EXHIBIT 4.12
DELTA AIR LINES, INC.
Common Stock, par value $1.50 per share
REGISTRATION RIGHTS AGREEMENT
-----------------------------
November 15, 2004
To the Exchange Offer Parties and the Aircraft Parties
(as each such term is defined in Section 1 below)
Ladies and Gentlemen:
Delta Air Lines, Inc., a Delaware corporation (the "Company"),
proposes to issue, upon the terms set forth in the applicable Restructuring
Agreement (as defined in Section 1 below), shares of common stock, par value
$1.50, of the Company (as such shares exist 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 "Securities"). As an
inducement to you to enter into the applicable Restructuring 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 applicable
Restructuring Agreement. As used in this Agreement, the following capitalized
terms shall have the following meanings:
"Act" means the U.S. Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
"AAOD" means any Agreement to Amend Operative Documents relating to
certain aircraft financed by the Company dated as of November 15, 2004.
"Aircraft Parties" means any and all parties who have executed and
delivered an AAOD or Rebate Agreement pursuant to which such party (or an
Affiliate or nominee of such party) has been issued Securities.
"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 the earlier of (i) the Effective Date (as defined
in the AAOD and Rebate Agreement), and (ii) the date on which the exchange
offer contemplated by the Company's Amended and Restated Offering Memorandum
dated October 14, 2004 is consummated.
"Company" has the meaning set forth in the preamble hereto.
"Damages Payment Date" means, with respect to the Securities, each May
18 and November 18.
"DTC" means The Depository Trust Company.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Exchange Offer Parties" means any and all parties who have been
issued Securities in connection with the exchange offer contemplated by the
Company's Amended and Restated Offering Memorandum dated October 14, 2004.
"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 included in any Shelf Registration Statement or the
related Prospectus in reliance upon and in conformity with information
furnished to the Company in writing by such Holder for inclusion therein.
"Initial Holders" means (i) the Exchange Offer Parties and (ii) the
Aircraft Parties.
"Liquidated Damages" has the meaning set forth in Section 2(e) hereof.
"Losses" has the meaning set forth in Section 5(a) 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.
2
"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 attached as Exhibit I to this
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.
"Rebate Agreement" means any agreement relating to a rebate by certain
owner participants of aircraft leased by Delta dated as of November 15, 2004.
"Record Holder" means, with respect to any Damages Payment Date, each
person who is registered on the books of the transfer agent as a Holder at the
close of business on the fifteenth calendar day immediately preceding such
Damages Payment Date.
"Registration Default" has the meaning set forth in Section 2(e)
hereof.
"Restructuring Agreement" means, as the case may be, (i) the exchange
offer contemplated by the Company's Amended and Restated Offering Memorandum
dated October 14, 2004, (ii) any AAOD, or (iii) any Rebate Agreement.
"Rule 144" means Rule 144 under the Act (or any successor provision
promulgated by the SEC).
"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 U.S. 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.
3
"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, (ii) has been transferred
pursuant to Rule 144, or (iii) may be sold or transferred pursuant to Rule
144(k) (or any successor provision promulgated by the SEC) and is 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
4
name each Holder that is a Notice Holder as of the date that is 10 calendar
days prior to the 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 30 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 90-day 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 later of (a) the expiration of the 30-day period or (b) the
termination of such Suspension Period, at which point any such supplement or
other document required by applicable law will include the information
necessary for any Holder who has delivered a Notice and Questionnaire to be
named as a Selling Securityholder in such Shelf Registration Statement.
(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 the
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 all of the Securities have been transferred
pursuant to Rule 144 under the Act or any successor rule or regulation 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) such 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
5
intended methods of disposition by the Holders thereof set forth in such Shelf
Registration Statement and the related Prospectus, as amended and supplemented.
(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 45 days in the aggregate in any three-month period or 90
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 Initial 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 (i)
the Shelf Registration Statement has not been declared effective by the SEC
within 90 days after the Closing Date or (ii) the Shelf Registration Statement
is filed and declared effective but shall thereafter cease to be effective
(without being succeeded immediately by a replacement shelf registration
statement filed and declared effective) or usable for the offer and sale of
Transfer Restricted Securities for a period of time (including any Suspension
Period) which exceeds either 45 days in the aggregate in any three-month period
or 90 days in the aggregate in any 12-month period during the period beginning
on the effective date of the initial Shelf Registration Statement and ending on
or prior to the expiration of the holding period applicable to sales of the
Securities under Rule 144(k) (each such event referred to in clauses (i) and
(ii), a "Registration Default"), the Company will pay liquidated damages
("Liquidated Damages") to each Notice Holder who is also a Record Holder. The
amount of Liquidated Damages payable during any period in which one or more
Registration Defaults have occurred or are continuing is the amount which is
equal to $0.25 per annum per share of common stock of the Company (subject to
adjustment in the event of a stock split, stock recombination, stock dividend
and the like) constituting Transfer Restricted Securities for each day during
which a Registration Default has occurred, it being understood that all
calculations pursuant to this and the preceding sentence shall be carried out
to five decimal places. Following the cure of all Registration Defaults,
Liquidated Damages will cease to accrue with respect to such Registration
Defaults. No Liquidated Damages shall accrue after the expiration of the
holding period applicable to sales of Securities under Rule 144(k). All accrued
Liquidated Damages shall be paid by the Company on each Damages Payment Date to
the applicable transfer and paying agent for immediate delivery by wire
transfer to the applicable Record Holders (to the account specified in writing
by each such Holder to the transfer and paying agent and the Company not less
than 10 Business Days prior to such Damages Payment Date) in amounts
proportional to the aggregate number of Securities each of them holds as of the
applicable record date. Liquidated Damages will be calculated on the basis of a
360-day year consisting of twelve 30-day months. 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 and not a penalty. Notwithstanding the foregoing or any
other term of this Agreement, the Company shall be under no obligation to pay
6
Liquidated Damages to any party until the aggregate cumulative amount of
Liquidated Damages payable to such party exceeds $50.
(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:
(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 in light of the
circumstances under which they were made 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:
7
(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 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; provided,
however, that the Company shall not be required to give or confirm
such notice during any suspension that is in accordance with Section
2(d) hereof;
(vi) of the Company's determination that a post-effective
amendment to the Shelf Registration Statement is necessary; provided,
however, that the Company shall not be required to give or confirm
such notice during any suspension that is in accordance with Section
2(d) hereof; 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.
8
(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 such Transfer Restricted Securities 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 as promptly as reasonably practicable.
(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.
(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 in such denominations 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
9
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
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
make available, 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, 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 (or such shorter
period as required by the Act or Exchange Act).
(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 Company may exclude from such Shelf
Registration
10
Statement any Securities of any Holder that fails to furnish the Notice and
Questionnaire and such additional information in a timely manner.
(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 entering into an
underwriting agreement in customary form and taking such other actions as are
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 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 undertaken 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
11
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 (i) an event described in Sections 3(c)(ii) through
and including 3(c)(vi) or (ii) the Commencement of any Suspension Period, 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.
(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.
12
(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 or market on which the Company's Common Stock is listed or
admitted for trading) and shall use reasonable efforts to cause such listing to
be effected.
4. Registration Expenses. Whether or not any Shelf
Registration Statement is filed or becomes effective, the Company shall pay all
costs, fees and expenses incidental 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.
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 (each collectively referred to for purposes of this Section 5 as a
"Holder") against any losses, claims, damages or liabilities, joint or several,
or any actions in respect thereof (including but not limited to any losses,
claims, damages, liabilities or actions relating to the purchase or sale of the
Securities pursuant to any such Shelf Registration Statement) to which any of
them may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities or actions 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 to any Holder in any such case to the extent that any such Losses
13
arise out of or are based upon Holder Information relating to such Holder, (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 timely furnished copies of the Prospectus, and any
amendments and supplements thereto, to the Holder (in accordance with the
provisions hereof), (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) a party other than the
Company failed to provide 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 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 solely upon the Holder Information supplied by such Holder.
This indemnity agreement will be in addition to any liability that such Holder
may otherwise have. The obligations of any Holder under this Section 5(b) shall
be limited to the net proceeds to such Holder of the Securities sold pursuant
to the Shelf Registration Statement to which such Loss relates.
(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 Section 5. 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
14
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)
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 lesser of (i) the total proceeds
received by such Holder from the sale of the Transfer Restricted Securities
(net of all underwriting discounts and commissions) or (ii) the amount of any
damages that such indemnifying party is otherwise 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
15
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 and each officer, director, agent
and employee of such Holder 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. Rules 144. The Company covenants that it shall file
the reports required to be filed by it under the Act and the Exchange Act in a
timely manner so long as the Transfer Restricted Securities remain outstanding.
If at any time the Company is not required to file such reports, it will, upon
request of any Holder or beneficial owner of Transfer Restricted Securities,
make available such information necessary to permit sales pursuant to Rule 144.
The Company further covenants that, for as long as any Transfer Restricted
Securities remain outstanding, it will take such further action as any Holder
of Transfer Restricted Securities may reasonably request, all to the extent
required from time to time to enable such Holder to sell Transfer Restricted
Securities without registration under the Act within the limitation of the
exemptions provided by Rule 144. Upon the written request of any Holder of
Transfer Restricted Securities, the Company shall deliver to such Holder a
written statement as to whether it has complied with such requirements.
7. 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 Holders of a
majority of the 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.
(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
16
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. 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 applicable Restructuring 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 applicable Restructuring Agreement.
All such notices and communications shall be deemed to have been duly
given when received, if delivered by hand, first-class mail or air courier, and
when sent, if sent by 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.
(e) Execution and Counterparts. This Agreement shall be
deemed executed and delivered by any Aircraft Parties and any Exchange Offer
Parties with respect to any Securities issued to such party (or its Affiliates
and nominees) upon the execution and delivery of the AAOD or Rebate Agreement
pursuant to which such Securities were issued, in the case of the Aircraft
Parties, or upon the delivery of the party's Selling Securityholder Notice and
Questionnaire, in the case of the Exchange Offer Parties. This Agreement may
also be executed
17
in any number of counterparts and by the parties in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which,
taken together with the Aircraft Parties' and the Exchange Offer Parties'
deemed execution and delivery, 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.
18
EXHIBIT I TO THE REGISTRATION RIGHTS AGREEMENT
DELTA AIR LINES, INC.
FORM OF SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned holder of shares of our common stock (the "Common
Stock") of Delta Air Lines, Inc., (the "Company" or "Registrant") understands
that the Registrant has filed or intends to file with the Commission (the
"Commission") a registration statement on Form S-1 (the "Shelf Registration
Statement") for the registration and resale under Rule 415 of the Securities
Act of 1933, as amended (the "Securities Act"), of the Common Stock (the
"Transfer Restricted Securities"), in accordance with the terms of the
Registration Rights Agreement, dated as of November 15, 2004 (the "Registration
Rights Agreement"). A copy of the Registration Rights Agreement is available
from the Company upon request at the address set forth below. All capitalized
terms not otherwise defined herein shall have the meaning ascribed thereto in
the Registration Rights Agreement.
Each beneficial owner of Transfer Restricted Securities is entitled to
the benefits of the registration rights set forth in the Registration Rights
Agreement. In order to sell or otherwise dispose of any Transfer Restricted
Securities pursuant to the Shelf Registration Statement, a beneficial owner of
Transfer Restricted Securities generally will be required to be named as a
selling securityholder in the related prospectus, deliver a prospectus to
purchasers of Transfer Restricted Securities and be bound by those provisions
of the Registration Rights Agreement applicable to such beneficial owner
(including certain indemnification provisions described below). Beneficial
owners that do not complete this Notice and Questionnaire and deliver it to
Delta as provided below will not be named as selling securityholders in the
prospectus and therefore will not be permitted to sell any Transfer Restricted
Securities pursuant to the Shelf Registration Statement. Beneficial owners are
encouraged to complete and deliver this Notice and Questionnaire prior to the
effectiveness of the Shelf Registration Statement so that such beneficial
owners may be named as selling securityholders in the related prospectus at the
time of effectiveness. Upon receipt of a completed Notice and Questionnaire
from a beneficial owner following the effectiveness of the Shelf Registration
Statement, Delta will, within 30 days, file such amendments to the Shelf
Registration Statement or supplements to the related prospectus as are
necessary to permit such holder to deliver such prospectus to purchasers of
Transfer Restricted Securities; provided that Delta shall not be required to
file more than one post-effective amendment for the purpose of naming holders
as selling security holders who are not named in the Shelf Registration
Statement at the time of effectiveness in any 90-day period. Delta has agreed
to pay liquidated damages pursuant to the Registration Rights Agreement under
certain circumstances set forth therein.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Transfer Restricted Securities
are advised to consult their own securities law counsel regarding the
consequences of being named or not being named as a selling securityholder in
the Shelf Registration Statement and the related prospectus.
NOTICE
The undersigned beneficial owner (the "Selling Securityholder") of
Transfer Restricted Securities hereby gives notice to Delta of its intention to
sell or otherwise dispose of Transfer Restricted Securities beneficially owned
by it and listed below in Item 3 (unless otherwise specified under such Item 3)
pursuant to the Shelf Registration Statement. The undersigned, by signing and
returning this Notice and Questionnaire, understands that it will be bound by
the terms and conditions of this Notice and Questionnaire and the Registration
Rights Agreement.
Pursuant to the Registration Rights Agreement, the undersigned has
agreed to indemnify and hold harmless Delta's directors and officers and each
person, if any, who controls Delta within the meaning of either Section 15 of
the Securities Act or Section 20 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), from and against certain losses arising in
connection with statements concerning the undersigned made in Delta's Shelf
19
Registration Statement or the related prospectus in reliance upon the
information provided in this Notice and Questionnaire.
If the Selling Securityholder transfers all or any portion of the
Transfer Restricted Securities listed in Item 3 below after the date on which
such information is provided to Delta, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
QUESTIONNAIRE
Please respond to every item, even if your response is "none." If you
need more space for any response, please attach additional sheets of paper.
Please be sure to indicate your name and the number of the item being responded
to on each such additional sheet of paper, and to sign each such additional
sheet of paper before attaching it to this Questionnaire. Please note that you
may be asked to answer additional questions depending on your responses to the
following questions.
IF YOU HAVE ANY QUESTIONS ABOUT THE CONTENTS OF THIS QUESTIONNAIRE OR
AS TO WHO SHOULD COMPLETE THIS QUESTIONNAIRE, PLEASE CONTACT ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, CORPORATE SECRETARY, AT DELTA AT TELEPHONE NUMBER: (▇▇▇) ▇▇▇-▇▇▇▇.
COMPLETED QUESTIONNAIRES SHOULD BE RETURNED TO
DELTA AIR LINES, INC. AS FOLLOWS:
1 COPY BY FACSIMILE TO ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, FAX: (▇▇▇) ▇▇▇-▇▇▇▇
With The Original Copy To Follow To:
DELTA AIR LINES, INC.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: CORPORATE SECRETARY
The undersigned hereby provides the following information to Delta and
represents and warrants that such information is accurate and complete:
1. YOUR IDENTITY AND BACKGROUND AS THE BENEFICIAL OWNER OF THE
TRANSFER RESTRICTED SECURITIES.
(a) Your full legal name:
----------------------------------------------------
(b) Your business address (including street address) (or
residence if no business address), telephone number
and facsimile number:
Address:
----------------------------------------------------
----------------------------------------------------
Telephone No.:
--------------------------------------
Fax No.:
--------------------------------------------
(c) Are you a broker-dealer registered pursuant to
Section 15 of the Exchange Act?
[ ] Yes.
20
[ ] No.
(d) If your response to Item 1(c) above is no, are you
an "affiliate" of a broker-dealer registered
pursuant to Section 15 of the Exchange Act?
[ ] Yes.
[ ] No.
For the purposes of this Item 1(d), an "affiliate"
of a registered broker-dealer shall include any
company that directly, or indirectly through one or
more intermediaries, controls, or is controlled by,
or is under common control with, such broker-dealer,
and does not include any individuals employed by
such broker-dealer or its affiliates.
(e) Full legal name of person through which you hold the
Transfer Restricted Securities (i.e. name of your
broker or the DTC participant, if applicable,
through which your Registered Securities are held):
Name of broker:
-------------------------------------
DTC No.:
--------------------------------------------
Contact person:
-------------------------------------
Telephone No.:
--------------------------------------
2. YOUR RELATIONSHIP WITH DELTA AIR LINES, INC.
(a) Have you or any of your affiliates, officers,
directors or principal equity holders (owners of 5%
or more of the equity securities of the undersigned)
held any position or office or have you had any
other material relationship with Delta Air Lines,
Inc. (or its predecessors or affiliates) within the
past three years?
[ ] Yes.
[ ] No.
(b) If your response to Item 2(a) above is yes, please
state the nature and duration of your relationship
with Delta Air Lines, Inc.:
3. YOUR INTEREST IN THE TRANSFER RESTRICTED SECURITIES.
(a) State the number of Transfer Restricted Securities
beneficially owned by you. Check any of the
following that applies to you.
Number of shares of Common Stock beneficially owned:
----------------------------------------------------
(b) Other than as set forth in your response to Item
3(a) above, do you beneficially own any other
securities of Delta Air Lines, Inc.?
[ ] Yes.
[ ] No.
(c) If your answer to Item 3(b) above is yes, state the
type, the aggregate amount and CUSIP No. of such
other securities of Delta Air Lines, Inc.
beneficially owned by you:
Type:
-----------------------------------------------
21
Aggregate amount:
-----------------------------------
CUSIP No.:
------------------------------------------
(d) Did you acquire the securities listed in Item 3(a)
above in the ordinary course of business?
[ ] Yes.
[ ] No.
(e) At the time of your purchase of the securities
listed in Item 3(a) above, did you have any
agreements or understandings, directly or
indirectly, with any person to distribute the
securities?
[ ] Yes.
[ ] No.
(f) If your response to Item 3(e) above is yes, please
describe such agreements or understandings:
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
4. NATURE OF YOUR BENEFICIAL OWNERSHIP.
(a) If the name of the beneficial owner of the Transfer
Restricted Securities set forth in your response to
Item 1(a) above is that of a limited partnership,
state the names of the general partners of such
limited partnership:
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
(b) With respect to each general partner listed in Item
4(a) above who is not a natural person, and is not
publicly held, name each stockholder (or holder of
partnership interests, if applicable) of such
general partner. If any of these named stockholders
are not natural persons or publicly held entities,
please provide the same information. This process
should be repeated until you reach natural persons
or a publicly held entity.
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
(c) Name your controlling stockholder(s) (the
"Controlling Entity"). If the Controlling Entity is
not a natural person and is not a publicly held
entity, name each stockholder of such Controlling
Entity. If any of these named stockholders are not
natural persons or publicly held entities, please
provide the same information. This process should be
repeated until you reach natural persons or a
publicly held entity.
22
(A)(i) Full legal name of Controlling Entity(ies) or
natural person(s) who have sole or shared voting or
dispositive power over the Transfer Restricted
Securities:
----------------------------------------------------
(ii) Business address (including street address) (or
residence if no business address), telephone number
and facsimile number of such person(s):
Address:
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
Telephone:
------------------------------------------
Fax:
------------------------------------------------
(iii) Name(s) of stockholders:
----------------------------------------------------
----------------------------------------------------
(B)(i) Full legal name of Controlling Entity(ies):
----------------------------------------------------
(ii) Business address (including street address) (or
residence if no business address), telephone number
and facsimile number of such person(s):
Address:
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
Telephone:
------------------------------------------
Fax:
------------------------------------------------
(iii) Name(s) of stockholders:
----------------------------------------------------
----------------------------------------------------
IF YOU NEED MORE SPACE FOR THIS RESPONSE, PLEASE ATTACH ADDITIONAL SHEETS OF
PAPER. PLEASE BE SURE TO INDICATE YOUR NAME AND THE NUMBER OF THE ITEM BEING
RESPONDED TO ON EACH SUCH ADDITIONAL SHEET OF PAPER, AND TO SIGN EACH SUCH
ADDITIONAL SHEET OF PAPER BEFORE ATTACHING IT TO THIS QUESTIONNAIRE. PLEASE
NOTE THAT YOU MAY BE ASKED TO ANSWER ADDITIONAL QUESTIONS DEPENDING ON YOUR
RESPONSES TO THE FOLLOWING QUESTIONS.
23
5. PLAN OF DISTRIBUTION.
Except as set forth below, the undersigned (including its
donees or pledgees) intends to distribute the Transfer
Restricted Securities listed above in Item 3 pursuant to the
Shelf Registration Statement only as follows (if at all):
Such Transfer Restricted Securities may be sold from time to
time directly by the undersigned or, alternatively, through
underwriters, broker-dealers or agents. If the Transfer
Restricted Securities are sold through underwriters,
broker-dealers or agents, the Selling Securityholder will be
responsible for underwriting discounts or commissions or
agents' commissions. Such Transfer Restricted Securities may
be sold in one or more transactions at fixed prices, at
prevailing market prices at the time of sale, at varying
prices determined at the time of sale or at negotiated
prices. Such sales may be effected in transactions (which may
involve block transactions) (i) on any national securities
exchange or quotation service on which the Transfer
Restricted Securities may be listed or quoted at the time of
sale, (ii) in the over-the-counter market, (iii) in
transactions otherwise than on such exchanges or services or
in the over-the-counter market, or (iv) through the writing
of options.
State any exceptions here:
-------------------------------------------------------------
-------------------------------------------------------------
The undersigned acknowledges that its obligation to comply with the
provisions of the Exchange Act and the rules thereunder relating to stock
manipulation, particularly Regulation M thereunder (or any successor rules or
regulations), in connection with any offering of Transfer Restricted Securities
pursuant to the Registration Rights Agreement. The undersigned agrees that
neither it nor any person acting on its behalf will engage in any transaction
in violation of such provisions.
The undersigned beneficial owner and Selling Securityholder hereby
acknowledges its obligations under the Registration Rights Agreement to
indemnify and hold harmless certain persons as set forth therein. Pursuant to
the Registration Rights Agreement, Delta has agreed under certain circumstances
to indemnify the undersigned beneficial owner and Selling Securityholder
against certain liabilities.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement, the undersigned agrees to
promptly notify Delta of any inaccuracies or changes in the information
provided herein that may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains effective.
All notices to the beneficial owner hereunder and pursuant to the
Registration Rights Agreement shall be made in writing to the undersigned at
the address set forth in Item 1(b) of this Notice and Questionnaire.
By signing below, the undersigned acknowledges that it is the
beneficial owner of the Transfer Restricted Securities set forth herein,
represents that the information provided herein is accurate, consents to the
disclosure of the information contained in this Notice and Questionnaire and
the inclusion of such information in the Shelf Registration Statement and the
related prospectus. The undersigned understands that such information will be
relied upon by Delta in connection with the preparation or amendment of the
Shelf Registration Statement and the related prospectus.
Once this Notice and Questionnaire is executed by the undersigned
beneficial owner and received by Delta, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall
be binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives and assigns of Delta and
the undersigned beneficial owner. This Agreement shall be governed in all
respects by the laws of the State of New York.
24