Exhibit 10.48
AGREEMENT
AGREEMENT (the "AGREEMENT") made as of this 7th day of June, 2002, by
and between REPUBLIC AIRWAYS HOLDINGS INC., a Delaware corporation (the
"Company"), and DELTA AIR LINES, INC., a Delaware corporation ("DELTA").
W I T N E S S E T H:
WHEREAS, on the date hereof Delta, the Company and Chautauqua
Airlines, Inc., a subsidiary of the Company ("CHAUTAUQUA"), are entering into
that certain Delta Connection Agreement (the "CONNECTION CARRIER AGREEMENT");
and
WHEREAS, in connection therewith, the Company has agreed to grant
Delta certain rights to participate in an initial public offering of the
Company's Common Stock (as defined below), on the terms and subject to the
conditions set forth herein, and to grant Delta certain other rights;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:
A G R E E M E N T:
1. CERTAIN DEFINITIONS. As used herein, the following terms shall
have the following respective meanings:
"COMMISSION" shall mean the Securities and Exchange Commission or
any other Federal agency at the time administering the Securities Act.
"COMMON STOCK" shall mean the common stock, par value $.001 per
share, of the Company.
"CURRENT REGISTRATION STATEMENT" shall mean the Company's
registration statement on Form S-1 under the Securities Act currently on file
with the Commission (registration number 333-84092), as amended from time to
time.
"IPO" shall mean an initial public offering of Common Stock pursuant
to the Current Registration Statement.
"IPO SHARE PRICE" shall mean the price per share at which the IPO
Shares are offered to the public pursuant to the IPO.
"IPO SHARES" shall mean the shares of Common Stock offered for sale
pursuant to the IPO.
"LOCK-UP" shall have the meaning set forth in Section 5.
"PARTICIPATION SHARES" shall have the meaning set forth in Section
2(a).
"PERCENTAGE AMOUNT" shall mean, for each Terminated Aircraft, a
percentage calculated by DIVIDING (a) the aggregate number of months from the
date each Terminated Aircraft was taken out of service through December 31,
2009, by (b) 1,719.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"TERMINATED AIRCRAFT" shall have the meaning set forth in Section
3(b).
"TERMINATED SHARE AMOUNT" shall have the meaning set forth in
Section 3(b)(i).
"WARRANT" shall have the meaning set forth in Section 3(a).
"WARRANT SHARE SHORTFALL" shall have the meaning set forth in
Section 3(b)(iii).
"WARRANT SHARES" shall mean the shares of Common Stock issued upon
exercise of the Warrant.
"WARRANT SHORTFALL" shall have the meaning set forth in Section
3(b)(i).
2. IPO PARTICIPATION RIGHTS.
(a) The Company hereby grants to Delta the right to purchase
up to five percent (5%) of the IPO Shares offered for sale pursuant to the
Company's IPO, at a per share purchase price equal to the IPO Share Price.
Delta may purchase all or less than all of the IPO Shares granted to it
pursuant to this Agreement (any such IPO Shares purchased by Delta, the
"Participation Shares").
(b) The Company shall provide to Delta a copy of the
preliminary prospectus (and any amended or supplemental prospectus) concurrent
with its distribution to the public. The Company shall provide Delta with no
less than 72 hours' prior written notice of the commencement of public trading
of the IPO Shares. Delta shall provide written notice to the Company of the
number of IPO Shares that Delta will purchase pursuant to this Agreement no
later than 48 hours prior to the commencement of public trading of the IPO
Shares.
3. WARRANT.
(a) Concurrently with the execution and delivery of the
Connection Carrier Agreement, the Company shall issue to Delta a warrant to
purchase shares of Common Stock in the form attached as EXHIBIT A hereto (the
"WARRANT"), provided that the Warrant shall not be effective until the
effective date of an initial public offering of the common stock of the
Company.
(b) Notwithstanding anything to the contrary contained in
the Warrant, in the event that at any time prior to January 1, 2010, (i) Delta
takes any of the Chautauqua aircraft out of service pursuant to Section 11(F)
of the Connection Carrier Agreement or (ii) Chautauqua or the Company takes
any of the Chautauqua aircraft out of service pursuant to Section 11(B) or
11(C) of the Connection Carrier Agreement, (each such aircraft, a "TERMINATED
AIRCRAFT"), Delta shall, within three business days after such Terminated
Aircraft has been taken out of service,
(i) First, if Delta continues to hold any portion
of the Warrant, cancel, without any consideration therefor, such portion of the
Warrant as is exercisable for the number of shares of Common Stock (the
"TERMINATED SHARE AMOUNT") equal to (A) the Percentage Amount MULTIPLIED BY (B)
the original number of shares of Common Stock issuable upon exercise of the
Warrant; provided, that if the number of shares of Common Stock issuable upon
exercise of the Warrant or that portion thereof which Delta continues to hold
is less than the Terminated Share Amount (such difference being the "WARRANT
SHORTFALL"), all of such remaining portion of the Warrant shall be cancelled
without any consideration therefor; and
(ii) Then, if a Warrant Shortfall exists, and
Delta holds any Warrant Shares , at the Company's option, sell to the Company,
at the Exercise Price (as defined in the Warrant), a number of Warrant Shares
as is equal to the Warrant Shortfall, and
(iii) Finally, if the Company has exercised its
option set forth in the previous clause (ii), and if the number of Warrant
Shares held by Delta prior to the application of the previous clause (ii) is
less than the number of shares constituting the Warrant Shortfall (such
difference being the "WARRANT SHARE SHORTFALL"), pay to the Company a portion
of the pretax profit, if any, realized by Delta from the sale or transfer by
Delta of the Warrant or the Warrant Shares calculated by multiplying the
aggregate pretax profit realized by Delta from the sale or transfer of the
Warrant Shares and/or the Warrant by a fraction, (A) the numerator of which is
the number of Warrant Shares constituting the Warrant Share Shortfall and (B)
the denominator of which is the aggregate number of (x) Warrant Shares sold or
transferred by Delta and (y) shares of Common Stock represented by any
portion of the Warrant that was sold or transferred by Delta.
4. REGISTRATION RIGHTS. Pursuant to an amended and restated
registration rights agreement, in the form attached hereto as EXHIBIT B, to
be entered into by and among the Company, Delta and certain other investors
in the Company on the date hereof, Delta shall be granted registration rights
with respect to certain securities of the Company.
5. LOCK-UP. Delta agrees, if requested by the principal
underwriter managing the IPO, not to publicly sell the Participation Shares
or the Warrant Shares held by Delta without the prior written consent of such
underwriter for no more than one hundred eighty (180) days following the
effective date of the Current Registration Statement (the "LOCK-UP");
provided that the terms of any such Lock-Up are no more restrictive than the
terms of the least restrictive lock-up or similar restriction imposed on any
stockholder of the Company affiliated with Wexford Capital LLC or any
executive officer of the Company.
6. AMENDMENT; WAIVER. No amendment, alteration or modification of
this Agreement shall be valid unless in each instance such amendment,
alteration or modification is expressed in a written instrument executed by
Delta and the Company. No waiver of any provision of this Agreement shall be
valid unless it is expressed in a written instrument duly executed by the
party or parties making such waiver. The failure of any party to insist, in
any one or more instances, on performance of any of the terms and conditions
of this Agreement shall not be construed as a waiver or relinquishment of any
rights granted hereunder or of the future performance of any such term,
covenant or condition but the obligation of any party with respect thereto
shall continue in full force and effect.
7. NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by first-class
mail, postage prepaid, or transmitted by facsimile or delivered by nationally
recognized overnight courier, addressed:
if to Delta, to the following address:
Delta Air Lines, Inc.
0000 Xxxxx Xxxx.
Xxxxxxx, Xxxxxxx 00000
Attention: Sr. Vice President - Finance, Treasury and Corp. Dev.
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Delta Air Lines, Inc.
0000 Xxxxx Xxxx.
Xxxxxxx, Xxxxxxx 00000
Attention: Sr. Vice President and General Counsel
Phone: (000) 000-0000
Fax: (000) 000-0000
and
if to the Company, to the following address, or at such other
address as the Company shall have furnished to Delta:
Republic Airways Holdings Inc.
0000 X. Xxxx Xxxxxx Xxxx,
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
Alternatively, to such other address as a party hereto supplies to the other
party in writing.
8. SUCCESSORS AND ASSIGNS. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective permitted transferees, successors and assigns
of the parties hereto; provided, that neither party hereto may assign its
rights hereunder without the prior written consent of the other party (such
consent not to be unreasonably withheld).
9. GOVERNING LAW. This Agreement is to be governed by and
interpreted under the laws of the State of Delaware without giving effect to
the principles of conflicts of laws thereof.
10. TITLES AND SUBTITLES. The titles of the sections of this
Agreement are for the convenience of reference only and are not to be
considered in construing this Agreement.
11. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not be deemed to affect the validity or
enforceability of any other provision of this Agreement.
12. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
13. ENTIRE AGREEMENT. This Agreement, together with the Connection
Carrier Agreement and the other agreements delivered in connection herewith
and therewith, constitutes the full and entire understanding and agreement
between the parties with respect to the subject matter hereof
and supersedes all previous agreements, arrangements and understandings,
whether written or oral, with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
REPUBLIC AIRWAYS HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: EVP and CEO
DELTA AIR LINES, INC.
By: /s/ Xxxxxxxxx Xxxxxxxx
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Name: Xxxxxxxxx Xxxxxxxx
Title: President and CEO,
Delta Connection, Inc.
EXHIBIT A
FORM OF IPO WARRANT
(See Exhibit 10.50)
EXHIBIT B
FORM OF REGISTRATION RIGHTS AGREEMENT
(See Exhibit 10.15)
