CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN
PORTIONS OF THIS DOCUMENT. CONFIDENTIAL PORTIONS HAVE BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
THE WARRANT ISSUED PURSUANT TO THIS PARTICIPATION WARRANT AGREEMENT HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES
LAWS. IT MAY NOT BE SOLD OR OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED TO EFFECTUATE SUCH TRANSACTION.
PARTICIPATION WARRANT AGREEMENT
To Purchase Shares of Common Stock
Dated as of November 17, 1999
XXXXXXXXX.XXX INCORPORATED
a Delaware Corporation
Issue Date November 17, 1999
THIS CERTIFIES THAT, U S Airways, Inc. (the "Warrant Holder"), with a place
of business at Crystal Park Four, 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx
00000, for value received, is entitled, upon the terms and subject to the
conditions of this Participation Warrant Agreement (this "Warrant
Agreement"), to subscribe for and purchase fully-paid and non-assessable
shares of common stock, par value $.008 per share (the "Common Stock"), of
xxxxxxxxx.xxx Incorporated, a Delaware corporation (the "Company").
1. Issuance of Warrants. On the Issue Date, the Company will issue
to the Warrant Holder warrants (the "Warrants") to acquire One
Million Five Hundred Thousand (1,500,000) shares of the Common
Stock (the "Shares"), subject to adjustment as hereinafter
provided pursuant to Section 10 herein.
2. Exercise Price. The Warrants have an exercise price of $52.625
per share of Common Stock, as adjusted pursuant to the
provisions of Section 10 of this Warrant Agreement (the
"Exercise Price").
3. Term. The Warrants are fully vested on the Issue Date. Except
as otherwise provided for herein, the term of the Warrants and
the right to purchase Shares as granted herein shall be
exercisable on the fifth (5th) anniversary of the Issue Date;
provided, further, that if any of the Warrants first become
exercisable on the fifth (5th) anniversary of the Issue Date,
the Warrant Holder will have an additional six months
thereafter to exercise its purchase rights in respect of those
Warrants (the end of such five year period and additional six
months, if applicable, being referred to herein as the
"Termination Date").
4. Exercise Events.
(a) General. Unless otherwise exercisable at an earlier date,
in accordance with this Section 4, all of the Warrants shall be fully
exercisable commencing of the fifth anniversary of the Issue Date.
(b) Early Exercise Rights. Subject to the provisions of Section
4(d) hereof, Warrant Holder shall have the following early exercise rights:
(i) The Warrant Holder will earn the right to exercise Warrants
for the first [**] Shares, subject to adjustment as
provided in Section 10 hereof, upon completion of any
Measuring Period (as identified in Section 4(c) hereof)
during which the Company has sold at least $[**] million of
tickets issued for travel on the Warrant Holder, its
subsidiaries and/or on the Warrant Holder's code share
partners using Warrant Holder's code (collectively, "Warrant
Holder and Code Share Partners") (such amount being measured
by the amount paid by the Company to the Warrant Holder and
its code share partners net of federal excise taxes on such
amount, PFCs and related collections) ("Net Revenue").
(ii) The Warrant Holder will earn the right to exercise Warrants
for the full amount of the second [**] Shares, subject to
adjustment as provided in Section 10 hereof, upon completion
of any Measuring Period during which the Company has sold at
least $[**] million of Net Revenue. If, upon completion of
any Measuring Period, the Company has sold more than $[**]
million but less than $[**] million of Warrant Holder Net
Fares during such Measuring Period, Warrant Holder will earn
the right to exercise that number of Warrants for a portion
of the second [**] Shares, subject to adjustment as
provided in Section 10 hereof, equal to the product of (i)
[**] (subject to adjustment as provided in Section 10
hereof) multiplied by (ii) a fraction, the numerator of
which shall be the Net Revenue in excess of $[**] million sold
by the Company during such Measuring Period, and the
denominator of which shall be $[**] million.
(iii) Net Revenue will be measured separately, not cumulatively, for
each measuring period. For example, if the Company has sold
Warrant Holder Net Fares of $[**] million during the first
Measuring Period, $[**] million during the second Measuring
Period, and $[**] million during the third Measuring Period,
then the Warrant Holder will earn the right to exercise
Warrants for [**] Shares upon completion of the first Measuring
Period, the right to exercise Warrants for [**] Shares ([**] x
[**]) upon completion of the second Measuring Period, and the
right to execise Warrants for [**] Shares ([**] x [**]) upon
completion of the third Measuring Period. For purposes of this
example, it is assumed that no adjustment pursuant to Section
10 hereof has occurred.
(iv) Notwithstanding the Net Revenue benchmarks specified in clauses
(i) and (ii) of this Section 4(b) for the early exercisability
of Warrants, if, in any Measuring Period, the Company fails to
achieve the minimum Net Revenue from ticket sales for travel on
Warrant Holder and its Code Share Partners necessary to enable
Warrant Holder to exercise Warrants thereunder, then, effective
on the completion of such Measuring Period and thereafter,
Warrant Holder (i) shall have the right to exercise Warrants
for [**] Shares, subject to adjustment as provided in Section
10 hereof, if Warrant Holder's and its Code Share Partners'
percentage of the Aggregate Ticket Sales Revenues (as defined
in Section 4(c)) for U.S. originating O&D's for such Measuring
Period equals or exceeds [**]% of Warrant Holder's Fair Share
(as defined in Section 4(c) below), and (ii) shall have the
right to exercise Warrants for [**] Shares, if Warrant Holder's
and its Code Share Partners' percentage of the Aggregate Net
Ticket Sale Revenues for U.S. originating O&D's for such
Measuring Period equals or exceeds [**]% of Warrant Holder's
Fair Share. In the event that in any Measuring Period, the
Warrant Holder exceeds [**]% of its Fair Share but does not
reach [**]% of its Fair Share, then Warrant Holder will earn
the right to exercise that number of Warrants for a portion of
the second [**] Shares, subject to adjustment as provided in
Section 10 hereof, equal to the product of (i) [**] (subject to
adjustment as provided in Section 10 hereof) multiplied by (ii)
a fraction, the numerator of which shall be the Fair Share
percentage (expressed as a number and not a percentage) in
excess of [**]% achieved by the Warrant Holder and its Code
Share Partners during such Measuring Period, and the
denominator of which shall be [**]. Fair Share will be measured
separately, not cumulatively, for each Measuring Period. For
example, if the Warrant Holder achieves [**]% of its Fair Share
during the first Measuring Period, [**]% of its Fair Share
during second Measuring Period, and [**]% during the third
Measuring Period, then the Warrant Holder will earn the right
to exercise Warrants for [**] Shares upon completion of the
first Measuring Period, the right to exercise Warrants for [**]
Shares ([**] x [**]) upon completion of the second Measuring
Period, and the right to exercise Warrants for [**] Shares
([**] x [**]) upon completion of the third Measuring Period.
(c) Measuring Periods; Fair Share; Aggregate Net Ticket Sale
Revenues.
(i) Each Measuring Period shall be a 12 month period, with the
first Measuring Period commencing on the date the Warrant
Holder first provides tickets for sale by the Company (the
"First Ticket Date") and ending on the first anniversary of
such date. Subsequent Measuring Periods will expire on the
second, third, fourth and fifth anniversary of the First
Ticket Date, respectively; provided that the last Measuring
Period will expire on the fifth anniversary of the Issue Date.
(ii) As used in this Warrant Agreement, the term "Fair Share"
shall mean Warrant Holder's domestic market share calculated
as a fraction, the numerator of which shall be Warrant
Holder's RPM's for U.S. originating O&D's only, and the
denominator of which shall be the total RPM's for U.S.
originating O&D's only of all of the Company's participating
airlines. The forgoing calculation shall excluded in the
numerator and the denominator, O&D markets in which Warrant
Holder is restricted from providing service in the Company's
airline ticket service ("Restricted Markets").
(iii) As used is this Warrant Agreement, the term "Aggregate Net
Ticket Sale Revenues" for any Measuring Period, shall mean,
the total amount paid by the Company to its participating
airlines, including Warrant Holder and its Code Share
Partners for airline tickets sold for US originating O&D's
(excluding O&D's for Restricted Markets) on all of the
Company's participating airlines, net of federal excise
taxes on such amounts, PFCs and related collections.
(d) Warrant Holder's right to earn early exercise rights under
Section 4(b) is contingent upon Airline's NOT TAKING AN EQUITY POSITION OF
ANY NATURE WHATSOEVER, including, without limitation, common stock,
preferred stock, warrants, options, or debt, in any other operator or
affiliate thereof (an "Operator") of a "demand collection system" for sale
of airline tickets over the Internet. For purposes of this Section 4(d),
"demand collection system" is narrowly defined as an airline ticket service
that (i) enables a consumer to name the price the consumer is willing to
pay for one or more airline tickets prior to the Seller's display of the
price actually paid by the consumer, (ii) enables the seller to bind the
consumer to the consumer's offer price upon the seller's acceptance of the
consumer's offer, and (iii) does not permit the consumer to specify the
exact airline on which the consumer is willing to fly. In order for Warrant
Holder to be entitled to earn the early exercise rights specified in
Section 4(b)(i) and 4(b)(ii), as the case may be, Warrant Holder must not
at any time between the date hereof and the date it earns such early
exercise rights, take an equity position of any nature whatsoever in any
Operator of a "demand collection system" other than the Company's for the
sale of airline tickets over the Internet. For example, if in the first
Measuring Period, the Company achieves Net Revenues that would entitle the
Warrant Holder to exercise Warrants for the first 750,000 Shares, the
Warrant Holder will be entitled to exercise such Warrants at all times
after the completion of such Measuring Period so long as the Warrant Holder
at all times from the date hereof though the date it earned such early
exercise rights had not taken an equity position in any other Operator of a
"demand collection system" for the sale of airline tickets over the
Internet. If at any time from the date hereof prior to the fifth 5th
anniversary of the Grant Date, the Warrant Holder takes an equity position
in an Operator of another "demand collection system" for the sale of
airline tickets over the Internet, the Warrant Holder's right to earn early
exercise rights will terminate and be of no further force or effect with
respect to Warrants for which Warrant Holder did not earn early exercise
rights prior to the date of Warrant Holder's taking such equity position,
and such Warrants will become exercisable on the fifth 5th anniversary of
the Grant Date.
5. Exercise of Purchase Rights. Subject to the provisions of Section
4 of this Warrant Agreement, the purchase rights represented by
this Warrant Agreement are exercisable by the Warrant Holder, in
whole or in part, at any time, or from time to time during the
period set forth in Section 3 above, by tendering to the Company
at its principal office a duly completed and executed notice of
exercise in the form attached hereto as Exhibit A (the "Notice of
Exercise"), the Warrants and the Exercise Price. Upon receipt of
such items, the Company shall issue to the Warrant Holder a
certificate for the number of shares of Common Stock purchased.
The Warrant Holder, upon exercise of the Warrants, shall be
deemed to have become the holder of the Shares represented
thereby (and such Shares shall be deemed to have been issued)
immediately prior to the close of business on the date or dates
upon which the Warrants are exercised. In the event of any
exercise of the rights represented by the Warrants, certificates
for the Shares so purchased shall be delivered to the Warrant
Holder or its designee as soon as practical and in any event
within ten (10) business days after receipt of such notice and,
unless the Warrants have been fully exercised or expired, new
Warrants representing the remaining portion of the Warrants and
the underlying Shares, if any, with respect to which this Warrant
Agreement shall not then have been exercised shall also be issued
to the Warrant Holder as soon as possible and in any event within
such tenday period.
6. Reservation of Shares. The Company will at all times have
authorized and reserved a sufficient number of shares of Common
Stock to provide for the exercise of the rights to purchase the
Shares as provided in this Warrant Agreement. All of the Shares
shall be duly authorized and, when issued upon such exercise,
shall be validly issued, fully paid and nonassessable, and free
and clear of all preemptive rights.
7. No Fractional Shares. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of the
Warrant Holder's rights to purchase the Shares.
8. No Rights as Shareholder. This Warrant Agreement does not entitle
the Warrant Holder to any voting rights or other rights as a
shareholder of the Company prior to the exercise of the Warrant
Holder's rights to purchase the Shares as provided for herein.
9. Redemption. The Warrants represented by this Warrant Agreement
are not redeemable by the Company.
10. Adjustment Rights. The Exercise Price and the number of shares of
Common Stock purchasable hereunder are subject to adjustment from
time to time, as follows:
(a) Merger. If at any time there shall be a merger or consolidation
of the Company with or into another corporation when the Company is not the
surviving corporation, then, as part of such merger or consolidation,
lawful provision shall be made so that the holder of the Warrants evidenced
hereby shall thereafter be entitled to receive upon exercise of rights
herein granted, during the period specified herein and upon payment of the
aggregate Exercise Price, the number of shares of stock or other securities
or property of the successor corporation resulting from such merger or
consolidation, to which a holder of the stock deliverable upon exercise of
the rights granted in this Warrant Agreement would have been entitled in
such merger or consolidation if such rights had been exercised immediately
before such merger or consolidation. In any such case, appropriate
adjustment shall be made in the application of the provisions of this
Warrant Agreement with respect to the rights and interests of the holder
after the merger or consolidation. The Company will not effect any such
merger or consolidation unless, prior to the consummation thereof, the
successor corporation shall assume, by written instrument reasonably
satisfactory in form and substance to the Warrant Holder, the obligations
of the Company under the Warrants.
(b) Reclassification, Etc. If the Company at any time shall, by
subdivision, combination or reclassification of securities or otherwise,
change any of the securities as to which purchase rights under this Warrant
Agreement exist into the same or a different number of securities of any
other class or classes, this Warrant Agreement shall thereafter represent
the right to acquire such number and kind of securities as would have been
issuable as the result of such change with respect to the securities which
were subject to the purchase rights under this Warrant Agreement
immediately prior to such subdivision, combination, reclassification or
other change.
(c) Split, Subdivision or Combination of Shares. If the Company
at any time shall split or subdivide its Common Stock, the Exercise Price
shall be proportionately decreased and the number of Shares issuable
pursuant to this Warrant Agreement shall be proportionately increased. If
the Company at any time shall combine or reverse split its Common Stock,
the Exercise Price shall be proportionately increased and the number of
Shares issuable pursuant to this Warrant Agreement shall be proportionately
decreased.
(d) Stock Dividends. If the Company at any time shall pay a
dividend payable in Common Stock, then the Exercise Price shall be
adjusted, from and after the date of determination of stockholders entitled
to receive such dividend, to that price determined by multiplying the
Exercise Price in effect immediately prior to such date of determination by
a fraction (i) the numerator of which shall be the total number of shares
of Common Stock outstanding immediately prior to such dividend and (ii) the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately after such dividend. The Warrant Holder shall
thereafter be entitled to purchase, at the Exercise Price resulting from
such adjustment, the number of shares of Common Stock (calculated to the
nearest whole share) obtained by multiplying (i) the Exercise Price in
effect immediately prior to such adjustment by (ii) the number of shares of
Common Stock issuable upon the exercise hereof immediately prior to such
adjustment and dividing the product thereof by the Exercise Price resulting
from such adjustment.
(e) Other Changes. If any change in the outstanding Common
Stock of the Company or any other event occurs as to which the other
provisions of this Section 10 are not strictly applicable or if strictly
applicable, would not fairly protect the purchase rights of the Warrant
Holder in accordance with such provisions, then the Board of Directors of
the Company shall make an adjustment in the number of and class of shares
available under the Warrants, the Exercise Price or the application of such
provisions, so as to protect the purchase rights of the Warrant Holder. The
adjustment shall be such as will give the Warrant Holder upon exercise for
the same aggregate Exercise Price the total number, class and kind of
shares or other property as the Warrant Holder would have owned had the
Warrants been exercised prior to the event and had the Warrant Holder
continued to hold such shares until after the event requiring adjustment.
(f) Notice of Adjustments; Notices. Whenever the Exercise Price
or number of shares purchasable hereunder shall be adjusted pursuant to
Section 10 hereof, the Company shall issue a certificate signed by its
Chief Executive Officer or Chief Financial Officer setting forth, in
reasonable detail, the event requiring the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated and the
Exercise Price and number of shares purchasable hereunder after giving
effect to such adjustment, and shall cause a copy of such certificate to be
mailed (by first class mail, postage prepaid) to the holder of this
Warrant. The Company shall give written notice to the Warrant Holder at
least 10 days prior to the date on which the Company closes its books or
takes a record for determining rights to receive any dividends or
distributions. The Company shall also give written notice to the Warrant
Holder at least 30 business days prior to the date on which a merger or
consolidation of the Company with or into another corporation when the
Company is not the surviving corporation shall take place.
(g) No Change of Warrant Necessary. Irrespective of any
adjustment in the Exercise Price or in the number or kind of securities
issuable upon exercise of the Warrant, unless the Warrant Holder otherwise
requests, this Warrant Agreement may continue to express the same price and
number and kind of shares of Common Stock as are stated in this Warrant
Agreement as initially executed.
11. Representations and Warranties of the Warrant Holder.
The Warrant Holder hereby represents and warrants to the Company as
follows:
(a) Existence and Power. The Warrant Holder is a (i) is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and (ii) has the corporate
power and authority to execute, deliver and perform its obligations under
this Warrant Agreement.
(b) Authorization; No Contravention. The execution, delivery
and performance by the Warrant Holder of this Warrant Agreement and the
transactions contemplated hereby (i) have been duly authorized by all
necessary corporate action of the Warrant Holder and (ii) do not contravene
the terms of the Certificate of Incorporation or Bylaws of the Warrant
Holder, each as amended as of and through the Issue Date.
(c) Governmental Authorization; Third Party Consents. No
approval, consent, compliance, exemption or authorization of any
governmental authority or agency, or of any other person or entity, is
necessary or required in connection with the execution, delivery or
performance by, or enforcement against, the Warrant Holder of this Warrant
Agreement or the transactions contemplated hereby.
(d) Binding Effect. This Warrant Agreement has been duly
executed and delivered by the Warrant Holder and constitutes the valid and
binding obligations of the Warrant Holder, enforceable against it in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability (regardless of whether considered in a proceeding at law or
in equity).
(e) Purchase for Own Account. The Warrants issued to the
Warrant Holder pursuant to this Warrant Agreement, and the Shares to be
issued upon vesting and exercise thereof, are being or will be acquired for
the Warrant Holder's own account and with no intention of distributing or
reselling such securities or any part thereof in any transaction that would
be in violation of the securities laws of the United States of America, or
any state.
(f) Restricted Securities. The Warrant Holder understands that
the Warrants and the Shares issuable upon vesting and exercise of the
Warrants, will not be registered at the time of their issuance under the
Securities Act for the reason that the sale provided for in this Agreement
is exempt pursuant to Section 4(2) of the Securities Act and that reliance
of the Company on such exemption is predicated in part on such Warrant
Holder's representations set forth herein. The Warrant Holder represents
that it is experienced in evaluating companies such as the Company, has
such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of its investment and has the
ability to suffer the total loss of the investment. The Warrant Holder
further represents that it has had the opportunity to ask questions of and
receive answers from the Company concerning the terms and conditions of the
Warrants, the business of the Company, and to obtain additional information
to such Warrant Holder's satisfaction.
(g) Accredited Investor. The Warrant Holder is an "Accredited
Investor" within the meaning of Rule 501 of Regulation D under the
Securities Act, as presently in effect.
12. Compliance with Securities Act; Transferability of Warrant or
Shares of Common Stock.
(a) Compliance with Securities Act. The Warrant Holder, by
acceptance hereof, agrees that the Warrants, and the shares of Common Stock
to be issued upon exercise of the Warrants, are being acquired for
investment and that such Warrant Holder will not offer, sell or otherwise
dispose of the Warrants, or any shares of Common Stock to be issued upon
exercise of the Warrants except under circumstances which will not result
in a violation of the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws. The Warrants and all shares
of Common Stock issued upon exercise of the Warrants (unless registered
under) the Securities Act and any applicable state securities laws) shall
be stamped or imprinted with a legend in substantially the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW. THEY MAY
NOT BE SOLD OR OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO UNDER SAID ACT AND
APPLICABLE STATE SECURITIES LAWS OR UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL THAT SUCH REGISTRATION IS NOT
REQUIRED TO EFFECTUATE SUCH TRANSACTION."
(b) Exchange, Transfer, Assignment or Loss of Warrants. The
Warrants cannot be exchanged, transferred or assigned otherwise than in
accordance with applicable law. Upon compliance with applicable law and
surrender of the Warrants to the Company with the Assignment Form annexed
hereto as Exhibit B duly executed, and funds sufficient to pay any transfer
tax, the Company shall, without charge, execute and deliver a new Warrant
Agreement in the name of the heir, devisee or assignee named in such
instrument of assignment and this Warrant Agreement shall promptly be
canceled. In the event that Warrant Holder sells, assigns or transfers this
Warrant Agreement and the Warrants represented hereby, the early exercise
rights and restrictions set forth in Section 4(b), 4(c), and 4(d) shall
survive, provided, that the determination, at any time and from time to
time, of whether the new Warrant Holder shall be entitled to early exercise
rights under such sections will be made on whether US Airways, Inc. has
achieved and/or does achieve the performance targets specified in Sections
4(b) and 4(c) and has and continues even after the assignment to be in
compliance with the restrictions set forth in Section 4(d). Accordingly, if
at any time, before or after a sale, assignment or transfer of this Warrant
Agreement and the Warrants represented hereby, US Airways, Inc. (if it had
continued to the hold Warrants represented hereby) would not be entitle to
early exercise rights, the assignee hereof will not be entitle to the early
exercise rights.
13. Restricted Securities. The Warrant Holder understands that the
Warrants and the Shares issuable upon vesting and exercise of the
Warrants, will not be registered at the time of their issuance
under the Securities Act for the reason that the sale provided
for in this Agreement is exempt pursuant to Section 4(2) of the
Securities Act based on the representations of the warrant Holder
set forth herein. The Warrant Holder represents that it is
experienced in evaluating companies such as the Company, has such
knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of its investment
and has the ability to suffer the total loss of the investment.
The Warrant Holder further represents that it has had the
opportunity to ask questions of and receive answers from the
Company concerning the terms and conditions of the Warrants, the
business of the Company, and to obtain additional information to
such Warrant Holder's satisfaction. The Warrant Holder is an
"Accredited Investor" within the meaning of Rule 501 of
Regulation D under the Securities Act, as presently in effect.
14. Registration Rights. The Company will use its best efforts to
cause the Warrant Holder to become a party to that certain
Amended Registration Rights Agreement, dated as of December 8,
1998, by and among the Company and the stockholders of the
Company named therein, on such terms and conditions as may be
reasonably acceptable to the Company, the Warrant Holder and the
other stockholders party to such Amended Registration Rights
Agreement.
15. Miscellaneous.
(a) No Consequential Damages. No party hereto shall be entitled to
consequential damages as a result of any breach of a covenant, representation
or warranty contained herein.
(b) Notices. All notices, demands and other communications provided
for or permitted hereunder shall be made in writing and shall be by
registered or certified firstclass mail, return receipt requested,
telecopier, courier service or personal delivery:
(i) if to the Company, to:
xxxxxxxxx.xxx Incorporated
Five Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Telecopy: (000) 0000000
Attention: Xxxxxxx X. Xxxx, Esq.
(ii) if to the Warrant Holder, to:
U S Airways, Inc.
Crystal Park Four
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopy:
Attention:Xxxxxx X. Xxxx
Director, System Forecasts
and to:
U S Airways, Inc.
Crystal Park Four
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopy:
Attention: General Counsel
(c) All such notices and communications shall be deemed to have
been duly given when delivered by hand, if personally delivered; when
delivered by courier, if delivered by commercial courier service; five (5)
business days after being deposited in the mail, postage prepaid, if
mailed; and when receipt is mechanically acknowledged, if telecopied.
(d) Successors and Assigns; Third Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the successors
and permitted assigns of the parties hereto. No person, other than the
parties hereto and their successors and permitted assigns, is intended to
be a beneficiary of this Agreement.
(e) Amendment and Waiver.
(i) No failure or delay on the part of the Company, or the
Warrant Holder in exercising any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power
or remedy preclude any other or further exercise
thereof or the exercise of any other right, power or
remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be
available to the Company and the Warrant Holder at law,
in equity or otherwise.
(ii) Any amendment, supplement or modification of or to any
provision of this Warrant Agreement, any waiver of any
provision of this Warrant Agreement, and any consent to
any departure by the Company or the Warrant Holder from
the terms of any provision of this Agreement, shall be
effective only if it is made or given in writing and
signed by the Company and the Warrant Holder.
(f) Counterparts. This Warrant Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Warrant Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) GOVERNING LAW. THIS WARRANT AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW OF ANY JURISDICTION.
(i) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way
impaired, unless the provisions held invalid, illegal or unenforceable
shall substantially impair the benefits of the remaining provisions hereof.
(j) Entire Agreement. This Warrant Agreement, together with the
exhibits hereto is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. This Warrant Agreement, together with the exhibits
hereto, supersedes all prior agreements and understandings between the
parties with respect to such subject matter and, specifically, this Warrant
Agreement replaces the Participation Warrant Agreement dated September
16th, 1999 (September Warrant) which was executed but not effective until
approved by delta Air Lines, Inc. the September Warrant is void and no
further in effect.
(k) Publicity. Except as may be required by law, none of the
parties hereto shall issue a publicity release or public announcement or
otherwise make any disclosure concerning this Warrant Agreement or the
transactions contemplated hereby, without prior approval by the other party
(which approval shall not be unreasonably withheld); provided, however,
that nothing in this Warrant Agreement shall restrict the Warrant Holder
from disclosing information (a)that is already publicly available and (b)
to its attorneys, accountants, consultants and other advisors to the extent
necessary to obtain their services in connection with the Warrant Holder's
investment or participation in the Company. If any announcement is required
by law to be made by any party hereto concerning this Warrant Agreement or
the transactions contemplated hereby, prior to making such announcement
such party will deliver a draft of such announcement to the other parties
and shall give the other parties an opportunity to comment thereon.
(l) Charges; Taxes and Expenses. Issuance of certificates for
shares upon the exercise of the Warrants shall be made without charge to
the Warrant Holder for any issue or transfer tax or other incidental
expense in respect of the issuance of such certificates, all of which taxes
and expenses shall be paid by the Company.
(m) Saturdays, Sundays, Holidays, Etc. If the last or appointed
day for the taking of any action or the expiration of any right required or
granted herein shall be a Saturday, Sunday or a legal holiday, then such
action may be taken or such right may be exercised on the next succeeding
day not a Saturday, Sunday or a legal holiday.
(n) Lost Warrants. The Company covenants to the Warrant Holder
that, upon receipt of evidence reasonably satisfactory to the Company of
the loss, theft, destruction or mutilation of this Warrant Agreement and,
in the case of any such loss, theft or destruction, upon receipt of an
indemnity reasonably satisfactory to the Company, or in the case of any
such mutilation, upon surrender and cancellation of this Warrant Agreement,
the Company will make and deliver a new Warrant Agreement of like tenor, in
lieu of the lost, stolen, destroyed or mutilated document.
(o) Further Assurances. Each of the parties shall execute such
documents and perform such further acts (including, without limitation,
obtaining any consents, exemptions, authorizations or other actions by, or
giving any notices to, or making any filings with, any governmental
authority or any other person, and otherwise fulfilling, or causing the
fulfillment of, the various obligations made herein), as may be reasonably
required or desirable to carry out or to perform the provisions of this
Warrant Agreement and to consummate and make effective as promptly as
possible the transactions contemplated by this Warrant Agreement.
IN WITNESS WHEREOF, this Warrant Agreement has been duly executed and
delivered by the authorized officers of each of the undersigned.
XXXXXXXXX.XXX INCORPORATED
By:_______________________________________
Name:
Title:
U S AIRWAYS, INC.
By:_______________________________________
Name:
Title:
EXHIBIT A
NOTICE OF EXERCISE
To: Xxxxxxxxx.xxx Incorporated
1. The undersigned hereby elects to purchase __________ shares
of the Common Stock of xxxxxxxxx.xxx Incorporated pursuant to the terms of
the Warrant Participation Agreement, dated as of _________________, 1999,
by and between xxxxxxxxx.xxx Incorporated and the undersigned (the "Warrant
Agreement"), and tenders herewith payment of the purchase price of such
shares in full.
2. Please issue a certificate or certificates representing said
shares in the name of the undersigned.
U S AIRWAYS, INC.
By:______________________________________
_________________________________________
(Print Name of Signatory)
_________________________________________
(Title of Signatory)
Date:________________
EXHIBIT B
ASSIGNMENT FORM
TO: xxxxxxxxx.xxx Incorporated
The undersigned hereby assigns and transfers unto ____________________________
of ___________________________________________________________________________
(Please typewrite or print in block letters)
the right to purchase ____________ shares of the common stock of
xxxxxxxxx.xxx Incorporated subject to the Warrant Participation Agreement,
dated as of ________________, 1999, by and between xxxxxxxxx.xxx
Incorporated and the undersigned (the "Warrant Agreement").
This assignment complies with the provisions of Section 12(b) of the
Warrant Agreement and is accompanied by funds sufficient to pay all
applicable transfer taxes.
U S AIRWAYS, INC.
By:___________________________________
______________________________________
(Print Name of Signatory)
______________________________________
(Title of Signatory)
Date:_________________________________
EXHIBIT C
ACKNOWLEDGMENT AND AGREEMENT
TO THE AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
WHEREAS, pursuant to a Participation Warrant Agreement, the undersigned
received a warrant to purchase 1,500,000 shares of common stock, par value
$.008 per share (the "Shares"), of xxxxxxxxx.xxx Incorporated, a Delaware
corporation (the "Company"); and
WHEREAS, the undersigned wishes to receive certain registration rights with
respect to such Shares; and
WHEREAS, the undersigned has reviewed a copy of that certain Amended
and Restated Registration Rights Agreement, dated as of December 8, 1998
(the "Agreement"), among the Company, General Atlantic Partners 48, L.P.,
GAP Coinvestment Partners, L.P., General Atlantic Partners 50, L.P. and the
stockholders named therein and has been given a copy of the Agreement and
afforded ample opportunity to read and to have counsel review it, and the
undersigned is thoroughly familiar with its terms.
NOW, THEREFORE, in consideration of the mutual premises contained
herein and in the Agreement and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the
undersigned hereby acknowledges and agrees that (i) the undersigned has
been given a copy of the Agreement and afforded ample opportunity to read
and to have counsel review it, and the undersigned is thoroughly familiar
with its terms, (ii) the Shares are subject to terms and conditions set
forth in the Agreement, (iii) the undersigned does hereby agree fully to be
bound by the Agreement as a "Demand Stockholder" (as therein defined), and
upon the execution and delivery of this Acknowledgment and Agreement by the
Company, the undersigned shall have all the rights and obligations under
the Agreement as a Demand Stockholder, and (iv) the undersigned does hereby
name _________________to serve as their representative under the Agreement.
This 17th day of November, 1999.
Acknowledged and agreed:
XXXXXXXXX.XXX INCORPORATED U S AIRWAYS, INC.
By:__________________________________ By:___________________________
Name: Name:
Title: Title:
[**]=Confidential Treatment requested for redacted portion
