EXHIBIT 4.11
EXECUTION VERSION
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DELTA AIR LINES, INC.
Common Stock, par value $1.50 per share
REGISTRATION RIGHTS AGREEMENT
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November 24, 2004
To the Initial Holders (as defined below)
Ladies and Gentlemen:
Delta Air Lines, Inc., a Delaware corporation (the "Company"), proposes to
exchange (the "Exchange"), upon the terms set forth in an exchange agreement,
dated October 25, 2004 (the "Exchange Agreement") among the Company and the
holders of the Company's 7.70% Notes due 2005 (the "Old Notes") listed in the
signature pages hereof (the "Initial Holders"), $135,202,000 aggregate principal
amount of the Old Notes for $135,202,000 aggregate principal amount of the
Company's 8.00% Senior Notes due 2007 (the "Notes") plus such number of shares
of common stock, par value $1.50, of the Company (as it exists on the date of
this Agreement and any other shares of capital stock or other securities of the
Company into which such common stock may be reclassified or changed, the "Common
Stock"), as determined pursuant to the Exchange Agreement. The shares of Common
Stock to be issued pursuant to the Exchange Agreement are referred to herein as
the "Securities." As an inducement to you to enter into the Exchange Agreement
and in satisfaction of a condition to your obligations thereunder, the Company
agrees with you, (i) for your benefit and (ii) for the benefit of the Holders
(as defined herein) from time to time of the Securities, as follows:
1. Definitions. Capitalized terms used herein without definition
shall have the respective meanings set forth in the Exchange Agreement. As used
in this Agreement, the following capitalized terms shall have the following
meanings:
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
"Affiliate" of any specified person means any other person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such person
whether through the ownership of voting securities or by agreement or otherwise.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York City, New York are
authorized or obligated by law, regulation or executive order to close.
"Closing Date" means November 24, 2004.
"Common Stock" has the meaning set forth in the preamble hereto.
"Company" has the meaning set forth in the preamble hereto.
"Damages Calculation Date" means each of (i) the Effectiveness Deadline
and (ii) the last day of each subsequent 30 day period from and including the
day following the immediately preceding Damages Calculation Date; provided that
(i) if the last day of any such period is not a Business Day, such period shall
be extended to the next Business Day and (ii) no such period shall extend beyond
the date on which the Shelf Registration Statement is declared effective; and
provided further that if the maximum aggregate amount of Liquidated Damages
payable by the Company has reached $9,000,000, there shall be no additional
Damages Calculation Dates.
"DTC" means The Depository Trust Company.
"Effectiveness Deadline" has the meaning set forth in Section 2(e) hereof.
"Exchange" has the meaning set forth in the preamble hereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"Exchange Agreement" has the meaning set forth in the preamble hereto.
"Holder" means a person who is a holder or beneficial owner of any
Securities; provided that, unless otherwise expressly stated herein, only
registered holders of Securities thereof shall be counted for purposes of
calculating any proportion of holders entitled to take any action or give notice
pursuant to this Agreement.
"Holder Information" with respect to any Holder means information with
respect to such Holder required to be included in any Shelf Registration
Statement or the related Prospectus pursuant to the Act and which information is
included therein in reliance upon and in conformity with information furnished
to the Company in writing by such Holder for inclusion therein.
"Initial Holders" has the meaning set forth in the preamble hereto.
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"Liquidated Damages" has the meaning set forth in Section 2(e) hereof.
"Losses" has the meaning set forth in Section 5(d) hereof.
"Majority Holders" means the Holders of a majority of the then outstanding
Transfer Restricted Securities.
"NASD" has the meaning set forth in Section 3(i) hereof.
"NASD Rules" means the rules and regulations promulgated by the NASD.
"Notice and Questionnaire" means a Selling Securityholder Notice and
Questionnaire substantially in the form of Annex A to the Exchange Agreement.
"Notice Holder" shall mean, on any date, any Holder of Transfer Restricted
Securities that has delivered a completed and signed Notice and Questionnaire to
the Company on or prior to such date.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities covered by such Shelf Registration
Statement, and all amendments and supplements to such prospectus, including
post-effective amendments, and all documents incorporated or deemed to be
incorporated by reference in such prospectus.
"Record Holder" means, with respect to any Damages Calculation Date, each
person who is registered on the books of the transfer agent as a holder of any
Securities, at the close of business on the fifteenth calendar day immediately
preceding such Damages Calculation Date.
"Registration Default" has the meaning set forth in Section 2(e) hereof.
"Rule 144" means Rule 144 under the Act (or any similar provision then in
force).
"Rule 144A" means Rule 144A under the Act (or any successor provision
promulgated by the SEC).
"Rule 144(k)" means Rule 144(k) under the Act (or any successor provision
promulgated by the SEC).
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning set forth in the preamble hereto.
"Shelf Registration" means a registration effected pursuant to Section 2
hereof.
"Shelf Registration Period" has the meaning set forth in Section 2(c)
hereof.
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"Shelf Registration Statement" means the registration statement for any
Shelf Registration on Form S-1 or on another appropriate form for an offering to
be made on a delayed or continuous basis pursuant to Rule 415 under the Act, or
any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including pre- and post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all documents incorporated or deemed to be incorporated by
reference therein.
"Suspension Period" has the meaning set forth in Section 2(d) hereof.
"Transfer Restricted Securities" means each Security until the earliest of
the date on which such Security (i) has been transferred pursuant to a Shelf
Registration Statement or another registration statement covering such Security
which has been filed with the SEC pursuant to the Act, in either case after such
registration statement has become effective and while such registration
statement is effective under the Act or (ii) may be sold or transferred pursuant
to Rule 144(k) (or any successor provision promulgated by the SEC) and are
freely tradeable without restriction under the Act after such sale or transfer.
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included," or "stated" in the Shelf
Registration Statement, any preliminary Prospectus or Prospectus (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
or deemed to be incorporated by reference in such Shelf Registration Statement,
preliminary Prospectus or Prospectus, as the case may be; and all references in
this Agreement to amendments or supplements to the Shelf Registration Statement,
any preliminary Prospectus or Prospectus shall be deemed to mean and include any
document filed with the SEC under the Exchange Act, after the date of such Shelf
Registration Statement, preliminary Prospectus or Prospectus, as the case may
be, which is incorporated or deemed to be incorporated by reference therein.
2. Shelf Registration Statement.
(a) The Company shall, at its expense, prepare and file with the SEC
as soon as reasonably possible following the Closing Date a Shelf Registration
Statement with respect to resales of the Transfer Restricted Securities by the
Holders from time to time in accordance with the methods of distribution elected
by such Holders and set forth in such Shelf Registration Statement and
thereafter shall use its reasonable best efforts to cause such Shelf
Registration Statement to be declared effective under the Act within 90 days
after the Closing Date. The Company shall supplement or amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company for the Shelf
Registration Statement, or by the Act, the Exchange Act or the SEC.
(b) (1) The Company shall give notice to all Holders of Transfer
Restricted Securities not less than 30 calendar days prior to the date on which
the Company intends in good faith to have the Shelf Registration Statement
declared effective, by issuing a press release to Reuters Economic Services and
Bloomberg Business News. The Company shall take action to name each Holder that
is a Notice Holder as of the date that is 10 calendar days prior to the
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effectiveness of the Shelf Registration Statement so that such Holder is named
as a selling securityholder in the Shelf Registration Statement at the time of
its effectiveness and is permitted to deliver the Prospectus forming a part
thereof as of such time to purchasers of such Holder's Transfer Restricted
Securities in accordance with applicable law. The Company shall be under no
obligation to name any Holder that is not a Notice Holder as a selling
securityholder in the Shelf Registration Statement.
(2) After the Shelf Registration Statement has become effective,
the Company shall, upon the request of any Holder of Transfer Restricted
Securities, promptly send a Notice and Questionnaire to such Holder and the
Company shall (i) within 10 days after the date a completed and signed Notice
and Questionnaire is delivered to the Company, prepare and file with the SEC (x)
a supplement to the Prospectus or, if required by applicable law, a
post-effective amendment to the Shelf Registration Statement and (y) any other
document required by applicable law, so that the Holder delivering such Notice
and Questionnaire is named as a selling securityholder in the Shelf Registration
Statement and is permitted to deliver the Prospectus to purchasers of such
Holder's Transfer Restricted Securities in accordance with applicable law;
provided that the Company shall not be required to file more than one
post-effective amendment for the purpose of naming Holders as selling
securityholders who are not named in the Shelf Registration Statement at the
time of effectiveness in any 30-day period or to file more than four such
post-effective amendments for such purpose in any twelve-month period. If the
Company files a post-effective amendment to the Shelf Registration Statement, it
shall use its reasonable best efforts to cause such post-effective amendment to
become effective under the Act as promptly as is practicable; provided, however,
that if a Notice and Questionnaire is delivered to the Company during a
Suspension Period, the Company shall not be obligated to take the actions set
forth above until the termination of such Suspension Period.
(c) The Company shall use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective under the Act in order to
permit the Prospectus forming a part thereof to be usable, subject to Section
2(d), by all Notice Holders until the earliest of (i) the date that such
Securities may be freely transferred without restriction by non-affiliates
pursuant to Rule 144(k) (or any successor or comparable rule or regulation)
under the Act, (ii) the date that such Securities have been transferred pursuant
to Rule 144 under the Act or any successor rule such that, after any such
transfer referred to in this clause (ii), such Securities may be freely
transferred without restriction by non-affiliates pursuant to Rule 144(k) (or
any successor or comparable rule or regulation) under the Act and (iii) the date
as of which all the Securities have been sold pursuant to the Shelf Registration
Statement (in any such case, such period being called the "Shelf Registration
Period"). The Company will, (x) subject to Section 2(d), prepare and file with
the SEC such amendments and post-effective amendments to the Shelf Registration
Statement as may be necessary to keep the Shelf Registration Statement
continuously effective for the Shelf Registration Period, (y) subject to Section
2(d), cause the related Prospectus to be supplemented by any required
supplement, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) under the Act) and (z) comply in all material
respects with the provisions of the Act with respect to the disposition of all
Securities during the Shelf Registration Period in accordance with the intended
methods of disposition by the Holders thereof set forth in such Shelf
Registration Statement and the related Prospectus, as amended and supplemented.
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(d) The Company may suspend the availability of any Shelf
Registration Statement and the use of any Prospectus (the period during which
the availability of any Shelf Registration Statement and any Prospectus may be
suspended herein referred to as the "Suspension Period") for a period not to
exceed either 30 days in the aggregate in any three-month period or 60 days in
the aggregate during any 12-month period, for valid business reasons, to be
determined by the Company in its sole judgment (which shall not include the
avoidance of the Company's obligations hereunder), including, without
limitation, the acquisition or divestiture of assets, pending corporate
developments, public filings with the SEC and similar events; provided that the
Company promptly thereafter complies with the requirements of Section 3(j)
hereof, if applicable.
(e) The Company and the Holders agree that the Holders of
Transferred Restricted Securities will suffer damages if the Company fails to
fulfill its obligations under Section 2 hereof. Accordingly, if the Shelf
Registration Statement has not been declared effective by the SEC within 90 days
(such 90th day, the "Effectiveness Deadline") after the Closing Date (a
"Registration Default"), the Company will become obligated to pay liquidated
damages (the "Liquidated Damages") in cash equal to $1,500,000 within three
Business Days of each Damages Calculation Date; provided that (i) the maximum
aggregate amount of Liquidated Damages payable by the Company pursuant to this
Agreement shall not exceed $9,000,000 and (ii) in the event that the Shelf
Registration Statement is declared effective after the Effectiveness Deadline
and before any Damages Calculation Date, the Liquidated Damages payable as of
such Damages Calculation Date shall be equal to $1,500,000 multiplied by a
fraction, the numerator of which is the number of days from (not excluding) the
prior Damages Calculation Date to (but excluding) the date the Shelf
Registration Statement becomes effective and the denominator of which is 30.
Payment of Liquidated Damages, if any, will be made within three Business Days
of each Damages Calculation Date by wire transfer to the applicable Record
Holders in amounts proportional to the aggregate number of Securities each of
them holds as of the applicable record date to the account specified for such
Holder on Annex A hereto or such other account specified in writing not less
than 10 Business Days prior to such Damages Calculation Date. The parties hereto
agree that the Liquidated Damages provided for in this Section 2(e) constitute a
reasonable estimate of the damages that may be incurred by Holders by reason of
a Registration Default.
(f) All of the Company's obligations (including, without limitation,
the obligation to pay Liquidated Damages) set forth in the preceding paragraph
which are outstanding or exist with respect to any Transfer Restricted Security
at the time such security ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to such security
shall have been satisfied in full.
(g) Immediately upon the occurrence or the termination of a
Registration Default, the Company shall give Record Holders notice of such
commencement or termination of the obligation to pay Liquidated Damages with
regard to the Securities, and the amount thereof and of the event giving rise to
such commencement or termination.
3. Registration Procedures. In connection with any Shelf
Registration Statement, the following provisions shall apply:
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(a) The Company shall (i) furnish to the Initial Holders, within a
reasonable period of time prior to the filing thereof with the SEC to afford the
Initial Holders and their counsel (such counsel being limited to one law firm or
counsel) a reasonable opportunity for review, a copy of each Shelf Registration
Statement, and each amendment thereof, and a copy of each Prospectus, and each
amendment or supplement thereto (excluding amendments caused by the filing of a
report under the Exchange Act and any amendments filed solely to include Holder
Information or to name a Holder as selling securityholder), and shall reflect in
each such document, when so filed with the SEC, such comments as the Initial
Holders may reasonably propose, except to the extent the Company reasonably
determines it to be inadvisable or inappropriate to reflect such comments
therein, and (ii) include information regarding the Notice Holders and the
methods of distribution they have elected for their Transfer Restricted
Securities provided to the Company in Notice and Questionnaires as necessary to
permit such distribution by the methods specified therein.
(b) Subject to Section 2(d), the Company shall ensure that (i) any
Shelf Registration Statement and any amendment thereto and any Prospectus
forming a part thereof and any amendment or supplement thereto comply in all
material respects with the Act and the rules and regulations thereunder, (ii)
any Shelf Registration Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) any Prospectus forming a part of any
Shelf Registration Statement, and any amendment or supplement to such
Prospectus, does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading; provided
that the Company makes no representation with respect to any Holder Information.
(c) The Company, as promptly as reasonably practicable (but in any
event within five Business Days), shall notify the Initial Holders and each
Notice Holder and, if requested by you or any such Holder, confirm such notice
in writing:
(i) when a Shelf Registration Statement and any amendment
thereto or any Prospectus and any amendments and supplements thereto has
been filed with the SEC and when the Shelf Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the SEC following effectiveness of the
Shelf Registration Statement for amendments or supplements to the Shelf
Registration Statement or the Prospectus or for additional information
(other than any such request relating to a review of the Company's
Exchange Act filings);
(iii) of the issuance by the SEC of any stop order suspending
the effectiveness of the Shelf Registration Statement or of any order
preventing or suspending the use of any Prospectus or the initiation or
threat of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Transfer Restricted
Securities included in any
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Shelf Registration Statement for sale in any jurisdiction or the
initiation or threat of any proceeding for that purpose;
(v) of the happening of any event or the existence of any
condition or any information becoming known that requires the making of
any changes in the Shelf Registration Statement or the Prospectus or any
document incorporated by reference therein so that, as of such date, the
statements therein are not misleading and the Shelf Registration Statement
or the Prospectus or any document incorporated by reference therein, as
the case may be, does not include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus,
in light of the circumstances under which they were made) not misleading;
(vi) of the Company's determination that a post-effective
amendment to the Shelf Registration Statement is necessary; and
(vii) of the commencement (including as a result of any of the
events or circumstances described in paragraphs (ii) through (vi) above)
and termination of any Suspension Period.
Notwithstanding the forgoing, the Company shall not be required to provide any
notice under this Section 3(c) in respect of amendments to the Shelf
Registration Statement caused by the filing of a report under the Exchange Act
or any amendment (including any post-effective amendment) filed solely to
include Holder Information or to name a Holder as a selling securityholder.
(d) The Company shall use its reasonable best efforts to obtain (i)
the withdrawal of any order suspending the effectiveness of any Shelf
Registration Statement and the use of any related Prospectus and (ii) the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Transfer Restricted Securities for offer or sale in any
jurisdiction in which they have been qualified for sale, in each case at the
earliest possible time, and shall provide notice to each Holder of the
withdrawal of any such orders or suspensions.
(e) The Company shall promptly furnish to each Notice Holder,
without charge, at least one copy of any Shelf Registration Statement and any
post-effective amendment thereto, excluding all documents incorporated or deemed
to be incorporated therein by reference and all exhibits thereto (unless
requested to the Company by such Notice Holder).
(f) The Company shall, during the Shelf Registration Period,
promptly deliver to the Initial Holders, each Notice Holder and any sales or
placement agent or underwriters acting on their behalf, without charge, as many
copies of the Prospectus (including each preliminary Prospectus) included in any
Shelf Registration Statement, and any amendment or supplement thereto, as such
person may reasonably request; and, except as provided in Sections 2(d) and 3(q)
hereof, the Company consents to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders in connection with the
offering and sale of the Transfer Restricted Securities covered by the
Prospectus or any amendment or supplement thereto.
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(g) Prior to any offering of Transfer Restricted Securities pursuant
to any Shelf Registration Statement, the Company shall register or qualify or
cooperate with the Notice Holders and their respective counsel in connection
with the registration or qualification (or exemption from such registration or
qualification) of such Transfer Restricted Securities for offer and sale, under
the securities or blue sky laws of such jurisdictions within the United States
as any such Notice Holders reasonably request and shall maintain such
qualification in effect so long as required and do any and all other acts or
things necessary or advisable to enable the offer and sale in such jurisdictions
of the Transfer Restricted Securities covered by such Shelf Registration
Statement; provided, however, that the Company will not be required to (A)
qualify generally to do business as a foreign corporation or as a dealer in
securities in any jurisdiction where it is not then so qualified or to (B) take
any action which would subject it to service of process or taxation in excess of
a nominal dollar amount in any such jurisdiction where it is not then so
subject.
(h) The Company shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Transfer Restricted
Securities sold pursuant to any Shelf Registration Statement free of any
restrictive legends and, with respect of any Securities, in such denominations
permitted by the applicable indenture and registered in such names as Holders
may request at least two Business Days prior to settlement of sales of Transfer
Restricted Securities pursuant to such Shelf Registration Statement.
(i) Subject to the exceptions contained in (A) and (B) of Section
3(g) above, the Company shall use its reasonable best efforts to cause the
Transfer Restricted Securities covered by the applicable Shelf Registration
Statement to be registered with or approved by such other federal, state and
local governmental agencies or authorities, and self-regulatory organizations in
the United States as may be necessary to enable the Holders to consummate the
disposition of such Transfer Restricted Securities as contemplated by the Shelf
Registration Statement; without limitation to the foregoing, the Company shall
provide all such information as may be required by the National Association of
Securities Dealers, Inc. (the "NASD") in connection with the offering under the
Shelf Registration Statement of the Transfer Restricted Securities (including,
without limitation, such as may be required by NASD Rule 2710 or 2720), and
shall cooperate with each Holder in connection with any filings required to be
made with the NASD by such Holder in that regard.
(j) Upon the occurrence of any event described in Section 3(c)(v) or
3(c)(vi) hereof, the Company shall promptly prepare and file with the SEC a
post-effective amendment to any Shelf Registration Statement, or an amendment or
supplement to the related Prospectus, or any document incorporated therein by
reference, or file a document which is incorporated or deemed to be incorporated
by reference in such Shelf Registration Statement or Prospectus, as the case may
be, so that, as thereafter delivered to purchasers of the Transfer Restricted
Securities included therein, the Shelf Registration Statement and the
Prospectus, in each case as then amended or supplemented, will not include an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein (in
the case of the Prospectus in light of the circumstances under which they were
made) not misleading and, in the case of a post-effective amendment, use its
reasonable best efforts to cause it to become effective as promptly as
practicable; provided that the Company's obligations under this paragraph (j)
shall be suspended if the Company has suspended the use of the
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Prospectus in accordance with Section 2(d) hereof and given notice of such
suspension to Notice Holders, it being understood that the Company's obligations
under this Section 3(j) shall be automatically reinstated at the end of such
Suspension Period.
(k) The Company shall use its reasonable best efforts to provide,
prior to the effective date of any Shelf Registration Statement hereunder (i) a
CUSIP number for the Transfer Restricted Securities registered under such Shelf
Registration Statement and (ii) global certificates for such Transfer Restricted
Securities to the Trustee, in a form eligible for deposit with DTC.
(l) The Company shall use its best efforts to comply with all
applicable rules and regulations of the SEC and shall make generally available
to its security holders an earnings statement satisfying the provisions of
Section 11(a) of the Act and Rule 158 promulgated by the SEC thereunder (or any
similar rule promulgated under the Act) for a 12-month period commencing on the
first day of the first fiscal quarter of the Company commencing after the
effective date of any Shelf Registration Statement or each post-effective
amendment to any Shelf Registration Statement, which such statements shall be
made available no later than 45 days after the end of the 12-month period or 90
days after the end of the 12-month period, if the 12-month period coincides with
the fiscal year of the Company.
(m) The Company may require each Holder of Transfer Restricted
Securities to be sold pursuant to any Shelf Registration Statement to furnish to
the Company such information regarding the Holder and the distribution of such
Transfer Restricted Securities sought by the Notice and Questionnaire and such
additional information as may, from time to time, be required by the Act and/or
the SEC, and the obligations of the Company to any Holder hereunder shall be
expressly conditioned on the compliance of such Holder with such request.
(n) The Company shall, if reasonably requested, use its reasonable
best efforts to promptly incorporate in a Prospectus supplement or
post-effective amendment to a Shelf Registration Statement (i) such information
as the Majority Holders provide and (ii) such information as a Holder may
provide from time to time to the Company in writing for inclusion in a
Prospectus or any Shelf Registration Statement concerning such Holder and the
distribution of such Holder's Transfer Restricted Securities and, in either
case, shall make all required filings of such Prospectus supplement or
post-effective amendment promptly after being notified in writing of the matters
to be incorporated in such Prospectus supplement or post-effective amendment,
provided that the Company shall not be required to take any action under this
Section 3(n) that is not, in the reasonable opinion of counsel for the Company,
in compliance with applicable law.
(o) In the case of an underwritten offering, take all actions
necessary, or reasonably requested by the holders of a majority of the Transfer
Restricted Securities being sold (including those reasonably requested by the
managing underwriters), in order to expedite or facilitate disposition of such
Transfer Restricted Securities, and in connection therewith, (i) use
commercially reasonable efforts to obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and substance) shall
be reasonably satisfactory to the managing underwriters and counsel to the
Holders of the Transfer Restricted Securities being sold), addressed to each
selling Holder of Transfer Restricted Securities covered
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by such Registration Statement and each of the underwriters as to the matters
customarily covered in opinions requested in underwritten offerings and such
other matters as may be reasonably requested by such counsel and managing
underwriters and (ii) use commercially reasonable efforts to obtain "cold
comfort" letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any business acquired
by the Company for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to each
selling Holder of Transfer Restricted Securities covered by the Registration
Statement (unless such accountants shall be prohibited from so addressing such
letters by applicable standards of the accounting profession) and each of the
underwriters, such letters to be in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection with
underwritten offerings; provided that the Company shall not be required to take
any action in connection with an underwritten offering without its consent. The
above shall be done at each closing under such underwriting or similar
agreement, or as and to the extent required thereunder.
(p) If reasonably requested in writing in connection with any
disposition of Transfer Restricted Securities pursuant to a Shelf Registration
Statement, make reasonably available for inspection during normal business hours
by a representative for the Notice Holders of such Transfer Restricted
Securities and any broker-dealers, attorneys and accountants retained by such
Notice Holders, all relevant financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries, and cause the
appropriate executive officers, directors and designated employees of the
Company and its subsidiaries to make reasonably available for inspection during
normal business hours all relevant information reasonably requested by such
representative for the Notice Holders or any such broker-dealers, attorneys or
accountants in connection with such disposition, in each case as is customary
for similar "due diligence" examinations; provided, however that any information
that is designated in writing by the Company, in good faith, as confidential at
the time of delivery of such information shall be kept confidential by such
persons, unless disclosure thereof is made in connection with a court,
administrative or regulatory proceeding or required by law (including in the
Shelf Registration), or such information has become available to the public
generally through the Company or through a third party without an accompanying
obligation of confidentiality.
(q) Each Notice Holder agrees that, upon receipt of notice of the
happening of an event described in Sections 3(c)(ii) through and including
3(c)(vii), each Holder shall forthwith discontinue (and shall cause its agents
and representatives to discontinue) disposition of Transfer Restricted
Securities and will not resume disposition of Transfer Restricted Securities
until such Holder has received copies of an amended or supplemented Prospectus
contemplated by Section 3(j) hereof, or until such Holder is advised in writing
by the Company that the use of the Prospectus may be resumed or that the
relevant Suspension Period has been terminated, as the case may be, provided
that the foregoing shall not prevent the sale, transfer or other disposition of
Transfer Restricted Securities by a Notice Holder in a transaction which is
exempt from, or not subject to, the registration requirements of the Act, so
long as such Notice Holder does not and is not required to deliver the
applicable Prospectus or Shelf Registration Statement in connection with such
sale, transfer or other disposition, as the case may be; and provided, further,
that the provisions of this Section 3(q) shall not prevent the occurrence of a
Registration Default or otherwise limit the obligation of the Company to pay
Liquidated Damages.
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(r) In the event that any broker-dealer shall underwrite any
Transfer Restricted Securities or participate as a member of an underwriting
syndicate or selling group or "assist in the public distribution" (within the
meaning of the NASD Rules) thereof, whether as a Holder of such Transfer
Restricted Securities or as an underwriter, a placement or sales agent or a
broker or dealer in respect thereof, or otherwise, the Company shall assist such
broker-dealer in complying with the NASD Rules, including, without limitation,
by:
(i) if the NASD Rules shall so require, engaging a
"qualified independent underwriter" (as defined in the NASD Rules) to
participate in the preparation of the Shelf Registration Statement, to
exercise usual standards of due diligence with respect thereto and, if any
portion of the offering contemplated by the Shelf Registration Statement
is an underwritten offering or is made through a placement or sales agent,
to recommend the price of such Transfer Restricted Securities;
(ii) indemnifying any such qualified independent underwriter
to the extent customary in underwritten public offerings; and
(iii) providing such information to such broker-dealer as may
be required in order for such broker-dealer to comply with the
requirements of the NASD Rules.
(s) The Company shall apply to list the Securities on the New York
Stock Exchange, Inc. (or, if applicable, such other principal U.S. securities
exchange on which the Company's Common Stock is listed or admitted for trading).
4. Registration Expenses. Whether or not any Shelf Registration
Statement is filed or becomes effective, the Company shall pay all costs, fees
and expenses incident to the Company's performance of or compliance with this
Agreement, including (i) all registration and filing fees, including NASD filing
fees, (ii) all fees and expenses of compliance with securities or blue sky laws,
including reasonable fees and disbursements of counsel in connection therewith,
(iii) printing expenses (including expenses of printing certificates for
Transfer Restricted Securities and of printing prospectuses if the printing of
prospectuses is requested by the Holders or the managing underwriter, if any),
(iv) messenger, telephone and delivery expenses, (v) fees and disbursements of
counsel for the Company, (vi) fees and disbursements of all independent
certified public accountants of the Company (including expenses of any "cold
comfort" letters required in connection with this Agreement) and all other
persons retained by the Company in connection with such Shelf Registration
Statement and (vii) all other costs, fees and expenses incident to the Company's
performance or compliance with this Agreement. The Company shall also reimburse
the Holders for the reasonable fees and disbursements of one firm or counsel
designated by the Majority Holders to act as counsel for the Holders in
connection therewith. Notwithstanding the provisions of this Section 4, each
Holder shall bear the expense of any broker's commission, agency fee and
underwriter's discount or commission, if any, relating to the sale or
disposition of such Holder's Transfer Restricted Securities pursuant to a Shelf
Registration Statement.
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5. Indemnification and Contribution.
(a) The Company (1) will indemnify and hold harmless each Holder of
Transfer Restricted Securities covered by any Shelf Registration Statement
(including, without limitation, each Initial Holder), the officers, directors,
agents and employees of each of such Holder, and each person who controls any
such Holder within the meaning of either the Act or the Exchange Act and the
officers, directors, agents and employees of each such controlling person
(collectively referred to for purposes of this Section 5 as a "Holder") against
any losses, claims, damages or liabilities, joint or several, to which any of
them may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in the Shelf Registration Statement, or in any Prospectus, or any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, and (2) will reimburse each such party for any legal or
other expenses reasonably incurred by such party in connection with
investigating or defending any such action or claim as such expenses are
incurred (such legal or other expenses reasonably incurred, together with any
such losses, claims, damages or liabilities described in clause (1) of this
section, the "Losses"); provided, however, (i) that the Company shall not be
liable in any such case to the extent that any such Losses arise out of or are
based upon Holder Information, (ii) that with respect to any untrue statement or
omission of material fact made in any Shelf Registration Statement, or in any
Prospectus, the indemnity agreement contained in this Section 5(a) shall not
inure to the benefit of the Holder or any person who controls the Holder within
the meaning of either the Act or the Exchange Act from whom the person asserting
any such Losses purchased the securities concerned, to the extent that any such
Losses of the Holders occur under the circumstance where it shall have been
established that (w) the Company had previously furnished copies of the
Prospectus, and any amendments and supplements thereto, to the Holder, (x)
delivery of the Prospectus, and any amendment or supplements thereto, was
required by the Act to be made to such person, (y) the untrue statement or
omission of a material fact contained in the Prospectus was corrected in
amendments or supplements thereto, and (z) there was not sent or given to such
person, at or prior to the written confirmation of the sale of such securities
to such person, a copy of such amendments or supplements to the Prospectus, and
(iii) the Company will not be liable for any such Losses in connection with any
settlement of any pending or threatened litigation or any pending or threatened
governmental agency investigation or proceeding if that settlement is effected
without the prior written consent of the Company, which consent shall not be
unreasonably withheld. This indemnity agreement will be in addition to any
liability that the Company may otherwise have.
(b) Each Holder, severally and not jointly, agrees to indemnify and
hold harmless the Company, each of its directors and officers and each person
who controls the Company within the meaning of either the Act or the Exchange
Act, against any Losses to which any of them may become subject, under the Act
or otherwise, insofar as such Losses (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Shelf Registration Statement, or in any
Prospectus, or any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
necessary to make the statements therein, in the
13
light of the circumstances under which they were made, not misleading, but only
to the extent, that such untrue or alleged untrue statement or omission or
alleged omission is based upon and is consistent with the Holder Information
supplied by such Holder. This indemnity agreement will be in addition to any
liability that such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action or proceeding (including
any governmental investigation), such indemnified party will, if a claim for
indemnification in respect thereof is to be made against the indemnifying party
under Section 5(a) or 5(b) hereof, notify the indemnifying party in writing of
the commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under Section 5(a) or 5(b) hereof to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In case any such action or proceeding is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein (jointly
with any other indemnifying party similarly notified), and to the extent that it
may elect, by written notice, delivered to such indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume, at the
indemnifying party's expense, the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided, however, that if the
defendants (including any impleaded parties) in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to appoint counsel to defend such
action and approval by the indemnified party of such counsel, the indemnifying
party will not be liable to such indemnified party under this Section 5 for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party shall have
employed separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expense of more than one separate counsel (in addition to any
local counsel), approved by the Holders in the case of paragraph (a) of this
Section 5, representing the indemnified parties under such paragraph (a) who are
parties to such action), (ii) the indemnifying party fails to assume promptly
the defense of such action or proceeding or shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice or commencement of the action, (iii)
the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party, or (iv) the use of
counsel chosen by the indemnifying party to represent the indemnified party is
likely to present such counsel with a conflict of interest; and except that, if
clause (i) or (iii) is applicable, such liability shall be only in respect of
the counsel referred to in such clause (i) or (iii). An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
14
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 5 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, each indemnifying party agrees to contribute
to the Losses to which the indemnified party may be subject in such proportion
as is appropriate to reflect the relative fault of the indemnifying party, on
the one hand, and such indemnified party, on the other hand, in connection with
the actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations; provided, however, that in no case
shall an indemnifying party that is a Holder be responsible for any amount in
excess of the amount by which the total proceeds received by such Holder from
the sale of the Transfer Restricted Securities (net of all underwriting
discounts and commissions) exceeds the amount of any damages that such
indemnifying party has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. Relative fault
shall be determined by reference to, among other things, whether any untrue or
any alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the Company
on the one hand or relates to Holder Information supplied by such Holder, on the
other, the intent of the parties and their relative knowledge, information and
opportunity to correct or prevent such untrue statement or omission. The parties
agree that it would not be just and equitable if contribution pursuant to this
paragraph (d) were determined by pro rata allocation or any other method of
allocation that does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 5(d), each person who
controls such Holder within the meaning of either the Act or the Exchange Act
shall have the same rights to contribution as such Holder, and each person who
controls the Company within the meaning of either the Act or the Exchange Act
and each officer and director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
(e) The provisions of this Section 5 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder, any
underwriter or the Company or any of the officers, directors or controlling
persons referred to in Section 5 hereof, and will survive the sale by a Holder
of Transfer Restricted Securities covered by a Shelf Registration Statement.
6. Underwritten Offerings.
(a) If any of the Transfer Restricted Securities covered by any
Shelf Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will
administer the underwritten offering will be selected by the Majority Holders of
such Transfer Restricted Securities included in such underwritten offering,
subject to the consent of the Company (which shall not be unreasonably withheld
or delayed), and such Holders shall be responsible for all underwriting
commissions and discounts in connection therewith.
15
(b) No Holder may participate in any underwritten offering hereunder
unless such person (i) agrees to sell such Holder's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the Holders entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
7. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of the Majority Holders.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier, or air courier guaranteeing overnight delivery:
(i) if to the Initial Holders, initially at the address set forth
in the Exchange Agreement;
(ii) if to any other Holder, at the most current address of such
Holder maintained by the registrar of the common stock of the Company, or,
in the case of the Notice Holder, the address set forth in its Notice and
Questionnaire; and
(iii) if to the Company, initially at its address set forth in the
Exchange Agreement.
All such notices and communications shall be deemed to have been duly
given when received, if delivered by hand or air courier, and when sent, if sent
by first-class mail or telecopier.
The Initial Holders or the Company by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Company thereto, subsequent Holders. The Company hereby agrees to extend the
benefits of this Agreement to any Holder and underwriter and any such Holder and
underwriter may specifically enforce the provisions of this Agreement as if an
original party hereto.
16
(e) Counterparts. This 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.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED IN SAID STATE.
(h) Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances, 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
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
is required hereunder, Securities held by the Company or its Affiliates (other
than subsequent Holders of Securities if such subsequent Holders are deemed to
be Affiliates solely by reason of their holdings of such Securities) shall not
be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(j) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Shelf Registration Period, except
for any liabilities or obligations under Section 2(e), 4 or 5 to the extent
arising prior to the end of the Shelf Registration Period.
17
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
DELTA AIR LINES, INC.
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President - Treasurer
18
AGREED AND ACCEPTED:
American High Income Trust
The Income Fund of America, Inc.
The Bond Fund of America, Inc.
Capital World Bond Fund, Inc.
American Funds Insurance Series - Bond Fund
American Funds Insurance Series - High-Income Bond Fund
American Funds Insurance Series - Asset Allocation Fund
By: CAPITAL RESEARCH AND MANAGEMENT COMPANY, as investment adviser for the
above funds
/s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President and Director
Ford 346102
Hanubl 3209
Manu 301818
Manu 301919
Washmu 3012
Qualcm 3408
By: CAPITAL GUARDIAN TRUST COMPANY, as investment adviser for the above
accounts
/s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President and Director
NAME AND ADDRESS
PRINCIPAL AMOUNT [ACCOUNT FOR REGISTRATION
HOLDER OF NOTES INFORMATION] OF SHARES
------ ---------------- ------------ ----------------
American High-Income Trust $18,875,000
The Income Fund of America, Inc. $62,396,000
The Bond Fund of America, Inc. $ 7,710,000
Capital World Bond Fund, Inc. $ 850,000
American Funds Insurance Series - $ 1,500,000
Bond Fund
American Funds Insurance Series - $ 2,300,000
High-Income Bond Fund
American Funds Insurance Series - $ 1,185,000
Asset Allocation Fund
Ford 346102 $ 125,000
Hanubl 3209 $ 75,000
Manu 301818 $ 150,000
Manu 301819 $ 250,000
Washmu 3012 $ 75,000
Qualcm 3408 $ 1,125,000
AGREED AND ACCEPTED:
XXXXX INTERNATIONAL
By: /s/ Xxxxxxx X. Xxxx
----------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Member of
Xxxxx Onshore Management,
LLC, Managing General Partner
NAME AND ADDRESS
PRINCIPAL AMOUNT [ACCOUNT FOR REGISTRATION
HOLDER OF NOTES INFORMATION] OF SHARES
------ ---------------- ------------ ----------------
Xxxxx International $4,250,000 Xxxxx International
c/x Xxxxx Onshore Management, LLC
0000 Xxxxx Xxxx Xxxxx
Xx. Xxxxxxx, XX 00000
AGREED AND ACCEPTED:
SHEPHERD INVESTMENTS INTERNATIONAL, LTD.
By: /s/ Xxxxxxx X. Xxxx
----------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Member of Xxxxx
Offshore Management, LLC,
Investment Manager
NAME AND ADDRESS
PRINCIPAL AMOUNT [ACCOUNT FOR REGISTRATION
HOLDER OF NOTES INFORMATION] OF SHARES
------ ---------------- ------------ ----------------
Shepherd Investments $4,250,000 Shepherd Investments
International, Ltd. International, Ltd.
c/x Xxxxx Offshore Management, LLC
0000 Xxxxx Xxxx Xxxxx
Xx. Xxxxxxx, XX 00000
AGREED AND ACCEPTED:
MELLON HBV SPV LLC
By: /s/ Xxxxxx Xxxxx
----------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director
NAME AND ADDRESS
PRINCIPAL AMOUNT [ACCOUNT FOR REGISTRATION
HOLDER OF NOTES INFORMATION] OF SHARES
------ ---------------- ------------ ----------------
Mellon HBV SPV LLC $30,086,000 000 Xxxx Xxxxxx
Xxxxx 000
XX XX 00000
