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Exhibit 10
TRANSACTION FRAMEWORK
AGREEMENT
among
DELTA AIR LINES,
INC.,
DELTA MASTER EXECUTIVE
COUNCIL,
NORTHWEST MASTER EXECUTIVE
COUNCIL
and
AIR LINE PILOTS ASSOCIATION,
INTERNATIONAL
Dated as of June 26,
2008
TABLE OF
CONTENTS
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Page |
| ARTICLE I |
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| DEFINITIONS |
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| Section
1.01. |
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Certain
Defined Terms |
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2 |
| Section
1.02. |
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Terms
Generally |
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5 |
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| ARTICLE II |
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| COLLECTIVE BARGAINING
AGREEMENT |
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| Section
2.01. |
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Entry
into the new PWA |
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6 |
| Section
2.02. |
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Pilot
Equity Issuance |
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7 |
| Section
2.03. |
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Original
TFA |
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7 |
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| ARTICLE III |
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| SALE AND PURCHASE OF SHARES |
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| Section
3.01. |
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Sale and
Purchase of Common Shares |
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7 |
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| ARTICLE IV |
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| REPRESENTATIONS AND WARRANTIES OF
DELTA |
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| Section
4.01. |
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Organization and Qualification |
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10 |
| Section
4.02. |
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Authority
for this Agreement; Board Action |
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10 |
| Section
4.03. |
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Consents
and Approvals; No Violation |
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10 |
| Section
4.04. |
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Shares |
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11 |
| Section
4.05. |
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Proxy
Statement |
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11 |
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| ARTICLE V |
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REPRESENTATIONS AND
WARRANTIES OF ALPA, THE DELTA MEC AND THE
NORTHWEST MEC
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| Section
5.01. |
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Authority
for this Agreement |
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12 |
| Section
5.02. |
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Consents
and Approvals; No Violation |
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12 |
| Section
5.03. |
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Proxy
Statement |
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13 |
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| ARTICLE VI |
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| OTHER COVENANTS |
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| Section
6.01. |
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Support
of Merger |
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13 |
| Section
6.02. |
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No
Prejudice |
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14 |
| Section
6.03. |
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Fees and
Expenses |
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14 |
| Section
6.04. |
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Press
Release |
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14 |
| Section
6.05. |
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Reasonable Best Efforts |
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14 |
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TABLE OF
CONTENTS
(continued)
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Page |
| Section
6.06. |
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Proxy
Statement; Stockholder Approval |
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15 |
| Section
6.07. |
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Pilot
Directors |
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15 |
| Section
6.08. |
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Indemnity |
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16 |
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| ARTICLE VII |
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| CONDITIONS |
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| Section
7.01. |
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Conditions to Each Party’s Obligations |
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17 |
| Section
7.02. |
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Conditions to Obligations of ALPA, the Delta MEC and the
Northwest MEC |
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17 |
| Section
7.03. |
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Conditions to Obligations of Delta |
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18 |
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| ARTICLE VIII |
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| TERMINATION; AMENDMENT;
WAIVER |
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| Section
8.01. |
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Termination |
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18 |
| Section
8.02. |
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Effect of
Termination |
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19 |
| Section
8.03. |
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Fees and
Expenses |
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19 |
| Section
8.04. |
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Amendment |
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20 |
| Section
8.05. |
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Extension; Waiver; Remedies |
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20 |
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| ARTICLE IX |
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| MISCELLANEOUS |
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| Section
9.01. |
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Representations and Warranties |
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20 |
| Section
9.02. |
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Entire
Agreement; Assignment |
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20 |
| Section
9.03. |
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Jurisdiction; Venue |
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20 |
| Section
9.04. |
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Validity;
Specific Performance |
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21 |
| Section
9.05. |
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Capacity
of the Delta MEC and the Northwest MEC |
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21 |
| Section
9.06. |
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Notices |
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21 |
| Section
9.07. |
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Governing
Law |
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23 |
| Section
9.08. |
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Descriptive Headings |
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23 |
| Section
9.09. |
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Parties
in Interest |
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23 |
| Section
9.10. |
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Waiver |
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23 |
| Section
9.11. |
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Counterparts |
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23 |
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| Exhibits |
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| Exhibit
A |
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Registration Rights Procedures
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ii
TRANSACTION FRAMEWORK
AGREEMENT
THIS TRANSACTION FRAMEWORK
AGREEMENT (this “ Agreement ”), dated as of
June 26, 2008, by and among DELTA AIR LINES, INC., a Delaware
corporation (“ Delta ”), DELTA MASTER EXECUTIVE
COUNCIL (“ Delta MEC ”), NORTHWEST MASTER
EXECUTIVE COUNCIL (“ Northwest MEC ”) and the
AIR LINE PILOTS ASSOCIATION, INTERNATIONAL (“ ALPA
”) (collectively, the “ Parties
”).
RECITALS
WHEREAS, it is proposed that,
on the Merger Agreement Effective Date (as defined below), pursuant
to the Agreement and Plan of Merger by and among Delta, Nautilus
Merger Corporation, a Delaware corporation and a wholly-owned
subsidiary of Delta (“ Merger Sub ”) and
Northwest Airlines Corporation, a Delaware corporation (“
NWA ”), dated as of April 14, 2008 (the “
Merger Agreement ”), Delta will acquire NWA (the
“ Merger ”), including the operations of
Northwest Airlines, Inc., a Minnesota corporation and a
wholly-owned Subsidiary of NWA (“ Northwest Airlines
” and collectively with NWA, “ Northwest
”), through the merger of Merger Sub with and into NWA, with
NWA as the surviving corporation and a direct wholly-owned
subsidiary of Delta (Delta or any other ultimate publicly-held
parent company of Delta and Northwest after giving effect to the
Merger being referred to herein as the “ Merged
Company ”);
WHEREAS, Delta, the Delta MEC
and ALPA entered into the Transaction Framework Agreement, dated as
of April 14, 2008 (the “ Original TFA
”);
WHEREAS, it is intended that,
upon the DCC (as defined below), the air carriers (the “
Merged Airline ”) employing the Merged Company Pilots
(as defined below) will operate pursuant to the new PWA (as defined
below), except as otherwise provided therein;
WHEREAS, the Parties have
agreed to a process for the determination of an integrated
seniority list applicable to the Merged Company Pilots;
WHEREAS, the Parties wish to
secure the benefits of an agreement as provided herein, in
connection with the entry into the Merger Agreement;
WHEREAS, Delta has agreed to
cause the Merged Company to issue to the Eligible Pilots (as
defined below) equity interests in the Merged Company on the Pilot
Equity Issuance Date (as defined below) on the terms and subject to
the conditions contained, and approvals contemplated,
herein;
WHEREAS, the Parties desire
to make certain representations, warranties, covenants and
agreements in connection with this Agreement.
NOW THEREFORE, in
consideration of the mutual covenants and agreements set forth
herein, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain
Defined Terms . As used in this Agreement, the following terms
have the following meanings:
“ Agreement
” has the meaning specified in the Preamble.
“ ALPA ”
has the meaning specified in the Preamble.
“ Ancillary TFA
” means the Ancillary Transaction Framework Agreement among
NWA, Northwest Airlines, the Northwest MEC and ALPA, dated as of
the date hereof.
“ Announcement
Date ” means April 14, 2008.
“ Claim ”
has the meaning specified in Section 6.08.
“ Code ”
means the Internal Revenue Code of 1986, as amended.
“ Contract
” has the meaning specified in
Section 4.03(a).
“ Date of Corporate
Closing” or “ DCC ” has the meaning
specified in Section 2.01(a).
“ Delta ”
has the meaning specified in the Preamble.
“ Delta MEC
” has the meaning specified in the Preamble.
“ Delta Pilot
Group ” means the airline pilots in the service of Delta,
as represented by ALPA and, for purposes of clarity, excluding
(x) the airline pilots in the service of any Subsidiary of
Delta, and (y) the airline pilots in the service of
Northwest.
“ Designee
” means Athena Advisory Group, LLC.
“ Eligible
Pilots ” mean those pilots who are on either the Delta
pilot seniority list or the Northwest Airlines pilot seniority list
on the DCC.
“ ERISA ”
means the Employee Retirement Income Security Act of 1974, as
amended.
“ Exchange Act
” means the Securities Exchange Act of 1934, as amended, and
any successor thereto, and any rules and regulations promulgated
thereunder, as well as, in respect of the provisions of
Section 3.01(f) hereof, no action letters related to the
matters described therein, including the no-action letter dated
January 12, 1999, issued by the SEC regarding such matters,
all as the same shall be in effect from time to time.
“ Existing Delta
PWA ” means the collective bargaining agreement
applicable to the Delta Pilot Group in effect as of the date
hereof, including, without limitation, as modified by the Letter of
Agreement titled Mid-Contract Improvements Related to the Delta
Merger (“ LOA #19 ”), as it may be further
modified.
2
“ Existing Northwest
CBA ” means the collective bargaining agreement
applicable to the Northwest Pilot Group in effect as of the date
hereof, as it may be modified.
“ Force Majeure
Event ” means an event (i) over which Delta does not
have control and (ii) which involuntarily prevents Delta from
conducting a substantial portion of its operations. Such event
includes but is not limited to the grounding of a substantial
number of Delta’s aircraft by a government agency,
unavailability of fuel to Delta or a natural disaster with respect
to Delta, in each case involuntarily preventing Delta from
conducting a substantial portion of its operations.
“ fully-diluted
basis ” has the meaning specified in
Section 3.01(a).
“ Governmental
Entity ” has the meaning specified in
Section 4.03(b).
“ Governmental
Filings ” has the meaning specified in
Section 6.05.
“ HSR Act
” has the meaning specified in
Section 4.03(b).
“ Indemnitee
” has the meaning specified in Section 6.08.
“ Initial Holder
” means one or more trusts (which may be tax qualified or
non-qualified) or other entities not required to be registered
under the Investment Company Act of 1940 for the benefit of the
Eligible Pilots or the retirement accounts of the Eligible Pilots,
with the structure of such trust(s) or entity to be determined by
the Delta MEC and the Northwest MEC, acting jointly, with the
consent of Delta, not to be unreasonably withheld.
“ Law ”
has the meaning specified in Section 4.03(a).
“ LOA #19
” has the meaning specified in definition of “Existing
Delta PWA”.
“ MEC Successor
” means any successor to the Delta MEC, the Northwest MEC or
the Merged Company MEC, including as a result of merger or
reorganization of Delta (including the Merger) or
otherwise.
“ Merged Airline
” has the meaning specified in the Recitals.
“ Merged Company
” has the meaning specified in the Recitals.
“ Merged Company
MEC ” means the ALPA Master Executive Council of the
Merged Airline, when and as constituted from time to time on or
after the DCC.
“ Merged Company
Pilots ” means the Delta Pilot Group and the Northwest
Pilot Group, collectively.
“ Merger ”
has the meaning specified in the Recitals.
3
“ Merger
Agreement ” has the meaning specified in the
Recitals.
“ Merger Agreement
Effective Date ” is the date and time on which the Merger
becomes effective under applicable law in accordance with the
Merger Agreement.
“ Merger Sub
” has the meaning specified in the Recitals.
“ new PWA
” has the meaning specified in
Section 2.01(a).
“ Nomination Letter
Agreement ” means that certain Letter of Agreement dated
as of the Announcement Date among Delta, the Delta MEC and ALPA
with respect to the nomination of the “Pilot Nominee”
(as defined therein) to the Board of Directors of Delta.
“ Northwest
” has the meaning specified in the Recitals.
“ Northwest
Airlines ” has the meaning specified in the
Recitals.
“ Northwest
Board ” has the meaning specified in
Section 6.07.
“ Northwest MEC
” has the meaning specified in the Preamble.
“ Northwest Pilot
Group ” means the airline pilots in the service of
Northwest Airlines, as represented by ALPA and, for purposes of
clarity, excluding the airline pilots in the service of any
subsidiary of Northwest Airlines or NWA other than Northwest
Airlines.
“ NYSE ”
has the meaning specified in Section 3.01(a).
“ NWA ”
has the meaning specified in the Recitals.
“ Original TFA
” has the meaning specified in the Recitals.
“ Parties
” has the meaning specified in the Preamble.
“ Person ”
means any individual, corporation, limited liability company,
partnership, association, trust, estate or other entity or
organization, including any Governmental Entity.
“ Pilot Director
” means a member of the Board of Directors of Delta (or any
successor), who has been nominated in accordance with the
Nomination Letter Agreement (including after giving effect to
Section 6.07 of this Agreement).
“ Pilot Equity
Issuance ” has the meaning set forth in
Section 2.02.
“ Pilot Equity
Issuance Date ” has the meaning set forth in
Section 2.02.
“ Pilot Shares
” has the meaning specified in
Section 3.01(a).
“ Proxy
Statement ” has the meaning specified in
Section 4.05.
4
“ Process
Agreement ” has the meaning specified in
Section 2.01(a).
“ Reimbursement
Cap ” has the meaning specified in
Section 6.03.
“
Representatives ” means, when used (w) with
respect to a Party, the directors, officers, employees,
consultants, financial advisors, accountants, legal counsel,
investment bankers, and other agents, advisors and representatives
of such Party, as applicable, and its Subsidiaries, (x) with
respect to the Delta Pilot Group, the Delta MEC, unless the Merged
Company MEC is then in existence, (y) with respect to the
Northwest Pilot Group, the Northwest MEC, unless the Merged Company
MEC is then in existence, and (z) with respect to the Merged
Company Pilots, the Merged Company MEC, if then in
existence.
“ Requisite
Stockholder Approval ” means the affirmative vote of at
least the minimum number of stockholders of Delta required by the
certificate of incorporation or bylaws of Delta, as the case may
be, by Law or the rules and regulations of the NYSE necessary to
approve the Pilot Equity Issuance (either alone or as part of
another equity plan or plans) and the plan for the distribution of
proceeds related thereto, each as contemplated in
Section 3.01, and to complete the Pilot Equity
Issuance.
“ SEC ”
means the Securities and Exchange Commission.
“ Securities Act
” means the Securities Act of 1933, and any similar or
successor federal statute, and the rules and regulations
promulgated thereunder, all as amended, and as the same may be in
effect from time to time.
“ Shelf
Registration ” has the meaning specified in
Section 3.01(d).
“ Shelf Registration
Statement ” has the meaning specified in
Section 3.01(d).
“ Special
Meeting ” has the meaning specified in
Section 6.06(b).
“ Subsidiary
” means, when used with reference to a Person, any other
Person (other than natural persons) of which securities or other
ownership interests having ordinary voting power to elect a
majority of the board of directors or other Persons performing
similar functions, or a majority of the outstanding voting
securities of which, are owned directly or indirectly by such first
Person.
“ Takedown
” has the meaning specified in
Section 3.01(d).
“ transactions
contemplated hereby ” means, for purposes of this
Agreement, all of the transactions contemplated by this Agreement,
excluding the Merger.
SECTION 1.02. Terms
Generally . (a) Words in the singular shall include the
plural and vice versa, and words of one gender shall include the
other genders, in each case, as the context requires, (b) the
term “hereof,” “herein,” and
“herewith” and words of similar import shall, unless
otherwise stated, be construed to refer to this Agreement and not
to any particular provision of this Agreement, and Article,
Section, paragraph, Exhibit and Schedule references are to the
Articles, Sections, paragraphs, Exhibits and Schedules to this
Agreement unless otherwise specified and (c) the word
“including” and words of similar import when used in
this Agreement shall mean “including, without
limitation,” unless otherwise specified.
5
ARTICLE II
COLLECTIVE BARGAINING
AGREEMENT
SECTION 2.01. Entry into
the new PWA . (a) Upon the terms and subject to the
conditions hereof, the Parties have tentatively agreed to the
collective bargaining agreement approved by the Delta MEC on or
prior to the date hereof and by the Northwest MEC on or prior to
the date hereof, governing the Merged Company Pilots (the “
new PWA ”), effective as of 12:01 a.m. New York time
on the day following the Merger Agreement Effective Date (the
“ Date of Corporate Closing ” or “
DCC ”), subject to the provisions of this Agreement
and ratification thereof as provided herein. The Northwest MEC, the
Delta MEC and ALPA shall adopt and be bound by the Process
Agreement, dated on or prior to the date hereof, between the
Northwest MEC and the Delta MEC, and approved by ALPA (the “
Process Agreement ”), relating to the determination of
an integrated seniority list and shall not revise, waive any
material right under, or terminate the Process Agreement without
the consent of Delta.
(b) The Delta MEC and the
Northwest MEC have each agreed to recommend ratification by the
Delta Pilot Group and the Northwest Pilot Group, respectively, of
the new PWA and to submit the new PWA, as promptly as practicable
after the date hereof, to the Delta Pilot Group and the Northwest
Pilot Group, respectively, for separate ratification, within the
time limits set forth in Section 6.01 hereof.
(c) Promptly upon separate
ratification by the Delta Pilot Group and the Northwest Pilot Group
as provided for in Section 2.01(b), the Delta MEC and the
Northwest MEC will deliver the new PWA to the president of ALPA for
his signature, and each of the Parties shall, and, on or promptly
following the Merger Agreement Effective Date, Delta shall cause
the Merged Company to, execute the new PWA to be effective subject
to Section 2.01(d) hereof.
(d) Until the DCC, the Delta
Pilot Group and the Northwest Pilot Group will remain separate and
covered by the Existing Delta PWA and the Existing Northwest CBA,
respectively, and the new PWA shall not become effective until the
DCC. Upon the DCC, the Merged Airline will operate pursuant to the
new PWA, if separately ratified by both the Delta Pilot Group and
the Northwest Pilot Group as provided herein. Each of Delta and the
Merged Company will support ALPA’s application to the
National Mediation Board in respect of the Merged Airline for
recognition of a single transportation system and single pilot
craft or class.
(e) Delta shall not, prior to
the Merger Agreement Effective Date, swap or transfer orders or
options for new aircraft existing prior to the Announcement Date
with Northwest. Between the date hereof and the DCC, no pilot on
the Delta seniority list as of the Announcement Date will be placed
on furlough as a result of the Merger Agreement, except and only to
the extent that a Force Majeure Event has occurred and is
continuing during the period in which such furlough takes place and
is the cause of any such furlough.
6
SECTION 2.02. Pilot Equity
Issuance . Subject to the terms and conditions of this
Agreement, the issuance of the Pilot Shares (the “ Pilot
Equity Issuance ” and the date on which the Pilot Equity
Issuance actually occurs, the “ Pilot Equity Issuance
Date ”) will take place at the same time and at the same
place as the closing of the Merger Agreement on the Merger
Agreement Effective Date; provided , however , that
notwithstanding the satisfaction or waiver of the conditions set
forth in Article VII, this Agreement may be terminated pursuant to
and in accordance with Section 8.01 hereof such that the
Parties shall not be required to effect the Pilot Equity Issuance.
Notwithstanding the occurrence of the Pilot Equity Issuance Date,
it is agreed that the Designee may elect to cause the Merged
Company to issue any or all of the Pilot Shares on one or more
dates occurring on or after the Pilot Equity Issuance Date, by
providing reasonable written notice thereof to the Merged Company
and each such notice shall specify the number of Pilot Shares to be
issued on any such date.
SECTION 2.03. Original
TFA . Each of Delta, the Delta MEC and ALPA agrees that, from
the date hereof until such time (if any) that this Agreement is
terminated pursuant to Section 8.01 for any reason, the
Original TFA shall be superseded in all respects by this Agreement;
provided , however, that upon a termination of this
Agreement for any reason, the Original TFA and the rights and
obligations thereunder shall remain in full force and effect,
subject to and in accordance with the terms thereof as if this
Agreement had never been entered into; provided , further
that any action constituting a breach of this Agreement that would
have constituted a breach of the Original TFA, had the Original TFA
been in effect as of the date of the breach of this Agreement,
shall constitute, and result in, a breach of the Original TFA. For
the avoidance of doubt, there shall be no duplication of the
benefits, including with respect to (i) the issuance of Pilot
Shares, (ii) the payment of fees and expenses,
(iii) registration rights, and (iv) the right to appoint
a Pilot Director pursuant to the Nomination Letter Agreement,
provided under the Original TFA and this Agreement.
ARTICLE III
SALE AND PURCHASE OF
SHARES
SECTION 3.01. Sale and
Purchase of Common Shares . (a) Subject to the terms and
conditions of this Agreement, on the Pilot Equity Issuance Date, in
consideration for the undertakings of ALPA, the Delta MEC and the
Northwest MEC contained herein, Delta will cause the Merged Company
to issue (i) for the benefit of the members of the Delta Pilot
Group who are Eligible Pilots, shares of common stock in the Merged
Company in an amount equal, in the aggregate, to 3.5% of the
outstanding equity capitalization of the Merged Company on the
Merger Agreement Effective Date and (ii) for the benefit of
the members of the Northwest Pilot Group who are Eligible Pilots,
shares of common stock in the Merged Company in an amount equal, in
the aggregate, to 2.38% of the outstanding equity capitalization of
the Merged Company on the Merger Agreement Effective Date (the
shares issued pursuant to clauses (i) and (ii), collectively,
the “ Pilot Shares ”), in each case determined
on a fully-diluted basis. (For purposes of this Agreement, “
fully-diluted basis ” means taking into account the
maximum number of shares issued or issuable in respect of
obligations outstanding as of the Merger Agreement Effective Date,
whether voting or non-voting, whether restricted or unrestricted,
whether issuable pursuant to options, warrants, convertible
securities or exchangeable securities or otherwise, without regard
to vesting, including any such shares that may be issued, issuable
or
7
reserved for issuance pursuant to the
respective plans of reorganization of Delta and NWA,
provided , however, that the number of shares issuable
pursuant to options, warrants, or securities convertible or
exchangeable into shares of common stock shall be calculated based
on the “treasury stock method” of calculating diluted
earnings per share under Statement of Financial Accounting
Standards No. 128 as in effect as of the date hereof ). Delta
will use reasonable best efforts to cause the Pilot Shares to be
authorized for listing on the New York Stock Exchange (“
NYSE ”), upon official notice of issuance, by no later
than the Merger Agreement Effective Date.
(b) The Pilot Shares may be
issued to the Initial Holder and/or the Eligible Pilots (or certain
retirement accounts of the Eligible Pilots in accordance with
subsection (e) of this Section 3.01) as may be determined
by the Designee. The Pilot Shares or the cash proceeds from the
resale thereof as provided herein shall be distributed among the
Eligible Pilots or their pilot accounts as provided in Paragraph E
of LOA#19 in respect of members of the Delta Pilot Group and as
provided in Attachment A, “Pilot Shares (NW) and Proceeds of
Pilots Shares (NW)” to the new PWA in respect of members of
the Northwest Pilot Group.
(c) Delta agrees to file with
the SEC, no later than the Merger Agreement Effective Date, a
registration statement on Form S-8 (or any successor form) to
register the issuance of the Pilot Shares (and the
participants’ interests in the relevant plans) to permit the
Pilot Shares to be distributed in kind to the Eligible Pilots and
to be freely-transferable (including, if requested by the Designee,
a separate resale prospectus included therein to permit resales by
holders who may be deemed to be affiliates of the Merged Company)
and will maintain the effectiveness of such registration statement
for as long as necessary to permit such resales of such Pilot
Shares by such holders.
(d) At any time prior to, on
or after the Pilot Equity Issuance Date, the Designee may require
the Merged Company to file a shelf registration statement under the
Securities Act in respect of all or a portion of the Pilot Shares
(a “ Shelf Registration ”) by delivering to the
Merged Company a written notice stating that such right is being
exercised, specifying the number of Pilot Shares to be included in
such shelf registration and describing the intended method of
distribution thereof, which may include an underwritten offering.
Upon receiving such a request, the Merged Company shall
(i) use all reasonable efforts to file as promptly as
reasonably practicable a shelf registration statement on Form S-3
(or any successor form) (the “ Shelf Registration
Statement ”) to permit resale of the Pilot Shares by the
Initial Holder for the benefit of the members of the Eligible
Pilots pursuant to one or more registered secondary offerings
(which may include underwritten offerings) on or after the Pilot
Equity Issuance Date (“ Takedowns ”), including,
if eligible, filing such registration statement as an automatic
shelf registration statement so that it is effective upon filing,
(ii) after the filing of an initial version of the Shelf
Registration Statement (other than an automatic Shelf Registration
Statement), use all reasonable efforts to cause such registration
statement to be declared effective under the Securities Act, and
(iii) after the Shelf Registration Statement becomes
effective, maintain its effectiveness under the Securities Act for
not less than one year, subject to extension as provided in
Exhibit A . The Initial Holder (or the Designee acting on
behalf of the Initial Holder) may effect as many as three
(3) Takedowns pursuant to the Shelf Registration Statement
(subject to the provisions of Exhibit A ) and the Parties
agree to comply with the registration procedures provided on
Exhibit A for any such Takedowns.
8
(e) In connection with any
disposition of Pilot Shares to the participating pilots or pursuant
to a Shelf Registration, the Parties will work together to develop
a program that allows all or a portion of the distributions in
respect of the Pilot Shares (in kind in the case of a disposition
to the participating pilots or, in the case of resale pursuant to a
Shelf Registration, the resulting proceeds in cash) to the
participating pilots to be made, to the maximum extent permitted by
law (including but not limited to Section 415 of the Code and
other restrictions on contributions or additions to qualified plans
under the Code or ERISA), in the form of a contribution to the
Delta Pilots Defined Contribution Plan or the Delta Pilots Savings
Plan (or any successor to either) or any defined contribution plan
or savings plan applicable to the Northwest Pilot Group, as the
case may be, and treated as an “employer” contribution
for U.S. federal income tax purposes.
(f) In connection with the
Pilot Equity Issuance, Delta agrees to cause the Merged
Company’s Board of Directors to adopt, prior to the Merger
Agreement Effective Date, resolutions as may be reasonably
requested by the Delta MEC, the Northwest MEC, the Merged Company
MEC (or any MEC Successor) or ALPA, providing that the direct or
indirect acquisition by the Initial Holder, the Pilot Director, the
Delta MEC, the Northwest MEC, the Merged Company MEC (or any MEC
Successor) or any of their respective members, ALPA, or any of the
Merged Company Pilots of Pilot Shares is to the maximum extent
permitted by law exempt under Rule 16b-3 under the Exchange Act.
Such resolutions shall include the approval of the Pilot Equity
Issuance and language stating that such approval is granted to
provide an exemption to the Pilot Director, if a participant in
such issuance, under Rule 16b-3 of the Exchange Act and, insofar
(if at all) as the Pilot Director may be deemed to be a designee of
the Delta MEC, the Northwest MEC, the Merged Company MEC (or any
MEC Successor), ALPA or any of the Merged Company Pilots, that the
Merged Company acknowledges that the Pilot Director may be such a
designee and that such approval is intended to extend to the Delta
MEC, the Northwest MEC, the Merged Company MEC (or any MEC
Successor), or any of their respective members, ALPA and the Merged
Company Pilots, as the case may be. After the date hereof, in the
event that Delta is the Merged Company, at the request of any of
the Delta MEC, the Northwest MEC, the Merged Company MEC or ALPA,
Delta agrees to cause Delta’s Board of Directors to adopt,
prior to the Pilot Equity Issuance Date, a resolution reconfirming
the resolutions of Delta’s Board of Directors adopted
pursuant to Section 4.02(ii) hereof. Delta also agrees to
cause the Merged Company’s Board of Directors to adopt, prior
to the Merger Agreement Effective Date, resolutions as may be
reasonably requested by the Delta MEC, the Northwest MEC, the
Merged Company MEC (or any MEC Successor) or ALPA, consistent with
Section 5.14 of the Merger Agreement, in respect of the
acquisition by the Delta MEC, the Northwest MEC, the Merged Company
MEC (or any MEC Successor) or any of their respective members,
ALPA, or any of the members of the Merged Company Pilots of shares
of common stock of the Merged Company constituting Merger
Consideration (as defined in the Merger Agreement).
(g) Delta agrees to cause the
Merged Company’s Board of Directors to adopt, prior to the
Merger Agreement Effective Date, resolutions to waive compliance
with any ownership limits and restrictions on transfer contained in
the Merged Company’s certificate of incorporation similar to
those contained in Article Twelve of Delta’s certificate of
incorporation to the same effect as the resolutions adopted by
Delta’s Board of Directors on or prior to the date hereof as
referred to in Section 4.02(i) hereof.
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(h) The Merged Company and
its subsidiaries shall be entitled to deduct and withhold from the
Pilot Shares or the cash proceeds from the resale thereof such
amounts as it is required to deduct and withhold with respect to
such issuance or payment under the Code, and the rules and
regulations promulgated thereunder, or any provision of state,
local or foreign tax Law. To the extent that amounts are so
deducted or withheld, such deducted or withheld amounts shall be
treated for all purposes of this Agreement as having been paid to
the Person or Persons in respect of which such deduction and
withholding was made.
ARTICLE IV
REPRESENTATIONS AND
WARRANTIES
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