Exhibit 10.3
COMMON STOCK REPURCHASE AGREEMENT dated as of September 29, 1997
between NORTHWEST AIRLINES CORPORATION, a Delaware corporation ("NWA CORP."),
and KONINKLIJKE LUCHTVAART MAATSCHAPPIJ N.V., a Netherlands corporation ("KLM").
W I T N E S S E T H :
WHEREAS, on the date hereof, KLM owns 21,684,099 shares (the "CURRENT
SHARES") of NWA Corp.'s Class A Common Stock, par value $.01 per share (the
"CLASS A COMMON STOCK", and together with NWA Corp.'s Class B Common Stock, par
value $.01 per share (the "CLASS B COMMON STOCK"), the "COMMON STOCK"), and in
accordance with the provisions set forth in the Amendment to the Stockholders'
Agreement (as hereinafter defined) will exercise its right to purchase, pursuant
to Section 17 of the Stockholders' Agreement (as hereinafter defined), 3,293,775
additional shares of Class A Common Stock, which will increase to 24,977,874 the
aggregate number of shares of Common Stock owned by KLM; and
WHEREAS, upon the terms and subject to the conditions set forth
herein, KLM wishes to sell to NWA Corp., and NWA Corp. wishes to purchase from
KLM, all 24,977,874 of such Shares according to the schedule set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINED TERMS. Terms not otherwise defined herein shall have the
following meanings:
"AFFILIATE" when used with respect to another Person, means any Person
who is, whether directly or indirectly, through one or more intermediaries,
controlling, controlled by or under common control with such Person.
"AGREEMENT" means this Common Stock Repurchase Agreement, as amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
"ALLIANCE IMPLEMENTATION AGREEMENT" means a definitive agreement with
respect to commercial cooperation that is entered into by KLM and Northwest
Airlines, Inc. at the Initial Closing.
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"AMENDMENT TO THE STOCKHOLDERS' AGREEMENT" means the agreement in the
form of Exhibit A hereto which amends the Stockholders' Agreement and
provides for (i) the acceleration of the vesting of the KLM Option (as
defined in the Stockholders' Agreement) in respect of shares of Class A
Common Stock subject to such option that are held by Xxxx and BTNY, and the
exercise by KLM of such KLM Option with respect to such shares and the
purchase of such shares concurrently with the Initial Closing Date, (ii)
the termination of the KLM Option with respect to the other Option
Stockholders and the termination of the Put Option (as each such term is
defined in the Stockholders' Agreement) with respect to all of the Option
Stockholders and (iii) immediately following the consummation of the
transactions contemplated by this Agreement on the Initial Closing Date,
the termination of all of KLM's other rights and obligations under the
Stockholders' Agreement.
"ANCILLARY AGREEMENTS" means the Preferred Stock Agreement, the
Amendment to the Stockholders' Agreement and the Standstill Agreement.
"BENEFICIALLY OWN" has the meaning given such term in Rule 13d-3 under
the Exchange Act, as in effect on the date hereof. As used herein, the
phrases "BENEFICIAL OWNERSHIP" and "BENEFICIAL OWNER" have correlative
meanings.
"XXXX" means Xxxxxxx X. Xxxx Associates - NWA Partners, L.P.
"BOARD OF DIRECTORS" means the board of directors of NWA Corp. or any
successor corporation.
"BTNY" means Bankers Trust New York Corporation.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or other
day on which banks are required or authorized by law to be closed in
Amsterdam, The Netherlands, in New York, New York or in Minneapolis,
Minnesota.
"CASH" means Dollars paid in immediately available funds.
"CHANGE OF CONTROL" means the acquisition by any Person or group
(within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange
Act, or any successor provision), including any group acting for the
purpose of acquiring, holding or disposing of securities (within the
meaning of Rule 13d-5(b)(1) under the Exchange Act), in a single
transaction or in a related series of transactions, of 50% or more of the
combined voting power of the outstanding shares of Common Stock (assuming
conversion of Class B Common Stock into Class A Common Stock if, and to the
extent, the Class B Common Stock is freely convertible into Class A Common
Stock by the holder thereof), NWA Corp.'s Series C Preferred Stock, par
value $.01 per share (the "SERIES C PREFERRED STOCK"), and any other equity
securities then outstanding and entitled to vote with the Common Stock.
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"CLOSING DATE" means each of the Initial Closing Date, the Second
Closing Date, the Third Closing Date and the Fourth Closing Date. If any
Closing Date falls on a date that is not a Business Day, such Closing Date
shall occur on the next succeeding Business Day.
"CONTROL TRANSACTION" means any of the following, but no other
transaction or event: (i) the closing of a tender offer subject to Section
14(d)(1) of the Exchange Act for shares of Class A Common Stock (or any
other class of capital stock of NWA Corp.) or a registered exchange offer
made pursuant to an effective registration statement for shares of Class A
Common Stock (or any other class of capital stock of NWA Corp.) which
results in 50% or more of the combined voting power of the outstanding
shares of Common Stock (assuming conversion of Class B Common Stock into
Class A Common Stock if, and to the extent, the Class B Common Stock is
freely convertible into Class A Common Stock by the holder thereof), Series
C Preferred Stock, and any other equity securities then outstanding and
entitled to vote with the Common Stock being held by the Person or group
(within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange
Act, or any successor provision) making such tender or exchange offer, (ii)
the closing of any merger or consolidation that results in a Change of
Control, or (iii) the closing of any transaction in which NWA Corp. or
Northwest Airlines, Inc. directly or indirectly sells all or substantially
all of its business, property or assets; PROVIDED, in order to constitute a
Control Transaction any such transaction must be consummated prior to June
30, 1999. For purposes of calculating the "Transactional Value Per Share"
pursuant to Section 2.2 in connection with a Control Transaction, such
Control Transaction shall be deemed to include all transactions that are
part of a series of related transactions that comprise such Control
Transaction (e.g., a tender offer or exchange offer followed by a back-end
merger shall be considered as a single Control Transaction comprised of two
related transactions), PROVIDED, that, for purposes of Section 2.2, such
Control Transaction shall be deemed to have been consummated upon the
consummation of the particular transaction with respect to which the
applicable criteria as described above are first satisfied.
"CREDIT AGREEMENT" means the Credit Agreement dated as of December 15,
1995 and as amended and restated as of October 16, 1996 among NWA Corp.,
NWA, Inc., Northwest Airlines, Inc., ABN Amro Bank N.W., as Compliance
Agent, Bankers Trust Company, as Administrative Agent, Chase Securities
Inc., as Syndication Agent, Citibank, N.A., as Documentation Agent,
National Westminster Bank PLC and First Bank National Association, as
Agents, and various lending institutions parties thereto, as amended,
supplemented or otherwise modified from time to time in accordance with its
terms and any extensions, refinancings or replacements thereof.
"DOLLARS" and "$" mean lawful currency of the United States of
America.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
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"LIEN" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), other charge or
security interest; or any preference, priority or other arrangement or
preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention agreement
having substantially the same economic effect as any of the foregoing).
"PENDING SUITS" means collectively the suits captioned KLM ROYAL DUTCH
AIRLINES X. XXXXXXX, ET AL., Civ. Act. No. 14764 (Del. Ch.), and KLM ROYAL
DUTCH AIRLINES X. XXXXXXX, ET AL., Index No. 95/600037 (Sup. Ct. N.Y. Co.).
"PER SHARE PRICE" means the price specified as such in Section 2.1(a),
(b), (c) or (d) for the related Closing Date, as the same may be adjusted
pursuant to Section 2.1(e).
"PERSON" means an individual, partnership, limited liability company,
corporation, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority or other entity of
whatever nature.
"PREFERRED STOCK AGREEMENT" means the Preferred Stock Repurchase
Agreement dated as of September 29, 1997 between KLM and NWA Corp., entered
into concurrently with this Agreement and in the form of Exhibit B hereto.
"SERIES A PREFERRED" means NWA Corp.'s Series A Preferred Stock, par
value $.01 per share.
"SERIES B PREFERRED" means NWA Corp.'s Series B Preferred Stock, par
value $.01 per share.
A "SHARE" means, as of the date hereof, one share of Class A Common
Stock and thereafter shall consist of such share and/or any cash,
securities or other property into which such share (or such cash,
securities or other property) shall have been converted into, exchanged for
or acquired for (whether by means of an exchange offer, liquidation, tender
offer, consolidation, merger, combination, reclassification,
recapitalization, stock split, reverse stock split, stock dividend or
otherwise), and any and all amounts paid in respect of such shares or other
cash, securities or other property, as the case may be, or which such
shares or other cash, securities or other property are otherwise entitled
to receive (whether by means of a dividend, distribution, interest payment
or otherwise), in any event net of any applicable U.S. withholding taxes
payable in respect thereof. In the event any cash is received at any time
or from time to time in respect of a Share, such share shall also be deemed
to include interest earned on such cash received at the rate per annum
equal to the average of the offered rates for Dollar deposits having a
maturity of three months that appear on the display designated as Page 3750
on the Telerate System Incorporated Service (or such other page as may
replace such page on such service for the purpose of displaying
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the rates at which Dollar deposits are offered by leading banks in the
London interbank deposit market) at approximately 11:00 a.m., London time,
on the date such cash is initially received (and which rate is reset every
three months thereafter), compounded quarterly, in any event net of any
applicable U.S. withholding taxes payable in respect thereof.
"STANDSTILL AGREEMENT" means an agreement in the form of Exhibit C to
be entered into by KLM and NWA Corp. at the Initial Closing Date.
"STOCKHOLDERS' AGREEMENT" means the Second Amended and Restated
Investor Stockholders' Agreement dated as of December 23, 1993, as amended,
supplemented or otherwise modified from time to time, among NWA Corp., KLM
and certain other stockholders of NWA Corp. parties thereto, as in effect
on the date hereof.
"SUPERVISORY BOARD OF KLM" means the supervisory board of KLM or any
successor corporation.
ARTICLE II
DELIVERY AND PURCHASE OF SHARES
2.1 PURCHASE AND SALE OF SHARES. (a) INITIAL CLOSING. On the terms
and subject to the conditions of this Agreement, on September 29, 1997 (or such
earlier date after the date of this Agreement as the parties shall agree, or
such later date as is provided by Section 5.1(a)(v), the "INITIAL CLOSING
DATE"), KLM agrees to transfer, assign and deliver to NWA Corp., against payment
by NWA Corp. to KLM of $273,118,695.20 in immediately available funds
(reflecting a Per Share Price of $40.164514), a certificate or certificates
representing 6,800,000 shares of Class A Common Stock, and NWA Corp. agrees to
purchase such shares and make such payment to KLM against delivery of such
certificates on such Initial Closing Date. Such certificates shall be duly
endorsed in blank or accompanied by stock powers duly executed in blank, with
all necessary stock transfer stamps affixed.
(b) SECOND CLOSING. On the terms and subject to the conditions of
this Agreement, on September 29, 1998 (the "SECOND CLOSING DATE") KLM agrees to
transfer, assign and deliver to NWA Corp., against payment by NWA Corp. to KLM
of $210,051,362.50 in immediately available funds, 4,900,000 Shares (reflecting
a Per Share Price of $42.867625), comprised of (i) a certificate or certificates
representing the Common Stock or other securities included within such Shares,
and (ii) any and all cash or other property, if any, included within such
Shares, and NWA Corp. agrees to purchase the Common Stock and/or other property
comprising such Shares and make such payment to KLM against delivery of the
certificates and/or other property comprising such Shares on the Second Closing
Date. Any certificates included in such Shares shall be duly endorsed in blank
or accompanied by stock powers duly executed in blank, with all necessary stock
transfer stamps affixed.
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(c) THIRD CLOSING. On the terms and subject to the conditions of this
Agreement, on September 29, 1999 (the "THIRD CLOSING DATE") KLM agrees to
transfer, assign and deliver to NWA Corp., against payment by NWA Corp. to KLM
of $147,439,727.98 in immediately available funds, 3,222,539 Shares (reflecting
a Per Share Price of $45.752659), comprised of (i) a certificate or certificates
representing the Common Stock or other securities included within such Shares,
and (ii) any and all cash or other property, if any, included within such
Shares, and NWA Corp. agrees to purchase the Common Stock and/or other property
comprising such Shares and make such payment to KLM against delivery of the
certificates and/or other property comprising such Shares on the Third Closing
Date. Any certificates included in such Shares shall be duly endorsed in blank
or accompanied by stock powers duly executed in blank, with all necessary stock
transfer stamps affixed.
(d) FOURTH CLOSING. On the terms and subject to the conditions of
this Agreement, on September 29, 2000 (the "FOURTH CLOSING DATE") KLM agrees to
transfer, assign and deliver to NWA Corp., against payment by NWA Corp. to KLM
of $491,020,690.86 in immediately available funds, 10,055,335 Shares (reflecting
a Per Share Price of $48.831858), comprised of (i) a certificate or certificates
representing the Common Stock or other securities included within such Shares,
and (ii) any and all cash or other property, if any, included within such
Shares, and NWA Corp. agrees to purchase the Common Stock and/or other property
comprising such Shares and make such payment to KLM against delivery of the
certificates and/or other property comprising such Shares on the Fourth Closing
Date. Any certificates included in such Shares shall be duly endorsed in blank
or accompanied by stock powers duly executed in blank, with all necessary stock
transfer stamps affixed.
(e) CHANGE IN CLOSING DATE AND ACCRETION ADJUSTMENT. If the Initial
Closing Date occurs on a date other than September 29, 1997, the Second Closing
Date, Third Closing Date and Fourth Closing Date will be changed to the
respective dates that are on the first anniversary, second anniversary and third
anniversary, respectively, of the Initial Closing Date. The date of such
Closing Dates are also subject to deferral or acceleration as expressly provided
in this Agreement. In the event any Closing Date occurs other than on the
particular applicable date specified in paragraphs (a), (b), (c) or (d) above
for any reason (including without limitation Section 2.1(g) but other than as
provided in Section 2.2), the applicable purchase price will be higher or lower
than the amount indicated based on a 5% per annum accretion factor; PROVIDED,
HOWEVER, that in the event a subsequent Closing Date is deferred because the
condition set forth in Section 5.2(a)(ii) is not satisfied, the accretion factor
during the period of such deferral will be 13% per annum.
(f) CLOSINGS. The closing of the purchase and sale contemplated by
Section 2.1(a) will take place at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx at
10:00 a.m. New York City time on the Initial Closing Date. The closing of the
purchases and sales contemplated by Sections 2.1(b), (c) and (d) of this
Agreement will take place by means of the requisite deliveries and payments
being made by the parties on the relevant Closing Dates.
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(g) ACCELERATION OPTION. (i) NWA Corp. shall have the option, at
any time and from time to time after the Initial Closing Date and on prior
written notice to KLM, to accelerate, either in whole or in part in the manner
specified in the next sentence, the purchase of Shares that would otherwise
occur on subsequent Closing Dates so that the accelerated purchase will occur on
a date (the "ACCELERATION DATE") specified in such notice (such date to be at
least 30 days after the date the notice is provided to KLM), at which date the
purchase and sale of the Shares whose purchase and sale is being accelerated as
designated in the notice referred to above shall be effected at the applicable
Per Share Prices specified in Section 2.1, as adjusted in accordance with
Section 2.1(e). If NWA Corp. elects to accelerate pursuant to this Section
2.1(g) the purchase of only part of the Shares remaining to be purchased, it may
do so only by accelerating the purchase of all of the Shares scheduled to be
purchased on the Third Closing Date and (if the Second Closing Date has not yet
occurred) the Second Closing Date, in which event the Fourth Closing Date will
be accelerated to occur one year after the Acceleration Date. Following any
such acceleration option, the provisions of Sections 2.2 and 2.3 shall continue
in effect as though no accelerated purchase and sale had occurred, as follows:
(a) To the extent an adjustment would otherwise be required pursuant
to Section 2.2 with respect to Shares whose purchase has already occurred
on an accelerated basis pursuant to this Section 2.1(g), on the date (the
"TRANSACTION ACCELERATED DATE") to which such subsequent Closing Date would
have otherwise been accelerated pursuant to Section 2.2(e) or consideration
would otherwise be received by KLM pursuant to Section 2.2(f), NWA Corp.
will make a payment to KLM equal to the product of (A) the number of Shares
whose purchase would have otherwise been accelerated to the Transaction
Accelerated Date but for an earlier acceleration pursuant to Section
2.1(g), times (B) the excess, if any, of (x) the Transactional Value Per
Share over (y) the regularly scheduled Per Share Price at which such Shares
would have been purchased pursuant to Section 2.1(a) through (d) at the
regularly scheduled subsequent Closing Date without giving effect to such
acceleration.
(b) To the extent an adjustment would otherwise be required pursuant
to Section 2.3 with respect to Shares whose purchase has already occurred
on an accelerated basis pursuant to this Section 2.1(g), on the regularly
scheduled subsequent Closing Date on which the higher purchase price would
have otherwise been payable pursuant to Section 2.3, NWA Corp. will make a
payment to KLM equal to the product of (A) the number of Shares previously
purchased on an accelerated basis pursuant to Section 2.1(g) whose purchase
price would have otherwise been increased pursuant to Section 2.3, times
(B) the excess, if any, of the higher weighted average price that would
otherwise apply pursuant to Section 2.3 over the regularly scheduled Per
Share Price at which such Shares would have been purchased pursuant to
Section 2.1(a) through (d) at the regularly scheduled subsequent Closing
Date without giving effect to such acceleration.
(ii) Notwithstanding the foregoing, NWA Corp. may not accelerate any
purchase of Shares pursuant to this Section 2.1(g) if (a) the condition set
forth in Section
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5.2(b)(ii)(A) has not been satisfied, or (b) Northwest Airlines, Inc.'s right to
terminate the Alliance Termination Agreement because of the imposition of
restrictions at Schiphol Airport, as set forth in the letter agreement dated as
of September 29, 1997 between Northwest Airlines, Inc. and KLM (the "HUB
RESTRICTIONS LETTER"), has not either expired by the passage of time or been
waived by Northwest Airlines, Inc.
(iii) NWA Corp. shall indemnify and hold harmless KLM, on an
after-tax basis, from any taxes imposed under the laws of The Netherlands in
respect of a payment made to KLM pursuant to Section 2.1(g)(i)(a) or (b) which
would not have been imposed had the purchase and sale of Shares not been
accelerated pursuant to this Section 2.1(g) and had the provisions of Section
2.2 or 2.3, as applicable, applied pursuant to their terms. KLM will seek
indemnity under this Section 2.1(g)(iii) only after attempting in good faith and
failing to achieve the same consequences under the tax laws of The Netherlands
for a payment made to KLM pursuant to Section 2.1(g)(i)(a) or (b) as the tax
consequences that apply to consideration received by KLM under Section 2.2 or
2.3.
2.2 EFFECT OF CONTROL TRANSACTION. (a) NWA Corp. will notify KLM as
promptly as practicable of the pendency of any transaction that is reasonably
likely to constitute a Control Transaction; PROVIDED, that NWA Corp. shall not
be obligated to so notify KLM prior to such transaction having been publicly
announced (except as otherwise specifically provided for in the Standstill
Agreement). Additionally, upon the consummation of a Control Transaction, NWA
Corp. will on the date of such consummation notify KLM thereof.
(b) In connection with any Control Transaction consummated prior to
June 30, 1999, there shall be a determination of the Transactional Value Per
Share. The "TRANSACTIONAL VALUE PER SHARE" is the weighted average
consideration to be received in respect of each Share transferred or sold in, or
otherwise receiving a distribution in connection with, such Control Transaction,
valued, (i) in the case of cash, at the face amount thereof, (ii) in the case of
securities registered under the Exchange Act and as to which there is a
previously established public trading market, (A) if such security is listed on
the New York Stock Exchange or American Stock Exchange, the average of the
closing price during the ten trading days immediately prior to the date of
consummation thereof or (B) if such security is included in the NASDAQ National
Market System, the weighted average price at which all trades of such securities
are reported on the NASDAQ National Market System during the ten trading days
immediately prior to the date of consummation thereof, (iii) in the case of
securities as to which there is a previously established public trading market
on a non-U.S. exchange or automated quotation system, the average of the closing
price (if quoted in a foreign currency, converted into Dollars at the then-
prevailing market Dollar exchange rate) during the ten trading days immediately
prior to the date of consummation thereof, and (iv) in the case of other
securities or property, at the fair market value thereof established in
accordance with Section 2.2(c) as of the date of consummation thereof.
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(c) NWA Corp. and KLM will attempt to agree on the value of securities
or other property described in clause (iii) of paragraph (b) above. If they
cannot reach agreement within 15 days after the definitive terms of the Control
Transaction have been publicly announced or, if earlier, 15 days after notice to
KLM, NWA Corp. and KLM will each promptly engage an investment banking firm to
perform valuations of such securities or other property and to attempt to agree
on their value. If such firms are unable to agree on a valuation within 10 days
after they have both been so engaged, such firms shall promptly jointly select a
third nationally recognized investment banking firm to perform its own valuation
of such securities or other property, which valuation shall be determinative.
(d) If any such Transactional Value Per Share (as finally determined
in accordance with this Section 2.2) is higher than the Per Share Price
otherwise payable on Closing Dates scheduled to occur after the consummation of
such Control Transaction, the obligations of the parties under Section 2.1 with
respect to the Shares to be purchased on each such subsequent Closing Date will
be adjusted in accordance with the following provisions.
(e) Subject to the provisions in Sections 2.2(f) and (g) below, if a
Control Transaction is consummated in which the related Transactional Value Per
Share is higher than the Per Share Price for any subsequent Closing Date, then
each such Closing Date that has a lower Per Share Price will be accelerated to
occur on, or as promptly as practicable after, the date of consummation of such
transaction, and the per share purchase price to be paid in Cash for each Share
whose purchase and sale is being so accelerated will be equal to the
Transactional Value Per Share. The obligations of the parties with respect to
any Closing Date scheduled to occur after such consummation date whose Per Share
Price is equal to or greater than the Transactional Value Per Share will remain
unchanged. NWA Corp. shall notify KLM as promptly as practicable of each date,
if any, on which the accelerated payment of the purchase price for Shares will
be made hereunder and its good faith estimate of the related Transactional Value
Per Share (the "ACCELERATION NOTICE"), but in no event later than 20 days prior
to the date of payment.
(f) Notwithstanding the provisions in Section 2.2(e), the effect of
the following Control Transactions in which the related Transactional Value Per
Share is higher than the Per Share Price for any subsequent Closing Date shall
be as follows: (i) if such Control Transaction involves a cash tender offer for
any and all shares of Common Stock, NWA Corp. may elect (which election may be
made as part of the Acceleration Notice and in any event shall be made as
promptly as practicable prior to the consummation of such tender offer, but in
no event later than 20 days prior to the date of payment) to direct KLM to
tender the Shares whose purchase and sale would otherwise be accelerated
hereunder into such tender offer and, upon the consummation date of such tender
offer and the payment for each Share at the Transactional Value Per Share, the
obligations of the parties to purchase and sell Shares on such subsequent
Closing Date or Dates that involve such lesser Per Share Price will be deemed to
have been discharged and no accelerated purchase and sale between the parties
will occur; (ii) if such Control Transaction consists of a merger or
consolidation transaction where all of the outstanding shares of Common Stock
are to be converted into the right to receive cash, upon the consummation of
such Control Transaction and the payment for each Share at the
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Transactional Value Per Share, the obligations of the parties to purchase and
sell Shares on such subsequent Closing Date or Dates at such lesser Per Share
Price will be deemed to have been discharged and no accelerated purchase and
sale between the parties will occur; and (iii) subject to the provisions in
Section 2.2(g), if such Control Transaction involves a transaction where part of
the transaction consideration consists of securities or other property, NWA
Corp. may elect (which election may be made as part of the Acceleration Notice
and in any event shall be made as promptly as practicable prior to the
accelerated purchase date on which NWA Corp. would otherwise be required to
purchase the affected Shares pursuant to Section 2.2(e) above, but in no event
later than 20 days prior to the date of consummation) to have KLM, upon the
consummation of such Control Transaction, receive and retain the transaction
consideration that is to be paid in respect of such affected Shares and upon the
payment for each of the Shares at the Transactional Value Per Share and the
obligations of the parties to purchase and sell such affected Shares on such
subsequent Closing Date or Dates at such lesser Per Share Price will be deemed
to have been discharged and no accelerated purchase and sale between the parties
will occur. Absent such election by NWA Corp., the provisions of Section 2.2(e)
shall apply.
(g) Notwithstanding the provisions in Section 2.2(f)(iii), if (i) the
Per Share Price for any subsequent Closing Date is less than the Transactional
Value Per Share for a Control Transaction and (ii) NWA Corp. makes the election
provided for in Section 2.2(f)(iii), then KLM, upon written notice delivered to
NWA Corp. within 10 days after NWA Corp. has provided notice of such election to
KLM, may waive KLM's right to receive and retain the higher Transactional Value
Per Share at the time and in the form provided in Section 2.2(f)(iii) and, in
lieu thereof, KLM will receive the Per Share Price for the affected Shares at
the times and in the amounts scheduled under Section 2.1 for each remaining
Closing Date, without regard to any higher Transactional Value Per Share.
2.3 EFFECT OF CERTAIN ISSUANCES OF COMMON STOCK. If within one year
after the Initial Closing Date NWA Corp. issues new shares of common stock in
one or more primary offerings for cash at a weighted average offering price in
excess of any of the respective Per Share Prices set forth in Section 2.1, then
the purchase price for each Share being purchased on each such subsequent
Closing Date will be increased to such higher weighted average price; PROVIDED,
there will be no adjustments to any subsequent purchase price for Shares
pursuant to this Section 2.3 if the aggregate number of shares of common stock
offered in such primary offerings during such one-year period is less than
6,550,851 shares (as appropriately adjusted in respect of stock splits,
subdivisions and combinations); PROVIDED, FURTHER, that for purposes of this
Section 2.3, the issuance of Common Stock upon the exercise of employee stock
options shall not constitute a primary offering.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF KLM. KLM represents and
warrants to NWA Corp. as of the date hereof and as of the Initial Closing Date
as follows:
(a) KLM is a corporation duly organized and validly existing under the
laws of The Netherlands.
(b) KLM has all requisite corporate power and authority to execute and
deliver this Agreement and the Ancillary Agreements and to perform its
obligations hereunder and thereunder. The execution and delivery by KLM of
this Agreement and the Ancillary Agreements and the performance of the
transactions herein and therein contemplated to be performed by KLM have
been duly authorized by the Supervisory Board of KLM and no further
corporate action on the part of KLM is necessary to authorize this
Agreement or the Ancillary Agreements and the performance of such
transactions. Each of this Agreement and the Ancillary Agreements has been
duly executed and delivered by KLM and, assuming due authorization,
execution and delivery by NWA Corp., constitutes the legal, valid and
binding agreement of KLM, enforceable against KLM in accordance with its
terms, except as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and general equitable principles (whether
considered in a proceeding at law or in equity).
(c) Neither the execution and delivery of this Agreement or the
Ancillary Agreements or the performance by KLM of the transactions
contemplated hereby or thereby will (i) violate or conflict with any of the
provisions of the charter or other organizational documents of KLM, (ii)
with or without the giving of notice or the lapse of time or both, violate
or constitute a default under, or result in the acceleration of or entitle
any party to accelerate (whether after the giving of notice or lapse of
time or both) any obligation under any mortgage, indenture, deed of trust,
lease, contract, agreement, license or other instrument or any provision of
any law, order, judgment, decree, restriction or ruling of any governmental
authority to which KLM is a party or by which any of its property is bound
or (iii) result in the creation of any liens, encumbrances, equities or
claims upon any of the Shares currently owned by it or to be acquired by it
upon exercise of the KLM Option, other than pursuant to this Agreement.
(d) No consent, approval, authorization or order of, or filing or
registration with, any court or governmental agency or body or any other
Person is required for the execution, delivery and performance by KLM of
this Agreement or the Ancillary Agreements and the consummation of the
transactions contemplated hereby and thereby.
12
(e) There are no lawsuits, actions, arbitrations or legal or
administrative or regulatory proceedings, charges, complaints or
investigations pending or, to the best knowledge of KLM, threatened against
KLM, and KLM is not a party to, or subject to or bound by, any order,
judgment, injunction, stipulation, award or decree (whether rendered by a
court or administrative agency or by arbitration), in any such case, which
could, individually or in the aggregate, materially adversely affect the
ability of KLM to consummate the transactions contemplated hereby and by
the Ancillary Agreements.
(f) KLM has, and on the Initial Closing Date and each subsequent
Closing Date KLM will have, good and valid title to the Shares to be
purchased by NWA Corp. at such Initial Closing or subsequent Closing Date,
as the case may be, free and clear of all Liens, except any Liens created
pursuant to the terms of this Agreement.
(g) KLM is the record and beneficial owner on the date hereof of
21,684,099 shares of Common Stock, 1,308.8 shares of Series A Preferred and
436.2 shares of Series B Preferred, and upon exercise of the KLM Option
pursuant to the Amendment to the Stockholders' Agreement, KLM will be the
record and beneficial owner of 3,293,775 additional shares of Common Stock.
KLM does not own of record or beneficially or otherwise have the right to
acquire any other shares of any series of common or preferred capital stock
of NWA Corp., other than pursuant to the Stockholders' Agreement.
(h) Neither KLM nor any of its officers, directors, employees or
agents has authorized any Person to act as a broker, finder or in any
similar capacity on behalf of KLM in connection with the transactions
contemplated by this Agreement or the Ancillary Agreements.
3.2 REPRESENTATIONS AND WARRANTIES OF NWA CORP. NWA Corp. represents
and warrants to KLM as of the date hereof and as of the Initial Closing Date as
follows:
(a) NWA Corp. is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(b) NWA Corp. has all requisite corporate power and authority to
execute and deliver this Agreement and the Ancillary Agreements and to
perform its obligations hereunder and thereunder, subject to the absence of
a determination by the Board of Directors in accordance with Section
5.2(a)(ii) that the purchase of Shares on each subsequent Closing Date
would involve an impairment of capital under applicable law. The execution
and delivery by NWA Corp. of this Agreement and the Ancillary Agreements
and the performance of the transactions herein and therein contemplated to
be performed by NWA Corp. have been duly authorized by the Board of
Directors of NWA Corp. and no further corporate action on the part of NWA
Corp. is necessary to authorize this Agreement or the Ancillary Agreements
and the performance of such transactions, subject to Section 5.2(a)(ii).
Each of this Agreement and the Ancillary Agreements has been duly executed
and delivered by NWA Corp. and, assuming due
13
authorization, execution and delivery by KLM, constitutes the legal, valid
and binding agreement of NWA Corp., enforceable against NWA Corp. in
accordance with its terms, except as affected by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding at law or in equity),
subject to Section 5.2(a)(ii).
(c) Neither the execution and delivery of this Agreement and the
Ancillary Agreements or the performance by NWA Corp. of the transactions
contemplated hereby or thereby will (i) violate or conflict with any of the
provisions of the charter or other organizational documents of NWA Corp. or
(ii) with or without the giving of notice or the lapse of time or both,
violate or constitute a default under, or result in the acceleration of or
entitle any party to accelerate (whether after the giving of notice or
lapse of time or both) any obligation under any mortgage, indenture, deed
of trust, lease, contract, agreement, license or other instrument or any
provision of any law, order, judgment, decree, restriction or ruling of any
governmental authority to which NWA Corp. is a party or by which any of its
property is bound.
(d) No consent, approval, authorization or order of, or filing or
registration with, any court or governmental agency or body or any other
Person is required for the execution, delivery and performance by NWA Corp.
of this Agreement or the Ancillary Agreements and the consummation of the
transactions contemplated hereby and thereby.
(e) There are no lawsuits, actions, arbitrations or legal or
administrative or regulatory proceedings, charges, complaints or
investigations pending or, to the best knowledge of NWA Corp., threatened
against NWA Corp., and NWA Corp. is not a party to, or subject to or bound
by, any order, judgment, injunction, stipulation, award or decree (whether
rendered by a court or administrative agency or by arbitration), in any
such case, which could, individually or in the aggregate, materially
adversely affect the ability of NWA Corp. to consummate the transactions
contemplated hereby and by the Ancillary Agreements.
(f) Neither NWA Corp. nor any of its officers, directors, employees or
agents has authorized any Person to act as a broker, finder or in any
similar capacity on behalf of NWA Corp. in connection with the transactions
contemplated by this Agreement or the Ancillary Agreements.
(g) Performance by the parties of the transactions referred to herein
or contemplated hereby (including KLM's exercise pursuant to Section 17 of
the Stockholders' Agreement of its right to purchase 3,293,775 additional
shares of Class A Common Stock, and the purchase of such shares) will not
cause KLM to become an "Acquiring Person" for purposes of, and as such term
is defined in, the Rights Agreement of NWA Corp. dated as of November 16,
1995, as amended (the "RIGHTS AGREEMENT").
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(h) The "capital" of NWA Corp. is not "impaired" and will not become
"impaired" as a result of the purchase of the Shares from KLM by NWA Corp.
on the Initial Closing Date, within the meaning of Section 160(a) (1) of
the Delaware General Corporation Law, as amended (the "DGCL"). The
"capital" of NWA Corp. would not become "impaired", within the meaning of
Section 160(a) (1) of the DGCL, in the event the obligations of NWA Corp.
to purchase Shares under this Agreement were accelerated and NWA Corp.
purchased all 24,977,874 shares of Common Stock owned by KLM at the
applicable purchase prices specified in Section 2.1 on the date hereof,
after giving effect to (and assuming consummation of) the transactions
contemplated by the Preferred Stock Agreement, the BTNY Preferred Stock
Repurchase Agreement, dated as of September 29, 1997 (the "BTNY PREFERRED
STOCK AGREEMENT", between NWA Corp. and BTNY, and the Xxxx Preferred Stock
Repurchase Agreement, dated as of September 29, 1997 (the "XXXX PREFERRED
STOCK AGREEMENT"), between NWA Corp. and Xxxx.
ARTICLE IV
COVENANTS
4.1 NO TRANSFERS, LIENS. (a) KLM hereby unconditionally and
irrevocably agrees that it will not sell, transfer, or assign, or enter into any
equity swap or similar arrangement with respect to, any Shares subject to
purchase by NWA Corp. under this Agreement; PROVIDED, HOWEVER, that the
foregoing shall not apply to Shares that are no longer subject to purchase by
NWA Corp. under this Agreement by reason of early termination or otherwise. KLM
will not create, incur, assume or suffer to exist any Lien on any of the Shares,
including any proceeds or profits therefrom, except as provided in paragraph (b)
below or Liens otherwise created pursuant to this Agreement.
(b) In the event that KLM notifies NWA Corp. of its desire to assign
or pledge to a financial institution, as security for a borrowing proposed to be
made by KLM, any or all of the proceeds to be received from NWA Corp. on any
subsequent Closing Date from the sale of Shares, then KLM and NWA Corp. will
negotiate in good faith with regard to the establishment of mutually acceptable
arrangements whereby the Shares will be placed in escrow with an escrow agent
pending their sale to NWA Corp., and such financial institution will receive a
pledge of KLM's right to receive cash paid by NWA Corp. into such escrow for
Shares on a Closing Date as provided herein. Such assignment and pledge of
proceeds may not be made by KLM until NWA Corp. and KLM have executed and
delivered to each other a mutually acceptable escrow agreement and the Shares
are deposited in escrow with the escrow agent thereunder. This paragraph is
intended to provide a means for KLM to assign or pledge the proceeds to be paid
to KLM upon the sale of Shares pursuant to this Agreement. Under no
circumstances will KLM be permitted to create, incur, assume or suffer to exist
any Lien upon Shares themselves, and such escrow arrangements may not otherwise
affect NWA Corp.'s rights or obligations under this Agreement.
15
4.2 LEGENDS. In furtherance of the agreements contained in Sections
2.1 and 4.1, KLM hereby agrees that the certificate or certificates representing
the Shares beneficially owned by it shall bear the following legend:
THE SHARES [DESCRIBE ANY OTHER SECURITIES] REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO THE PROVISIONS OF THE COMMON STOCK
REPURCHASE AGREEMENT DATED AS OF SEPTEMBER 29, 1997 (THE "AGREEMENT")
BETWEEN NORTHWEST AIRLINES CORPORATION (THE "CORPORATION") AND
KONINKLIJKE LUCHTVAART MAATSCHAPPIJ N.V. ("KLM"), WHICH PROVIDES THAT
(I) THE SHARES [SECURITIES] ARE SUBJECT TO REPURCHASE BY THE
CORPORATION AND (II) KLM IS PROHIBITED FROM TRANSFERRING, SELLING,
ASSIGNING, EXCHANGING, MORTGAGING, PLEDGING, HYPOTHECATING OR
OTHERWISE DISPOSING OF THESE SHARES [SECURITIES] EXCEPT TO THE
CORPORATION. IN ADDITION, UNDER CERTAIN CIRCUMSTANCES SET FORTH IN THE
AGREEMENT, THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE
AUTOMATICALLY CONVERTED, WITHOUT ANY ACTION ON THE PART OF KLM, FROM
SHARES OF CLASS A COMMON STOCK INTO SHARES OF CLASS B COMMON STOCK. A
COPY OF THE AGREEMENT IS ON FILE AND AVAILABLE FOR INSPECTION AT THE
PRINCIPAL OFFICES OF THE CORPORATION.
KLM agrees that, concurrently with the execution and delivery of this Agreement
and from time to time as subsequently may be required, it will cooperate with
NWA Corp. in arranging for the replacement of the existing legends with the
foregoing legend on all of the certificates representing the Shares beneficially
owned by KLM. Notwithstanding the foregoing, NWA Corp. agrees to the removal of
the foregoing legend from any Shares which will no longer be subject to this
Agreement (such removal to be effected on or as promptly as practicable after
the date such Shares will no longer be subject to this Agreement), including as
a result of any termination of this Agreement.
4.3 GOVERNANCE AND OTHER AGREEMENTS. Effective upon consummation of
the transactions contemplated by this Agreement on the Initial Closing Date but
subject to the Standstill Agreement, all of KLM's rights and obligations under
the Stockholders' Agreement and any and all other corporate governance rights
involving NWA Corp., including without limitation the agreement (the "BOARD
AGREEMENT") dated as of December 23, 1993 with respect to the designation by KLM
of members of the Board of Directors, will be terminated. Notwithstanding the
foregoing but subject to the Standstill Agreement, KLM will retain the right to
vote with respect to all of the Shares prior to the purchase and sale of such
Shares on a related Closing Date.
4.4 CONSENT OF SERIES A PREFERRED AND SERIES B PREFERRED. KLM
reaffirms its previously delivered consent, delivered in its capacity as a
holder of Series A Preferred and
16
Series B Preferred, to the repurchase by NWA Corp. of Common Stock, including
pursuant to this Agreement. NWA Corp. agrees to solicit from the other holder
of Series B Preferred its irrevocable consent to the repurchases of Common Stock
contemplated hereby.
4.5 ANTITRUST IMMUNITY AND EUROPEAN COMMUNITY CONDITIONS. Each of KLM
and NWA Corp. hereby agrees to use commercially reasonable efforts to achieve
the satisfaction of the condition set forth in Section 5.2(b)(ii) hereto.
4.6 NO STOCK SPLITS, ETC. Prior to the Initial Closing Date, NWA
Corp. will not subdivide, combine or otherwise reclassify its Common Stock, or
declare or pay any dividend in respect of its Common Stock. After the Initial
Closing Date and until the termination or expiration of this Agreement, (a) NWA
Corp. shall not engage in any of the following transactions unless the Board of
Directors shall have determined reasonably and in good faith, in accordance with
applicable provisions of corporation law, that after giving effect to such
transactions and all related transactions being effected in connection
therewith, and assuming the remaining unfulfilled obligations of NWA Corp. to
purchase Shares under this Agreement were accelerated and NWA Corp. purchased
such Shares at the applicable purchase prices in Section 2.1 on the date of such
determination, the capital of NWA Corp. would not be "impaired" within the
meaning of Section 160(a)(1) of the DGCL: (i) subdivide, combine or otherwise
reclassify its Common Stock; (ii) declare or pay any dividend or make or pay any
other distribution in respect of its Common Stock; (iii) redeem or repurchase
any of its capital stock (other than pursuant to this Agreement, the Preferred
Stock Agreement, the BTNY Preferred Stock Agreement, and the Xxxx Preferred
Stock Agreement); (iv) directly or indirectly capitalize any surplus; (v) make
any change in the par value of its common stock; or (vi) engage in, or permit
any of its subsidiaries to engage in, any merger, consolidation,
recapitalization, liquidation or other business combination transaction; and (b)
NWA Corp. shall not enter into any agreements containing, or amend any agreement
to include, covenants or other provisions that directly or indirectly prohibit
NWA Corp. from purchasing Shares under this Agreement.
4.7 DISMISSAL OF PENDING SUITS. KLM consents and agrees to the
dismissal with prejudice of all of its claims against all of the other parties
in the Pending Suits, effective on the purchase of the Shares on the Initial
Closing Date, and, at the Initial Closing Date, KLM will file a stipulation of
dismissal in each of the Pending Suits, dismissing all such claims with
prejudice and providing that each party will bear its own costs, including
attorney's fees.
4.8 RELEASE. Each party hereto fully and forever releases and
discharges, effective on the purchase of the Shares on the Initial Closing Date,
the other party hereto and its present and former directors and officers,
predecessors, successors, subsidiaries, parents, affiliates, agents, servants,
employees, attorneys, representatives and assigns from all actions, causes of
actions, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions, claims, and
demands whatsoever, in law, admiralty or equity, whether known or unknown
("CLAIMS"), that such party ever had, now has or
17
hereafter can, shall or may have, for, upon, or by reason of any matter, cause
or thing whatsoever from the beginning of the world to the date hereof, relating
to, or arising out of in any way (i) the Shareholders' Rights Plan adopted by
the Board of Directors on November 16, 1995, (ii) the Rights Agreement, (iii)
the Board Agreement, (iv) the November 18, 1993 resolution of the Board of
Directors, (v) the Stockholders' Agreement (which shall not include the
Amendment to the Stockholders' Agreement), (vi) KLM's status as a stockholder of
NWA Corp. and (vii) any other claim or allegation that either party did assert
or could have asserted in connection with clauses (i) through (vi) of this
Section 4.8 in the Pending Suits, but not any Claims relating to or arising out
of this Agreement or any of the transactions contemplated hereby.
ARTICLE V
CONDITIONS PRECEDENT
5.1 CONDITIONS TO INITIAL CLOSING. (a) The obligations of NWA Corp.
to effect the Initial Closing shall be subject to the satisfaction (or waiver by
NWA Corp.) of the following conditions:
(i) REPRESENTATIONS AND WARRANTIES AND PERFORMANCE. The
representations and warranties of KLM contained herein and in the Ancillary
Agreements shall have been true and correct in all material respects when
made and in addition shall be true and correct in all material respects at
and as of the Initial Closing Date with the same effect as though made at
and as of the Initial Closing Date. KLM shall have performed in all
material respects all obligations and shall have complied in all material
respects with all covenants and other agreements required by this Agreement
and each Ancillary Agreement to be performed or complied with by KLM at or
prior to the Initial Closing Date.
(ii) OFFICER'S CERTIFICATE. NWA Corp. shall have received
an executed certificate, dated the Initial Closing Date, of the President
of KLM to the effect set forth in Section 5.1(a)(i) hereto.
(iii) NO INJUNCTIONS, ETC. No injunction or temporary
restraining order shall have been issued and remain in force which
restrains, prohibits or invalidates the transactions contemplated by this
Agreement or any Ancillary Agreement.
(iv) ANCILLARY AGREEMENTS. KLM shall have executed and
delivered to NWA Corp. or Northwest Airlines, Inc., as applicable, the
Ancillary Agreements.
(v) ALLIANCE IMPLEMENTATION AGREEMENT. KLM and NWA Corp.
shall conclude, after appropriate consultation with the DOT, that the
effectiveness of the Alliance Implementation Agreement does not require
the prior approval of the DOT and the Alliance Implementation Agreement
shall have been executed and delivered by
18
KLM and Northwest Airlines, Inc. (concurrently with or prior to the
execution and delivery of this Agreement) and become effective in
accordance with its terms, or if such approval is required, such approval
shall have been obtained and the Alliance Implementation Agreement shall
have been executed and delivered by KLM and Northwest Airlines, Inc.
(concurrently with or prior to the execution and delivery of this
Agreement) and become effective in accordance with its terms.
(vi) REQUIRED FINANCIAL INSTITUTION CONSENTS. The financial
institutions party to the Credit Agreement shall have executed and
delivered to NWA Corp. any and all required consents to the execution,
delivery and performance by NWA Corp. of this Agreement.
(vii) CONSENT OF SERIES B PREFERRED. The holders of all
outstanding shares of Series B Preferred shall have provided their
irrevocable consent to the transactions contemplated by this Agreement, the
Preferred Stock Agreement, the Xxxx Preferred Stock Agreement or the BTNY
Preferred Stock Agreement.
(viii) PREFERRED STOCK PURCHASE. The closing under the
Preferred Stock Agreement shall occur concurrently with the closing of the
transactions contemplated hereby on the Initial Closing Date.
(ix) RELEASE. NWA Corp. shall have received evidence that
KLM, on the one hand, and each of BTNY, Xxxxxx X. Xxxxxxx, Xxxx X. Xxxxxx,
Xxxxxxxx X. Xxxxx, Xxxxxxx X. Xxxx, Xxxxxx X. Xxxxxxx, Xxxx X. Xxxxxxx,
Xxxxxx X. Xxxxx, Xxxxx X. Xxxxxx, Xxxxxx Xxxx, Xxxxxx X. Xxxxxxxx, V. A.
Ravindran, Blum, the A Trust created pursuant to a trust agreement dated
May 23, 1984 with Xxxx X. Xxxxxx as trustee, the K Trust created pursuant
to a trust agreement dated May 23, 1984 with Xxxx X. Xxxxxx as trustee, the
Trust created pursuant to a trust agreement dated September 1, 1985 with
Xxxx X. Xxxxxx as trustee, Xxxxx X. Xxxxxx, Xxxxxxxxxxx X. Xxxxxx, Xxxxxxxx
X. Xxxxx, Xxxxxxxx X. Xxxxx and the Xxxxxx-Xxxxxxxxx Foundation created
under Trust Agreement dated December 24, 1994 with Xxxx X. Xxxxxx as
trustee, on the other hand (such parties, the "NON-KLM PARTIES"), shall
have delivered to one another a release in the same form as and
substantially similar to the release between KLM and NWA Corp. pursuant to
Section 4.8.
(b) The obligations of KLM to effect the purchase of Shares on the
Initial Closing Date shall be subject to the satisfaction (or waiver by KLM) of
the following conditions:
(i) REPRESENTATIONS AND WARRANTIES AND PERFORMANCE. The
representations and warranties of NWA Corp. contained herein and in the
Ancillary Agreements shall have been true and correct in all material
respects when made and in addition shall be true and correct in all
material respects at and as of the Initial Closing Date with the same
effect as though made at and as of the Initial Closing Date. NWA Corp.
shall have performed in all material respects all obligations and shall
have complied in all
19
material respects with all covenants and other agreements required by this
Agreement and each Ancillary Agreement to be performed or complied with by
NWA Corp. at or prior to the Initial Closing Date.
(ii) OFFICER'S CERTIFICATE. KLM shall have received an
executed certificate, dated the Initial Closing Date, of the President of
NWA Corp. to the effect set forth in Section 5.1(b)(i) hereto.
(iii) NO INJUNCTIONS, ETC. No injunction or temporary
restraining order shall have been issued and remain in force which
restrains, prohibits or invalidates the transactions contemplated by this
Agreement or any Ancillary Agreement.
(iv) ALLIANCE IMPLEMENTATION AGREEMENT. KLM and NWA Corp.
shall conclude, after appropriate consultation with the DOT, that the
effectiveness of the Alliance Implementation Agreement does not require the
prior approval of the DOT and the Alliance Implementation Agreement shall
have been executed and delivered by KLM and Northwest Airlines, Inc.
(concurrently with or prior to the execution and delivery of this
Agreement) and become effective in accordance with its terms, or if such
approval is required, such approval shall have been obtained and the
Alliance Implementation Agreement shall have been executed and delivered by
KLM and Northwest Airlines, Inc. (concurrently with or prior to the
execution and delivery of this Agreement) and become effective in
accordance with its terms.
(v) PREFERRED STOCK PURCHASE. The closing under the Preferred
Stock Agreement shall occur concurrently with the consummation of the
transactions contemplated hereby on the Initial Closing Date.
(vi) REQUIRED FINANCIAL INSTITUTION CONSENTS. The financial
institutions party to the Credit Agreement shall have executed and
delivered to NWA Corp. any and all required consents to the execution,
delivery and performance by NWA Corp. of this Agreement.
(vii) CONSENT OF SERIES B PREFERRED. The holders of all
outstanding shares of Series B Preferred shall have provided their
irrevocable consent to the transactions contemplated by this Agreement, the
Preferred Stock Agreement, the Xxxx Preferred Stock Agreement or the BTNY
Preferred Stock Agreement.
(viii) ANCILLARY AGREEMENTS. NWA Corp. and all other parties
thereto (other than KLM) shall have executed and delivered to KLM the
Ancillary Agreements.
(ix) RELEASE. The Non-KLM Parties shall have executed and
delivered to KLM a release in the same form as and substantially similar
to the release between KLM and NWA Corp. pursuant to Section 4.8.
20
5.2 CONDITIONS TO SUBSEQUENT CLOSING DATES. (a) The obligations of
NWA Corp. to make the payment called for at a particular subsequent Closing Date
shall be subject to the satisfaction (or waiver by NWA Corp.) of the following
conditions:
(i) NO INJUNCTIONS, ETC. No injunction or temporary
restraining order shall have been issued and remain in force which
restrains, prohibits or invalidates the closing at such subsequent
Closing Date.
(ii) NO CAPITAL IMPAIRMENT. The Board of Directors shall not
have determined reasonably and in good faith, in accordance with applicable
provisions of corporation law, that the capital of NWA Corp. is impaired on
such subsequent Closing Date or would otherwise be impaired as a result of
the payment by NWA Corp. for the requisite Shares on such subsequent
Closing Date within the meaning of the DGCL; PROVIDED, HOWEVER, that NWA
Corp. shall purchase the maximum number of the Shares due to be purchased
at such subsequent Closing Date as specified in Section 2.1 which can be
purchased at the applicable Per Share Price provided in Section 2.1 without
impairing its capital; PROVIDED, FURTHER, that in making any such
determination as to a capital impairment, the Board of Directors shall,
consistent with its fiduciary duties, (a) employ the same methods employed
by it at the September 4, 1997 meeting of the Board of Directors (the
"SEPTEMBER 4 MEETING") with respect to the transactions contemplated by
this Agreement, including engaging an independent financial advisor that
regularly engages in rendering opinions to boards of directors concerning
the types of issues which typically arise in the report of Xxxxxxxx Xxxxx
Xxxxxx & Xxxxx referenced below, who shall provide a similar written
presentation and opinion to the Board of Directors, and employ similar
analyses and methodologies, as those provided and employed by Xxxxxxxx
Xxxxx Xxxxxx & Xxxxx in its report delivered at the September 4 Meeting,
and (b) receive such other presentations, opinions, analyses and use
methodologies as such financial advisor or the Board of Directors shall
then deem reasonably appropriate. NWA Corp. shall provide to KLM copies of
the relevant minutes of the Board of Directors' meetings and the written
presentations and opinions of such financial advisor(s) which relate to
each such subsequent determination as to capital impairment for purposes of
subsequent Closing Dates.
(iii) GOOD AND VALID TITLE. KLM shall have and deliver to
NWA Corp. good and valid title to all of the property comprising the Shares
to be purchased by NWA Corp. at such subsequent Closing Date and any later
Closing Date, free and clear of any Liens.
(b) The obligations of KLM to effect the purchase of Shares on a
particular subsequent Closing Date shall be subject to the satisfaction (or
waiver by KLM) of the following conditions:
(i) NO INJUNCTIONS, ETC. No injunction or temporary
restraining order shall have been issued and remain in force which
restrains, prohibits or invalidates the closing at such subsequent
Closing Date.
21
(ii) ANTITRUST APPROVALS. In the case of the Third Closing
Date and the Fourth Closing Date, (A) the antitrust immunity presently
granted to the Northwest/KLM commercial alliance by the U.S. Department of
Transportation pursuant to Order 93-1-11 shall have been renewed or
otherwise maintained or such antitrust immunity shall have been renewed
and/or modified on terms as favorable in all material respects as the terms
of the antitrust immunity granted to (1) the United-Lufthansa commercial
alliance by the U.S. Department of Transportation pursuant to Order 96-5-27
and (2) the Delta/Swissair/Austrian/Sabena commercial alliance by the U.S.
Department of Transportation pursuant to Order 96-6-33 and (B) the European
Commission shall not have imposed conditions on the Northwest/KLM
commercial alliance equivalent to the conditions proposed with respect to
the pending commercial alliance between British Airways and American
Airlines, the terms of which were reported in the media on or about August
and/or September of 1997 prior to the date hereof such that KLM's and
Northwest Airlines, Inc.'s abilities to operate as contemplated in the
Alliance Implementation Agreement shall have been materially adversely
affected, PROVIDED that, if this condition remains unsatisfied by the 180th
day after the scheduled Third Closing Date or Fourth Closing Date, as the
case may be, KLM shall be required to either (x) waive this condition with
respect to the applicable Closing Date or (y) terminate this Agreement, but
only with respect to the obligations of the parties for the Third Closing
Date and the Fourth Closing Date or the Fourth Closing Date, as the case
may be, pursuant to Section 7.1(b) (assuming in the case of clause (y) that
KLM is not otherwise in material breach of this Agreement and the sole
remaining unsatisfied condition to KLM's obligations hereunder is contained
in this Section 5.2(b)(ii) (except for any injunction or temporary
restraining order referred to in Section 5.2(b)(i) that relates to the same
antitrust immunity or conditions of the European Commission that cause the
condition of this Section 5.2(b)(ii) to remain unsatisfied)).
(iii) HUB RESTRICTIONS. In the case of the Third Closing Date
and the Fourth Closing Date, Northwest Airlines, Inc. shall not have
exercised its right under the Hub Restrictions Letter to terminate the
Alliance Implementation Agreement because of the imposition of restrictions
at Schiphol Airport; PROVIDED, that if this condition remains unsatisfied
by the 30th day after delivery to KLM by Northwest Airlines, Inc. pursuant
to the Hub Restrictions Letter of its written notice of termination of the
Alliance Implementation Agreement, KLM shall be required to either (x)
waive this condition with respect to the Third Closing Date and the Fourth
Closing Date or (y) terminate this Agreement, but only with respect to the
obligations of the parties for the Third Closing Date and the Fourth
Closing Date pursuant to Section 7.1(b) (assuming in the case of clause (y)
that KLM is not otherwise in material breach of this Agreement).
(c) If KLM has delivered to Northwest Airlines, Inc. a notice under
Section 1.04(b) of the Alliance Implementation Agreement of a Material Default
on the part of Northwest Airlines, Inc. (as such term is used in such
Agreement), the parties' obligations to effect the purchase and sale of Shares
on a particular subsequent Closing Date may, at the sole
22
option of KLM, be deferred pending either (i) Northwest Airlines, Inc.'s cure of
such Material Default or (ii) a determination by the arbitrator(s) appointed
pursuant to Section 9.08 of the Alliance Implementation Agreement that no such
Material Default exists. Immediately upon the occurrence of either of the
events specified in the preceding clauses (i) or (ii), the parties shall be
obligated to effect the purchase and sale of Shares which had been deferred by
reason of this Section 5.2(c). If such arbitrator(s) make a determination that
a Material Default on the part of Northwest Airlines, Inc. exists but KLM does
not thereafter give notice of termination of the Alliance Implementation
Agreement within the three-month period specified in Section 1.04 of such
Alliance Implementation Agreement, then immediately upon the expiration of such
three-month period, the parties shall be obligated to effect the purchase and
sale of Shares which had been deferred by reason of this Section 5.2(c).
ARTICLE VI
WITHHOLDING TAXES
6.1 UNITED STATES FEDERAL WITHHOLDING TAXES. (a) NWA Corp. hereby
agrees that it will not deduct or withhold any United States federal income
taxes that may be imposed under Sections 881(a) and 1442 of the Internal Revenue
Code of 1986, as amended (the "CODE") (or any similar successor provisions)
("UNITED STATES WITHHOLDING TAXES") from any payments made by NWA Corp. to KLM
in respect of the Shares.
(b) Except to the extent provided in Section 6.1(c) below, NWA Corp.
hereby agrees to indemnify and hold harmless KLM from and against any United
States Withholding Taxes that are imposed on KLM on or in respect of any
payments made by NWA Corp. to KLM in respect of the Shares to the extent that
such taxes are imposed on KLM solely as a result of NWA Corp.'s repurchase of
NWA Corp. stock from any person other than KLM or as a result of an increase or
decrease in the number of Shares purchased requested by NWA Corp. pursuant to
Section 6.1(d).
(c) KLM will deliver to NWA Corp., promptly after the date hereof, an
Internal Revenue Service Form 1001 evidencing 4that KLM is entitled to the
benefits of the income tax treaty between The Netherlands and the United States.
KLM also agrees to furnish, to the extent it is legally entitled to do so, NWA
Corp. with such documents and certificates as NWA Corp. may reasonably request
in connection with obtaining a reduction in, or exemption from, the payment of
United States Withholding Taxes imposed on any amount paid by NWA Corp. to KLM
in respect of the Shares. NWA Corp. shall have no obligation to indemnify or
hold harmless KLM for any of the United States federal income withholding taxes
described in Section 6.1(b) above to the extent that such taxes are imposed on
KLM as a result of KLM's failure to provide any form, document or certificate
required to be provided by KLM in accordance with this Section 6.1(c).
(d) KLM agrees to consider in good faith a request by NWA Corp. to
increase or decrease the number of Shares to be purchased on the Second Closing
Date, the Third
23
Closing Date or the Fourth Closing Date as necessary in order for each purchase
and sale of Shares to qualify as a substantially disproportionate redemption of
stock under section 302(b)(2) of the Internal Revenue Code of 1986, as amended,
on such subsequent Closing Date; PROVIDED, HOWEVER, that in no event shall KLM
be obligated to consider a request to reduce the number of Shares to be
purchased at the final Closing Date below 10% of the then outstanding shares of
common stock of NWA Corp.
(e) KLM hereby agrees to indemnify and hold harmless NWA Corp. from
and against any United States Withholding Taxes imposed on NWA Corp. in respect
of any payments made by NWA Corp. to KLM in respect of the Shares to the extent
that such taxes would not have been imposed but for KLM's acquisition of
additional shares of NWA Corp. stock and/or the attribution of ownership of any
NWA Corp. stock to KLM under Section 318 of the Code (or any similar successor
provision). If KLM's (including its Affiliates) ownership of NWA Corp. stock
for purposes of Section 318 of the Code is accurately described in this
Agreement and the Preferred Stock Agreement, then NWA Corp. acknowledges that it
will have no indemnity claim against KLM pursuant to this Section 6.1(e) with
respect to the attribution of ownership of any NWA Corp. stock to KLM under
Section 318 of the Code.
ARTICLE VII
GENERAL PROVISIONS
7.1 TERMINATION OR ABANDONMENT OF AGREEMENT. (a) This Agreement may
be terminated or abandoned at any time prior to the Initial Closing by mutual
consent of the parties in writing.
(b) By written notice to NWA Corp., this Agreement may be terminated
by KLM, but only with respect to the obligations of the parties for the Third
Closing Date and the Fourth Closing Date or the Fourth Closing Date, as the case
may be, if either (i) the condition set forth in Section 5.2(b)(ii) remains
unsatisfied by the 180th day after the scheduled Third Closing Date or the
Fourth Closing Date, as the case may be (provided that KLM is not otherwise in
material breach of this Agreement), or (ii) the condition set forth in Section
5.2(b)(iii) is unsatisfied, provided that KLM's right to terminate this
Agreement pursuant to this Section 7.1(b)(ii) will lapse if it has not been
exercised prior to 30 days after delivery to KLM by Northwest Airlines, Inc.
pursuant to the Hub Restrictions Letter of its written notice of termination of
the Alliance Implementation Agreement.
(c) By written notice to NWA Corp., this Agreement may be terminated
by KLM with respect to the obligations of the parties for any subsequent Closing
Date scheduled to occur after the date of such notice if, prior to the date of
such notice and after requisite notice and opportunity to cure having been
provided to Northwest Airlines, Inc. in accordance with the terms of the
Alliance Implementation Agreement, KLM has exercised its right under the
Alliance Implementation Agreement to terminate such Alliance Implementation
Agreement
24
as a result of a Material Default on the part of Northwest Airlines, Inc. (as
such term is defined in such Alliance Implementation Agreement), any arbitration
proceedings under Section 9.08 of such Alliance Implementation Agreement have
been concluded and such Alliance Implementation Agreement has been terminated in
accordance with its terms.
(d) Except as otherwise specified in this Article VII, in the event of
any termination of this Agreement as provided in this Section 7.1, this
Agreement shall forthwith become wholly void and of no further force and effect
and there shall be no liability on the part of NWA Corp. or KLM or their
respective directors, officers or stockholders with respect to any obligations
set forth in this Agreement; PROVIDED, HOWEVER, that nothing in this Section 7.1
shall relieve any party from liability for any breach of its representations,
warranties, covenants or agreements contained in this Agreement.
(e) If there is a termination of the obligations of the parties with
respect to the Third Closing Date and the Fourth Closing Date or the Fourth
Closing Date, as the case may be, pursuant to either Section 7.1(b)(i) or
7.1(b)(ii), (i) all Shares held by KLM at such time shall be automatically
converted into Class B Common Stock and shall not be reconverted into Class A
Common Stock so long as such Shares are held or reacquired by KLM or any of its
Affiliates (and KLM shall, concurrently with the execution and delivery of this
Agreement, execute and deliver a separate power-of-attorney in the form of
Exhibit D hereto that irrevocably appoints Xxxxxxx X. Xxxxxxxxx, Esq. (with full
power of substitution) as its agent and attorney-in-fact to execute and deliver
on behalf of KLM any and all instruments, agreements and other documents that
are necessary or advisable to permit NWA Corp. to make appropriate notations in
its stock transfer and other ownership records to reflect such conversion), and
(ii) NWA Corp. shall have the right to immediately terminate the Alliance
Implementation Agreement, within 30 days after such termination of the
obligations of the parties with respect to the Third Closing Date and the Fourth
Closing Date or the Fourth Closing Date, as the case may be. Upon any sale or
other transfer by KLM of Class B Common Stock to a party that is not an
Affiliate, agent or nominee of KLM, such shares shall be reconverted into Class
A Common Stock.
(f) In the event of any termination of this Agreement pursuant to
Section 7.1(c) in which the obligations of the parties are terminated for the
Second Closing Date, the Third Closing Date and the Fourth Closing Date, on the
date of the termination of this Agreement NWA Corp. shall pay to KLM in Cash
$30,410,947.82 plus accretion on such amount at the rate of 5% per annum from
September 29, 1998 to the actual date of payment. In the event of any such
termination of this Agreement pursuant to Section 7.1(b) or 7.1(c) in which the
obligations of the parties are terminated for the Third Closing Date and the
Fourth Closing Date, on the date of the termination of this Agreement NWA Corp.
shall pay to KLM in Cash $28,344,658.46 plus accretion on such amount at the
rate of 5% per annum from September 29, 1999 to the actual date of payment. In
the event of any termination of this Agreement pursuant to Section 7.1(b) or
7.1(c) in which the obligations of the parties are terminated for only the
Fourth Closing Date, on the date of the termination of this Agreement NWA Corp.
shall pay to KLM in Cash $24,771,297.10 plus accretion on such amount at the
rate of 5% per annum from September 29, 2000 to the actual date of payment.
Payments made pursuant to
25
this Section 7.1(f) will be deemed to be additional purchase price payments to
KLM by NWA Corp. in respect of Shares which will have been, by the time of any
such payment, transferred to NWA Corp. hereunder. NWA Corp. shall indemnify and
hold harmless KLM, on an after-tax basis, from any additional taxes for which
KLM becomes liable as a result of payments being made pursuant to this Section
7.1(f). This Section 7.1(f) shall survive any termination of this Agreement and
shall continue in full force and effect until all amounts due from NWA Corp.
have been paid in full. Accretion shall be calculated on the basis of the
actual number of days elapsed divided by 360 for purposes of this Agreement.
7.2 EXPENSES. All fees, commissions and other expenses incurred by
any party hereto in connection with the negotiation of this Agreement, the
Ancillary Agreements and the other transactions contemplated hereby, including
any fees and expenses of their respective counsel and financial advisors, shall
be borne by the party incurring such fee or expense.
7.3 EXECUTION IN COUNTERPARTS. This Agreement may be executed in one
or more counterparts, all of which shall be considered one and the same
agreement, and shall become a binding agreement when one or more counterparts
have been signed by each party and delivered to the other parties.
7.4 NOTICES. All notices, request, demands or other communications
provided herein shall be made in writing and shall be deemed to have been duly
given if delivered as follows:
If to NWA Corp.:
0000 Xxxx Xxx Xxxxxxx
Xxxxx, Xxxxxxxxx 00000
Attention: Senior Vice President, General Counsel
and Secretary
Fax: (000) 000-0000
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
26
If to KLM:
Koninklijke Luchtvaart Maatschappij N.V.
Amsterdamseveg 55
1192 G P Amstelveen
The Netherlands
Attention: Senior Vice President and General
Counsel
Fax: 000-0000-000-0000
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxxx, Esq.
Fax: (000) 000-0000
or to such other address as either party shall have specified by notice in
writing to the other party. All such notices, requests, demands and
communications shall be deemed to have been received on (i) the date of delivery
if sent by messenger, (ii) on the Business Day following the Business Day on
which delivered to a recognized courier service if sent by overnight courier or
(iii) on the date received, if sent by fax.
7.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AS APPLIED TO CONTRACTS
ENTERED INTO AND TO BE PERFORMED IN NEW YORK AND WITHOUT REGARD TO THE
APPLICATION OF PRINCIPLES OF CONFLICT OF LAWS.
7.6 TITLES AND HEADINGS. Titles and headings to Articles and Sections
herein are inserted for convenience of reference only and are not intended to be
a part of or to affect the meaning or interpretation of this Agreement.
7.7 SUCCESSORS AND ASSIGNS. This Agreement shall not be assignable by
KLM (other than as expressly stated otherwise in Section 4.1(b)) without the
prior written consent of NWA Corp. or by NWA Corp. without the prior written
consent of KLM; PROVIDED, HOWEVER, that NWA Corp. may assign all or any part of
its interest in this Agreement to any of its Affiliates if such Affiliate
undertakes in writing to perform NWA Corp.'s obligations hereunder; and
PROVIDED, FURTHER, that no such assignment shall relieve NWA Corp. of its
obligations hereunder and NWA Corp. shall unconditionally guarantee the
performance by such assignee of the obligations of NWA Corp. hereunder pursuant
to a written instrument satisfactory to KLM. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors in interest and assigns.
27
7.8 ENTIRE AGREEMENT; NO ORAL WAIVER. This Agreement and the
Ancillary Agreements and the certificates and other documents contemplated
hereby and thereby constitute the entire agreement among the parties pertaining
to the subject matter hereof and supersede all prior and contemporaneous
agreements, understandings and representations, whether oral or written, of the
parties in connection therewith. No covenant or condition or representation not
expressed in this Agreement shall affect or be effective to interpret, change or
restrict this Agreement. No prior drafts of this Agreement and no words or
phrases from any such prior drafts shall be admissible into evidence in any
action, suit or other proceeding involving this Agreement or the transactions
contemplated hereby. This Agreement may not be changed or terminated orally,
nor shall any change, termination or attempted waiver of any of the provisions
of this Agreement be binding on any party unless in writing signed by the
parties hereto. No modification, waiver, termination, rescission, discharge or
cancellation of this Agreement and no waiver of any provision of or default
under this Agreement shall affect the right of any party thereafter to enforce
any other provision or to exercise any right or remedy in the event of any other
default, whether or not similar.
7.9 SEVERABILITY. If any provision of this Agreement shall be
declared by any court of competent jurisdiction to be illegal, void or
unenforceable, all other provisions of this Agreement shall not be affected and
shall remain in full force and effect.
7.10 NO THIRD-PARTY RIGHTS. Nothing in this Agreement, expressed or
implied, shall or is intended to confer upon any Person other than the parties
hereto or their respective successors or assigns, any rights or remedies of any
nature or kind whatsoever under or by reason of this Agreement.
7.11 SUBMISSION TO JURISDICTION. Each of the parties hereto hereby
irrevocably unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to or arising from this Agreement, or for recognition
and enforcement of any judgment in respect thereof, to the non-exclusive
general jurisdiction of the courts of the United States of America sitting
in the Southern District of New York;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c)agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to its address
set forth in Section 7.4; and
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other appropriate jurisdiction.
28
7.12 REMEDIES. Each of the parties hereto acknowledges that the
rights granted to the other party hereto in this Agreement are of a special,
unique and extraordinary character, and that any breach of this Agreement by the
other party hereto could not be compensated for by damages. Accordingly, in the
event of any failure or refusal by the other party hereto to comply with any
covenant or agreement contained in this Agreement each of the parties hereto
shall be entitled, in addition to any other remedies that such party may have,
to enforcement of this Agreement by a decree of specific performance requiring
the other party hereto to fulfill its obligations under this Agreement.
7.13 INDEMNIFICATION. NWA Corp. agrees to indemnify and hold harmless
KLM, on an after-tax basis, from any Claims, or other losses or liabilities
incurred or borne by KLM in connection with suits, actions or proceedings
instituted by stockholders of NWA Corp. whether directly or on behalf of NWA
Corp., relating to or arising out of any understandings, agreements or other
arrangements or out of any transactions between or among NWA Corp. or any
Affiliate and any of the Xxxxxxx Family Trusts, the Xxxxxxx Family, the Xxxxxx
Family or the Xxxxx Family (each as defined in the Stockholders' Agreement, and
together, the "EXEMPTED OPTIONEES") in connection with the cancellation of the
option contained in Section 17 of the Stockholders' Agreement in respect of the
Exempted Optionees and the adjustment of the payments to be made by NWA Corp. to
KLM hereunder. This obligation of NWA Corp. shall survive any termination of
this Agreement and shall continue in full force and effect.
7.14 BROKERS AND FINDERS. Each party shall bear all costs and
expenses, and shall indemnify the other party for all costs and expenses,
relating to the retention by such party of any finder or broker in connection
with the transactions contemplated by this Agreement.
7.15 FURTHER ASSURANCES. From time to time, at the reasonable request
of the other party hereto and without further consideration, each party hereto
shall execute and deliver such additional documents and take all such further
action as may be necessary or desirable to consummate and make effective, in the
most expeditious manner practicable, the transactions contemplated by this
Agreement.
IN WITNESS WHEREOF, the parties have executed, delivered and entered
into this Agreement as of the day and year first above written.
NORTHWEST AIRLINES CORPORATION
By: /s/Xxxx X. Xxxxxxx
-----------------------------------
Xxxx X. Xxxxxxx
President and Chief
Executive Officer
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxxxx X Xxxxxxxxx
Senior Vice President,
General Counsel and Secretary
KONINKLIJKE LUCHTVAART MAATSCHAPPIJ N.V.
By: /s/ X.X. Van Wijk
-----------------------------------
X.X. van Wijk
President and Chief
Executive Officer
By: /s/ R.J.N. Xxxxxxxxxx
-----------------------------------
R.J.N. Xxxxxxxxxx
Managing Director and
Chief Financial Officer
