EXHIBIT 10.11.7
THE WARRANT ISSUED PURSUANT TO THIS PARTICIPATION WARRANT AGREEMENT HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES
LAWS. IT MAY NOT BE SOLD OR OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT
SUCH REGISTRATION IS NOT REQUIRED TO EFFECTUATE SUCH TRANSACTION.
PARTICIPATION WARRANT AGREEMENT
To Purchase Shares of Common Stock
Dated as of November 17, 1999
XXXXXXXXX.XXX INCORPORATED
a Delaware Corporation
Issue Date: November 17, 1999
THIS CERTIFIES THAT, Delta Air Lines, Inc. (the "Warrant Holder"), with a
place of business at 0000 Xxxxx Xxxxxxxxx, Xxxxxxxxxx Xxxxxxx International
Airport, Xxxxxxx Xxxxxxx 00000, for value received, is entitled, upon the
terms and subject to the conditions of this Participation Warrant Agreement
(this "Warrant Agreement"), to subscribe for and purchase fully-paid and
non-assessable shares of common stock, par value $.008 per share (the
"Common Stock"), of xxxxxxxxx.xxx Incorporated, a Delaware corporation (the
"Company").
1. Issuance of Warrants. On the Issue Date, the Company will issue to
the Warrant Holder warrants (the "Warrants") to acquire Five Million Five
Hundred Thousand (5,500,000) shares of the Common Stock (the "Shares"),
subject to adjustment as hereinafter provided pursuant to Section 10
herein.
2. Exercise Price. The Warrants have an exercise price of $56.625 per
share of Common Stock, as adjusted pursuant to the provisions of Section 10
of this Warrant Agreement (the "Exercise Price").
3. Term. The Warrants are fully vested on the Issue Date. Except as
otherwise provided herein, the term of the Warrants and the right to
purchase Shares as granted herein shall be exercisable on the fifth (5th)
anniversary of the Issue Date; provided, further, that if any of the
Warrants first become exercisable on the fifth (5th) anniversary of the
Issue Date, the Warrant Holder will have an additional six months
thereafter to exercise its purchase rights in respect of those Warrants
(the end of such five year period and additional six months, if applicable,
being referred to herein as the "Termination Date").
4. Exercise Events.
(a) General. Unless otherwise exercisable at an earlier date, in
accordance with this Section 4, all of the Warrants shall be fully
exercisable commencing of the fifth anniversary of the Issue Date.
Notwithstanding any provision of Section 4(b) to the contrary, no Warrants
granted hereunder shall be exercisable prior to March 16, 2000.
(b) Early Exercise Rights.
(i) If, at any point during the period between November 17,
1999 and November 16, 2000 (the "First Measuring
Period"), the Company receives Net Revenue (as defined in
Section 4(c)) of at least $180 million (the "First
Measuring Period Net Revenue Benchmark") from tickets
sold during the First Measuring Period for travel on the
Warrant Holder, its subsidiaries and/or on the Warrant
Holder's code share partners using Warrant Holder's code
(collectively, "Warrant Holder and its Code Share
Partners"), the Warrant Holder will thereupon and
thereafter have the right to exercise Warrants, subject
to adjustment as provided in Section 10 hereof, equal to
50% of the Shares. In the event that the Company does not
achieve the First Measuring Period Net Revenue Benchmark
during the First Measuring Period, the Warrant Holder
will still be entitled to exercise Warrants, subject to
adjustment as provided in Section 10 hereof, equal to 50%
of the Shares upon the expiration of the First Measuring
Period and thereafter if, during the entire term of the
First Measuring Period, Warrant Holder does not
voluntarily participate in any name-your-price airline
ticket service other than the Company's and its
affiliates' airline ticket services.
(ii) In addition to Warrant Holder's early exercise rights
under Section 4(b)(i), if during the period between
January 1, 2000 and December 31, 2000 (the "Second
Measuring Period"), the Company receives Net Revenue (as
defined in Section 4(c)) of at least $80 million (the
"Second Measuring Period Net Revenue Benchmark") from
tickets sold during the Second Measuring Period for
travel on the Warrant Holder and its Code Share Partners,
the Warrant Holder will on January 1, 2001 and thereafter
have the right to exercise Warrants, subject to
adjustment as provided in Section 10 hereof, equal to
100% of the Shares.
(c) Net Revenue. As used in this Warrant Agreement, the term
"Net Revenue" shall mean the total ticket revenue received by the Company
from tickets sold for travel on the Warrant Holder and its Code Share
Partners, net of federal excise and segment taxes, passenger facility
charges and related fees. The parties acknowledge that credit card
processing fees, and any processing fees or similar fees charged by the
Company to the consumer in connection with the sale of a ticket shall not
be included in the calculation of Net Revenue. Attached hereto as Exhibit D
is an example of the calculation of Net Revenue.
5. Exercise of Purchase Rights.
(a) Subject to the provisions of Section 4 of this Warrant
Agreement, the purchase rights represented by this Warrant Agreement are
exercisable by the Warrant Holder, in whole or in part, at any time, or
from time to time during the period set forth in Section 3 above, by
tendering to the Company at its principal office a duly completed and
executed notice of exercise in the form attached hereto as Exhibit A (the
"Notice of Exercise"), the Warrants and the Exercise Price. Upon receipt of
such items, the Company shall issue to the Warrant Holder a certificate for
the number of shares of Common Stock purchased. The Warrant Holder, upon
exercise of the Warrants, shall be deemed to have become the holder of the
Shares represented thereby (and such Shares shall be deemed to have been
issued) immediately prior to the close of business on the date or dates
upon which the Warrants are exercised. In the event of any exercise of the
rights represented by the Warrants, certificates for the Shares so
purchased shall be delivered to the Warrant Holder or its designee as soon
as practical and in any event within ten (10) business days after receipt
of such notice and, unless the Warrants have been fully exercised or
expired, new Warrants representing the remaining portion of the Warrants
and the underlying Shares, if any, with respect to which this Warrant
Agreement shall not then have been exercised shall also be issued to the
Warrant Holder as soon as possible and in any event within such ten-day
period.
(b) Net Issue Exercise. Notwithstanding any provisions herein to
the contrary, if the fair market value of one share of the Company's Common
Stock is greater than the Exercise Price (at the date of calculation as set
forth below), in lieu of exercising the Warrants for cash, the Warrant
Holder may elect to receive shares of Common Stock equal to the value (as
determined below) of the Warrants (or portion thereof being exercised) by
surrender of the Participation Warrant Agreement at the principal office of
the Company together with the duly executed Notice of Exercise in which
event the Company shall issue to the Warrant Holder a number of shares of
Common Stock computed using the following formula: X=Y(A-B)/ A WHERE X= the
number of shares of Common Stock to be issued to the Warrant Holder; Y= the
number of shares of the Common Stock purchasable under the Warrants or, if
only a portion of the Warrants is being exercised, the portion of the
Warrants being exercised; A= the fair market value of one share of the
Company's Common Stock (at the date of such calculation); and B= Exercise
Price (at the date of such calculation). For purposes of this Section 5(b),
the calculations contemplated by this Section 5(b) shall be made as of the
close of business on the trading day immediately preceding the date of the
delivery of this Warrant Agreement and the related Notice of Exercise and
the fair market value of one share of the Common Stock shall be equal to
the sales price, regular way, as reported on Nasdaq or if no such reported
sale takes place, the average of the closing bid and asked prices, regular
way, as reported on Nasdaq or if no such bid or ask prices are reported,
the average of the bid and ask prices of a New York Stock Exchange member.
The Company shall deliver, or cause to be delivered, the shares of Common
Stock issuable upon a net issue exercise pursuant this Section 5(b) within
two business days of the surrender of this Warrant Agreement and related
Exercise Notice.
6. Reservation of Shares. The Company will at all times have
authorized and reserved a sufficient number of shares of Common Stock to
provide for the exercise of the rights to purchase the Shares as provided
in this Warrant Agreement. All of the Shares shall be duly authorized and,
when issued upon such exercise, shall be validly issued, fully paid and
nonassessable, and free and clear of all preemptive rights.
7. No Fractional Shares. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of the Warrant Holder's
rights to purchase the Shares.
8. No Rights as Shareholder. This Warrant Agreement does not entitle
the Warrant Holder to any voting rights or other rights as a shareholder of
the Company with respect to the underlying Shares prior to the exercise of
the Warrant Holder's rights to purchase the Shares as provided for herein.
9. Redemption. The Warrants represented by this Warrant Agreement are
not redeemable by the Company.
10. Adjustment Rights. The Exercise Price and the number of shares of
Common Stock purchasable hereunder are subject to adjustment from time to
time, as follows:
(a) Merger. If at any time there shall be a merger or
consolidation of the Company with or into another corporation when the
Company is not the surviving corporation, then, as part of such merger or
consolidation, lawful provision shall be made so that the holder of the
Warrants evidenced hereby shall thereafter be entitled to immediately
exercise the Warrants upon payment of the aggregate Exercise Price, the
number of shares of stock or other securities or property of the successor
corporation resulting from such merger or consolidation, to which a holder
of the stock deliverable upon exercise of the rights granted in this
Warrant Agreement would have been entitled in such merger or consolidation
if such rights had been exercised immediately before such merger or
consolidation. In any such case, appropriate adjustment shall be made in
the application of the provisions of this Warrant Agreement with respect to
the rights and interests of the holder after the merger or consolidation.
The Company will not effect any such merger or consolidation unless, prior
to the consummation thereof, the successor corporation shall assume, by
written instrument reasonably satisfactory in form and substance to the
Warrant Holder, the obligations of the Company under the Warrants and this
Warrant Agreement.
(b) Reclassification, Etc. If the Company at any time shall, by
subdivision, combination or reclassification of securities or otherwise,
change any of the securities as to which purchase rights under this Warrant
Agreement exist into the same or a different number of securities of any
other class or classes, this Warrant Agreement shall thereafter represent
the right to acquire such number and kind of securities as would have been
issuable as the result of such change with respect to the securities which
were subject to the purchase rights under this Warrant Agreement
immediately prior to such subdivision, combination, reclassification or
other change.
(c) Split, Subdivision or Combination of Shares. If the Company
at any time shall split or subdivide its Common Stock, the Exercise Price
shall be proportionately decreased and the number of Shares issuable
pursuant to this Warrant Agreement shall be proportionately increased. If
the Company at any time shall combine or reverse split its Common Stock,
the Exercise Price shall be proportionately increased and the number of
Shares issuable pursuant to this Warrant Agreement shall be proportionately
decreased.
(d) Stock Dividends. If the Company at any time shall pay a
dividend payable in Common Stock, then the Exercise Price shall be
adjusted, from and after the date of determination of stockholders entitled
to receive such dividend, to that price determined by multiplying the
Exercise Price in effect immediately prior to such date of determination by
a fraction (i) the numerator of which shall be the total number of shares
of Common Stock outstanding immediately prior to such dividend and (ii) the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately after such dividend. The Warrant Holder shall
thereafter be entitled to purchase, at the Exercise Price resulting from
such adjustment, the number of shares of Common Stock (calculated to the
nearest whole share) obtained by multiplying (i) the Exercise Price in
effect immediately prior to such adjustment by (ii) the number of shares of
Common Stock issuable upon the exercise hereof immediately prior to such
adjustment and dividing the product thereof by the Exercise Price resulting
from such adjustment.
(e) Other Changes. If any change in the outstanding Common Stock
of the Company or any other event occurs as to which the other provisions
of this Section 10 are not strictly applicable or if strictly applicable,
would not fairly protect the purchase rights of the Warrant Holder in
accordance with such provisions, then the Board of Directors of the Company
shall make an adjustment in the number of and class of shares available
under the Warrants, the Exercise Price or the application of such
provisions, so as to protect the purchase rights of the Warrant Holder. The
adjustment shall be such as will give the Warrant Holder upon exercise for
the same aggregate Exercise Price the total number, class and kind of
shares or other property as the Warrant Holder would have owned had the
Warrants been exercised prior to the event and had the Warrant Holder
continued to hold such shares until after the event requiring adjustment.
(f) Notice of Adjustments; Notices. Whenever the Exercise Price
or number of shares purchasable hereunder shall be adjusted pursuant to
Section 10 hereof, the Company shall issue a certificate signed by its
Chief Executive Officer or Chief Financial Officer setting forth, in
reasonable detail, the event requiring the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated and the
Exercise Price and number of shares purchasable hereunder after giving
effect to such adjustment, and shall cause a copy of such certificate to be
mailed (by first class mail, postage prepaid) to the holder of this
Warrant. The Company shall give written notice to the Warrant Holder at
least 10 days prior to the date on which the Company closes its books or
takes a record for determining rights to receive any dividends or
distributions. The Company shall also give written notice to the Warrant
Holder at least 30 business days prior to the date on which a merger or
consolidation of the Company with or into another corporation when the
Company is not the surviving corporation shall take place.
(g) No Change of Warrant Necessary. Irrespective of any
adjustment in the Exercise Price or in the number or kind of securities
issuable upon exercise of the Warrant, unless the Warrant Holder otherwise
requests, this Warrant Agreement may continue to express the same price and
number and kind of shares of Common Stock as are stated in this Warrant
Agreement as initially executed.
11. Representations and Warranties of the Warrant Holder.
The Warrant Holder hereby represents and warrants to the Company
as follows:
(a) Existence and Power. The Warrant Holder is a (i) is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and (ii) has the corporate
power and authority to execute, deliver and perform its obligations under
this Warrant Agreement.
(b) Authorization; No Contravention. The execution, delivery and
performance by the Warrant Holder of this Warrant Agreement and the
transactions contemplated hereby (i) have been duly authorized by all
necessary corporate action of the Warrant Holder and (ii) do not contravene
the terms of the Certificate of Incorporation or By-laws of the Warrant
Holder, each as amended as of and through the Issue Date.
(c) Governmental Authorization; Third Party Consents. No
approval, consent, compliance, exemption or authorization of any
governmental authority or agency, or of any other person or entity, is
necessary or required in connection with the execution, delivery or
performance by, or enforcement against, the Warrant Holder of this Warrant
Agreement or the transactions contemplated hereby.
(d) Binding Effect. This Warrant Agreement has been duly executed
and delivered by the Warrant Holder and constitutes the valid and binding
obligations of the Warrant Holder, enforceable against it in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability (regardless
of whether considered in a proceeding at law or in equity).
(e) Purchase for Own Account. The Warrants issued to the Warrant
Holder pursuant to this Warrant Agreement, and the Shares to be issued upon
vesting and exercise thereof, are being or will be acquired for the Warrant
Holder's own account and with no intention of distributing or reselling
such securities or any part thereof in any transaction that would be in
violation of the securities laws of the United States of America, or any
state.
(f) Restricted Securities. The Warrant Holder understands that
the Warrants and the Shares issuable upon vesting and exercise of the
Warrants, will not be registered at the time of their issuance under the
Securities Act for the reason that the sale provided for in this Agreement
is exempt pursuant to Section 4(2) of the Securities Act and that reliance
of the Company on such exemption is predicated in part on such Warrant
Holder's representations set forth herein. The Warrant Holder represents
that it is experienced in evaluating companies such as the Company, has
such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of its investment and has the
ability to suffer the total loss of the investment. The Warrant Holder
further represents that it has had the opportunity to ask questions of and
receive answers from the Company concerning the terms and conditions of the
Warrants, the business of the Company, and to obtain additional information
to such Warrant Holder's satisfaction.
(g) Accredited Investor. The Warrant Holder is an "Accredited
Investor" within the meaning of Rule 501 of Regulation D under the
Securities Act, as presently in effect.
12. Compliance with Securities Act; Transferability of Warrant or
Shares of Common Stock.
(a) Compliance with Securities Act. The Warrant Holder, by
acceptance hereof, agrees that the Warrants, and the shares of Common Stock
to be issued upon exercise of the Warrants, are being acquired for
investment and that such Warrant Holder will not offer, sell or otherwise
dispose of the Warrants, or any shares of Common Stock to be issued upon
exercise of the Warrants except under circumstances which will not result
in a violation of the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws. The Warrants and all shares
of Common Stock issued upon exercise of the Warrants (unless registered
under) the Securities Act and any applicable state securities laws) shall
be stamped or imprinted with a legend in substantially the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW. THEY MAY
NOT BE SOLD OR OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO UNDER SAID ACT AND
APPLICABLE STATE SECURITIES LAWS OR UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL THAT SUCH REGISTRATION IS NOT
REQUIRED TO EFFECTUATE SUCH TRANSACTION."
(b) Exchange, Transfer, Assignment. The Warrants cannot be
exchanged, transferred or assigned otherwise than in accordance with
applicable law. Upon compliance with applicable law and surrender of the
Warrants to the Company with the Assignment Form annexed hereto as Exhibit
B duly executed, and funds sufficient to pay any transfer tax, the Company
shall, without charge, execute and deliver a new Warrant Agreement in the
name of the heir, devisee or assignee named in such instrument of
assignment and this Warrant Agreement shall promptly be canceled. Subject
to the terms hereof, the Warrants may be assigned in whole or in part.
13. Registration Rights. Upon the parties' execution of this Warrant
Agreement and the Acknowledgment and Agreement to the Amended and Restated
Registration Rights Agreement attached hereto as Exhibit C, Warrant Holder
shall be made a party to that certain Amended and Restated Registration
Rights Agreement, dated as of December 8, 1998, by and among the Company,
the stockholders of the Company named therein and such other stockholders
and warrant holders of the Company made a party thereto. In addition,
within 30 days of the execution of this Warrant Agreement, the Company
agrees to enter into an agreement with Warrant Holder, in form and
substance reasonably satisfactory to Warrant Holder, which shall grant
Warrant Holder the right to transfer its registration rights pursuant to
such Amended and Restated Registration Rights Agreement dated as of
December 8, 1998 to any assignee or assignees of all or any part of this
Warrant or the Shares issuable upon exercise hereof, which assignees, upon
their execution and delivery of an Acknowledgment and Agreement to the
Amended and Restated Registration Rights Agreement substantially in the
form of Exhibit C hereto (with appropriate changes therein) shall each have
all the rights and obligations of a Demand Stockholder (as defined in such
Agreement) under such Agreement; provided that no registration statement
with respect to less than a minimum of 250,000 Shares shall be required to
be effected by the Company thereunder for the benefit of any such assignee.
14. Miscellaneous.
(a) No Consequential Damages. No party hereto shall be entitled
to consequential damages as a result of any breach of a covenant,
representation or warranty contained herein.
(b) Notices. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be
by registered or certified first-class mail, return receipt requested,
telecopier, courier service or personal delivery:
(i) if to the Company, to:
xxxxxxxxx.xxx Incorporated
Five Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
and to:
Skadden, Arps, Slate, Meagher, & Xxxx, L.L.P.
Xxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxx Xxxxx Chuff, Esq.
(ii) if to the Warrant Holder, to:
Delta Air Lines, Inc.
0000 Xxxxx Xxxxxxxxx
Xxxxxxxxx Xxxxxxx International Airport
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Executive Vice President -
Chief Financial Officer
and to:
Delta Air Lines, Inc.
0000 Xxxxx Xxxxxxxxx
Xxxxxxxxx Xxxxxxx International Airport
Telecopy: (000) 000-0000
Attention: Senior Vice President -
General Counsel
All such notices and communications shall be deemed to have been
duly given when delivered by hand, if personally delivered; when delivered
by courier, if delivered by commercial courier service; five (5) business
days after being deposited in the mail, postage prepaid, if mailed; and
when receipt is mechanically acknowledged, if telecopied.
(d) Successors and Assigns; Third Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the successors
and permitted assigns of the parties hereto. No person, other than the
parties hereto and their successors and permitted assigns, is intended to
be a beneficiary of this Agreement.
(e) Amendment and Waiver.
(i) No failure or delay on the part of the Company, or the
Warrant Holder in exercising any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The remedies
provided for herein are cumulative and are not exclusive of any remedies
that may be available to the Company and the Warrant Holder at law, in
equity or otherwise.
(ii) Any amendment, supplement or modification of or to any
provision of this Warrant Agreement, any waiver of any provision of this
Warrant Agreement, and any consent to any departure by the Company or the
Warrant Holder from the terms of any provision of this Agreement, shall be
effective only if it is made or given in writing and signed by the Company
and the Warrant Holder.
(f) Counterparts. This Warrant Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Warrant Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) GOVERNING LAW. THIS WARRANT AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW OF ANY JURISDICTION.
(i) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect
and of the remaining provisions hereof shall not be in any way impaired,
unless the provisions held invalid, illegal or unenforceable shall
substantially impair the benefits of the remaining provisions hereof.
(j) Entire Agreement. This Warrant Agreement, together with the
exhibits hereto is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. This Warrant Agreement, together with the exhibits
hereto, supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
(k) Publicity. Except as may be required by law, none of the
parties hereto shall issue a publicity release or public announcement or
otherwise make any disclosure concerning this Warrant Agreement or the
transactions contemplated hereby, without prior approval by the other party
(which approval shall not be unreasonably withheld); provided, however,
that nothing in this Warrant Agreement shall restrict the Warrant Holder
from disclosing information (a) that is already publicly available and (b)
to its attorneys, accountants, consultants and other advisors to the extent
necessary to obtain their services in connection with the Warrant Holder's
investment or participation in the Company. If any announcement is required
by law to be made by any party hereto concerning this Warrant Agreement or
the transactions contemplated hereby, prior to making such announcement
such party will deliver a draft of such announcement to the other parties
and shall give the other parties an opportunity to comment thereon.
(l) Charges; Taxes and Expenses. Issuance of certificates for
shares upon the exercise of the Warrants shall be made without charge to
the Warrant Holder for any issue or transfer tax or other incidental
expense in respect of the issuance of such certificates, all of which taxes
and expenses shall be paid by the Company.
(m) Saturdays, Sundays, Holidays, Etc. If the last or appointed
day for the taking of any action or the expiration of any right required or
granted herein shall be a Saturday, Sunday or a legal holiday, then such
action may be taken or such right may be exercised on the next succeeding
day not a Saturday, Sunday or a legal holiday.
(n) Lost Warrants. The Company covenants to the Warrant Holder
that, upon receipt of evidence reasonably satisfactory to the Company of
the loss, theft, destruction or mutilation of this Warrant Agreement and,
in the case of any such loss, theft or destruction, upon receipt of an
indemnity reasonably satisfactory to the Company, or in the case of any
such mutilation, upon surrender and cancellation of this Warrant Agreement,
the Company will make and deliver a new Warrant Agreement of like tenor, in
lieu of the lost, stolen, destroyed or mutilated document.
(o) Further Assurances. Each of the parties shall execute such
documents and perform such further acts (including, without limitation,
obtaining any consents, exemptions, authorizations or other actions by, or
giving any notices to, or making any filings with, any governmental
authority or any other person, and otherwise fulfilling, or causing the
fulfillment of, the various obligations made herein), as may be reasonably
required or desirable to carry out or to perform the provisions of this
Warrant Agreement and to consummate and make effective as promptly as
possible the transactions contemplated by this Warrant Agreement.
IN WITNESS WHEREOF, this Warrant Agreement has been duly executed and
delivered by the authorized officers of each of the undersigned.
XXXXXXXXX.XXX INCORPORATED
By:________________________________
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
DELTA AIR LINES, INC.
By:________________________________
Name:
Title:
EXHIBIT A
NOTICE OF EXERCISE
To: xxxxxxxxx.xxx Incorporated
1. The undersigned hereby elects to purchase __________ shares
of the Common Stock of xxxxxxxxx.xxx Incorporated pursuant to the terms of
the Participation Warrant Agreement, dated as of _________________, 1999,
by and between xxxxxxxxx.xxx Incorporated and the undersigned (the "Warrant
Agreement"), and tenders herewith payment of the purchase price of such
shares in full.
__ ___ The undersigned hereby elects to convert ___________
percent (____%) of the value of the Warrants pursuant to the provisions of
Section 5(b) of the Warrant Agreement.
2. Please issue a certificate or certificates representing said
shares in the name of the undersigned.
DELTA AIR LINES, INC.
By:________________________________
___________________________________
(Print Name of Signatory)
___________________________________
(Title of Signatory)
Date:_____________________
EXHIBIT B
ASSIGNMENT FORM
TO: xxxxxxxxx.xxx Incorporated
The undersigned hereby assigns and transfers unto _________________________
of ________________________________________________________________________
(Please typewrite or print in block letters)
the right to purchase ____________ shares of the common stock of
xxxxxxxxx.xxx Incorporated subject to the Participation Warrant Agreement,
dated as of ________________, 1999, by and between xxxxxxxxx.xxx
Incorporated and the undersigned (the "Warrant Agreement").
This assignment complies with the provisions of Section 12(b) of the
Warrant Agreement and is accompanied by funds sufficient to pay all
applicable transfer taxes.
DELTA AIR LINES, INC.
By:________________________________
___________________________________
(Print Name of Signatory)
___________________________________
(Title of Signatory)
Date:_____________________
EXHIBIT C
ACKNOWLEDGMENT AND AGREEMENT
TO THE AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
WHEREAS, pursuant to a Participation Warrant Agreement, the
undersigned received a warrant to purchase 5,500,000 shares of common
stock, par value $.008 per share (the "Shares"), of xxxxxxxxx.xxx
Incorporated, a Delaware corporation (the "Company"); and
WHEREAS, the undersigned wishes to receive certain registration
rights with respect to such Shares; and
WHEREAS, the undersigned has reviewed a copy of that certain Amended
and Restated Registration Rights Agreement, dated as of December 8, 1998
(the "Agreement"), among the Company, General Atlantic Partners 48, L.P.,
GAP Coinvestment Partners, L.P., General Atlantic Partners 50, L.P. and the
stockholders named therein and has been given a copy of the Agreement and
afforded ample opportunity to read and to have counsel review it, and the
undersigned is thoroughly familiar with its terms.
NOW, THEREFORE, in consideration of the mutual premises contained
herein and in the Agreement and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the
undersigned hereby acknowledges and agrees that (i) the undersigned has
been given a copy of the Agreement and afforded ample opportunity to read
and to have counsel review it, and the undersigned is thoroughly familiar
with its terms, (ii) the Shares are subject to terms and conditions set
forth in the Agreement, (iii) the undersigned does hereby agree fully to be
bound by the Agreement as a "Demand Stockholder" (as therein defined), and
upon the execution and delivery of this Acknowledgment and Agreement by the
Company, the undersigned shall have all the rights and obligations under
the Agreement as a Demand Stockholder, and (iv) the undersigned does hereby
name _________________to serve as their representative under the Agreement.
This 17th day of November, 1999.
Acknowledged and agreed:
XXXXXXXXX.XXX INCORPORATED DELTA AIR LINES, INC.
By: ______________________________ By: _____________________________
Name: Xxxx X. Xxxxxxx Name:
Title: Chief Financial Officer Title:
INDEPENDENT AUDITORS' REPORT
To the Board of Directors and Stockholders of xxxxxxxxx.xxx Incorporated
We have audited the accompanying balance sheets of xxxxxxxxx.xxx
Incorporated (the "Company") as of December 31, 1999 and 1998, and the
related statements of operations, changes in stockholders' equity, and cash
flows for the years ended December 31, 1999 and 1998 and the period July
18, 1997 (inception) to December 31, 1997. These financial statements are
the responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted
auditing standards. Those standards require that we plan and perform the
audit to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test
basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used
and significant estimates made by management, as well as evaluating the
overall financial statement presentation. We believe that our audits
provide a reasonable basis for our opinion.
In our opinion, such financial statements present fairly, in all
material respects, the financial position of the Company as of December 31,
1999 and 1998, and the results of its operations and its cash flows for the
years ended December 31, 1999 and 1998 and the period July 18, 1997
(inception) to December 31, 1997 in conformity with generally accepted
accounting principles.
/s/ Deloitte & Touche LLP
Stamford, Connecticut
January 27, 2000
(March 17, 2000 as to Note 15)
