EXHIBIT 2.1
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER, dated as of
October 30, 1998 (this "AGREEMENT"), among NORTHWEST AIRLINES CORPORATION, a
Delaware corporation ("PARENT," or, with regard to the period upon and after
the Effective Time of the Merger (as hereinafter defined), the "SURVIVING
CORPORATION"), NEWBRIDGE PARENT CORPORATION, a Delaware corporation ("HOLDCO
SUB"), which is a direct wholly owned subsidiary of Parent, and NEWBRIDGE
MERGER CORPORATION, a Delaware corporation ("MERGER SUB"), which is a direct
wholly owned subsidiary of Holdco Sub and an indirect wholly owned subsidiary
of Parent (Parent and Merger Sub, collectively, the "CONSTITUENT
CORPORATIONS," and each, a "CONSTITUENT CORPORATION").
W I T N E S S E T H :
WHEREAS, Parent is a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "DGCL") and is
authorized to issue a total of 360,020,000 shares, consisting of: (i)
315,000,000 shares of Common Stock, par value $.01 per share ("PARENT COMMON
STOCK"); (ii) 45,020,000 shares of preferred stock ("PARENT PREFERRED
STOCK"), par value $.01 per share, of which (A) 25,000,000 shares have been
designated Series C Preferred Stock, par value $.01 per share ("PARENT SERIES
C PREFERRED STOCK"); and (B) 3,000,000 shares have been designated Series D
Junior Participating Preferred Stock, par value $.01 per share ("PARENT
SERIES D PREFERRED STOCK") (all classes of preferred stock, collectively,
"PARENT PREFERRED STOCK"). As of the close of business on August 31, 1998,
there were (i) 81,246,799 shares of Parent Common Stock issued and
outstanding (the "OUTSTANDING PARENT COMMON SHARES"); (ii) (A) 5,680,991
shares of Parent Series C Preferred Stock issued and outstanding (the
"OUTSTANDING PARENT SERIES C SHARES"); and (B) no shares of Parent Series D
Preferred Stock issued and outstanding; (iii) 24,977,874 shares of Parent
Common Stock held in the treasury of Parent (the "TREASURY PARENT COMMON
SHARES"); (iv) 5,391,311 shares of Parent Common Stock reserved for issuance
upon exercise of stock options of Parent outstanding or which may be granted
pursuant to employee stock option and similar plans; and (v) 10,435,231
shares of Parent Common Stock reserved for issuance upon the conversion of
Parent Series C Preferred Stock;
WHEREAS, Merger Sub is a corporation organized and existing under
the DGCL and is authorized to issue a total of 1,000 shares, in a single
class of common stock, $.01 par value per share ("MERGER SUB COMMON STOCK"),
of which, as of the date hereof, 1,000 shares are issued and outstanding (the
"OUTSTANDING MERGER SUB COMMON SHARES") (as of the date hereof, Holdco Sub
holds of record the Outstanding Merger Sub Common Shares) and no shares are
issued but not outstanding;
WHEREAS, Holdco Sub is a corporation organized and existing under
the DGCL and is authorized to issue a total of 1,000 shares of Common Stock,
par value $.01 per share ("HOLDCO SUB COMMON STOCK"), and prior to the
Effective Time of the Merger will be authorized to issue a total of
360,020,000 shares, consisting of: (i) 315,000,000 shares of Holdco Sub
Common Stock; (ii) 45,020,000 shares of preferred stock, par value $.01 per
share ("HOLDCO SUB PREFERRED STOCK"), of which (A) 25,000,000 shares will
constitute, prior to the Effective Time of the Merger a series of Holdco Sub
Preferred Stock, identical to Parent Series C Preferred Stock, having the
designation "Series C Preferred Stock" ("HOLDCO SUB
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SERIES C PREFERRED STOCK"); and (B) 3,000,000 shares will constitute prior to
the Effective Time of the Merger a series of Holdco Sub Preferred Stock,
identical to Parent Series D Preferred Stock, having the designation "Series
D Preferred Stock" ("HOLDCO SUB SERIES D PREFERRED STOCK"). As of the date
hereof, there are 1,000 shares issued and outstanding of Holdco Sub Common
Stock (the "OUTSTANDING HOLDCO SUB COMMON SHARES");
WHEREAS, the respective Boards of Directors of Parent, Merger Sub
and Holdco Sub have determined that it is advisable and in the best interests
of each of Parent, Merger Sub and Holdco Sub and their respective
stockholders that Merger Sub be merged with and into Parent in accordance
with the terms and conditions of this Agreement (the "MERGER"), and
accordingly the Boards of Directors of each of Parent, Merger Sub and Holdco
Sub have approved and authorized this Agreement and the Merger;
WHEREAS, it is contemplated that the Merger will be effected in
accordance with Section 251(g) of the DGCL, and it is a condition to the
consummation of the Merger that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("ST&B"), tax
counsel to Parent, will, based on appropriate representations and warranties
of parties to the Investment Agreement (as hereinafter defined) and certain
stockholders of such parties, render an opinion (the "TAX OPINION") to the
effect that the Merger and the exchange of shares of capital stock of Parent
for shares of capital stock of Holdco Sub shall be a transaction described in
Section 351(a) and/or Section 368(a) of the Internal Revenue Code of 1986, as
amended (the "CODE"), and that no income or gain will be recognized by Parent
or Holdco Sub or their respective stockholders as a result of the Merger and
the Exchange (as defined in the Investment Agreement); and
WHEREAS, Parent, Holdco Sub, Air Partners, L.P., a Texas limited
partnership (the "PARTNERSHIP"), the partners (the "PARTNERS") of the
Partnership identified on the signature pages of the Investment Agreement (as
hereinafter defined), Bonderman Family Limited Partnership, a Texas limited
partnership ("TRANSFEROR I"), 1992 Air, Inc., a Texas corporation
("TRANSFEROR II"), and Air Saipan, Inc., a CNMI corporation ("TRANSFEROR III"
and, collectively with Transferor I and Transferor II, the "TRANSFERORS")
have entered into an Investment Agreement, dated as of January 25, 1998, as
amended by Amendment No. 1, dated as of February 27, 1998 (the "INVESTMENT
AGREEMENT"), pursuant to which Parent and Holdco Sub have agreed, among other
things, that Holdco Sub will, subject to and in accordance with the terms and
conditions set forth therein, issue shares of Holdco Sub Common Stock, (i) to
certain Partners in exchange for such Partners' respective partnership
interests in the Partnership and (ii) to certain Transferors in exchange for
all the shares of Class A Common Stock, par value $.01 per share, of
Continental Airlines, Inc., a Delaware corporation, held by such Transferors;
NOW, THEREFORE, in consideration of the premises, the mutual
agreements, promises, covenants, representations, warranties, acknowledgments
and other terms, conditions, and provisions set forth herein, and other good
and valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties agree as follows:
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ARTICLE I.
THE MERGER
1.1 THE MERGER; FILING AND EFFECTIVE TIME. Subject to and in
accordance with the terms and conditions of this Agreement and the DGCL, this
Agreement and the certificates attached hereto of the respective secretaries
of Parent and Merger Sub as Exhibits A and B, duly executed shall be filed
with the Secretary of State of the State of Delaware (the "DELAWARE SECRETARY
OF STATE") by the Surviving Corporation at or as soon as practicable after
the Closing (as defined below). The Merger shall become effective at the
time when this Agreement is so filed with the Delaware Secretary of State
(the "EFFECTIVE TIME OF THE MERGER").
1.2 CLOSING. Subject to and in accordance with the terms and
conditions of this Agreement, the closing of the Merger (the "CLOSING") shall
take place as soon as practicable after satisfaction of the latest to occur
of the conditions set forth in Article V hereof (the "CLOSING DATE"), at the
offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, unless another date or place is agreed to in writing by the
parties hereto.
1.3 EFFECT OF THE MERGER. The Merger shall have the effects set
forth in Section 259 of the DGCL.
1.4 CERTIFICATE OF INCORPORATION OF THE SURVIVING CORPORATION.
The Second Amended and Restated Certificate of Incorporation of Parent as in
effect immediately prior to the Effective Time of the Merger (the "PARENT
CHARTER") shall be the certificate of incorporation of the Surviving
Corporation (the "SURVIVING CORPORATION CHARTER"), except that the following
amendments thereto are to be effected by the Merger upon the Effective Time
of the Merger:
A. the Surviving Corporation Charter shall be amended by striking
Article FIRST thereof in its entirety and inserting in lieu thereof the
following: "FIRST: The name of the Corporation is Northwest Airlines
Holdings Corporation (hereinafter called the "Corporation").";
B. the Surviving Corporation Charter shall be amended by deleting
Article FOURTH thereof in its entirety and inserting in lieu thereof the
following: "FOURTH: The total number of shares of stock which the
Corporation has authority to issue is 1,000 shares of Common Stock, par
value $0.01 each."; and
C. the Surviving Corporation Charter shall be amended by adding and
inserting, immediately following Article THIRTEENTH thereof, a new Article
FOURTEENTH thereof, to read in its entirety as follows:
FOURTEENTH: Any act or transaction by or involving the Corporation
that requires for its adoption under the Delaware General Corporation
Law or this
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Restated Certificate of Incorporation the approval of the
stockholders of the Corporation shall, pursuant to subsection (g)
of Section 251 of the Delaware General Corporation Law, require, in
addition, the approval of the stockholders of Northwest Airlines
Corporation, a Delaware corporation, or any successor thereto by
merger, by the same vote as is required by the Delaware General
Corporation Law and/or by this Restated Certificate of
Incorporation.
1.5 BYLAWS OF THE SURVIVING CORPORATION. The bylaws of Parent as
in effect immediately prior to the Effective Time of the Merger (the "PARENT
BYLAWS") shall be and continue in full force and effect as the bylaws of the
Surviving Corporation upon and after the Effective Time of the Merger, unless
and until duly amended, altered, changed, repealed, and/or supplemented in
accordance with the DGCL (which power and right to amend, alter, change,
repeal, and/or supplement, at any time and from time to time after the
Effective Time of the Merger, are hereby expressly reserved).
1.6 DIRECTORS OF THE SURVIVING CORPORATION. The respective
members constituting the whole Board of Directors of Parent (the "PARENT
BOARD") immediately prior to the Effective Time of the Merger shall be and
continue as the respective members constituting the whole Board of Directors
of the Surviving Corporation upon and after the Effective Time of the Merger,
until such members' respective successors are elected and qualified or until
such members' earlier death, resignation, disqualification or removal and
unless and until the number of members shall be duly increased or decreased
in accordance with the DGCL (which power and right to increase or decrease,
at any time and from time to time after the Effective Time of the Merger, are
hereby expressly reserved).
1.7 OFFICERS OF THE SURVIVING CORPORATION. Each person serving as
an officer of Parent immediately prior to the Effective Time of the Merger
shall be and continue as an officer of the Surviving Corporation, holding the
same office or offices, upon and after the Effective Time of the Merger,
until such person's successor is chosen and qualified or until such person's
earlier death, resignation, disqualification, or removal (which power and
right to remove are hereby expressly reserved).
1.8 FURTHER ASSURANCES. At any time and from time to time upon
and after the Effective Time of the Merger, as and when required or deemed
desirable by the Surviving Corporation or its successors or assigns, there
shall be executed, acknowledged, certified, sealed, delivered, filed, and/or
recorded, in the name and on behalf of any and each Constituent Corporation,
such deeds, contracts, consents, certificates, notices, and other documents
and instruments, and there shall be done or taken or caused to be done or
taken, in the name and on behalf of any and each Constituent Corporation,
such further and other things and actions as shall be appropriate, necessary,
or convenient to acknowledge, vest, effect, perfect, conform of record, or
otherwise confirm the Surviving Corporation's (or its successors' or
assigns') right, title, and interest in and to, and possession of, all the
property, interests, assets, rights, privileges, immunities, powers,
franchises, and authority of each Constituent Corporation held immediately
prior to the Effective Time of the Merger, and otherwise to carry out and
effect the intent and purposes of this Agreement and the Merger.
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The officers and directors of the Surviving Corporation (or its successors or
assigns), and each of them, upon and after the Effective Time of the Merger,
are and shall be fully authorized, in the name and on behalf of each
Constituent Corporation, to do and take and cause to be done and taken any
and all such things and actions, and to execute, acknowledge, certify, seal,
deliver, file, and/or record any and all such deeds, contracts, consents,
certificates, notices, and other documents and instruments.
ARTICLE II.
EFFECT OF THE MERGER ON
THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS
2.1 EFFECT ON CAPITAL STOCK. Upon and as of the Effective Time of
the Merger, by virtue of the Merger and without any action on the part of the
holders of the respective shares:
A. CONVERSION OF PARENT SHARES.
1. Each outstanding share of Parent Common Stock shall be
converted into the right to receive one validly issued, fully paid and
nonassessable share of Holdco Sub Common Stock; each of the Treasury
Parent Common Shares shall be converted into the right to receive one
validly issued, fully paid and nonassessable share of Holdco Sub Common
Stock; and the Outstanding Parent Common Shares and the Treasury Parent
Common Shares shall be canceled and cease to exist.
2. Each of the Outstanding Parent Series C Preferred Shares shall
be converted into the right to receive one validly issued, fully paid
and nonassessable share of Holdco Sub Series C Preferred Stock (with
rights to accrued, accumulated and unpaid dividends on each Outstanding
Parent Series C Preferred Share (the "SERIES C ACCUMULATED DIVIDENDS")
being preserved, unimpaired, unchanged, and unaffected by such
conversion in the Merger, such Series C Accumulated Dividends carrying
over and pertaining to and being accrued, accumulated, and unpaid
dividends on each such share of Holdco Sub Series C Preferred Stock, and
each such share of Holdco Sub Series C Preferred Stock carrying and
having such Series C Accumulated Dividends as accrued, accumulated, and
unpaid dividends thereon, notwithstanding that such dividends shall have
accrued and accumulated from a date prior to the issuance of such shares
of Holdco Sub Series C Preferred Stock) and such Outstanding Parent
Series C Preferred Shares shall no longer be outstanding and
automatically shall be canceled and cease to exist.
B. CONVERSION OF MERGER SUB SHARES. Each Outstanding Merger Sub
Common Share shall be converted into one validly issued, fully paid and
nonassessable share of Common Stock, par value $.01 per share ("SURVIVING
CORPORATION COMMON STOCK"), of the Surviving Corporation, to be issued and
deemed to have been issued by the Surviving Corporation automatically and
immediately upon and as of the Effective Time of the Merger);
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the capital of the Surviving Corporation in respect of each share of
Surviving Corporation Common Stock to be an amount equal to the par value
thereof as permitted under the DGCL and such Outstanding Merger Sub Common
Shares shall be canceled and cease to exist.
2.2 NOTIFICATION OF TRANSFER AGENT. Prior to the Closing Date,
Holdco Sub and Parent shall notify their respective transfer agents of the
conversions of shares of Parent stock and of shares of Merger Sub stock and
the cancellation of shares of Holdco Sub stock pursuant to Section 2.1 hereof.
2.3 STOCK CERTIFICATES. Upon and as of the Effective Time of the
Merger, by virtue of the Merger and without any action on the part of either
of the Constituent Corporations or Holdco Sub, the holders of the respective
shares, or any other person:
A. HOLDCO SUB. The shares of Holdco Sub Common Stock and the shares
of Holdco Sub Preferred Stock into which the Outstanding Parent Common
Shares, the Outstanding Parent Series C Shares and the Treasury Parent
Common Shares shall have been converted pursuant to Section 2.1 hereof
shall be represented and evidenced by the same stock certificates that
previously represented and evidenced such Outstanding Parent Common Shares,
Outstanding Parent Series C Shares and such Treasury Parent Common Shares;
and
B. PARENT. Holdco Sub, as the holder of the certificate that
immediately prior to the Effective Time of the Merger evidenced the
Outstanding Merger Sub Common Shares (such certificate, the "MERGER SUB
COMMON STOCK CERTIFICATE") may, at such holder's option, surrender the same
to the Surviving Corporation for cancellation, and such holder shall be
entitled to receive from the Surviving Corporation in exchange therefor a
certificate representing and evidencing the shares of Surviving Corporation
Common Stock into which such holder's Outstanding Merger Sub Common Shares
shall have been converted, and, until surrendered, the Merger Sub Common
Stock Certificate shall represent and evidence the shares of Surviving
Corporation Common Stock into which the Outstanding Merger Sub Common
Shares theretofore represented and evidenced thereby shall have been
converted.
ARTICLE III.
ADDITIONAL AGREEMENTS
3.1 DIRECTORS AND OFFICERS OF HOLDCO SUB UPON THE EFFECTIVE TIME
OF THE MERGER.
A. DIRECTORS. As of the Effective Time of the Merger:
(i) the number of members constituting the whole Board of Directors
of Holdco Sub (the "HOLDCO SUB BOARD") shall be equal to the number of
members
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constituting the whole Parent Board immediately prior to the Effective
Time of the Merger; and
(ii) the Holdco Sub Board shall consist of the persons serving as
members of the Parent Board immediately prior to the Effective Time of the
Merger.
B. OFFICERS. As of the Effective Time of the Merger, the officers
of Holdco Sub shall be the persons serving as officers of Parent immediately
prior to the Effective Time of the Merger.
3.2 HOLDCO SUB CERTIFICATE OF INCORPORATION. As of the Effective
Time of the Merger, the certificate of incorporation of Holdco Sub shall be
in the form attached hereto as Exhibit C (the "HOLDCO SUB CHARTER").
3.3 HOLDCO SUB BYLAWS. As of the Effective Time of the Merger,
the bylaws of Holdco Sub shall be in the form attached hereto as Exhibit D.
To that end, prior to the Effective Time of the Merger, to the extent
necessary to give effect to the intent of the preceding sentence, Holdco Sub
shall take all requisite action to cause the bylaws of Holdco Sub, as the
same theretofore may have been amended, altered, changed and/or supplemented,
to be duly amended and restated in accordance with the DGCL as of or prior to
the Effective Time of the Merger, such that the Holdco Sub Bylaws shall be
amended and restated to be in the form of Exhibit D attached hereto and as so
amended and restated shall be and remain the bylaws of Holdco Sub upon and
after the Effective Time of the Merger, unless and until thereafter duly
amended, altered, changed, repealed and/or supplemented in accordance with
the DGCL (which power and right to amend, alter, change, repeal, and/or
supplement, at any time and from time to time after the Effective Time of the
Merger, are hereby expressly reserved).
3.4 CONSENT. Each of Parent, Merger Sub, and Holdco Sub shall
promptly apply for or otherwise seek, and use its best efforts to obtain, all
consents and approvals required to be obtained by it for consummation of the
Merger.
3.5 NO PARENT STOCKHOLDER MEETING; MERGER SUB STOCKHOLDER WRITTEN
CONSENT. The parties understand and acknowledge that it is contemplated that
the Merger will be effected in accordance with Section 251(g) of the DGCL and
that no vote of Parent's stockholders adopting, approving or authorizing this
Agreement or the Merger will be required under the DGCL. Holdco Sub, in its
capacity as the sole stockholder of Merger Sub, as promptly as practicable
after the date hereof, shall execute and deliver to Merger Sub a written
consent in lieu of a stockholder meeting adopting, approving and authorizing
this Agreement and the Merger, in accordance with Section 228 of the DGCL.
3.6 EMPLOYEE AND DIRECTOR PARENT STOCK OPTIONS. Upon and as of
the Effective Time of the Merger and in connection with the Merger, to the
fullest extent permitted by applicable law, Holdco Sub shall assume all of
Parent's obligations, and Parent shall have no further obligations, with
respect to (i) any then-outstanding option to acquire
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shares of Parent Common Stock issued under Parent's 1990 Stock Option Plan
for Key Employees of Northwest Airlines Corporation, 1994 Northwest Airlines
Corporation Stock Incentive Plan and The Northwest Airlines Corporation 1998
Pilots Stock Option Plan that theretofore shall not have expired or been duly
exercised by the holders thereof (each, if any, a "PARENT OPTION") and (ii)
any award of phantom stock units issued under Parent's 1996 Retention and
Long Term Incentive Compensation Plan and Agreement Evidencing Grant of
Phantom Stock Units to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (each, if any, a "PARENT AWARD"), and
the due exercise of rights under (i) any such Parent Option shall entitle the
holder thereof to acquire, upon the same terms and conditions that were
applicable under the corresponding Parent Option, a number of shares of
Holdco Sub Common Stock identical to the class and number of shares of Parent
Common Stock that were subject to such corresponding Parent Option (a "HOLDCO
SUB OPTION") and (ii) any such Parent Award shall entitle the holder thereof
to receive a payment in cash upon the same terms and conditions that were
applicable under the corresponding Parent Award equal to the fair market
value of the identical number of shares of Holdco Sub Common Stock as shares
of Parent Common Stock. Parent and Holdco Sub agree to take all corporate
and other action as shall be necessary to effectuate the foregoing, and
Parent shall use its best efforts to obtain, if required, prior to the
Closing Date, such consent of each holder of a Parent Option and Parent Award
as shall be necessary to effectuate the foregoing. Holdco Sub shall take all
corporate and other action necessary to reserve and make available for
issuance upon the due exercise of rights under the Holdco Sub Options a
sufficient number of shares of Holdco Sub Common Stock, and as soon as
practicable following the Effective Time of the Merger, shall provide to the
record holders of the Holdco Sub Options appropriate notice of such holder's
rights thereunder.
3.7 OUTSTANDING HOLDCO SUB COMMON SHARES. Upon and as of the
Effective Time of the Merger, Parent shall surrender to Holdco Sub the
certificate representing the Outstanding Holdco Sub Common Shares, and the
Outstanding Holdco Sub Common Shares shall be retired as permitted under the
DGCL and resume the status of authorized and unissued shares of Holdco Sub
Common Stock.
3.8 HOLDCO SUB STOCKHOLDERS' RIGHTS PLAN. Effective not later
than the Effective Time of the Merger, (a) the Holdco Sub Board shall adopt
and approve a stockholders' rights plan having substantially the same terms
and conditions as the Rights Agreement, dated as of November 16, 1995 (the
"RIGHTS AGREEMENT"), between Parent and Norwest Bank Minnesota, N.A., as
Rights Agent, and (b) the Parent Board shall adopt and approve an amendment
to the Rights Agreement which shall cause the Rights (as defined therein) to
expire immediately prior to the Effective Time of the Merger.
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ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES OF PARENT. Parent hereby
represents and warrants:
A. ORGANIZATION. It is duly organized, validly existing and in good
standing as a corporation under the laws of the State of Delaware.
B. POWER AND AUTHORITY. It has corporate power and authority to
enter into, execute, deliver and perform its obligations under this
Agreement.
C. CAPITAL STOCK. The numbers of authorized shares of Parent Common
Stock, Parent Series C Preferred Stock and Parent Series D Preferred Stock,
the numbers of Outstanding Parent Common Shares and outstanding shares of
Parent Series C Preferred Stock, and the number of Treasury Parent Common
Shares are as set forth in the first recital to this Agreement.
4.2 REPRESENTATIONS AND WARRANTIES OF MERGER SUB. Merger Sub hereby
represents and warrants:
A. ORGANIZATION. It is duly organized, validly existing and in good
standing as a corporation under the laws of the State of Delaware.
B. POWER AND AUTHORITY. It has corporate power and authority to
enter into, execute, deliver and (subject to stockholder approval) perform
its obligations under this Agreement.
C. CAPITAL STOCK. The number of authorized shares of Merger Sub
Common Stock, the number of Outstanding Merger Sub Common Shares, and the
number of shares of Merger Sub Common Stock issued but not outstanding, are
as set forth in the second recital to this Agreement.
4.3 REPRESENTATIONS AND WARRANTIES OF HOLDCO SUB. Holdco Sub hereby
represents and warrants:
A. ORGANIZATION. It is duly organized, validly existing, and in good
standing as a corporation under the laws of the State of Delaware.
B. POWER AND AUTHORITY. It has corporate power and authority to
enter into, execute, deliver and perform its obligations under this
Agreement.
C. CAPITAL STOCK. As of the date hereof, the numbers of authorized
and issued shares of Holdco Sub Common Stock is as set forth in the third
recital to this Agreement. The numbers of authorized shares of Holdco Sub
Common Stock, Holdco
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Sub Series C Preferred Stock and Holdco Sub Series D Preferred Stock,
and the numbers of Outstanding Holdco Sub Common Shares and outstanding
shares of Holdco Sub Preferred Stock, in each case immediately prior to
the Effective Time of the Merger, will be as set forth in the third
recital to this Agreement.
ARTICLE V.
CONDITIONS PRECEDENT
5.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER.
The respective obligations of each party under this Agreement shall be
subject to the satisfaction at or prior to the Closing of the following
conditions:
A. STOCKHOLDER APPROVALS. This Agreement shall have been approved
and adopted by the written consent of the holder of the Outstanding Merger
Sub Common Shares.
B. GOVERNMENTAL APPROVALS. All authorizations, consents, orders, or
approvals of, or declarations or filings with, or expiration of waiting
periods imposed by, any foreign, federal, state or local government or any
court, administrative agency or commission or other governmental agency or
authority, whether domestic or foreign (a "GOVERNMENTAL AUTHORITY"),
necessary for the consummation of the transactions contemplated by this
Agreement, including, but not limited to, such requirements under
applicable state securities laws and the Securities Exchange Act of 1934,
as amended, shall have occurred or been filed or obtained, other than
filings relating to the Merger or affecting Holdco Sub's ownership of
Parent or any of its subsidiaries or any of their properties.
C. LEGAL ACTION. No temporary restraining order, preliminary or
permanent injunction, or other order issued by any court of competent
jurisdiction or other Governmental Authority (an "INJUNCTION") preventing
the consummation of the Merger shall be in effect, nor shall any proceeding
brought by any Governmental Entity seeking any of the foregoing be pending.
In the event an Injunction shall have been issued, each party agrees to use
its reasonable best efforts to have the Injunction lifted.
D. STATUTES. No statute, rule or regulation shall have been enacted
by any Governmental Authority that would make the consummation of the
Merger illegal.
E. TAX OPINION; PARENT BOARD DETERMINATION. ST&B shall have issued
the Tax Opinion and the Parent Board shall not have altered or rescinded
its determination that Parent's stockholders will not recognize gain or
loss for United States federal income tax purposes as a result of the
Merger.
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F. REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made by each party herein shall remain true, complete and
accurate at the Closing Date as if made on and as of the Closing Date.
G. CLOSING UNDER THE INVESTMENT AGREEMENT. The Closing (as such term
is defined in the Investment Agreement) shall have occurred or be occurring
concurrently with the Merger.
ARTICLE VI.
TERMINATION, AMENDMENT AND WAIVER
6.1 TERMINATION. This Agreement may be terminated at any time
prior to the Effective Time of the Merger, whether before or after approval
by the stockholders of Merger Sub of this Agreement and the Merger:
A. by mutual written consent of the parties; or
B. by any party if the Closing under the Investment Agreement shall
not have occurred on or prior to the first anniversary of the date of this
Agreement.
When action is taken to terminate this Agreement pursuant to this Section, it
shall be necessary for such action to be authorized by the Board of Directors
of the party taking such action and for such party then to notify in writing
the other parties of such action.
6.2 EVENT OF TERMINATION. In the event of termination of this
Agreement as provided in Section 6.1 hereof, this Agreement shall forthwith
become void and there shall be no liability or obligation on the part of any
party or its officers or directors to the other parties.
6.3 EXPENSES. All costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expense.
6.4 AMENDMENT. Subject to Section 251(d) of the DGCL, this
Agreement may be amended by the parties hereto, by action taken by their
respective Boards of Directors, at any time before or after approval by the
stockholders of Merger Sub of this Agreement and the Merger. This Agreement
may not be amended except by an instrument in writing signed on behalf of
each of the parties hereto.
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ARTICLE VII.
GENERAL PROVISIONS
7.1 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally or mailed by
registered or certified mail (return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be
specified by like notice):
A. If to Holdco Sub or Merger Sub:
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Executive Vice President, General Counsel and
Secretary
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
B. If to Parent:
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Executive Vice President, General Counsel and
Secretary
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
7.2 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal, or incapable of being enforced by any rule of
law or public policy, all other terms, conditions, and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
13
affected in any manner adverse to any party. Upon such determination that
any term or other provision is invalid, illegal, or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
7.3 ENTIRE AGREEMENT. This Agreement, including the Exhibits
attached hereto, constitutes the entire agreement among the parties regarding
the subject matter hereof, and supersedes all prior agreements and
undertakings, both written and oral, among the parties or any of them
regarding such subject matter.
7.4 ASSIGNMENT. This Agreement shall not be assigned by operation
of law or otherwise.
7.5 PARTIES IN INTEREST. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this
Agreement, except as otherwise expressly provided herein, is intended to or
shall confer upon any other person any right, benefit, or remedy of any
nature whatsoever under or by reason of this Agreement.
7.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same Agreement,
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties, it being understood
that all parties need not sign the same counterpart.
7.7 GOVERNING LAW. This Agreement shall be governed in all
respects, including validity, interpretation, and effect, by the laws of the
State of Delaware.
7.8 AGREEMENT. Upon and after the Effective Time of the Merger,
an executed counterpart of this Agreement shall be on file at an office of
the Surviving Corporation, located at ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, and a copy of this Agreement shall be furnished by the Surviving
Corporation, on request and without cost, to any stockholder of any
Constituent Corporation.
7.9 CERTIFICATES OF SECRETARIES. The certificates of the
respective secretaries of Parent and Merger Sub to be attached hereto are
hereby incorporated by reference and shall be deemed on and part of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed, delivered and
entered into this Agreement as of the day and year first written above.
NORTHWEST AIRLINES CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name:
Title:
NEWBRIDGE MERGER CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name:
Title:
NEWBRIDGE PARENT CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name:
Title: