Exhibit 10.29
THE WARRANT ISSUED PURSUANT TO THIS PARTICIPATION WARRANT AGREEMENT HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS. IT MAY
NOT BE SOLD OR OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT AND
APPLICABLE STATE SECURITIES LAWS UNLESS THE COMPANY HAS RECEIVED AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED TO EFFECTUATE SUCH TRANSACTION.
PARTICIPATION WARRANT AGREEMENT
To Purchase Shares of Common Stock
Dated as of July 16, 1999
▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED
a Delaware Corporation
Issue Date: July 16, 1999
THIS CERTIFIES THAT, Continental Airlines, Inc. (the "Warrant Holder"), with a
place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, for value received,
is entitled, upon the terms and subject to the conditions of this Participation
Warrant Agreement (this "Warrant Agreement"), to subscribe for and purchase
fully-paid and non-assessable shares of common stock, par value $.008 per share
(the "Common Stock"), of ▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated, a Delaware corporation (the
"Company").
1. ISSUANCE OF WARRANTS. On the Issue Date, the Company will issue to
the Warrant Holder warrants (the "Warrants") to acquire One Million (1,000,000)
shares of the Common Stock (the "Shares"), subject to adjustment as hereinafter
provided pursuant to Section 10 herein.
2. EXERCISE PRICE. The Warrants have an exercise price of $97.40625 per
share of Common Stock, as adjusted pursuant to the provisions of Section 10 of
this Warrant Agreement (the "Exercise Price").
3. TERM. The Warrants are fully vested on the Issue Date. Except as
otherwise provided for herein, the term of the Warrants and the right to
purchase Shares as granted herein shall be exercisable, at any time and from
time to time, during the period commencing 210 days following April 1, 1999, the
date of completion of the Company's initial public offering of shares of Common
Stock, and terminating at 5:00 p.m. New York City local time on the fifth (5th)
anniversary of the Issue Date; provided, further, that if any of the Warrants
first become exercisable on the fifth (5th) anniversary of the Issue Date, the
Warrant Holder will have an additional six months thereafter to exercise its
purchase rights
in respect of those Warrants (the end of such five year period and additional
six months, if applicable, being referred to herein as the "Termination Date").
4. EXERCISE EVENTS.
(A) GENERAL. Unless otherwise exercisable at an earlier date,
in accordance with this Section 4, all of the Warrants shall be fully
exercisable commencing of the fifth anniversary of the Issue Date.
(B) EARLY EXERCISE RIGHTS.
(i) The Warrant Holder will earn the right to
exercise Warrants for the first 500,000 Shares,
subject to adjustment as provided in Section 10
hereof, from and after the date during any Measuring
Period (as identified in Section 4(c) hereof) that
the Company has sold during such Measuring Period at
least $50 million of tickets issued for travel on the
Warrant Holder, its subsidiaries and/or on the
Warrant Holder's code share partners using Warrant
Holder's code (such amount being measured by the
amount paid by the Company to the Warrant Holder and
its code share partners net of federal excise taxes
on such amount, PFCs and related collections)
("Warrant Holder Net Fares").
(ii) The Warrant Holder will earn the right to
exercise Warrants for the full amount of the second
500,000 Shares, subject to adjustment as provided in
Section 10 hereof, from and after the date during any
Measuring Period (other than the Measuring Period
during which Warrant Holder shall have earned the
right to exercise Warrants for the first 500,000
Shares) that the Company has sold during such
Measuring Period at least $95 million of Warrant
Holder Net Fares. If, upon completion of the
Measuring Period immediately following the Measuring
Period for which Warrant Holder earned the right to
exercise Warrants for the first 500,000 Shares, the
Company has sold more than $50 million but less than
$95 million of Warrant Holder Net Fares during such
immediately following Measuring Period, Warrant
Holder will earn (upon completion of such immediately
following Measuring Period) the right to exercise
that number of Warrants for a portion of the second
500,000 Shares, subject to adjustment as provided in
Section 10 hereof, equal to the product of (i)
500,000 (subject to adjustment as provided in Section
10 hereof) MULTIPLIED by (ii) a fraction, the
numerator of which shall
be the Warrant Holder Net Fares in excess of $50
million sold by the Company during such immediately
following Measuring Period, and the denominator of
which shall be $45 million. Thereafter, subject to
the provisions of Section 4(a), the Warrant Holder
will earn the right to exercise Warrants for any
remaining Shares only from and after the date during
any Measuring Period that the Company has sold during
such Measuring Period at least $95 million of Warrant
Holder Net Fares.
(iii) Warrant Holder Net Fares will be measured
separately, not cumulatively. For example, if the
Company has sold Warrant Holder Net Fares of $50
million during the first Measuring Period, $85
million during the second Measuring Period, and $90
million during the third Measuring Period, then the
Warrant Holder will earn the right to exercise
Warrants for the first 500,000 Shares upon the date
the Company has first sold $50 million of Warrant
Holder Net Fares during the first Measuring Period,
the right to exercise Warrants for 388,888 Shares
(500,000 x 35/45) upon completion of the second
Measuring Period, and no additional Shares at any
time during or upon completion of the third Measuring
Period. For purposes of this example, it is assumed
that no adjustment pursuant to Section 10 hereof has
occurred.
(C) MEASURING PERIODS. Each Measuring Period shall be a 12
month period, with the first Measuring Period commencing on the date the Warrant
Holder first provides tickets for sale by the Company (the "First Ticket Date")
and ending on the first anniversary of such date. Subsequent Measuring Periods
will expire on the second, third, fourth and fifth anniversary of the First
Ticket Date, respectively; provided that the last Measuring Period will expire
on the fifth anniversary of the Issue Date.
5. EXERCISE OF PURCHASE RIGHTS.
(a) Subject to the provisions of Section 4 of this Warrant
Agreement, the purchase rights represented by this Warrant Agreement are
exercisable by the Warrant Holder, in whole or in part, at any time, or from
time to time during the period set forth in Section 3 above, by tendering to the
Company at its principal office a duly completed and executed notice of exercise
in the form attached hereto as EXHIBIT A (the "Notice of Exercise"), the
Warrants and the Exercise Price. Upon receipt of such items, the Company shall
issue to the Warrant Holder a certificate for the number of shares of Common
Stock purchased. The Warrant Holder, upon exercise of the Warrants, shall be
deemed to have
become the holder of the Shares represented thereby
(and such Shares shall be deemed to have been issued)
immediately prior to the close of business on the
date or dates upon which the Warrants are exercised.
In the event of any exercise of the rights
represented by the Warrants, certificates for the
Shares so purchased shall be delivered to the Warrant
Holder or its designee as soon as practical and in
any event within ten (10) business days after receipt
of such notice and, unless the Warrants have been
fully exercised or expired, new Warrants representing
the remaining portion of the Warrants and the
underlying Shares, if any, with respect to which this
Warrant Agreement shall not then have been exercised
shall also be issued to the Warrant Holder as soon as
possible and in any event within such ten-day period.
(B) NET ISSUE EXERCISE. Notwithstanding any provisions herein
to the contrary, if the fair market value of one share of the Company's Common
Stock is greater than the Exercise Price (at the date of calculation as set
forth below), in lieu of exercising the Warrants for cash, the Warrant Holder
may elect to receive shares equal to the value (as determined below) of the
Warrants (or portion thereof being canceled) by surrender of the Warrants at the
principal office of the Company together with the duly executed Notice of
Exercise in which event the Company shall issue to the Warrant Holder a number
of shares of Common Stock computed using the following formula: X=Y(A-B)/ A
WHERE X= the number of shares of Common Stock to be issued to the Warrant
Holder; Y= the number of shares of the Common Stock purchasable under the
Warrants or, if only a portion of the Warrants is being exercised, the portion
of the Warrants being canceled (at the date of such calculation); A= the fair
market value of one share of the Company's Common Stock (at the date of such
calculation); and B= Exercise Price (at the date of such calculation). For
purposes of the above calculation, fair market value of one share of the Common
Stock shall be equal to the closing trading price of the Company's Common Stock
on the day immediately prior to the date the Notice of Exercise is tendered to
the Company.
6. RESERVATION OF SHARES. The Company will at all times have authorized
and reserved a sufficient number of shares of Common Stock to provide for the
exercise of the rights to purchase the Shares as provided in this Warrant
Agreement. All of the Shares shall be duly authorized and, when issued upon such
exercise, shall be validly issued, fully paid and nonassessable, and free and
clear of all preemptive rights.
7. NO FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of the Warrant Holder's
rights to purchase the Shares.
8. NO RIGHTS AS SHAREHOLDER. This Warrant Agreement does not entitle
the Warrant Holder to any voting rights or other rights as a shareholder of the
Company prior
to the exercise of the Warrant Holder's rights to purchase the Shares as
provided for herein.
9. REDEMPTION. The Warrants represented by this Warrant Agreement are
not redeemable by the Company.
10. ADJUSTMENT RIGHTS. The Exercise Price and the number of shares of
Common Stock purchasable hereunder are subject to adjustment from time to time,
as follows:
(a) MERGER. If at any time there shall be a merger or
consolidation of the Company with or into another corporation when the Company
is not the surviving corporation, then, as part of such merger or consolidation,
lawful provision shall be made so that the holder of the Warrants evidenced
hereby shall thereafter be entitled to receive upon exercise of rights herein
granted, during the period specified herein and upon payment of the aggregate
Exercise Price, the number of shares of stock or other securities or property of
the successor corporation resulting from such merger or consolidation, to which
a holder of the stock deliverable upon exercise of the rights granted in this
Warrant Agreement would have been entitled in such merger or consolidation if
such rights had been exercised immediately before such merger or consolidation.
In any such case, appropriate adjustment shall be made in the application of the
provisions of this Warrant Agreement with respect to the rights and interests of
the holder after the merger or consolidation. The Company will not effect any
such merger or consolidation unless, prior to the consummation thereof, the
successor corporation shall assume, by written instrument reasonably
satisfactory in form and substance to the Warrant Holder, the obligations of the
Company under the Warrants.
(b) RECLASSIFICATION, ETC. If the Company at any time shall,
by subdivision, combination or reclassification of securities or otherwise,
change any of the securities as to which purchase rights under this Warrant
Agreement exist into the same or a different number of securities of any other
class or classes, this Warrant Agreement shall thereafter represent the right to
acquire such number and kind of securities as would have been issuable as the
result of such change with respect to the securities which were subject to the
purchase rights under this Warrant Agreement immediately prior to such
subdivision, combination, reclassification or other change.
(C) SPLIT, SUBDIVISION OR COMBINATION OF SHARES. If the
Company at any time shall split or subdivide its Common Stock, the Exercise
Price shall be proportionately decreased and the number of Shares issuable
pursuant to this Warrant Agreement shall be proportionately increased. If the
Company at any time shall combine or reverse split its Common Stock, the
Exercise Price shall be proportionately increased and the number of Shares
issuable pursuant to this Warrant Agreement shall be proportionately decreased.
(D) STOCK DIVIDENDS. If the Company at any time shall pay a
dividend payable in Common Stock, then the Exercise Price shall be adjusted,
from and after the date of determination of stockholders entitled to receive
such dividend, to that price determined by multiplying the Exercise Price in
effect immediately prior to such date of determination by a fraction (i) the
numerator of which shall be the total number of shares of Common Stock
outstanding immediately prior to such dividend and (ii) the denominator of which
shall be the total number of shares of Common Stock outstanding immediately
after such dividend. The Warrant Holder shall thereafter be entitled to
purchase, at the Exercise Price resulting from such adjustment, the number of
shares of Common Stock (calculated to the nearest whole share) obtained by
multiplying (i) the Exercise Price in effect immediately prior to such
adjustment by (ii) the number of shares of Common Stock issuable upon the
exercise hereof immediately prior to such adjustment and dividing the product
thereof by the Exercise Price resulting from such adjustment.
(E) OTHER CHANGES. If any change in the outstanding Common
Stock of the Company or any other event occurs as to which the other provisions
of this Section 10 are not strictly applicable or if strictly applicable, would
not fairly protect the purchase rights of the Warrant Holder in accordance with
such provisions, then the Board of Directors of the Company shall make an
adjustment in the number of and class of shares available under the Warrants,
the Exercise Price or the application of such provisions, so as to protect the
purchase rights of the Warrant Holder. The adjustment shall be such as will give
the Warrant Holder upon exercise for the same aggregate Exercise Price the total
number, class and kind of shares or other property as the Warrant Holder would
have owned had the Warrants been exercised prior to the event and had the
Warrant Holder continued to hold such shares until after the event requiring
adjustment.
(f) NOTICE OF ADJUSTMENTS; NOTICES. Whenever the Exercise
Price or number of shares purchasable hereunder shall be adjusted pursuant to
Section 10 hereof, the Company shall issue a certificate signed by its Chief
Executive Officer or Chief Financial Officer setting forth, in reasonable
detail, the event requiring the adjustment, the amount of the adjustment, the
method by which such adjustment was calculated and the Exercise Price and number
of shares purchasable hereunder after giving effect to such adjustment, and
shall cause a copy of such certificate to be mailed (by first class mail,
postage prepaid) to the holder of this Warrant. The Company shall give written
notice to the Warrant Holder at least 10 days prior to the date on which the
Company closes its books or takes a record for determining rights to receive any
dividends or distributions. The Company shall also give written notice to the
Warrant Holder at least 30 business days prior to the date on which a merger or
consolidation of the Company with or into another corporation when the Company
is not the surviving corporation shall take place.
(g) NO CHANGE OF WARRANT NECESSARY. Irrespective of any
adjustment in the Exercise Price or in the number or kind of securities issuable
upon exercise of the Warrant, unless the Warrant Holder otherwise requests, this
Warrant Agreement may continue to express the same price and number and kind of
shares of Common Stock as are
stated in this Warrant Agreement as initially executed.
11. REPRESENTATIONS AND WARRANTIES OF THE WARRANT HOLDER.
The Warrant Holder hereby represents and warrants to the Company as
follows:
(a) EXISTENCE AND POWER. The Warrant Holder is a (i) is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation and (ii) has the corporate power and
authority to execute, deliver and perform its obligations under this Warrant
Agreement.
(b) AUTHORIZATION; NO CONTRAVENTION. The execution, delivery
and performance by the Warrant Holder of this Warrant Agreement and the
transactions contemplated hereby (i) have been duly authorized by all necessary
corporate action of the Warrant Holder and (ii) do not contravene the terms of
the Certificate of Incorporation or By-laws of the Warrant Holder, each as
amended as of and through the Issue Date.
(c) GOVERNMENTAL AUTHORIZATION; THIRD PARTY CONSENTS. No
approval, consent, compliance, exemption or authorization of any governmental
authority or agency, or of any other person or entity, is necessary or required
in connection with the execution, delivery or performance by, or enforcement
against, the Warrant Holder of this Warrant Agreement or the transactions
contemplated hereby.
(d) BINDING EFFECT. This Warrant Agreement has been duly
executed and delivered by the Warrant Holder and constitutes the valid and
binding obligations of the Warrant Holder, enforceable against it in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability (regardless of
whether considered in a proceeding at law or in equity).
(e) PURCHASE FOR OWN ACCOUNT. The Warrants issued to the
Warrant Holder pursuant to this Warrant Agreement, and the Shares to be issued
upon vesting and exercise thereof, are being or will be acquired for the Warrant
Holder's own account and with no intention of distributing or reselling such
securities or any part thereof in any transaction that would be in violation of
the securities laws of the United States of America, or any state.
(f) RESTRICTED SECURITIES. The Warrant Holder understands that
the Warrants and the Shares issuable upon vesting and exercise of the Warrants,
will not be registered at the time of their issuance under the Securities Act
for the reason that the sale provided for in this Agreement is exempt pursuant
to Section 4(2) of the Securities Act and that reliance of the Company on such
exemption is predicated in part on such
Warrant Holder's representations set forth herein. The Warrant Holder represents
that it is experienced in evaluating companies such as the Company, has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of its investment and has the ability to suffer
the total loss of the investment. The Warrant Holder further represents that it
has had the opportunity to ask questions of and receive answers from the Company
concerning the terms and conditions of the Warrants, the business of the
Company, and to obtain additional information to such Warrant Holder's
satisfaction.
(g) ACCREDITED INVESTOR. The Warrant Holder is an "Accredited
Investor" within the meaning of Rule 501 of Regulation D under the Securities
Act, as presently in effect.
12. COMPLIANCE WITH SECURITIES ACT; TRANSFERABILITY OF WARRANT OR
SHARES OF COMMON STOCK.
(a) COMPLIANCE WITH SECURITIES ACT. The Warrant Holder, by
acceptance hereof, agrees that the Warrants, and the shares of Common Stock to
be issued upon exercise of the Warrants, are being acquired for investment and
that such Warrant Holder will not offer, sell or otherwise dispose of the
Warrants, or any shares of Common Stock to be issued upon exercise of the
Warrants except under circumstances which will not result in a violation of the
Securities Act of 1933, as amended (the "Securities Act"), or any applicable
state securities laws. The Warrants and all shares of Common Stock issued upon
exercise of the Warrants (unless registered under) the Securities Act and any
applicable state securities laws) shall be stamped or imprinted with a legend in
substantially the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW.
THEY MAY NOT BE SOLD OR OFFERED FOR SALE, PLEDGED, HYPOTHECATED
OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO UNDER SAID ACT AND
APPLICABLE STATE SECURITIES LAWS OR UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL THAT SUCH REGISTRATION IS NOT
REQUIRED TO EFFECTUATE SUCH TRANSACTION."
(b) EXCHANGE, TRANSFER, ASSIGNMENT. The Warrants cannot be exchanged,
transferred or assigned otherwise than in accordance with applicable law. Upon
compliance
with applicable law and surrender of the Warrants to the Company with the
Assignment Form annexed hereto as EXHIBIT B duly executed, and funds sufficient
to pay any transfer tax, the Company shall, without charge, execute and deliver
a new Warrant Agreement in the name of the heir, devisee or assignee named in
such instrument of assignment and this Warrant Agreement shall promptly be
canceled. Subject to the terms hereof, the Warrants may be assigned in whole or
in part.
13. RESTRICTED SECURITIES. The Warrant Holder understands that
the Warrants and the Shares issuable upon vesting and exercise of the Warrants,
will not be registered at the time of their issuance under the Securities Act
for the reason that the sale provided for in this Agreement is exempt pursuant
to Section 4(2) of the Securities Act based on the representations of the
warrant Holder set forth herein. The Warrant Holder represents that it is
experienced in evaluating companies such as the Company, has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of its investment and has the ability to suffer the total loss
of the investment. The Warrant Holder further represents that it has had the
opportunity to ask questions of and receive answers from the Company concerning
the terms and conditions of the Warrants, the business of the Company, and to
obtain additional information to such Warrant Holder's satisfaction. The Warrant
Holder is an "Accredited Investor" within the meaning of Rule 501 of Regulation
D under the Securities Act, as presently in effect.
14. REGISTRATION RIGHTS. Upon the parties' execution of this Warrant
Agreement and the Acknowledgment and Agreement to the Amended and Restated
Registration Rights Agreement attached hereto as Exhibit C, Warrant Holder shall
be made a party to that certain Amended and Restated Registration Rights
Agreement, dated as of December 8, 1998, by and among the Company, the
stockholders of the Company named therein and such other stockholders and
warrant holders of the Company made a party thereto. In addition, within 30 days
of the execution of this Warrant Agreement, the Company agrees to enter into an
agreement with Warrant Holder, in form and substance reasonably satisfactory to
Warrant Holder, which shall grant Warrant Holder the right to transfer its
registration rights pursuant to such Amended and Restated Registration Rights
Agreement dated as of December 8, 1998 to any assignee or assignees of all or
any part of this Warrant or the Shares issuable upon exercise hereof, which
assignees, upon their execution and delivery of an Acknowledgment and Agreement
to the Amended and Restated Registration Rights Agreement substantially in the
form of Exhibit C hereto (with appropriate changes therein) shall each have all
the rights and obligations of a Demand Stockholder (as defined in such
Agreement) under such Agreement; provided that no registration statement with
respect to less than a minimum of 250,000 Shares shall be required to be
effected by the Company thereunder for the benefit of any such assignee.
15. MISCELLANEOUS.
(a) NO CONSEQUENTIAL DAMAGES. No party hereto shall be
entitled to
consequential damages as a result of any breach of a covenant, representation or
warranty contained herein.
(b) NOTICES. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested, telecopier,
courier service or personal delivery:
(i) if to the Company, to:
▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated
Five ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
and to:
Skadden, Arps, Slate, Meagher, & ▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Chuff, Esq.
(ii) if to the Warrant Holder, to:
Continental Airlines, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
Vice President - Pricing
and to:
Continental Airlines, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇. ▇▇▇-▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
All such notices and communications shall be deemed to have
been duly
given when delivered by hand, if personally delivered; when delivered by
courier, if delivered by commercial courier service; five (5) business days
after being deposited in the mail, postage prepaid, if mailed; and when receipt
is mechanically acknowledged, if telecopied.
(d) SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES. This
Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of the parties hereto. No person, other than the parties
hereto and their successors and permitted assigns, is intended to be a
beneficiary of this Agreement.
(e) AMENDMENT AND WAIVER.
(i) No failure or delay on the part of the Company,
or the Warrant Holder in exercising any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy. The remedies provided for
herein are cumulative and are not exclusive of any remedies that may be
available to the Company and the Warrant Holder at law, in equity or otherwise.
(ii) Any amendment, supplement or modification of or
to any provision of this Warrant Agreement, any waiver of any provision of this
Warrant Agreement, and any consent to any departure by the Company or the
Warrant Holder from the terms of any provision of this Agreement, shall be
effective only if it is made or given in writing and signed by the Company and
the Warrant Holder.
(f) COUNTERPARTS. This Warrant Agreement may be executed in
any number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(g) HEADINGS. The headings in this Warrant Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) GOVERNING LAW. THIS WARRANT AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW OF ANY JURISDICTION.
(i) SEVERABILITY. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, 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, unless the provisions held invalid, illegal or unenforceable shall
substantially impair the benefits of the remaining provisions hereof.
(j) ENTIRE AGREEMENT. This Warrant Agreement, together with
the exhibits hereto is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein. This Warrant Agreement, together with the exhibits hereto,
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
(k) PUBLICITY. Except as may be required by law, none of the
parties hereto shall issue a publicity release or public announcement or
otherwise make any disclosure concerning this Warrant Agreement or the
transactions contemplated hereby, without prior approval by the other party
(which approval shall not be unreasonably withheld); PROVIDED, HOWEVER, that
nothing in this Warrant Agreement shall restrict the Warrant Holder from
disclosing information (a) that is already publicly available and (b) to its
attorneys, accountants, consultants and other advisors to the extent necessary
to obtain their services in connection with the Warrant Holder's investment or
participation in the Company. If any announcement is required by law to be made
by any party hereto concerning this Warrant Agreement or the transactions
contemplated hereby, prior to making such announcement such party will deliver a
draft of such announcement to the other parties and shall give the other parties
an opportunity to comment thereon.
(l) CHARGES; TAXES AND EXPENSES. Issuance of certificates for
shares upon the exercise of the Warrants shall be made without charge to the
Warrant Holder for any issue or transfer tax or other incidental expense in
respect of the issuance of such certificates, all of which taxes and expenses
shall be paid by the Company.
(m) SATURDAYS, SUNDAYS, HOLIDAYS, ETC. If the last or
appointed day for the taking of any action or the expiration of any right
required or granted herein shall be a Saturday, Sunday or a legal holiday, then
such action may be taken or such right may be exercised on the next succeeding
day not a Saturday, Sunday or a legal holiday.
(n) LOST WARRANTS. The Company covenants to the Warrant Holder
that, upon receipt of evidence reasonably satisfactory to the Company of the
loss, theft, destruction or mutilation of this Warrant Agreement and, in the
case of any such loss, theft or destruction, upon receipt of an indemnity
reasonably satisfactory to the Company, or in the case of any such mutilation,
upon surrender and cancellation of this Warrant Agreement, the Company will make
and deliver a new Warrant Agreement of like tenor, in lieu of the lost, stolen,
destroyed or mutilated document.
(o) FURTHER ASSURANCES. Each of the parties shall execute such
documents and perform such further acts (including, without limitation,
obtaining any consents, exemptions, authorizations or other actions by, or
giving any notices to, or making any filings with, any governmental authority or
any other person, and otherwise fulfilling, or causing the fulfillment of, the
various obligations made herein), as may be reasonably required or desirable to
carry out or to perform the provisions of this Warrant Agreement and to
consummate and make effective as promptly as possible the transactions
contemplated by this Warrant Agreement.
IN WITNESS WHEREOF, this Warrant Agreement has been duly executed and delivered
by the authorized officers of each of the undersigned.
▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED
By: /s/ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
CONTINENTAL AIRLINES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President
EXHIBIT A
NOTICE OF EXERCISE
To: ▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated
1. ___ The undersigned hereby elects to purchase __________
shares of the Common Stock of ▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated pursuant to the terms
of the Warrant Participation Agreement, dated as of _________________, 1999, by
and between ▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated and the undersigned (the "Warrant
Agreement"), and tenders herewith payment of the purchase price of such shares
in full.
___ The undersigned hereby elects to convert
___________ percent (____%) of the value of the Warrants pursuant to the
provisions of Section 5(b) of the Warrant Agreement.
2. Please issue a certificate or certificates representing
said shares in the name of the undersigned.
CONTINENTAL AIRLINES, INC.
By:
--------------------------------
-----------------------------------
(Print Name of Signatory)
-----------------------------------
(Title of Signatory)
Date:
--------------------
EXHIBIT B
ASSIGNMENT FORM
TO: ▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated
The undersigned hereby assigns and transfers unto _____________________________
of _________________________________________________________________
(Please typewrite or print in block letters)
the right to purchase ____________ shares of the common stock of ▇▇▇▇▇▇▇▇▇.▇▇▇
Incorporated subject to the Warrant Participation Agreement, dated as of
________________, 1999, by and between ▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated and the
undersigned (the "Warrant Agreement").
This assignment complies with the provisions of Section 12(b) of the Warrant
Agreement and is accompanied by funds sufficient to pay all applicable transfer
taxes.
CONTINENTAL AIRLINES, INC.
By:
--------------------------------
-----------------------------------
(Print Name of Signatory)
-----------------------------------
(Title of Signatory)
Date:
------------------------------
EXHIBIT C
ACKNOWLEDGMENT AND AGREEMENT
TO THE AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
WHEREAS, pursuant to a Participation Warrant Agreement, the undersigned
received a warrant to purchase 1,000,000 shares of common stock, par value $.008
per share (the "Shares"), of ▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated, a Delaware corporation
(the "Company"); and
WHEREAS, the undersigned wishes to receive certain registration rights with
respect to such Shares; and
WHEREAS, the undersigned has reviewed a copy of that certain Amended
and Restated Registration Rights Agreement, dated as of December 8, 1998 (the
"Agreement"), among the Company, General Atlantic Partners 48, L.P., GAP
Coinvestment Partners, L.P., General Atlantic Partners 50, L.P. and the
stockholders named therein and has been given a copy of the Agreement and
afforded ample opportunity to read and to have counsel review it, and the
undersigned is thoroughly familiar with its terms.
NOW, THEREFORE, in consideration of the mutual premises contained
herein and in the Agreement and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the undersigned hereby
acknowledges and agrees that (i) the undersigned has been given a copy of the
Agreement and afforded ample opportunity to read and to have counsel review it,
and the undersigned is thoroughly familiar with its terms, (ii) the Shares are
subject to terms and conditions set forth in the Agreement, (iii) the
undersigned does hereby agree fully to be bound by the Agreement as a "Demand
Stockholder" (as therein defined), and upon the execution and delivery of this
Acknowledgment and Agreement by the Company, the undersigned shall have all the
rights and obligations under the Agreement as a Demand Stockholder, and (iv) the
undersigned does hereby name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ to serve as their representative
under the Agreement.
This ___ day of July, 1999.
Acknowledged and agreed: CONTINENTAL AIRLINES, INC.
▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED
By: By:
--------------------------- ------------------------
Name: Name:
Title: Title: