Exhibit 99.4
NORTHWEST AIRLINES/AIR PARTNERS VOTING TRUST AGREEMENT
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This Northwest Airlines/Air Partners Voting Trust
Agreement (this "Agreement") dated as of the 20th day of
November, 1998, by and among (i) Continental Airlines, Inc., a
Delaware corporation ("Continental" or the "Company"), (ii)
Northwest Airlines Corporation, a Delaware corporation (formerly
Newbridge Parent Corporation "NPC"), and Northwest Airlines
Holdings Corporation, a Delaware corporation (formerly Northwest
Airlines Corporation, "NWA"), (iii) Air Partners, L.P., a Texas
limited partnership ("Air Partners" and, together with NPC and
NWA, the "Stockholders" and each, a " Stockholder"), and (iv)
Wilmington Trust Company, a Delaware banking corporation.
W I T N E S S E T H:
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WHEREAS, pursuant to the Investment Agreement dated as of
January 25, 1998, among NWA, NPC, Air Partners, the partners of
Air Partners that are signatories to the Investment Agreement,
Bonderman Family Limited Partnership, 1992 Air, Inc. and Air
Saipan, Inc., as amended by Amendment No. 1 thereto dated as of
February 27, 1998 and as further amended by Amendment No. 2
thereto dated as of the date hereof (the "Investment Agreement"),
NWA and NPC have acquired Beneficial Ownership of 8,535,868
shares (the "AP Shares") of the Company's Class A Common Stock,
par value $.01 per share (the "Class A Common Stock"); and
WHEREAS, NPC and NWA Beneficially Own an additional
979,000 shares of Class A Common Stock (the "Additional Shares")
pursuant to the ▇▇▇▇▇▇ Agreement; and
WHEREAS, the Governance Agreement dated as of January 25,
1998, among the Company, NWA and NPC, as amended by the First
Amendment thereto dated as of March 2, 1998 and the Second
Amendment thereto dated as of the date hereof (such agreement, as
so amended, the "Governance Agreement"), requires NWA and NPC to
cause Air Partners to deposit the shares of Class A Common Stock
of which NWA and NPC have acquired beneficial ownership pursuant
to the Investment Agreement (except for such 853,644 shares with
respect to which NWA and NPC or their designees have been granted
a proxy pursuant to the Investment Agreement) in a voting trust;
WHEREAS, the Governance Agreement also requires NWA and
NPC to deposit any other Voting Securities Beneficially Owned by
either of them or any of their Affiliates (except for such
853,644 shares with respect to which NWA and NPC or their
designees have been granted a proxy pursuant to the Investment
Agreement) into the same voting trust;
WHEREAS, the parties hereto desire to establish the voting
trust contemplated in the Governance Agreement and to
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deposit into such trust the AP Shares and the Additional Shares;
and
WHEREAS, each Stockholder has advised the Trustee that it
intends to file all required disclosure information and other
filings as required by applicable securities law and regulations
relating to its respective beneficial ownership of the Shares,
including but not limited to the Securities Act of 1933 and the
Exchange Act of 1934.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, and using capitalized terms to
have their respective meanings set forth in Section 14 hereof,
the parties hereto agree as follows:
Section 1. Creation of Voting Trust. Subject to the terms
and conditions hereof, there is hereby created and established a
voting trust in respect of the Shares to be known as the
"Northwest Airlines/Air Partners Voting Trust." The Trustee
hereby accepts the trust created hereby and agrees to serve as
trustee hereunder. The Trustee promptly shall file an executed
copy of this Agreement at the registered office of the Company in
the State of Delaware, which copy shall be open to the inspection
of any stockholder of the Company, or any beneficiary of the
Trust, daily during business hours, as provided in Section 218 of
the Delaware General Corporation Law.
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Section 2. Deposit of Shares. (a) Subject to the
provisions of Section 2(b) hereof, each of Air Partners, NWA and
NPC shall, simultaneously with the consummation on the date
hereof of the transactions contemplated by the Investment
Agreement and the ▇▇▇▇▇▇ Agreement, transfer and deliver to the
Trustee, to be held by it pursuant to the provisions of this
Agreement, the certificate or certificates representing all of
the Shares Beneficially Owned by the Stockholders (except that
for purposes of the foregoing, any shares Beneficially Owned by
the Stockholders solely as a result of any proxy granted to them
pursuant to the Investment Agreement shall not be required to be
so deposited), duly endorsed in blank or to the Trustee, or
accompanied by proper instruments of assignment and transfer duly
executed in blank or to the Trustee. After the filing of a copy
of this Agreement in the registered office of the Company in the
State of Delaware as provided in Section 1 hereof, each
certificate representing Shares so transferred to the Trustee
shall be surrendered to the Company and cancelled, and new
certificates therefor shall be issued to, and in the name of, the
Trustee. Such certificates shall state that they have been issued
pursuant to this Agreement and that fact shall be noted in the
stock ledger of the Company as required by Section 218 of the
Delaware General Corporation Law. The shareholdings of each
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of the Stockholders of Company Common Stock as of the date hereof
are set forth in Schedule I attached hereto.
(b) All certificates for Shares at any time delivered
to the Trustee hereunder shall be held by the Trustee under and
pursuant to the terms and conditions of this Agreement. The
Trustee shall not have the authority to, and shall not, sell,
transfer, assign, pledge, hypothecate, or otherwise dispose of or
encumber the Shares or any rights therein or thereto, except to
the extent otherwise specifically provided in this Agreement. The
Trustee shall have no beneficial interest in or discretionary
authority with respect to the Shares, its interest being limited
solely to that necessary to carry out its obligations under this
Agreement.
(c) The Trustee, in exchange for the certificate or
certificates so deposited hereunder, will cause to be issued and
delivered to each Stockholder a voting trust certificate or
certificates issued hereunder substantially in the form attached
hereto as Exhibit A (the "Voting Trust Certificates") for the
appropriate number of Shares. The Trustee, under such rules and
regulations as it in its discretion may prescribe with respect to
indemnity or otherwise, may provide for the issuance and delivery
of new Voting Trust Certificates in lieu of lost, stolen or
destroyed Voting Trust Certificates or in exchange for mutilated
Voting Trust Certificates.
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(d) Except as would be permitted by Section 1.02(iii)
of the Governance Agreement with respect to the Shares, as
provided in Section 3.05 of the Governance Agreement, until the
Standstill Termination Date, the Voting Trust Certificates shall
not be sold, assigned, transferred, pledged, hypothecated, given
away or in any other manner disposed of or encumbered, whether
voluntarily, involuntarily or by operation of law, and the
Trustee shall not register any such transfer. Each Voting Trust
Certificate issued pursuant to this Agreement shall have the
following legend noted conspicuously upon its face or reverse
side:
"This Voting Trust Certificate is subject to
restrictions on sale, assignment, transfer,
pledge, hypothecation, gift or other disposition,
as set forth in the Voting Trust Agreement
referred to below."
(e) The Trustee shall not issue Voting Trust
Certificates, or any interest in the Trust, to any Person other
than NWA, NPC, Air Partners, or any of their Depositing
Affiliates.
(f) The Stockholders each hereby covenant and agree
promptly to deposit into the Trust any Voting Securities acquired
by any of them after the date hereof. The Trustee shall issue to
each depositing Stockholder a Voting Trust Certificate in respect
of such securities as provided in Section 2(a) hereof.
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(g) The Stockholders each hereby covenant and agree to
cause their controlled Affiliates, and to use their best efforts
to cause each other Affiliate, to deposit into the Trust any
Voting Securities acquired by such Affiliate after the date
hereof and to execute a supplement to this Agreement evidencing
each such Affiliate's agreement to be bound by, and subject to
the terms of, this Agreement. Upon delivery of such supplement to
the Company and the Trustee, and the deposit of Voting
Securities, the Trustee shall issue Voting Trust Certificates in
respect of such securities to the Depositing Affiliate as
provided in Section 2(a) hereof.
(h) Each Stockholder hereby represents, warrants and
covenants to the Trustee, with respect to Voting Securities it
owns, that (i) it has all requisite power and authority to
execute, deliver and perform its obligations under this
Agreement, (ii) it is and, except as permitted by the Governance
Agreement, shall be during the term of this Agreement the sole
legal and beneficial owner of the Voting Securities, and (iii) it
has not sold, assigned, pledged, created a lien or security
interest in, or otherwise transferred any interest in, the Voting
Securities to any other person or entity (with the exception of
the transfers contemplated by this Agreement), and (iv) the
transfers of Voting Securities from each Stockholder to the
Trustee and from the Trustee to the Stockholders
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contemplated by this Trust Agreement do not require registration
under applicable federal or state securities laws.
Section 3. Voting. The Stockholders hereby direct the
Trustee to vote the Shares as follows:
(a) Except as provided in (c) below, until the
Standstill Termination Date, the Trustee shall vote (or submit
its written consent with respect to) the Shares on all matters
submitted to a vote of the Company's stockholders other than an
election of directors, whether at a meeting of stockholders or by
written consent, either (i) in the case of a vote taken at a
stockholders meeting, in the same proportion as the votes cast by
other holders of Voting Securities or (ii) in the case of action
taken by written consent, so that the percentage of Stockholder
Voting Power consented to on a matter equals the percentage of
all other outstanding Voting Securities so consented.
(b) Except as provided in (d) below, until the
Standstill Termination Date, in any election of directors, the
Trustee shall vote the Shares for the election of the Independent
Directors nominated by the Board of Directors by a Majority Vote,
and, unless otherwise directed by NPC, for the election of the
other persons nominated by the Board of Directors.
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(c) Until the Standstill Termination Date, with respect
to any vote or consent of the Company's stockholders (i) on a
merger, reorganization, share exchange, consolidation, business
combination, recapitalization, liquidation, dissolution or
similar transaction involving the Company, any sale of all or
substantially all of the Company's assets or any issuance of
Voting Securities that would represent in excess of 20% of the
Voting Power prior to such issuance, including any of the
foregoing involving NPC or NWA or (ii) on any amendment to the
Company's amended and restated certificate of incorporation or
its bylaws that would materially and adversely affect NPC
(including through its effect on the Alliance Agreement and the
rights of the Voting Securities Beneficially Owned by NPC), the
Shares shall be voted by the Trustee as directed by NPC and, in
the absence of such direction, shall not be voted.
(d) (i) Until the Standstill Termination Date, with
respect to any election of directors in respect of which any
Person other than the Company is soliciting proxies, the Trustee
shall vote the Shares, at the election of NPC, either (A) as
recommended by the Board of Directors or (B) in the same
proportion as the votes cast by the other holders of Voting
Securities.
(ii) Upon learning that a Person other than the
Company is soliciting proxies in any election of directors,
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the Company shall promptly notify the Trustee and NPC. Not later
than five (5) Business Days prior to the date of the stockholders
meeting at which the proxies solicited by such other person are
to be voted, NPC shall notify the Trustee and the Company of its
election under Section 3(d)(i). If no election is timely made by
NPC, the Trustee shall vote the Shares in the same proportion as
the votes cast by the other holders of Voting Securities. NPC may
instruct the Trustee to change the vote cast at any time before
the close of business two (2) days before a stockholders meeting
by giving notice to the Trustee and the Company.
(e) In the event the Trustee is required under this
Voting Trust Agreement to vote the Shares in the same proportion
as the votes cast by other holders of Voting Securities, the
Trustee may discharge its obligation so to vote the Shares by
delivering to the Company a proxy or written consent (as the case
may be) providing that the Shares are to be so voted, in which
event the Trustee shall have no duty to ascertain the actual
votes cast by other holders of Voting Securities.
Section 4. Dividends and Distributions. (a) The parties
hereto agree that, unless otherwise directed by Air Partners,
NWA, NPC or a Depositing Affiliate, the Company shall pay all
dividends or other distributions (other than dividends or
distributions paid in Voting Securities or the dividend of
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the Rights) in respect of the Shares directly to Air Partners, NWA,
NPC or the Depositing Affiliate, as the case may be. The Trustee
shall have no liability with regard to the payment of such
dividends or other distributions. Notwithstanding the foregoing,
if the Trustee receives payments of dividends or other
distributions (other than dividends or distributions paid in
Voting Securities and the dividend of the Rights) in respect of
the Shares, it shall promptly distribute such dividends or
distributions to Air Partners, NWA, NPC or the Depositing
Affiliate, as applicable, promptly after the receipt of such
dividends or other distributions.
(b) In the event the Trustee receives any Voting
Securities by means of a dividend or other distribution in
respect of the Shares (including the Rights), the Trustee shall
hold such securities subject to this Agreement and such
securities shall become subject to all of the terms and
conditions of this Agreement to the same extent as if they were
Shares deposited with the Trustee pursuant to Section 2(a)
hereof. The Trustee shall issue Voting Trust Certificates in
respect of such securities to Air Partners, NWA, NPC or the
Depositing Affiliate, as applicable, in accordance with Section
2(c) hereof.
(c) In the event of a merger to which the Company is a
party, the sale of all or substantially all of the
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assets of the Company, the dissolution or total or partial
liquidation of the Company, or the sale of any or all of the
Shares, the Trustee shall receive the money, securities, rights
or property which are distributed or are distributable in respect
of the Shares, or which are received in exchange for the Shares,
and, after paying (or reserving for payment thereof) any expenses
incurred pursuant to this Agreement, shall promptly distribute
such money, securities, rights or property to Air Partners, NWA,
NPC and any Depositing Affiliate, as applicable.
(d) If, at any time during the term of this Agreement,
the Trustee shall receive or collect any money or other property
(other than Voting Securities or the Rights but including stock
in subsidiaries or Affiliates of the Company) through
distribution by the Company to its stockholders, other than as
set forth in paragraph (a), (b) or (c) of this Section 4, the
Trustee shall promptly distribute such money or other property to
Air Partners, NWA, NPC and any Depositing Affiliate, as
applicable.
(e) Upon the receipt by the Trustee of a "Right
Certificate" (as defined in the Rights Agreement) following the
"Distribution Date" (as defined in the Rights Agreement), the
Trustee shall promptly distribute such certificate to Air
Partners, NWA, NPC and any Depositing Affiliate, as applicable.
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Section 5. The Trustee. (a) Subject to the provisions of
this Agreement, the Trustee shall manage the voting trust created
hereby.
(b) The Trustee shall be entitled to receive
compensation for services as trustee hereunder as set forth in
the fee schedule previously provided to the parties hereto. As
between NPC and the Company, fifty percent of such compensation
shall be paid by NPC and fifty percent shall be paid by the
Company; provided that their obligation to the Trustee to pay
such compensation shall be joint and several.
(c) The Trustee is expressly authorized to incur and
pay all reasonable, properly documented charges and other
expenses that the Trustee deems necessary and proper in the
performance of the Trustee's duties under this Agreement. NPC and
the Company, as between themselves, shall each be responsible to
reimburse the Trustee for one-half of such expenses; provided
that their obligation to the Trustee to reimburse such charges
and expenses shall be joint and several. NPC and the Company, as
between themselves, shall each be responsible to indemnify the
Trustee for one-half of any and all claims, costs of defense of
claims (including reasonable attorney's fees and disbursements),
expenses and liability incurred by the Trustee in connection with
the performance of the Trustee's duties under this Agreement,
except those incurred
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as a result of the Trustee's gross negligence, wilful misconduct
or other malfeasance; provided that NPC's and the Company's
obligation to the Trustee to pay such amounts shall be joint and
several. This Section 5(c) shall survive the termination of this
Agreement.
(d) In acting hereunder, the Trustee shall have only
such duties as are specified herein and no implied duties shall
be read into this Agreement, and the Trustee shall not be liable
for any act done, or omitted to be done, by it in the absence of
its gross negligence or willful misconduct. The Trustee shall be
free from liability to Air Partners, NWA, NPC and any Depositing
Affiliate in acting or relying upon any writing, notice,
certificate or document believed by the Trustee in good faith
after reasonable inquiry to be genuine and to have been signed by
an authorized officer of the Company, NPC, NWA or any Depositing
Affiliate, as the case may be, or with respect to Air Partners,
an authorized officer of the general partner of Air Partners,
including, without limitation, any certificate or document from
the Company regarding the Fully Diluted Voting Power, the
identity of the Independent Directors, the Beneficial Ownership
of Voting Securities of NPC and its Affiliates, the Stockholder
Voting Power, the Total Voting Power, the Voting Securities and
whether a particular vote of the Company's stockholders is with
respect to a matter described in Section
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3(c). In making such inquiry, the Trustee shall be entitled to
rely upon certificates of incumbency provided by the entity
providing such certificates executed by a person authorized to do
so on behalf of such entity. The Company shall send a copy of any
such writing, notice, certificate or document to NPC concurrently
with sending it to the Trustee. The Trustee may consult with
legal counsel, who shall have no business, financial, or other
relationship with Air Partners, NWA, NPC, a Depositing Affiliate
or the Company, or any of their respective Affiliates, and any
action under this Agreement taken or suffered in good faith by
the Trustee in accordance with the advice of the Trustee's
counsel shall be conclusive on the parties to this Agreement
absent manifest error, gross negligence, wilful misconduct or
other malfeasance and the Trustee shall not be the subject of any
claim by or liability to Air Partners, NPC, NWA or any Depositing
Affiliate, or their successors and assigns except for any claim
or liability resulting from its gross negligence, wilful
misconduct or other malfeasance. This Section 5(d) shall survive
the termination of this Agreement.
(e) (i) The Trustee may resign by giving 30 days'
advance written notice of resignation to the Company and NPC
provided that at the end of the 30 day period, a successor
Trustee has been appointed by NPC and approved by the Company by
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Majority Vote in accordance with Section 5(f) hereof. NPC shall
not unreasonably delay the appointment of, and the Company shall
not unreasonably delay the approval of, a successor Trustee.
(ii) NPC may remove the Trustee at any time upon 90
days' notice to the Trustee and the Company if at the end of the
90 day period, a successor Trustee has been appointed and
approved in accordance with Section 5(f) hereof.
(f) In the event of resignation or removal of the
Trustee pursuant to Section 5(e), the Trustee shall be succeeded
by a successor Trustee chosen by NPC and approved by the Company
by the Majority Vote. In connection therewith, the Trustee shall,
simultaneously with the execution by the successor Trustee of a
counterpart of this Agreement, transfer and deliver (or cause to
be transferred and delivered) to the successor Trustee the Shares
that are held in the name of the Trustee immediately prior to
such execution. The successor Trustee shall file an executed copy
of this Agreement, as amended, at the registered office of the
Company in the State of Delaware, which copy shall be open to the
inspection of any stockholder of the Company, or any beneficiary
of the Trust, daily during business hours, as provided in Section
218 of the Delaware General Corporation Law, and thereafter the
successor Trustee shall become the Trustee for all purposes of
this Agreement, and shall succeed to all of the rights and
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obligations of the Trustee hereunder. Each certificate
representing Shares so transferred to the successor Trustee shall
be surrendered and canceled, and new certificates therefor shall
be issued in the name of the successor Trustee. Such certificates
shall state that they have been issued pursuant to this
Agreement, as amended, and that fact shall be noted in the stock
ledger of the Company, as required by Section 218 of the Delaware
General Corporation Law. In the event a successor Trustee shall
be appointed after a record date has passed with respect to any
vote of the stockholders of the Company and prior to the
stockholders meeting or the taking of action by written consent
relating to such record date, the Trustee as of such record date
shall vote the Shares and/or execute a written consent or proxy
with respect thereto in accordance with the instructions of the
successor Trustee in accordance with the terms of this Agreement.
(g) The Stockholders and the Company each hereby
acknowledge that the Trustee has had, presently may have and may
in the future have other business relationships with any one or
more of the Stockholders and the Company that are unrelated to
its duties and obligations under this Agreement, and hereby waive
and release the Trustee from any conflict of interest which such
relationship may create; provided, that in the event such
conflict of interest results in or arises in connection
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with litigation between any such Stockholder and the Company or
any other Stockholder, the Stockholder or the Company shall have
the right immediately to remove the Trustee within ten (10)
business days following notice of such conflict to them from the
Trustee or notice of such conflict from either of them to the
Trustee (the "Conflict Notice"). Notwithstanding an election by
the Stockholder or Company to remove the Trustee as provided in
the previous sentence, the foregoing waiver and release shall
apply to any actions taken by the Trustee or which the Trustee
refrains from taking in accordance with instructions authorized
under this Trust Agreement during the period between delivery of
such Conflict Notice and the Trustee's removal.
(h) The Trustee represents that it is acquiring the
Shares only in its capacity as trustee to hold in trust and not
with a view to distribution.
(i) In the event the Trustee receives conflicting
instructions under this Trust Agreement, the Trustee shall be
fully protected in refraining from acting until such conflict is
resolved to the satisfaction of the Trustee except that if such
conflict arises by virtue of the receipt of later dated
instructions from the same party, the Trustee shall follow the
later dated instructions in accordance with this Agreement. The
Trustee shall be obligated to contact promptly the party giving
the conflicting instructions to ascertain the nature of
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any conflict, and in the event such conflict cannot be resolved,
the Trustee shall have the right to institute a ▇▇▇▇ of
interpleader in any court referred to in Section 11(b) of this
Agreement to determine the rights and obligations of the parties,
and the parties shall pay all costs, expenses and disbursements
in connection therewith, including reasonable attorneys' fees.
Section 6. Term; Termination. (a) Except to the extent
earlier terminated with respect to all or a portion of the Shares
in accordance with Section 6(d), the Trust shall be effective as
of the date hereof, and this Agreement and the Trust shall remain
in full force and effect until the Standstill Termination Date.
This Agreement and the Trust may be terminated at any time with
the consent in writing of the Company and NPC; provided that, the
consent of the Company shall have been given with the Majority
Vote.
(b) Upon termination of this Agreement in accordance
with Section 6(a) with respect to all the Shares or in accordance
with Section 6(d) with respect to all or a portion of the Shares,
and following delivery to the Trustee of each Stockholder's
Voting Trust Certificate, and payment in full of all fees and
expenses of the Trustee then outstanding, the Trustee shall
promptly deliver to Air Partners, NWA, NPC, and each Depositing
Affiliate, as applicable, the certificates
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representing the Shares deposited in the Trust with respect to
which this Agreement shall have been terminated, duly endorsed
for transfer by the Trustee, or with duly executed stock powers
attached, and shall take all such other actions as are
appropriate to cause the transfer of such Shares deposited in the
Trust, together with all other property relating to or allocable
to such Shares and held by the Trustee for the benefit of Air
Partners, NWA, NPC and any Depositing Affiliate, as applicable,
pursuant to this Agreement, to Air Partners, NWA, NPC or such
Depositing Affiliate, as the case may be. Upon delivery of the
certificates in accordance with the foregoing, except as provided
in Section 6(c) below, the Trustee shall be released from any
further obligation or duty under this Agreement.
(c) In connection with any action submitted to a vote
of the Company's stockholders, whether at a meeting of
stockholders or by written consent, following the termination of
this Agreement but prior to the delivery to Air Partners, NWA,
NPC or any Depositing Affiliate of the certificates representing
the Shares deposited in the Trust, and having a record date prior
to such delivery, the Trustee shall vote the Shares as directed
in writing by Air Partners, NWA, NPC or such Depositing
Affiliate, as the case may be, in respect of the Shares
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beneficially owned by them, and in the absence of any such
direction, the Trustee shall not vote such Shares.
(d) In the event that prior to the Standstill
Termination Date NWA, NPC, Air Partners or any Depositing
Affiliate is permitted to transfer any of the Shares in
accordance with and pursuant to clauses (i), (ii), (v) and (vi)
of Section 1.02 of the Governance Agreement, this Agreement shall
immediately terminate and be of no further force and effect with
respect to such Shares.
Section 7. Benefit and Binding Effect; Assignment. This
Agreement and all covenants herein contained shall be binding
upon and shall inure to the benefit of each of the parties hereto
and their respective heirs, executors, administrators and
personal representatives and their successors and assigns;
provided, however, that, except for assignments by NPC, NWA or
Air Partners to a controlled Affiliate of NPC as permitted by
Section 1.02(iii) of the Governance Agreement, this Agreement
shall not be assigned by any party hereto without the prior
written consent of the Trustee, the Company and NPC, which
consent, in the case of the Company, shall have been given with
the Majority Vote.
Section 8. Notices. All notices, elections, requests,
demands or other communications provided for herein
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shall be made in writing, including by facsimile, and shall be
deemed to have been duly given:
If to NWA, NPC or Air Partners, to:
Northwest Airlines Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company, to:
Continental Airlines, Inc.
Dept. HQS-EO
Continental Tower
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
With a copy to:
Morris, Nichols, Arsht & ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, III, Esquire
If to the Trustee, to:
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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or such other address or fax number as such party may hereafter
specify for such purpose by notice to the other parties hereto.
Section 9. Amendments. This Agreement and the Voting Trust
Certificates issued hereunder may be amended upon the consent in
writing of (a) the Company (with the Majority Vote) and (b) NPC
acting on behalf of all of the holders of Voting Trust
Certificates then issued and outstanding under this Agreement.
Section 10. Enforceability. In the event that any part of
this Agreement shall be held to be invalid or unenforceable, the
remaining parts thereof shall nevertheless continue to be valid
and enforceable as though the invalid portions were not a part
hereof.
Section 11. Governing Law; Consent to Jurisdiction.
(a) This Agreement shall be construed in accordance
with and governed by the internal laws of the State of Delaware.
(b) Any suit, action or proceeding seeking to enforce
any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated
hereby may be brought in any federal court located in the State
of Delaware or any Delaware state court, and each of the parties
hereby consents to the exclusive jurisdiction of such courts (and
of the appropriate appellate courts therefrom)
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in any such suit, action or proceeding and irrevocably waives, to
the fullest extent permitted by law, any objection which it may
now or hereafter have to the laying of the venue of any such
suit, action or proceeding in any such court or that any such
suit, action or proceeding which is being brought in any such
court has been brought in an inconvenient forum. Process in any
such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party
agrees that service of process on such party as provided in
Section 8 shall be deemed effective service of process on such
party.
Section 12. Counterparts. This Agreement may be executed
in two or more counterparts, each of which shall be deemed to be
an original, but all of which shall constitute one and the same
instrument.
Section 13. Expenses. In the event that the Trustee pays
(or reserves for payment thereof) any expenses incurred pursuant
to this Agreement out of any moneys received by it in accordance
with Section 4(c) or otherwise deducts from any amounts payable
to NPC, NWA, Air Partners or any Depositing Affiliate any
expenses incurred by the Trustee, the Company shall promptly
reimburse NPC, NWA, Air Partners or such
-24-
Depositing Affiliate, as the case may be, in an amount equal to
50% of such expenses so paid or deducted.
Section 14. Definitions; Interpretation. (a) For purposes
of this Agreement, the following terms shall have the following
meanings:
"Additional Shares" shall have the meaning set forth in
the second recital hereto.
"Affiliate" shall have the meaning set forth in Rule 12b-2
under the Exchange Act (as in effect on the date of this
Agreement).
"Air Partners" shall mean Air Partners, L.P., a Texas
limited partnership.
"Alliance Agreement" shall mean the Master Alliance
Agreement dated as of January 25, 1998 by and between Continental
and Northwest Airlines, Inc., an indirect wholly owned subsidiary
of NWA.
"AP Shares" shall have the meaning set forth in the first
recital hereto.
"▇▇▇▇▇▇ Agreement" shall mean the Purchase Agreement dated
as of March 2, 1998, among NPC, NWA, ▇▇▇▇▇▇ Investors III, LLC, a
California limited liability company, and the guarantors
signatory thereto.
"Beneficially Own" or "Beneficial Ownership" with respect
to any securities shall mean having "beneficial
-25-
ownership" of such securities (as determined pursuant to Rule
13d-3 under the Exchange Act), including pursuant to any
agreement, arrangement or understanding, whether or not in
writing. Without limiting the foregoing, any Voting Securities
owned by the Trust shall be deemed to be Beneficially Owned by
the Stockholders.
"Board of Directors" shall mean the board of directors of
the Company.
"Business Day" shall mean any day other than a Saturday,
Sunday or legal holiday.
"Class A Common Stock" shall have the meaning set forth in
the first recital hereto.
"Class B Common Stock" shall mean the Class B Common
Stock, par value $.01 per share, of the Company.
"Closing" shall mean the closing of the transactions
provided for in the Investment Agreement.
"Conflict Notice" shall have the meaning set forth in
Section 5(g) of this Agreement.
"Continental" or "Company" shall mean Continental
Airlines, Inc., a Delaware corporation.
"Depositing Affiliate" shall mean any Affiliate of Air
Partners, NPC or NWA that has deposited Voting Securities with
the Trustee, and become bound by, and subject to the terms of,
this Agreement, as provided in Section 2(g) of this Agreement,
-26-
and any controlled Affiliate of Air Partners, NPC or NWA to which
any of the Shares are transferred in accordance with Section
1.02(iii) of the Governance Agreement.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time.
"Fully Diluted Voting Power" of any Person with reference
to the Company shall be calculated by dividing (i) the sum of (A)
ten times the aggregate number of shares of Company Class A
Common Stock Beneficially Owned by such Person (assuming exercise
of any outstanding securities held by such Person that are
convertible into or exercisable or exchangeable for shares of
Company Class A Common Stock) and (B) the number of shares of
Company Class B Common Stock Beneficially Owned by such Person
(assuming exercise of any outstanding securities held by such
Person that are convertible into or exercisable or exchangeable
for shares of Company Class B Common Stock) by (ii) the sum of
(A) ten times the aggregate number of outstanding shares of
Company Class A Common Stock (assuming the exercise of all
outstanding securities convertible into or exercisable or
exchangeable for shares of Company Class A Common Stock) and (B)
the aggregate number of outstanding shares of Company Class B
Common Stock (assuming the exercise of all outstanding securities
convertible into or exercisable or exchangeable for shares of
Company Class B Common Stock).
-27-
"Governance Agreement" shall have the meaning set forth in
the third recital hereto.
"Independent Director" shall mean (i) any person listed on
Exhibit 2.01 of the Governance Agreement, (ii) any other person
selected as an Independent Director in accordance with Section
2.01(b) of the Governance Agreement and (iii) any other person,
who is elected to the Board of Directors in an election of
directors in respect of which any Person other than the Company
is soliciting proxies; provided that any such other person so
selected shall be independent of and otherwise unaffiliated with
NWA, NPC, Air Partners or the Company (other than as an
Independent Director), and shall not be an officer or an
employee, consultant or advisor (financial, legal or other) of
NWA or the Company or any of their respective Affiliates, or any
person who shall have served in any such capacity within the
three-year period immediately preceding the date such
determination is made.
"Investment Agreement" shall have the meaning set forth in
the first recital hereto.
"Majority Vote" shall mean the affirmative vote of a
majority of the Board of Directors, including the affirmative
vote of a majority of the Independent Directors.
"NPC" shall mean Newbridge Parent Corporation, a Delaware
corporation.
-28-
"NWA" shall mean Northwest Airlines Corporation, a
Delaware corporation.
"Person" shall mean any individual, partnership (limited
or general), joint venture, limited liability company,
corporation, trust, business trust, unincorporated organization,
government or department or agency of a government.
"Rights" shall mean the rights issued pursuant to the
Rights Agreement.
"Rights Agreement shall mean the Rights Agreement dated as
of November 20, 1998, between the Company and ▇▇▇▇▇▇ Trust and
Savings Bank, as rights agent.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
"Shares" shall mean the AP Shares, the Additional Shares
and any other Voting Securities required to be deposited in the
Trust in accordance with the terms hereof.
"Standstill Termination Date" shall mean the earlier of
(i) the sixth anniversary of the Closing and (ii) the date on
which NPC and its Affiliates cease to Beneficially Own Voting
Securities representing at least 10% of the Fully Diluted Voting
Power, unless the Governance Agreement shall have otherwise
terminated, in which event the Standstill Termination Date shall
mean the date of such termination.
-29-
"Stockholder Voting Power" at any time shall mean the
aggregate voting power in the general election of directors of
all Voting Securities then Beneficially Owned by NPC and its
Affiliates.
"Stockholders" shall mean Air Partners, NWA and NPC.
"Total Voting Power" at any time shall mean the total
combined voting power in the general election of directors of all
the Voting Securities then outstanding.
"Trust" shall mean the Northwest Airlines/Air Partners
Voting Trust created by this Voting Trust Agreement.
"Trustee" shall mean initially Wilmington Trust Company, a
Delaware banking corporation, not in its individual capacity but
solely as trustee, and any successor trustee thereto appointed
and approved in accordance with Section 5(f) hereof.
"Voting Securities" shall mean at any time shares of any
class of capital stock of the Company, which are then entitled to
vote generally in the election of directors including, without
limitation, the Class A Common Stock and the Class B Common
Stock.
"Voting Trust Certificates" shall have the meaning set
forth in Section 2(c) hereof.
(b) The definitions herein shall apply equally to both the
singular and plural forms of the terms defined.
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Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms.
[The remainder of this page intentionally left blank]
-31-
IN WITNESS WHEREOF, the parties hereto have caused this
Voting Trust Agreement to be duly executed as of the date first
above written.
CONTINENTAL AIRLINES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President,
General Counsel and Secretary
AIR PARTNERS, L.P.
By: Northwest Airlines
Corporation, as general
partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Executive Vice President,
General Counsel and Secretary
NORTHWEST AIRLINES HOLDINGS CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Executive Vice President,
General Counsel and Secretary
[Signature Page to Voting Trust Agreement]
NORTHWEST AIRLINES CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Executive Vice President,
General Counsel and Secretary
WILMINGTON TRUST COMPANY
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------
W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Assistant Vice President
[Signature Page to Voting Trust Agreement]
Schedule I
Air Partners 7,678,522* shares of
Class A Common Stock
Northwest Airlines Corporation 982,702 shares of
Class A Common Stock
--------
* Does not include 853,644 shares of which NPC has acquired
Beneficial Ownership pursuant to a proxy granted in the
Investment Agreement.
Exhibit A
NORTHWEST AIRLINES/AIR PARTNERS VOTING TRUST CERTIFICATE
THIS VOTING TRUST CERTIFICATE IS SUBJECT
TO RESTRICTIONS ON SALE, ASSIGNMENT, TRANSFER,
PLEDGE, HYPOTHECATION, GIFT OR OTHER DISPOSITION
AS SET FORTH IN THE VOTING TRUST AGREEMENT
REFERRED TO BELOW
No. __________ ________ Shares of
[Class A] [Class B] Common Stock
Continental Airlines, Inc.
Incorporated under the Laws of the State of Delaware.
THIS IS TO CERTIFY THAT, subject to the provisions hereof
and of the Northwest Airlines/Air Partners Voting Trust Agreement
dated as of the 20th day of November, 1998 (the "Voting Trust
Agreement") among Continental Airlines, Inc., a Delaware
corporation (the "Company"), Air Partners, L.P., a Texas limited
partnership, Newbridge Parent Corporation, a Delaware
corporation, Northwest Airlines Corporation, a Delaware
corporation, and Wilmington Trust Company (the "Trustee"), not in
its individual capacity but solely as Trustee, on the surrender
hereof, properly endorsed, ____________________ (the "Depositing
Stockholder") will be entitled to receive on the Standstill
Termination Date (as defined in the Voting Trust Agreement) a
certificate or certificates, expressed to be fully paid and
non-assessable, for __________ shares of [Class A] [Class B]
Common Stock, represented by this Certificate, of the Company, or
its successor, and in the meantime, subject to the provisions of
the Voting Trust Agreement, is entitled to receive payments equal
and of like character to the dividends, if any, received by the
Trustee, if any, upon the number of shares of [Class A] [Class B]
Common Stock held by the Trustee for the Depositing Stockholder,
less such charges and expenses as are authorized by the Voting
Trust Agreement to be deducted therefrom and less any income or
other taxes required by law to be deducted therefrom.
Until actual delivery of the stock certificates called for
hereby following the termination of the Voting Trust Agreement,
the Trustee, upon the terms and subject to the provisions stated
in the Voting Trust Agreement, shall possess and shall be
entitled to exercise all rights and powers of the owners of such
[Class A] [Class B] Common Stock to vote for every purpose and to
consent to any and all corporate acts of the Company; it being
expressly stipulated that except as expressly provided in the
Voting Trust Agreement, no right to vote such [Class A] [Class B]
Common Stock and no right to consent in respect of such [Class A]
[Class B] Common Stock is created or passes to any holder hereof
by or under this Certificate or by or under any agreement express
or implied.
This Certificate is issued under and pursuant to, and the
rights of each successive holder hereof are subject to and
limited by, the terms and provisions of a certain Voting Trust
Agreement, one copy of which is on file at the principal office
of the Company at Continental Tower, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, and one copy of which is on file in the registered
office of the Company in the State of Delaware. Each holder of
this Certificate by the acceptance hereof assents and agrees to
be bound by all the provisions of the Voting Trust Agreement.
This Certificate shall not be sold, assigned, transferred,
pledged, hypothecated, given away or in any other manner disposed
of or encumbered, whether voluntarily, involuntarily or by
operation of law, except as may be permitted pursuant to the
terms of the Voting Trust Agreement, subject to such regulations
as may be established by the Trustee for that purpose, upon
surrender hereof at the office of the Trustee, properly endorsed
for transfer, and the Trustees may treat the holder of record
hereof as the owner of this Certificate for all purposes. Every
transferee of this Certificate shall by the acceptance hereof
become a party to the Voting Trust Agreement with like force and
effect as though an original party thereto and shall be included
within the meaning of the term "Depositing Stockholders" wherever
used therein.
As a condition of making or permitting any transfer or
delivery of stock certificates or Voting Trust Certificates, the
Trustee may require the payment of a sum sufficient to pay or
reimburse it for any stamp tax or other governmental charge in
connection therewith, or any other charges applicable to such
transfer or delivery.
The Voting Trust Agreement and this Certificate may be
amended at any time and from time to time in the manner provided
in the Voting Trust Agreement. The Voting Trust Agreement and
the trust created thereunder shall remain in full force and
effect until the Standstill Termination Date.
IN WITNESS WHEREOF, the Trustee has caused this
Certificate to be signed on its behalf by one of its number.
Dated: ______________________
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Trustee
By:_________________________
Name:
Title: