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EXHIBIT 10(a)
STOCK AGREEMENT
THIS STOCK AGREEMENT (the "Agreement") is made and executed this 17th
day of March, 1997, by and among DELTA AIR LINES, INC., a Delaware corporation
("Delta"), DELTA AIR LINES HOLDINGS, INC., a Delaware corporation ("Delta
Holdings"), ATLANTIC SOUTHEAST AIRLINES, INC., a Georgia corporation
("Airlines"), and ASA HOLDINGS, INC., a Georgia corporation ("ASA Holdings").
WHEREAS, Delta previously acquired capital stock in Airlines pursuant
to that certain Stock Purchase Agreement dated May 28, 1986, between Delta and
Airlines (the "Purchase Agreement");
WHEREAS, Delta has previously assigned all its right, title and
interest in and to any and all capital stock owned by Delta in Airlines to
Delta Holdings, whereupon Delta ceased to be a shareholder of record of
Airlines and currently is not a shareholder of record of any capital stock in
or to Airlines or ASA Holdings; and
WHEREAS, effective 11:59 p.m. E.S.T. on December 31, 1996, Airlines
undertook a reorganization transaction (the "Subject Transaction") pursuant to
which Airlines has become a wholly owned subsidiary of ASA Holdings; and
WHEREAS, under the Subject Transaction, all capital stock owned of
record by Delta Holdings in Airlines was automatically converted to the same
number of shares of capital stock in ASA Holdings, whereupon Delta Holdings
ceased to own of record any capital stock in Airlines; and
WHEREAS, the parties desire to (i) set forth herein the applicable
terms, conditions and other provisions originally contained under the Purchase
Agreement which shall apply as between Delta and Delta Holdings, as applicable,
on the one hand, and ASA Holdings, on the other, with respect to all capital
stock now owned or hereafter acquired by Delta Holdings in ASA Holdings (the
"Subject Stock") and (ii) except as noted in subclause (i), terminate in its
entirety the Purchase Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
I. RECITALS.
All parties acknowledge and agree that all of the foregoing recitals
are true and correct.
II. TERMINATION.
In accordance with Section 7.8 of the Purchase Agreement, the parties
acknowledge and agree that the Purchase Agreement is hereby amended in its
entirety as hereinafter provided.
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III. COVENANTS.
3.1 ASA Holdings' Board of Directors. ASA Holdings agrees that,
if Delta or Delta Holdings shall so request, (i) as promptly as practicable,
ASA Holdings will take such action as may be necessary to cause the election to
ASA Holdings' Board of Directors of two designees selected by Delta or Delta
Holdings and reasonably acceptable to ASA Holdings and (ii) for as long as
Delta or Delta Holdings owns at least 10% of the outstanding common stock of
ASA Holdings, ASA Holdings will include at least two designees of Delta or
Delta Holdings reasonably acceptable to ASA Holdings on the slate of nominees
for election as directors nominated by the ASA Holdings' Board of Directors and
will use its reasonable best efforts to assure that such individuals are
elected to ASA Holdings' Board of Directors (including, without limitation, by
soliciting proxies in favor of their election).
3.2 Equity Accounting. ASA Holdings will furnish to Delta and
Delta Holdings all information that is required by generally accepted
accounting principles to enable Delta and Delta Holdings to account for its
investment in ASA Holdings pursuant to the equity method if Delta or Delta
Holdings elects or is required by generally accepted accounting principles to
do so. To the extent reasonably requested by Delta or Delta Holdings, ASA
Holdings will, and will cause its employees, independent public accountants and
other representatives to, provide information regarding ASA Holdings to, and
otherwise cooperate with, Delta and Delta Holdings so as to enable Delta and
Delta Holdings to prepare financial statements in accordance with generally
accepted accounting principles and to comply with its reporting requirements
and other disclosure obligations under applicable federal securities laws and
regulations.
3.3 Registration Rights.
(a) Demand Rights. If, at any time Delta Holdings shall
desire to sell any or all of the Subject Stock, or any "New Securities" (as
defined in Section 3.4 hereof) acquired by Delta Holdings pursuant to Section
3.4 hereof (for purposes of this Section 3.3, the "Subject Stock" shall include
such New Securities), under circumstances requiring registration under the
Securities Act of 1933, as amended (the "Securities Act"), and shall so advise
ASA Holdings by written notice (which notice shall specify the number of shares
of the Subject Stock proposed to be sold, describe the method of proposed sale
and contain an undertaking by Delta Holdings to provide all such information
and to take all such action as may be required in order to permit ASA Holdings
to comply with all applicable requirements of the Securities and Exchange
Commission (the "SEC") and to obtain acceleration of the effective date of such
registration statement), ASA Holdings shall promptly prepare and file a
registration statement with the SEC relating to such Subject Stock designated
in such notice and use its reasonable best efforts to cause such registration
statement to become effective and remain effective for a period of not less
than six months (or such lesser period as the parties may agree); provided,
however, that ASA Holdings shall not be obligated to effect more than three
such registrations. If the plan of distribution specified by Delta Holdings
with respect to any such registration involves the selection of a managing
underwriter or underwriters, such managing underwriter or underwriters shall be
chosen by Delta Holdings, subject to the reasonable approval of
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ASA Holdings. In connection with any such registration, ASA Holdings will make
such filings, and will use its reasonable best efforts to cause such filings to
become effective, so that the Subject Stock proposed to be sold shall be
registered or qualified for sale under the securities or Blue Sky laws of such
jurisdictions as shall be reasonably appropriate for the distribution of the
Subject Stock covered by the registration statement; provided, however, that
ASA Holdings shall not be required to register as a broker or dealer in any
jurisdiction where it is not then so registered or to qualify to do business as
a foreign corporation in any jurisdiction where it is not then so qualified or
to file any general consent to service of process.
(b) Piggyback Rights. If, at any time ASA Holdings shall
propose the registration under the Securities Act of an underwritten offering
of shares of capital stock, ASA Holdings shall give written notice to Delta and
Delta Holdings of such proposed registration and will use its reasonable best
efforts to include in such registration such number of shares of the Subject
Stock as Delta Holdings shall request in writing within 15 days after receipt
of ASA Holdings' notice and to cause such Subject Stock to be offered to the
public on the same terms (including the method of distribution and, in the case
of shares of the same class of stock, the offering price) applicable to the
other shares of capital stock to be included in such offering; provided,
however, that if the managing underwriter or underwriters of such offering
shall determine in good faith and so advise ASA Holdings in writing that the
number of shares of capital stock proposed to be sold in such offering
(including the shares of the Subject Stock proposed to be sold by Delta
Holdings) exceeds the number which can be sold in such offering, ASA Holdings
shall be required to include in such offering only such number of shares of the
Subject Stock, which, when added to the number of shares of capital stock
proposed to be sold by ASA Holdings in such offering, can, in the good faith
judgment of the managing underwriter or underwriters, be sold without adversely
affecting the success of the offering (it being understood, however, that if
other holders of capital stock of ASA Holdings shall have requested the
inclusion of their shares in such registration, the number of shares held by
Delta Holdings and the number of shares of capital stock of ASA Holdings held
by such other holders to be included in such offering shall be determined on a
pro-rata basis).
(c) Expenses. ASA Holdings shall pay all fees and expenses in
connection with any registration effected pursuant to this Section 3.3, except
for underwriting discounts and commissions to brokers or dealers attributable
to the Subject Stock being sold by Delta Holdings and the fees and
disbursements of any counsel and accountants retained by Delta Holdings in
connection with such registration.
(d) Indemnification. In the case of any registration effected
pursuant to this Section 3.3, ASA Holdings and Delta Holdings will each provide
the other and any underwriter retained in connection therewith with customary
indemnities.
3.4 Preemptive Rights.
(a) For so long as Delta Holdings owns at least 10% of the
outstanding common stock of ASA Holdings, if ASA Holdings proposes to issue any
shares of any class of its voting securities
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(such securities, together with any voting securities which Delta Holdings has
the right to acquire under this Section 3.4(a) upon the exercise of any
employee stock options or upon the issuance of any voting securities for
consideration other than cash, hereinafter collectively referred to as the "New
Securities"), ASA Holdings shall promptly advise Delta and Delta Holdings in
writing of the terms on which the New Securities are to be issued. Delta
Holdings shall have the right, which may be exercised at any time within 30
days following such notice, to acquire on the same terms and conditions as such
proposed issuance (or, in the case of the issuance of any New Securities upon
the exercise of any employee stock options, at the market price of such
securities on the date of exercise, or in the case of the issuance of any New
Securities for consideration other than cash, at a cash price equal to the fair
market value of such non-cash consideration on the date that ASA Holdings first
agrees to issue such New Securities) its pro rata share of the New Securities.
Delta Holdings' pro rata share of the New Securities shall be determined by
multiplying the total number of New Securities by a fraction, the numerator of
which is the total number of votes represented by the voting securities then
owned by Delta Holdings and the denominator of which is the total number of
votes represented by all of the then outstanding voting securities.
(b) Notwithstanding the foregoing, ASA Holdings need not
notify Delta and Delta Holdings of the issuance of New Securities upon the
exercise of employee stock options or of any other issuances of New Securities
which in the aggregate represent less than 1% of the total number of votes
represented by all then outstanding voting securities, but shall notify Delta
and Delta Holdings within 15 days after the end of each fiscal quarter of ASA
Holdings (or more frequently if requested by Delta Holdings) as to the number
of shares of New Securities so issued during such quarter. Delta Holdings'
right under this Section 3.4 to purchase its pro rata share of New Securities
may, at the election of Delta Holdings, be exercised at any time within 30 days
following the notice given pursuant to this Section 3.4(b) or such right to
purchase New Securities after a notice given pursuant to this Section 3.4(b)
shall cumulate and may be carried forward and exercised by Delta Holdings at
the time of and together with the subsequent purchase of additional New
Securities by Delta Holdings pursuant to the next notice received by Delta
Holdings pursuant to Subsection (a) of this Section 3.4.
(c) For purposes of this Section 3.4, (i) the term "voting
securities" shall mean any securities of ASA Holdings entitled to vote
generally in the election of directors; (ii) the term "current market price" of
any voting securities shall mean, on the day in question, the last reported
sale price (regular way) on the principal national securities exchange on which
such securities are listed or admitted to trading, or if they are not listed or
admitted to trading on any national securities exchange, the average of the
closing bid and asked prices of such securities as reported through the
National Association of Securities Dealers Automated Quotation System
("NASDAQ") or any comparable system, or if price quotations for such securities
are not reported through NASDAQ or a comparable system, the average of the
closing bid and asked prices of such securities as furnished by two members of
the National Association of Securities Dealers, selected from time to time by
ASA Holdings for that purpose; and (iii) the term "fair market value" of any
non-cash consideration on the date in question shall mean the fair market value
of such consideration as mutually agreed by ASA Holdings and Delta Holdings, or
if such parties are unable to agree, as determined by an investment
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banking firm mutually agreeable to both parties. In the event that the parties
are unable to agree on an investment banking firm, then each party shall name
its own investment banking firm and such firms shall select a third investment
banking firm to determine the "fair market value" of any non-cash
consideration. The fees and expenses of such third investment banking firm
shall be borne equally by ASA Holdings and Delta Holdings.
3.5 Right of First Refusal. If at a time when Delta Holdings owns
at least 5% of the outstanding common stock of ASA Holdings, Delta Holdings
proposes to sell any voting securities (as defined in Section 3.4(c)) then
owned by it either (i) to five or fewer persons pursuant to a registration
statement prepared as a result of Delta Holdings' exercise of its demand rights
under Section 3.3(a), or (ii) in a private sale without registration under the
Securities Act, Delta Holdings shall promptly advise ASA Holdings in writing of
the price and terms on which such voting securities are to be sold and, if
known, the intended purchaser of such voting securities. ASA Holdings shall
have the right, which may be exercised at any time within 30 days following
such notice, to acquire all, but not less than all, of the voting securities
proposed to be sold at the same price and on the same terms as such proposed
sale; provided, however, that if such price is payable in whole or in part in
consideration other than cash, the price payable by ASA Holdings shall be
payable in cash and shall be equal to the fair market value of such non-cash
consideration on the date Delta Holdings first agrees to sell such voting
securities, determined as provided in Section 3.4(c). If ASA Holdings does not
exercise its right to purchase the voting securities proposed to be sold, Delta
Holdings shall be free to sell such voting securities at the same price and on
the same terms contained in Delta Holdings' written notice to ASA Holdings
within the one hundred twenty (120) day period following the expiration of ASA
Holdings' thirty (30) day exercise period.
3.6 Covenant to Satisfy Conditions. Each of the parties hereto
will use their respective reasonable best efforts, and cooperate with the
other, to ensure that the conditions set forth in Article III hereof are
satisfied as promptly as practicable.
IV. MISCELLANEOUS.
4.1 Brokers. ASA Holdings and Delta Holdings each represent and
warrant to the other that neither has employed any broker or finder or incurred
any liability for any brokerage fees, commissions or finders' fees in
connection with the transactions contemplated hereby. Delta Holdings and ASA
Holdings each agrees to indemnify and hold the other harmless from and against
any and all claims, liabilities or obligations with respect to any such fees or
commissions asserted by any person on the basis of any act or statement alleged
to have been made by such party.
4.2 Expenses. Each party shall pay its own expenses incurred in
connection with this Agreement and the transactions contemplated hereby.
4.3 Survival of Representations. All representations, warranties
and agreements made by ASA Holdings and Delta Holdings in this Agreement shall
survive the execution of this Agreement
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and the consummation of any transaction contemplated herein and any
investigation at any time made by or on behalf of any party hereto.
4.4 Adjustments. In the event of any change in the common stock
of ASA Holdings by reason of stock dividend, split-up, recapitalization,
combination, exchange of shares or the like, the number and kind of shares
subject to this Agreement shall be appropriately adjusted.
4.5 Legend. The certificates representing the Subject Stock shall
bear a legend in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY NOT BE OFFERED FOR SALE, SOLD OR TRANSFERRED EXCEPT
PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT OR (ii) AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT, AND
IN COMPLIANCE WITH THE APPLICABLE LAWS OF ANY STATE OR OTHER
JURISDICTION. THE SALE, TRANSFER OR OTHER DISPOSITION OF THE
SHARES REPRESENTED BY THIS CERTIFICATE IS ALSO SUBJECT TO
RESTRICTIONS CONTAINED IN A STOCK AGREEMENT DATED MARCH 17,
1997, AMONG DELTA AIR LINES, INC., DELTA AIR LINES HOLDINGS,
INC., ATLANTIC SOUTHEAST AIRLINES, INC., AND ASA HOLDINGS,
INC., A COPY OF WHICH IS ON FILE AT THE OFFICE OF THE
SECRETARY OF ASA HOLDINGS, INC.
4.6 Entire Agreement. This Agreement contains the entire
understanding of the parties hereto with respect to its subject matter. There
are no restrictions, agreements, promises, warranties, covenants or
undertakings with respect to the subject matter hereof other than those
expressly set forth herein. This Agreement supersedes all prior agreements and
understandings between all or any number of the parties with respect to its
subject matter.
4.7 Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
4.8 Amendment; Waiver. This Agreement may be amended only by a
written instrument duly executed by each of ASA Holdings, Airlines, Delta, and
Delta Holdings. To the extent permitted by law, any condition to a party's
obligations hereunder may be waived in writing by such party.
4.9 Parties in Interest. This Agreement will be binding upon,
inure to the benefit of and be enforceable by ASA Holdings, Airlines, Delta and
Delta Holdings and their respective successors and assigns. This Agreement may
not be assigned by the parties hereto, except that Delta Holdings
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may assign its rights hereunder to Delta or to any directly or indirectly
wholly owned subsidiary or parent of Delta or Delta Holdings; provided,
however, that no such assignment shall relieve Delta Holdings of any of its
obligations hereunder.
4.10 Specific Performance. ASA Holdings acknowledges and agrees
that Delta Holdings would not have an adequate remedy at law and would be
irreparably harmed in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that Delta Holdings shall be entitled to
injunctive relief to prevent breaches of this Agreement and to specifically
enforce the terms and provisions hereof, in addition to any other remedy to
which it may be entitled, at law or in equity.
4.11 Notices. All notices, claims, certificates, requests, demands
and other communications hereunder ("notices") will be given in writing and
will be deemed to have been duly given when hand-delivered or, if mailed, three
days after being mailed (registered or certified mail, postage prepaid, return
receipt requested) addressed as follows:
(a) If to Delta Holdings to:
Delta Air Lines Holdings, Inc.
Suite 1305
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Secretary
(b) If to Delta to:
Delta Air Lines, Inc.
Xxxxxxxxxx Atlanta International Airport
0000 Xxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
copy to:
Senior Vice President-General Counsel & Secretary
Delta Air Lines, Inc.
Xxxxxxxxxx Atlanta International Airport
0000 Xxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
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(c) If to Airlines or ASA Holdings:
ASA Holdings, Inc.
000 Xxxxxxxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxx, President
copy to:
Xxxxxx, Xxxxxxx & Xxxxxx, P.C.
0000 Xxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
or, in either case, such other address as the person to whom notice is to be
given may have previously furnished to the others in the manner set forth
above.
4.12 Governing Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of Georgia, without
regard to the principles of conflicts of law.
4.13 Counterparts. This Agreement may be executed simultaneously
in counterparts, each of which will be deemed to be an original but all of
which together will constitute one and the same instrument.
(THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
DELTA AIR LINES, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Title: Senior Vice President-Finance and
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Chief Financial Officer
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DELTA AIR LINES HOLDINGS, INC.
By: /s/ [illegible]
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Title: Treasurer
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ATLANTIC SOUTHEAST AIRLINES, INC.
By: /s/ Xxxx X. Xxxxxx
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Title: President
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ASA HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxxx
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Title: President
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