (b) change the fundamental nature of its business or (c) dispose of
any substantial portion of its assets.
Section 3.07. NO SOLICITATION.
(a) From the date hereof until the Closing, the Company and its
subsidiaries, and the officers, directors, financial or legal advisors of the
Company and its subsidiaries will not, directly or indirectly, (i) take any
action to solicit, initiate or encourage any Acquisition Proposal or (ii) engage
in negotiations with, or disclose any nonpublic information relating to the
Company or any of its subsidiaries or afford access to the properties, books or
records of the Company or any of its subsidiaries to, any person that may be
considering making, or has made, an Acquisition Proposal; PROVIDED that, the
Company may, in response to an unsolicited written proposal from a third party
regarding an Acquisition Proposal engage in the activities specified in clause
(ii), if the Board of Directors of the Company determines in good faith, after
obtaining and taking into account the advice of outside counsel, that such
action is required for the Board of Directors of the Company to comply with its
fiduciary duties under applicable law. The Company will promptly (and in no
event later than 24 hours after having received the relevant Acquisition
Proposal) notify the Parent (which notice shall be provided orally and in
writing and shall identify the person making the Acquisition Proposal and set
forth the material terms thereof) after having received any Acquisition
Proposal, or request for nonpublic information relating to the Company or any of
its subsidiaries or for access to the properties, books or records of the
Company or any of its subsidiaries by any person who is considering making or
has made an Acquisition Proposal. The Company will, to the extent consistent
with the fiduciary duties of
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the Company's Board of Directors under applicable law, keep the Parent fully
informed of the status and details of any such Acquisition Proposal or request.
The Company shall, and shall cause its subsidiaries, and shall instruct the
directors, officers and financial and legal advisors of the Company and its
subsidiaries to, cease immediately and cause to be terminated all activities,
discussions or negotiations, if any, with any persons conducted heretofore with
respect to any Acquisition Proposal. Notwithstanding any provision of this
Section, nothing in this Section shall prohibit the Company or its Board of
Directors from taking and disclosing to the Company's stockholders a position
with respect to an Acquisition Proposal by a third party to the extent required
under the Exchange Act or from making such disclosure to the Company's
stockholders which, in the judgment of the Board of Directors, taking into
account the advice of outside counsel, is required under applicable law;
PROVIDED that nothing in this sentence shall affect the obligations of the
Company and its Board of Directors under any other provision of this Agreement.
(b) From the date hereof until the Closing, the Parent and its
subsidiaries, and the officers, directors, financial or legal advisors of the
Parent and its subsidiaries will not, directly or indirectly, (i) take any
action to solicit, initiate or encourage any Acquisition Proposal or (ii) engage
in negotiations with, or disclose any nonpublic information relating to the
Parent or any of its subsidiaries or afford access to the properties, books or
records of the Parent or any of its subsidiaries to, any person that may be
considering making, or has made, an Acquisition Proposal; PROVIDED that, the
Parent may, in response to an unsolicited written proposal from a third party
regarding an Acquisition Proposal engage in the activities specified in clause
(ii), if the Board of Directors of the Parent determines in good faith, after
obtaining and taking into account the advice of outside counsel, that such
action is required for the Board of Directors of the Parent to comply with its
fiduciary duties under applicable law. The Parent will promptly (and in no
event later than 24 hours after having received the relevant Acquisition
Proposal) notify the Company (which notice shall be provided orally and in
writing and shall identify the person making the Acquisition Proposal and set
forth the material terms thereof) after having received any Acquisition
Proposal, or request for nonpublic information relating to the Parent or any of
its subsidiaries or for access to the properties, books or records of the Parent
or any of its subsidiaries by any person who is considering making or has made
an Acquisition Proposal. The Parent will, to the extent consistent with the
fiduciary duties of the Parent's Board of Directors under applicable law, keep
the Company fully informed of the status and details of any such Acquisition
Proposal or request. The Parent shall, and shall cause its subsidiaries, and
shall instruct the directors, officers and financial and legal advisors of the
Parent and its subsidiaries to, cease immediately and cause to be terminated all
activities, discussions or negotiations, if any, with any persons conducted
heretofore with respect to any Acquisition Proposal. Notwithstanding any
provision of this Section, nothing in this Section shall prohibit the Parent or
its Board of Directors from taking and disclosing to the Parent's stockholders a
position with respect to an Acquisition Proposal by a third party to the extent
required under the Exchange Act or from making such disclosure to the Parent's
stockholders which, in the judgment of the Board of Directors, taking into
account the advice of outside counsel, is required under applicable law;
PROVIDED that nothing in this sentence shall affect the obligations of the
Parent and its Board of Directors under any other provision of this Agreement.
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SECTION 4
REPRESENTATIONS AND WARRANTIES
Section 4.01. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. (a)
The Company represents and warrants to the Parent and the Stockholder that (i)
the Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has the corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder, (ii) the execution and delivery of this Agreement by the Company and
the consummation by the Company of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of the
Company and no other corporate proceedings on the part of the Company are
necessary to authorize this Agreement or any of the transactions contemplated
hereby, and (iii) this Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company, and is
enforceable against the Company in accordance with its terms (subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other similar laws affecting creditors' rights generally from time
to time in effect and to general principles of equity, including concepts of
materiality, reasonableness, good faith and fair dealing, regardless of whether
in a proceeding at equity or at law).
(b) COMPANY CAPITALIZATION. The authorized capital stock of the
Company consists of (i) 10,000,000 shares of Preferred Stock, par value $.01 per
share ("COMPANY PREFERRED STOCK"), and (ii) (x) 50,000,000 shares of Class A
Common Stock, (y) 200,000,000 shares of Class B Common Stock and (z) 50,000,000
shares of Class D Common Stock. As of the close of business on December 31,
1997, there were (i) no shares of Company Preferred Stock, 8,379,464 shares of
Class A Common Stock, 50,512,010 shares of Class B Common Stock and no shares of
Class D Common Stock issued and outstanding; (ii) no shares of capital stock of
the Company held in the treasury of the Company; (iii) 5,991,472 shares of
Class B Common Stock reserved for issuance upon exercise of outstanding stock
options of the Company pursuant to the Company's employee stock option and
similar plans; (iv) 7,617,155 shares of Class B Common Stock reserved for
issuance upon the conversion of the Company's outstanding 6-3/4% Convertible
Subordinated Notes due 2006; (v) 10,311,208 shares of Class B Common Stock
reserved for issuance upon the conversion of the Company's outstanding 8-1/2%
Convertible Subordinated Deferrable Interest Debentures due 2020; (vi) 3,039,468
shares of Class A Common Stock issuable upon exercise of the Warrants; and
(vii) 308,343 shares of Class B Common Stock issuable upon exercise of the
Warrants. Except as described in the immediately preceding sentence, there are
no securities of the Company (or any of its affiliates) currently outstanding
that are convertible into or exercisable or exchangeable for shares of Company
Common Stock other than (a) options to purchase shares of Class B Common Stock
granted in accordance with past practice pursuant to stock option and similar
plans, (b) options to purchase shares of Class B Common Stock granted pursuant
to the Company's 1997 Employee Stock Purchase Plan, (c) shares of Class A Common
Stock, which are convertible into shares of Class B Common Stock or Class D
Common Stock on a one-for-one basis and (d) commitments to issue not in excess
of 25,000 shares of Class B Common Stock to correct record-keeping errors in
connection with the Company's 1994 Employee Stock Purchase Plan. All
outstanding shares of the Company's capital stock are duly authorized, validly
issued, fully paid and non-assessable.
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Section 4.02. REPRESENTATIONS AND WARRANTIES OF THE PARENT. The
Parent represents and warrants to the Company that (a) it and the Stockholder
are corporations duly organized, validly existing and in good standing under the
laws of the State of Delaware and each has the power and authority to enter into
this Agreement and to carry out its respective obligations hereunder, (b) the
execution and delivery of this Agreement by the Parent and the Stockholder and
the consummation thereby of the transactions contemplated hereby have been duly
authorized by all necessary action on their parts and no other proceedings on
their parts are necessary to authorize this Agreement or any of the transactions
contemplated hereby, and (c) this Agreement has been duly executed and delivered
by the Parent and the Stockholder and constitutes a valid and binding obligation
of each of them, and is enforceable against each of them in accordance with its
terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors' rights generally
from time to time in effect and to general principles of equity, including
concepts of materiality, reasonableness, good faith and fair dealing, regardless
of whether in a proceeding at equity or at law).
SECTION 5
TERMINATION OF ALLIANCE AGREEMENT
Section 5.01. STOCKHOLDER'S ELECTION. Within thirty (30) days
following the delivery by the Company of a Termination Notice pursuant to
Section 21(a) of the Alliance Agreement, the Parent shall make an election (an
"Election") of either the merger procedures specified in Section 5.02 (the
"Merger Procedures") or the stock sale procedure specified in Section 5.03 (the
"Stock Sale Procedure") by delivering to the Company a Notice of Election. If
the Stockholder initially elects the Merger Procedure (a "Merger Election"), it
may at any time prior to the execution by the Parent and the Company of a
definitive agreement for a merger transaction, upon written notice to the
Company, irrevocably elect to abandon the Merger Procedure and elect the Stock
Sale Procedure, in which latter event the Parent shall have 18 months following
its election of the Stock Sale Procedure to consummate the sale of its shares.
If the Stockholder initially elects the Stock Sale Procedure (the "Stock Sale
Election"), it may not, at any time thereafter, make a Merger Election. If the
Stockholder fails timely to make an Election, it shall be deemed to have made a
Stock Sale Election.
Section 5.02. MERGER PROCEDURE. (a) If the Stockholder makes a
Merger Election, it shall within 30 days after doing so submit a notice to the
Company setting forth the material terms and conditions upon which it would
propose to acquire the Voting Securities not Beneficially Owned by it and its
Affiliates (the "Merger Proposal"). After the Merger Election, the Company
shall promptly establish a committee of the Board of Directors (the "Special
Committee") composed of only, and at least three (3), Independent Directors as
determined by a Majority Vote, which shall have the authority to consider,
review, and negotiate the terms of, and to make a recommendation to the full
Board of Directors regarding, the Merger Proposal, and to retain, at the
Company's expense, counsel, financial advisors and other advisors, and to take
such other actions customarily delegated to a committee of independent directors
in similar circumstances. If the Stockholder submits a Merger Proposal, the
Stockholder and the Special Committee shall negotiate in good faith and use
their best efforts to agree upon the terms of a merger at the earliest
practicable date consistent with the Special Committee's fiduciary duties.
10
(b) (i) If the Stockholder and the Company do not enter into a
definitive merger agreement within six (6) months of the establishment of the
Special Committee, on the third day after the six month anniversary of the
establishment of the Special Committee (the "Initiation Date"), the Company will
designate an investment banking firm of recognized national standing (the
"Company's Appraiser") and the Stockholder will designate an investment banking
firm of recognized national standing (the "Parent's Appraiser"), in each case to
determine the "Merger Value". The Stockholder acknowledges and agrees that the
consideration that would constitute the Merger Value is the price per share of
Voting Securities that an unrelated third party would pay if it were to acquire
all outstanding shares of Voting Securities (other than the shares held by the
Stockholder and its Affiliates) in one or more arm's-length transactions,
assuming that the Shares were being sold in a manner designed to attract all
possible participants. Each of the investment banking firms referred to herein
will be instructed to determine the Merger Value in this manner.
(ii) Within thirty (30) days after the Initiation Date, the Company's
Appraiser and the Parent's Appraiser will each determine its initial view as to
the Merger Value and consult with one another with respect thereto. By the 45th
day after the Initiation Date, the Company's Appraiser and the Parent's
Appraiser will each have determined its final view as to the Merger Value. At
that point, if the Higher Appraised Amount (as defined below) is not more than
110% of the Lower Appraised Amount (as defined below), the Merger Value will be
the average of those two views. Otherwise, the Company's Appraiser and the
Parent's Appraiser will agree upon and jointly designate a third investment
banking firm of recognized national standing (the "Mutually Designated
Appraiser") to determine its view of the Merger Value. The Mutually Designated
Appraiser will not be permitted to see or otherwise have access to, or be
informed of, the results of the appraisals of Merger Value by the Company's
Appraiser and the Parent's Appraiser, or any component of either appraiser's
analysis which led to its conclusions, and each of the Parent and the Company
agree to comply with the foregoing provision. The Mutually Designated appraiser
will, no later than the 65th day after the Initiation Date, determine the Merger
Value (the "Mutually Appraised Amount"). The Merger Value will be (x) the
Mutually Appraised Amount, if such amount falls within the range of values that
is between the Lower Appraised Amount and the Higher Appraised Amount, (y) the
Lower Appraised Amount if such amount is below the Lower Appraised Amount, and
(z) the Higher Appraised Amount if such amount is above the Higher Appraised
Amount.
As used herein, "Lower Appraised Amount" means the lower of the
respective final views of the Company's Appraiser and the Parent's Appraiser as
to the Merger Value and "Higher Appraised Amount" means the higher of such
respective final views.
The Company and the Parent shall be responsible for the payment of
fees and expenses to the respective investment banking firms designated by them,
and shall each be responsible for 50% of the fees and expenses payable to the
Mutually Designated Appraiser.
(iii) If, within fifteen (15) days of the determination of the
Merger Value as provided above (such fifteenth day being referred to as the
"Trigger Date"), (A) the Stockholder is unwilling to enter into a definitive
merger agreement at the Merger Value, then the Stockholder shall be required to
dispose of the shares of Voting Securities Beneficially Owned
11
by it and its Affiliates pursuant to the Stock Sale Procedure within eighteen
(18) months of the Trigger Date or (B) the Company's Board of Directors and the
Special Committee are unwilling to approve and recommend a definitive merger
agreement at the Merger Value, then the provisions of this Agreement (other than
Section 7) shall terminate in all respects.
5.03. STOCK ELECTION PROCEDURE. (a) If the Stockholder makes a Stock
Sale Election, then it shall, within twenty-four (24) months of the delivery of
the Termination Notice, sell the shares of Voting Securities Beneficially Owned
by it and its Affiliates (the "Selling Stockholders"), at its option, either
(i) in one or a series of privately negotiated sales of 15% or more of Voting
Securities Beneficially Owned by the Selling Stockholders (each, a "Private
Sale" and together, "Private Sales") or (ii) in any other manner that the
Selling Stockholders elect in their sole discretion.
(b) Each Selling Stockholder shall give the Company fifteen (15)
days' prior written notice of its intention to effect a Private Sale, which
notice (a "Sales Notice") shall include the material terms and conditions of the
Private Sale, the date that the sale is expected to close, and the proposed
purchaser or purchasers. A Sales Notice given with respect to a Private Sale
shall also include a certification by such Stockholder that the Private Sale
described therein is to a BONA FIDE purchaser who such Stockholder reasonably
believes has the financial resources to complete the sale and would not be
prohibited by law or regulation from doing so.
(c) The Company may, by action of its Board of Directors upon a
Majority Vote, by notice to such Stockholder given not more than twenty (20)
days after the Sales Notice, reject a Private Sale (or a series of
contemporaneous Private Sales) based upon its good faith determination that the
sale or sales to such prospective purchaser (or purchasers) would be injurious
to the interests of the Company and the holders of the Company's Voting
Securities (other than such Stockholder and its Affiliates) by virtue of the
prior business practices of such prospective purchaser or purchasers, it being
understood in that regard that the fact that such purchaser is an airline or is
affiliated with an airline shall not be the basis for any such determination nor
shall the fact that the Board of Directors concludes that wide dispersal of the
ownership of Voting Securities is in the best interests of the Company's
stockholders. Upon receiving notice of such determination, the Stockholder and
its Affiliates shall terminate discussions with such prospective purchaser or
purchasers. The Company's right to reject a purchaser (or purchasers) under
this Section shall be exercised only once and, upon its exercise, the Company
shall have no such further rights.
SECTION 6
MISCELLANEOUS
Section 6.01. NOTICES. All notices, requests and other
communications to any party hereunder shall be in writing (including telecopy)
and shall be given,
if to the Company, to:
Continental Airlines, Inc.
0000 Xxxxx Xxxxxxx
00
Xxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
with a copy to:
Morris, Nichols, Arsht & Xxxxxxx
0000 X. Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: X. Xxxxxxxxx Xxxxxx, III
if to the Parent, to:
Northwest Airlines Corporation
0000 Xxxxxxxxx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
if to the Stockholder, to:
Newbridge Parent Corporation
0000 Xxxxxxxxx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
or such address or telecopy number as such party may hereafter specify for the
purpose by notice to the other parties hereto. Each such notice, request or
other communication shall be effective
13
when delivered personally, telegraphed, or telecopies, or, if mailed, five
business days after the date of the mailing.
Section 6.02. AMENDMENTS; NO WAIVERS.
(a) Any provision of this Agreement may be amended or waived if, and
only if, such amendment or waiver has been approved pursuant to Section 2.02 and
is in writing and signed, in the case of an amendment, by the parties hereto, or
in the case of a waiver, by the party against whom the waiver is to be
effective.
(b) No failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 6.03. SUCCESSORS AND ASSIGNS. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
Section 6.04. GOVERNING LAW; CONSENT TO JURISDICTION. (a) This
Agreement shall be construed in accordance with and governed by the internal
laws of the State of Delaware.
(b) Any suit, action or proceeding seeking to enforce any provision
of, or based on any matter arising out of or in connection with, this Agreement
or the transactions contemplated hereby may be brought in any federal court
located in the State of Delaware or any Delaware state court, and each of the
parties hereby consents to the exclusive jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is being brought in any such court has been brought in an
inconvenient form. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 6.01 shall be deemed
effective service of process on such party.
Section 6.05. COUNTERPARTS; EFFECTIVENESS. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts thereof signed by the other party hereto.
Section 6.06. SPECIFIC PERFORMANCE. The parties hereto each
acknowledge and agree that the parties' respective remedies at law for a breach
or threatened breach of any of the provisions of this Agreement would be
inadequate and, in recognition of that fact, agrees that, in the event of a
breach or threatened breach by any of them of the provisions of this Agreement,
in addition to any remedies at law, the aggrieved party, without posting any
bond and without any
14
showing of irreparable injury shall be entitled to obtain equitable relief in
the form of specific performance, a temporary restraining order, a temporary or
permanent injunction or any other equitable remedy which may then be available.
Section 6.07. TERMINATION.
(a) If, prior to the Closing, the Investment Agreement shall have
been terminated or abandoned pursuant to Section 7.1 of the Investment
Agreement, this Agreement shall terminate.
(b) If, after Closing, the Stockholder and its Affiliates cease to
Beneficially Own Voting Securities representing at least 10% of the Fully
Diluted Voting Power, this Agreement shall terminate.
(c) If the sixth anniversary of the Closing shall have occurred and
this Agreement shall not have already been terminated pursuant to (a) or (b)
above, the parties' obligations under this Agreement shall terminate except the
obligations of the Stockholder and the Parent pursuant to Section 7.
Section 6.08. SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, provided that
the parties hereto shall negotiate in good faith to attempt to place the parties
in the same position as they would have been in had such provision not been held
to be invalid, void or unenforceable.
Section 6.09. NON-EXCLUSIVITY. No action or transaction taken in
accordance with the express provisions of, and as expressly permitted by, any
provision of this Agreement shall be treated as a breach of any other provision
of this Agreement, notwithstanding that such action or transaction shall not
have been expressly excepted from such latter provision.
XXXXXXX 0
XXXX-XXXXXXXXXX XXXXXXXXXXX DATE
BOARD COMPOSITION
Section 7.01. BOARD OF DIRECTORS COMPOSITION. From and after the
earlier of (i) the sixth anniversary of the Closing, and (ii) the date on which
all provisions of this Agreement terminate pursuant to Section 5, the
Stockholder shall take, and shall cause to be taken, such actions as are
necessary to cause the Board of Directors to include at least five directors who
are independent of and otherwise unaffiliated with the Parent or the Company and
shall not be an officer or an employee, consultant or advisor (financial, legal
or other) of the Parent or the Company or any of their respective Affiliates, or
any person who shall have served in such capacity within the three-year period
immediately preceding the date such determination is made.
Section 7.02. BOARD OF DIRECTORS POWER. Any material transaction
between the Company and the Parent, the Stockholder or any of their respective
Affiliates, or relating to this
15
Agreement or the Alliance Agreement, including without limitation, any
amendment, modification or waiver of any provision hereof or thereof, shall not
be taken without prior approval thereof by a majority vote of the Independent
Directors.
SECTION 8
CLOSING EVENTS
Section 8.01. AGREEMENTS. At Closing: (a) the Company shall enter
into an amendment to the Registration Rights Agreement with AP, which amendment
shall extend the benefits of such agreement, including "demand" registration
rights, to the Stockholder in respect of all shares of Voting Securities owned
directly or indirectly by the Stockholder and all shares of Company Class A
Common Stock and any other Voting Securities held by AP or distributed to the
partners of AP;
(b) The Parent and the Stockholder shall enter into the Voting Trust
Agreement; and
(c) The Company shall have adopted an "Eligible Rights Plan" and the
rights issued thereunder shall have been distributed to the holders of Voting
Securities. For purposes of this Section 8.01, an "Eligible Rights Plan" shall
mean a shareholder rights plan, with reasonably customary terms and conditions,
with an "acquiring person" threshold of 15%; PROVIDED that the definition of
acquiring person shall exclude the Stockholder and the Parent (a) prior to the
termination of the Parent's and the Stockholder's obligations hereunder (other
than their obligations pursuant to Section 7), if and to the extent they take
any action permitted by and in compliance with the terms of this Agreement and
(b) after the termination of the Parent's and the Stockholder's obligations
hereunder (other than their obligations pursuant to Section 7) with respect to
any and all transfers of Voting Securities owned by them in any manner. The
Company covenants and agrees that, so long as the Parent Beneficially Owns no
less than 15% of the Voting Securities, it shall not (a) amend an existing
Eligible Rights Plan so as to cause such plan not to constitute an Eligible
Rights Plan or (b) adopt a shareholder rights plan that is not an Eligible
Rights Plan.
SECTION 9
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
following meanings:
"Acquisition Proposal" means any offer or proposal for, or any
indication of interest in, a merger, consolidation or other business combination
involving a Person or any of its subsidiaries or the acquisition of any equity
interest in, or a substantial portion of the assets of, a Person or any of its
subsidiaries, other than the transactions contemplated by this Agreement.
"Affiliate" shall have the meaning set forth in Rule 12b-2 under the
Exchange Act (as in effect on the date of this Agreement).
"Alliance Agreement" shall have the meaning set forth in the recitals
hereto.
16
"Associate" shall have the meaning set forth in Rule 12b-2 under the
Exchange Act (as in effect on the date of this Agreement).
"Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to
any agreement, arrangement or understanding, whether or not in writing.
"Board of Directors" shall mean the board of directors of the Company.
Without limiting the foregoing, any Securities owned by the Voting Trust shall
be deemed to be Beneficially Owned by the Stockholder and the Parent.
"Closing" shall have the meaning specified in Section 2.01 of this
Agreement.
"Company Common Stock" shall mean Class A Common Stock, Class B Common
Stock or Class D Common Stock.
"Exchange Act" shall mean the Securities Exchange Act of 1934.
"Fully Diluted Voting Power" of any Person shall be calculated by
dividing (i) the sum of (A) ten times the aggregate number of shares of Company
Class A Common Stock beneficially owned by such Person (assuming exercise of the
Warrants, in the case of the Partnership, and exercise of any other outstanding
securities held by such Person that are convertible into or exercisable or
exchangeable for shares of Company Class A Common Stock) and (B) the number of
shares of Company Class B Common Stock beneficially owned by such Person
(assuming exercise of any outstanding securities held by such Person that are
convertible into or exercisable or exchangeable for shares of Company Class B
Common Stock) by (ii) the sum of (A) ten times the aggregate number of
outstanding shares of Company Class A Common Stock (assuming the exercise of all
outstanding securities convertible into or exercisable or exchangeable for
shares of Company Class A Common Stock) and (B) the aggregate number of
outstanding shares of Company Class B Common Stock (assuming the exercise of all
outstanding securities convertible into or exercisable or exchangeable for
shares of Company Class B Common Stock).
"Independent Director" shall mean any person listed on Exhibit 2.01 to
this Agreement, (ii) and any other person selected as an Independent Director in
accordance with Section 2.01(b) of this Agreement and (iii) any other person,
who is elected to the Board of Directors in an election of directors in respect
of which any Person other than the Company is soliciting proxies; PROVIDED that
any such other person so selected shall be independent of and otherwise
unaffiliated with the Parent or the Company (other than as an Independent
Director), and shall not be an officer or an employee, consultant or advisor
(financial, legal or other) of the Parent or the Company or any of their
respective Affiliates, or any person who shall have served in any such capacity
within the three-year period immediately preceding the date such determination
is made.
"Investment Agreement" shall have the meaning set forth in the
recitals hereto.
17
"Majority Vote" shall mean the affirmative vote of a majority of the
Board of Directors, including the affirmative vote of a majority of the
Independent Directors.
"Permitted Percentage" shall mean 50.1% of the Fully Diluted Voting
Power or such percentage as shall hereafter become the Permitted Percentage in
accordance with Section 1.01(d).
"Person" shall mean any individual partnership (limited or general),
joint venture, limited liability company, corporation, trust, business trust,
unincorporated organization, government or department or agency of a government.
"Standstill Termination Date" shall mean the earlier of (i) the sixth
anniversary of the Closing and (ii) the date on which the Stockholder and its
Affiliates cease to Beneficially Own Voting Securities representing at least 10%
of the Fully Diluted Voting Power.
"Stockholder Voting Power" at any time shall mean the aggregate voting
power in the general election of directors of all Voting Securities then
Beneficially Owned by the Stockholder and its Affiliates.
"Stock Purchase" shall have the meaning set forth in the recitals for
this Agreement.
"Subsidiary" shall mean, as to any Person, any Person at least a
majority of the shares of stock or other equity interests of which having
general voting power under ordinary circumstances to elect a majority of the
board of directors (or comparable governing body) thereof (irrespective of
whether or not at the time stock or equity of any other class or classes shall
have or might have voting power by reason of the happening of any contingency)
is, at the time as of which the determination is being made, owned by such
Person, or one or more of its Subsidiaries or by such Person and one or more of
its Subsidiaries.
"13D Group" shall mean any group of Persons acquiring, holding, voting
or disposing of Voting Securities which would be required under Section 13(d) of
the Exchange Act and the rules and regulations thereunder (as in effect, and
based on legal interpretations thereof existing, on the date hereof) to file a
statement on Schedule 13D with the Securities and Exchange Commission as a
"person" within the meaning of Section 13(d)(3) of the Exchange Act if such
group beneficially owned Voting Securities representing more than 5% of any
class of Voting Securities then outstanding.
"Total Voting Power" at any time shall mean the total combined voting
power in the general election of directors of all the Voting Securities then
outstanding.
"Transfer" shall mean any sale, exchange, transfer, pledge,
encumbrance or other disposition, and "to Transfer" shall mean to sell,
exchange, transfer, pledge, encumber or otherwise dispose of.
18
"Voting Securities" shall mean at any time shares of any class of
capital stock of the Company which are then entitled to vote generally in the
election of directors including, without limitation, the Class A Common Stock
and the Class B Common Stock.
"Voting Trust" shall have the meaning set forth in Section 1.03.
"Warrants" shall have the meaning set forth in the Investment
Agreement.
[Remainder of this page intentionally left blank]
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first referred to above.
NORTHWEST AIRLINES CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President, General
Counsel and Secretary
NEWBRIDGE PARENT CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President, Secretary
and Assistant Treasurer
CONTINENTAL AIRLINES, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President
EXHIBIT 2.01 TO GOVERNANCE AGREEMENT
Xxxxx X. Xxxxxxx, Xx.
Xxxxxxx X. XxXxxxxxxxxx
Xxxxxx X.X. Xxxxxx
Xxxxxxx X. Xxxxx
Xxxxx Xxxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxx
Xxxxxxx Xxxxx
EXHIBIT 2.03 TO GOVERNANCE AGREEMENT
(Significant Actions)
1. Any amendment to the certificate of incorporation or by-laws of
the Company.
2. Any reclassification, combination, split, subdivision,
redemption, purchase or other acquisition, directly or indirectly, of any debt
or equity security of the Company or any Subsidiary of the Company (other than
pursuant to existing stock option plans or agreements or by or on behalf of any
existing employee benefit plan of the Company).
3. Any sale, lease, transfer or other disposition (other than in the
ordinary course of business consistent with past practice), in one or more
related transactions, of the assets of the Company or any Subsidiary, the book
value of which assets exceeds 5% of the consolidated assets of the Company and
its Subsidiaries.
4. Any merger, consolidation, liquidation or dissolution of the
Company or any Subsidiary of the Company, other than any such merger or
consolidation of any Subsidiary of the Company with and into the Company or
another wholly-owned Subsidiary of the Company.
5. Any acquisition of any other business which would constitute a
"Significant Subsidiary" (as defined in Section 1.02 of Regulation S-X under the
Exchange Act) of the Company.
6. Any acquisition by the Company or any Subsidiary of the Company
of assets (not in the ordinary course of business consistent with past practice)
in one or more related transactions which assets have a value which exceeds 5%
of the consolidated assets of the Company and its Subsidiaries.
7. Any issuance or sale of any capital stock of the Company or any
Subsidiary of the Company, other than issuance of capital stock of the Company
authorized for issuance pursuant to stock plans or agreements in effect, or
securities issued and outstanding, at the date of Closing.
8. Any declaration or payment of any dividend or distribution with
respect to shares of the capital stock of the Company or any Subsidiary (other
than wholly-owned Subsidiaries of the Company).
9. Any incurrence, assumption or issuance by the Company or its
Subsidiaries of any indebtedness for money borrowed, not in the ordinary course
of business consistent with past practice, if, immediately after giving effect
thereto and the application of proceeds therefrom, the aggregate amount of such
indebtedness of the Company and its Subsidiaries would exceed $500 million.
10. Establishment of, or continued existence of, any committee of the
Board of Directors with the power to approve any of the foregoing.
11. The termination or election or appointment of executive officers
of the Company.
1
