Exhibit 10

TRANSACTION FRAMEWORK AGREEMENT

among

DELTA AIR LINES, INC.,

DELTA MASTER EXECUTIVE COUNCIL,

NORTHWEST MASTER EXECUTIVE COUNCIL

and

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL

Dated as of June 26, 2008

 

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TABLE OF CONTENTS

 

				Page
ARTICLE I
DEFINITIONS
Section 1.01.		Certain Defined Terms		2
Section 1.02.		Terms Generally		5
ARTICLE II
COLLECTIVE BARGAINING AGREEMENT
Section 2.01.		Entry into the new PWA		6
Section 2.02.		Pilot Equity Issuance		7
Section 2.03.		Original TFA		7
ARTICLE III
SALE AND PURCHASE OF SHARES
Section 3.01.		Sale and Purchase of Common Shares		7
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF DELTA
Section 4.01.		Organization and Qualification		10
Section 4.02.		Authority for this Agreement; Board Action		10
Section 4.03.		Consents and Approvals; No Violation		10
Section 4.04.		Shares		11
Section 4.05.		Proxy Statement		11
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF ALPA, THE DELTA MEC AND THE NORTHWEST MEC
Section 5.01.		Authority for this Agreement		12
Section 5.02.		Consents and Approvals; No Violation		12
Section 5.03.		Proxy Statement		13
ARTICLE VI
OTHER COVENANTS
Section 6.01.		Support of Merger		13
Section 6.02.		No Prejudice		14
Section 6.03.		Fees and Expenses		14
Section 6.04.		Press Release		14
Section 6.05.		Reasonable Best Efforts		14

 

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TABLE OF CONTENTS

(continued)

 

				Page
Section 6.06.		Proxy Statement; Stockholder Approval		15
Section 6.07.		Pilot Directors		15
Section 6.08.		Indemnity		16
ARTICLE VII
CONDITIONS
Section 7.01.		Conditions to Each Party’s Obligations		17
Section 7.02.		Conditions to Obligations of ALPA, the Delta MEC and the Northwest MEC		17
Section 7.03.		Conditions to Obligations of Delta		18
ARTICLE VIII
TERMINATION; AMENDMENT; WAIVER
Section 8.01.		Termination		18
Section 8.02.		Effect of Termination		19
Section 8.03.		Fees and Expenses		19
Section 8.04.		Amendment		20
Section 8.05.		Extension; Waiver; Remedies		20
ARTICLE IX
MISCELLANEOUS
Section 9.01.		Representations and Warranties		20
Section 9.02.		Entire Agreement; Assignment		20
Section 9.03.		Jurisdiction; Venue		20
Section 9.04.		Validity; Specific Performance		21
Section 9.05.		Capacity of the Delta MEC and the Northwest MEC		21
Section 9.06.		Notices		21
Section 9.07.		Governing Law		23
Section 9.08.		Descriptive Headings		23
Section 9.09.		Parties in Interest		23
Section 9.10.		Waiver		23
Section 9.11.		Counterparts		23
Exhibits
Exhibit A		Registration Rights Procedures

 

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TRANSACTION FRAMEWORK AGREEMENT

THIS TRANSACTION FRAMEWORK AGREEMENT (this “ Agreement ”), dated as of June 26, 2008, by and among DELTA AIR LINES, INC., a Delaware corporation (“ Delta ”), DELTA MASTER EXECUTIVE COUNCIL (“ Delta MEC ”), NORTHWEST MASTER EXECUTIVE COUNCIL (“ Northwest MEC ”) and the AIR LINE PILOTS ASSOCIATION, INTERNATIONAL (“ ALPA ”) (collectively, the “ Parties ”).

RECITALS

WHEREAS, it is proposed that, on the Merger Agreement Effective Date (as defined below), pursuant to the Agreement and Plan of Merger by and among Delta, Nautilus Merger Corporation, a Delaware corporation and a wholly-owned subsidiary of Delta (“ Merger Sub ”) and Northwest Airlines Corporation, a Delaware corporation (“ NWA ”), dated as of April 14, 2008 (the “ Merger Agreement ”), Delta will acquire NWA (the “ Merger ”), including the operations of Northwest Airlines, Inc., a Minnesota corporation and a wholly-owned Subsidiary of NWA (“ Northwest Airlines ” and collectively with NWA, “ Northwest ”), through the merger of Merger Sub with and into NWA, with NWA as the surviving corporation and a direct wholly-owned subsidiary of Delta (Delta or any other ultimate publicly-held parent company of Delta and Northwest after giving effect to the Merger being referred to herein as the “ Merged Company ”);

WHEREAS, Delta, the Delta MEC and ALPA entered into the Transaction Framework Agreement, dated as of April 14, 2008 (the “ Original TFA ”);

WHEREAS, it is intended that, upon the DCC (as defined below), the air carriers (the “ Merged Airline ”) employing the Merged Company Pilots (as defined below) will operate pursuant to the new PWA (as defined below), except as otherwise provided therein;

WHEREAS, the Parties have agreed to a process for the determination of an integrated seniority list applicable to the Merged Company Pilots;

WHEREAS, the Parties wish to secure the benefits of an agreement as provided herein, in connection with the entry into the Merger Agreement;

WHEREAS, Delta has agreed to cause the Merged Company to issue to the Eligible Pilots (as defined below) equity interests in the Merged Company on the Pilot Equity Issuance Date (as defined below) on the terms and subject to the conditions contained, and approvals contemplated, herein;

WHEREAS, the Parties desire to make certain representations, warranties, covenants and agreements in connection with this Agreement.

NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:

 

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ARTICLE I

DEFINITIONS

SECTION 1.01. Certain Defined Terms . As used in this Agreement, the following terms have the following meanings:

“ Agreement ” has the meaning specified in the Preamble.

“ ALPA ” has the meaning specified in the Preamble.

“ Ancillary TFA ” means the Ancillary Transaction Framework Agreement among NWA, Northwest Airlines, the Northwest MEC and ALPA, dated as of the date hereof.

“ Announcement Date ” means April 14, 2008.

“ Claim ” has the meaning specified in Section 6.08.

“ Code ” means the Internal Revenue Code of 1986, as amended.

“ Contract ” has the meaning specified in Section 4.03(a).

“ Date of Corporate Closing” or “ DCC ” has the meaning specified in Section 2.01(a).

“ Delta ” has the meaning specified in the Preamble.

“ Delta MEC ” has the meaning specified in the Preamble.

“ Delta Pilot Group ” means the airline pilots in the service of Delta, as represented by ALPA and, for purposes of clarity, excluding (x) the airline pilots in the service of any Subsidiary of Delta, and (y) the airline pilots in the service of Northwest.

“ Designee ” means Athena Advisory Group, LLC.

“ Eligible Pilots ” mean those pilots who are on either the Delta pilot seniority list or the Northwest Airlines pilot seniority list on the DCC.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and any successor thereto, and any rules and regulations promulgated thereunder, as well as, in respect of the provisions of Section 3.01(f) hereof, no action letters related to the matters described therein, including the no-action letter dated January 12, 1999, issued by the SEC regarding such matters, all as the same shall be in effect from time to time.

“ Existing Delta PWA ” means the collective bargaining agreement applicable to the Delta Pilot Group in effect as of the date hereof, including, without limitation, as modified by the Letter of Agreement titled Mid-Contract Improvements Related to the Delta Merger (“ LOA #19 ”), as it may be further modified.

 

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“ Existing Northwest CBA ” means the collective bargaining agreement applicable to the Northwest Pilot Group in effect as of the date hereof, as it may be modified.

“ Force Majeure Event ” means an event (i) over which Delta does not have control and (ii) which involuntarily prevents Delta from conducting a substantial portion of its operations. Such event includes but is not limited to the grounding of a substantial number of Delta’s aircraft by a government agency, unavailability of fuel to Delta or a natural disaster with respect to Delta, in each case involuntarily preventing Delta from conducting a substantial portion of its operations.

“ fully-diluted basis ” has the meaning specified in Section 3.01(a).

“ Governmental Entity ” has the meaning specified in Section 4.03(b).

“ Governmental Filings ” has the meaning specified in Section 6.05.

“ HSR Act ” has the meaning specified in Section 4.03(b).

“ Indemnitee ” has the meaning specified in Section 6.08.

“ Initial Holder ” means one or more trusts (which may be tax qualified or non-qualified) or other entities not required to be registered under the Investment Company Act of 1940 for the benefit of the Eligible Pilots or the retirement accounts of the Eligible Pilots, with the structure of such trust(s) or entity to be determined by the Delta MEC and the Northwest MEC, acting jointly, with the consent of Delta, not to be unreasonably withheld.

“ Law ” has the meaning specified in Section 4.03(a).

“ LOA #19 ” has the meaning specified in definition of “Existing Delta PWA”.

“ MEC Successor ” means any successor to the Delta MEC, the Northwest MEC or the Merged Company MEC, including as a result of merger or reorganization of Delta (including the Merger) or otherwise.

“ Merged Airline ” has the meaning specified in the Recitals.

“ Merged Company ” has the meaning specified in the Recitals.

“ Merged Company MEC ” means the ALPA Master Executive Council of the Merged Airline, when and as constituted from time to time on or after the DCC.

“ Merged Company Pilots ” means the Delta Pilot Group and the Northwest Pilot Group, collectively.

“ Merger ” has the meaning specified in the Recitals.

 

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“ Merger Agreement ” has the meaning specified in the Recitals.

“ Merger Agreement Effective Date ” is the date and time on which the Merger becomes effective under applicable law in accordance with the Merger Agreement.

“ Merger Sub ” has the meaning specified in the Recitals.

“ new PWA ” has the meaning specified in Section 2.01(a).

“ Nomination Letter Agreement ” means that certain Letter of Agreement dated as of the Announcement Date among Delta, the Delta MEC and ALPA with respect to the nomination of the “Pilot Nominee” (as defined therein) to the Board of Directors of Delta.

“ Northwest ” has the meaning specified in the Recitals.

“ Northwest Airlines ” has the meaning specified in the Recitals.

“ Northwest Board ” has the meaning specified in Section 6.07.

“ Northwest MEC ” has the meaning specified in the Preamble.

“ Northwest Pilot Group ” means the airline pilots in the service of Northwest Airlines, as represented by ALPA and, for purposes of clarity, excluding the airline pilots in the service of any subsidiary of Northwest Airlines or NWA other than Northwest Airlines.

“ NYSE ” has the meaning specified in Section 3.01(a).

“ NWA ” has the meaning specified in the Recitals.

“ Original TFA ” has the meaning specified in the Recitals.

“ Parties ” has the meaning specified in the Preamble.

“ Person ” means any individual, corporation, limited liability company, partnership, association, trust, estate or other entity or organization, including any Governmental Entity.

“ Pilot Director ” means a member of the Board of Directors of Delta (or any successor), who has been nominated in accordance with the Nomination Letter Agreement (including after giving effect to Section 6.07 of this Agreement).

“ Pilot Equity Issuance ” has the meaning set forth in Section 2.02.

“ Pilot Equity Issuance Date ” has the meaning set forth in Section 2.02.

“ Pilot Shares ” has the meaning specified in Section 3.01(a).

“ Proxy Statement ” has the meaning specified in Section 4.05.

 

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“ Process Agreement ” has the meaning specified in Section 2.01(a).

“ Reimbursement Cap ” has the meaning specified in Section 6.03.

“ Representatives ” means, when used (w) with respect to a Party, the directors, officers, employees, consultants, financial advisors, accountants, legal counsel, investment bankers, and other agents, advisors and representatives of such Party, as applicable, and its Subsidiaries, (x) with respect to the Delta Pilot Group, the Delta MEC, unless the Merged Company MEC is then in existence, (y) with respect to the Northwest Pilot Group, the Northwest MEC, unless the Merged Company MEC is then in existence, and (z) with respect to the Merged Company Pilots, the Merged Company MEC, if then in existence.

“ Requisite Stockholder Approval ” means the affirmative vote of at least the minimum number of stockholders of Delta required by the certificate of incorporation or bylaws of Delta, as the case may be, by Law or the rules and regulations of the NYSE necessary to approve the Pilot Equity Issuance (either alone or as part of another equity plan or plans) and the plan for the distribution of proceeds related thereto, each as contemplated in Section 3.01, and to complete the Pilot Equity Issuance.

“ SEC ” means the Securities and Exchange Commission.

“ Securities Act ” means the Securities Act of 1933, and any similar or successor federal statute, and the rules and regulations promulgated thereunder, all as amended, and as the same may be in effect from time to time.

“ Shelf Registration ” has the meaning specified in Section 3.01(d).

“ Shelf Registration Statement ” has the meaning specified in Section 3.01(d).

“ Special Meeting ” has the meaning specified in Section 6.06(b).

“ Subsidiary ” means, when used with reference to a Person, any other Person (other than natural persons) of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions, or a majority of the outstanding voting securities of which, are owned directly or indirectly by such first Person.

“ Takedown ” has the meaning specified in Section 3.01(d).

“ transactions contemplated hereby ” means, for purposes of this Agreement, all of the transactions contemplated by this Agreement, excluding the Merger.

SECTION 1.02. Terms Generally . (a) Words in the singular shall include the plural and vice versa, and words of one gender shall include the other genders, in each case, as the context requires, (b) the term “hereof,” “herein,” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement and not to any particular provision of this Agreement, and Article, Section, paragraph, Exhibit and Schedule references are to the Articles, Sections, paragraphs, Exhibits and Schedules to this Agreement unless otherwise specified and (c) the word “including” and words of similar import when used in this Agreement shall mean “including, without limitation,” unless otherwise specified.

 

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ARTICLE II

COLLECTIVE BARGAINING AGREEMENT

SECTION 2.01. Entry into the new PWA . (a) Upon the terms and subject to the conditions hereof, the Parties have tentatively agreed to the collective bargaining agreement approved by the Delta MEC on or prior to the date hereof and by the Northwest MEC on or prior to the date hereof, governing the Merged Company Pilots (the “ new PWA ”), effective as of 12:01 a.m. New York time on the day following the Merger Agreement Effective Date (the “ Date of Corporate Closing ” or “ DCC ”), subject to the provisions of this Agreement and ratification thereof as provided herein. The Northwest MEC, the Delta MEC and ALPA shall adopt and be bound by the Process Agreement, dated on or prior to the date hereof, between the Northwest MEC and the Delta MEC, and approved by ALPA (the “ Process Agreement ”), relating to the determination of an integrated seniority list and shall not revise, waive any material right under, or terminate the Process Agreement without the consent of Delta.

(b) The Delta MEC and the Northwest MEC have each agreed to recommend ratification by the Delta Pilot Group and the Northwest Pilot Group, respectively, of the new PWA and to submit the new PWA, as promptly as practicable after the date hereof, to the Delta Pilot Group and the Northwest Pilot Group, respectively, for separate ratification, within the time limits set forth in Section 6.01 hereof.

(c) Promptly upon separate ratification by the Delta Pilot Group and the Northwest Pilot Group as provided for in Section 2.01(b), the Delta MEC and the Northwest MEC will deliver the new PWA to the president of ALPA for his signature, and each of the Parties shall, and, on or promptly following the Merger Agreement Effective Date, Delta shall cause the Merged Company to, execute the new PWA to be effective subject to Section 2.01(d) hereof.

(d) Until the DCC, the Delta Pilot Group and the Northwest Pilot Group will remain separate and covered by the Existing Delta PWA and the Existing Northwest CBA, respectively, and the new PWA shall not become effective until the DCC. Upon the DCC, the Merged Airline will operate pursuant to the new PWA, if separately ratified by both the Delta Pilot Group and the Northwest Pilot Group as provided herein. Each of Delta and the Merged Company will support ALPA’s application to the National Mediation Board in respect of the Merged Airline for recognition of a single transportation system and single pilot craft or class.

(e) Delta shall not, prior to the Merger Agreement Effective Date, swap or transfer orders or options for new aircraft existing prior to the Announcement Date with Northwest. Between the date hereof and the DCC, no pilot on the Delta seniority list as of the Announcement Date will be placed on furlough as a result of the Merger Agreement, except and only to the extent that a Force Majeure Event has occurred and is continuing during the period in which such furlough takes place and is the cause of any such furlough.

 

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SECTION 2.02. Pilot Equity Issuance . Subject to the terms and conditions of this Agreement, the issuance of the Pilot Shares (the “ Pilot Equity Issuance ” and the date on which the Pilot Equity Issuance actually occurs, the “ Pilot Equity Issuance Date ”) will take place at the same time and at the same place as the closing of the Merger Agreement on the Merger Agreement Effective Date; provided , however , that notwithstanding the satisfaction or waiver of the conditions set forth in Article VII, this Agreement may be terminated pursuant to and in accordance with Section 8.01 hereof such that the Parties shall not be required to effect the Pilot Equity Issuance. Notwithstanding the occurrence of the Pilot Equity Issuance Date, it is agreed that the Designee may elect to cause the Merged Company to issue any or all of the Pilot Shares on one or more dates occurring on or after the Pilot Equity Issuance Date, by providing reasonable written notice thereof to the Merged Company and each such notice shall specify the number of Pilot Shares to be issued on any such date.

SECTION 2.03. Original TFA . Each of Delta, the Delta MEC and ALPA agrees that, from the date hereof until such time (if any) that this Agreement is terminated pursuant to Section 8.01 for any reason, the Original TFA shall be superseded in all respects by this Agreement; provided , however, that upon a termination of this Agreement for any reason, the Original TFA and the rights and obligations thereunder shall remain in full force and effect, subject to and in accordance with the terms thereof as if this Agreement had never been entered into; provided , further that any action constituting a breach of this Agreement that would have constituted a breach of the Original TFA, had the Original TFA been in effect as of the date of the breach of this Agreement, shall constitute, and result in, a breach of the Original TFA. For the avoidance of doubt, there shall be no duplication of the benefits, including with respect to (i) the issuance of Pilot Shares, (ii) the payment of fees and expenses, (iii) registration rights, and (iv) the right to appoint a Pilot Director pursuant to the Nomination Letter Agreement, provided under the Original TFA and this Agreement.

ARTICLE III

SALE AND PURCHASE OF SHARES

SECTION 3.01. Sale and Purchase of Common Shares . (a) Subject to the terms and conditions of this Agreement, on the Pilot Equity Issuance Date, in consideration for the undertakings of ALPA, the Delta MEC and the Northwest MEC contained herein, Delta will cause the Merged Company to issue (i) for the benefit of the members of the Delta Pilot Group who are Eligible Pilots, shares of common stock in the Merged Company in an amount equal, in the aggregate, to 3.5% of the outstanding equity capitalization of the Merged Company on the Merger Agreement Effective Date and (ii) for the benefit of the members of the Northwest Pilot Group who are Eligible Pilots, shares of common stock in the Merged Company in an amount equal, in the aggregate, to 2.38% of the outstanding equity capitalization of the Merged Company on the Merger Agreement Effective Date (the shares issued pursuant to clauses (i) and (ii), collectively, the “ Pilot Shares ”), in each case determined on a fully-diluted basis. (For purposes of this Agreement, “ fully-diluted basis ” means taking into account the maximum number of shares issued or issuable in respect of obligations outstanding as of the Merger Agreement Effective Date, whether voting or non-voting, whether restricted or unrestricted, whether issuable pursuant to options, warrants, convertible securities or exchangeable securities or otherwise, without regard to vesting, including any such shares that may be issued, issuable or

 

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reserved for issuance pursuant to the respective plans of reorganization of Delta and NWA, provided , however, that the number of shares issuable pursuant to options, warrants, or securities convertible or exchangeable into shares of common stock shall be calculated based on the “treasury stock method” of calculating diluted earnings per share under Statement of Financial Accounting Standards No. 128 as in effect as of the date hereof ). Delta will use reasonable best efforts to cause the Pilot Shares to be authorized for listing on the New York Stock Exchange (“ NYSE ”), upon official notice of issuance, by no later than the Merger Agreement Effective Date.

(b) The Pilot Shares may be issued to the Initial Holder and/or the Eligible Pilots (or certain retirement accounts of the Eligible Pilots in accordance with subsection (e) of this Section 3.01) as may be determined by the Designee. The Pilot Shares or the cash proceeds from the resale thereof as provided herein shall be distributed among the Eligible Pilots or their pilot accounts as provided in Paragraph E of LOA#19 in respect of members of the Delta Pilot Group and as provided in Attachment A, “Pilot Shares (NW) and Proceeds of Pilots Shares (NW)” to the new PWA in respect of members of the Northwest Pilot Group.

(c) Delta agrees to file with the SEC, no later than the Merger Agreement Effective Date, a registration statement on Form S-8 (or any successor form) to register the issuance of the Pilot Shares (and the participants’ interests in the relevant plans) to permit the Pilot Shares to be distributed in kind to the Eligible Pilots and to be freely-transferable (including, if requested by the Designee, a separate resale prospectus included therein to permit resales by holders who may be deemed to be affiliates of the Merged Company) and will maintain the effectiveness of such registration statement for as long as necessary to permit such resales of such Pilot Shares by such holders.

(d) At any time prior to, on or after the Pilot Equity Issuance Date, the Designee may require the Merged Company to file a shelf registration statement under the Securities Act in respect of all or a portion of the Pilot Shares (a “ Shelf Registration ”) by delivering to the Merged Company a written notice stating that such right is being exercised, specifying the number of Pilot Shares to be included in such shelf registration and describing the intended method of distribution thereof, which may include an underwritten offering. Upon receiving such a request, the Merged Company shall (i) use all reasonable efforts to file as promptly as reasonably practicable a shelf registration statement on Form S-3 (or any successor form) (the “ Shelf Registration Statement ”) to permit resale of the Pilot Shares by the Initial Holder for the benefit of the members of the Eligible Pilots pursuant to one or more registered secondary offerings (which may include underwritten offerings) on or after the Pilot Equity Issuance Date (“ Takedowns ”), including, if eligible, filing such registration statement as an automatic shelf registration statement so that it is effective upon filing, (ii) after the filing of an initial version of the Shelf Registration Statement (other than an automatic Shelf Registration Statement), use all reasonable efforts to cause such registration statement to be declared effective under the Securities Act, and (iii) after the Shelf Registration Statement becomes effective, maintain its effectiveness under the Securities Act for not less than one year, subject to extension as provided in Exhibit A . The Initial Holder (or the Designee acting on behalf of the Initial Holder) may effect as many as three (3) Takedowns pursuant to the Shelf Registration Statement (subject to the provisions of Exhibit A ) and the Parties agree to comply with the registration procedures provided on Exhibit A for any such Takedowns.

 

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(e) In connection with any disposition of Pilot Shares to the participating pilots or pursuant to a Shelf Registration, the Parties will work together to develop a program that allows all or a portion of the distributions in respect of the Pilot Shares (in kind in the case of a disposition to the participating pilots or, in the case of resale pursuant to a Shelf Registration, the resulting proceeds in cash) to the participating pilots to be made, to the maximum extent permitted by law (including but not limited to Section 415 of the Code and other restrictions on contributions or additions to qualified plans under the Code or ERISA), in the form of a contribution to the Delta Pilots Defined Contribution Plan or the Delta Pilots Savings Plan (or any successor to either) or any defined contribution plan or savings plan applicable to the Northwest Pilot Group, as the case may be, and treated as an “employer” contribution for U.S. federal income tax purposes.

(f) In connection with the Pilot Equity Issuance, Delta agrees to cause the Merged Company’s Board of Directors to adopt, prior to the Merger Agreement Effective Date, resolutions as may be reasonably requested by the Delta MEC, the Northwest MEC, the Merged Company MEC (or any MEC Successor) or ALPA, providing that the direct or indirect acquisition by the Initial Holder, the Pilot Director, the Delta MEC, the Northwest MEC, the Merged Company MEC (or any MEC Successor) or any of their respective members, ALPA, or any of the Merged Company Pilots of Pilot Shares is to the maximum extent permitted by law exempt under Rule 16b-3 under the Exchange Act. Such resolutions shall include the approval of the Pilot Equity Issuance and language stating that such approval is granted to provide an exemption to the Pilot Director, if a participant in such issuance, under Rule 16b-3 of the Exchange Act and, insofar (if at all) as the Pilot Director may be deemed to be a designee of the Delta MEC, the Northwest MEC, the Merged Company MEC (or any MEC Successor), ALPA or any of the Merged Company Pilots, that the Merged Company acknowledges that the Pilot Director may be such a designee and that such approval is intended to extend to the Delta MEC, the Northwest MEC, the Merged Company MEC (or any MEC Successor), or any of their respective members, ALPA and the Merged Company Pilots, as the case may be. After the date hereof, in the event that Delta is the Merged Company, at the request of any of the Delta MEC, the Northwest MEC, the Merged Company MEC or ALPA, Delta agrees to cause Delta’s Board of Directors to adopt, prior to the Pilot Equity Issuance Date, a resolution reconfirming the resolutions of Delta’s Board of Directors adopted pursuant to Section 4.02(ii) hereof. Delta also agrees to cause the Merged Company’s Board of Directors to adopt, prior to the Merger Agreement Effective Date, resolutions as may be reasonably requested by the Delta MEC, the Northwest MEC, the Merged Company MEC (or any MEC Successor) or ALPA, consistent with Section 5.14 of the Merger Agreement, in respect of the acquisition by the Delta MEC, the Northwest MEC, the Merged Company MEC (or any MEC Successor) or any of their respective members, ALPA, or any of the members of the Merged Company Pilots of shares of common stock of the Merged Company constituting Merger Consideration (as defined in the Merger Agreement).

(g) Delta agrees to cause the Merged Company’s Board of Directors to adopt, prior to the Merger Agreement Effective Date, resolutions to waive compliance with any ownership limits and restrictions on transfer contained in the Merged Company’s certificate of incorporation similar to those contained in Article Twelve of Delta’s certificate of incorporation to the same effect as the resolutions adopted by Delta’s Board of Directors on or prior to the date hereof as referred to in Section 4.02(i) hereof.

 

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(h) The Merged Company and its subsidiaries shall be entitled to deduct and withhold from the Pilot Shares or the cash proceeds from the resale thereof such amounts as it is required to deduct and withhold with respect to such issuance or payment under the Code, and the rules and regulations promulgated thereunder, or any provision of state, local or foreign tax Law. To the extent that amounts are so deducted or withheld, such deducted or withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person or Persons in respect of which such deduction and withholding was made.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF DELTA

Delta hereby represents and warrants to ALPA, the Delta MEC and the Northwest MEC as follows:

SECTION 4.01. Organization and Qualification . Delta is a duly organized and validly existing entity in good standing under the Laws of its jurisdiction of organization, with all requisite entity power and authority to own its properties and conduct its business as currently conducted.

SECTION 4.02. Authority for this Agreement; Board Action . Delta has all necessary corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by Delta and the consummation by Delta of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action of Delta, including by (i) a resolution of Delta’s Board of Directors waiving compliance with the ownership limits and restrictions on transfer and other provisions of Article Twelve of the Delta’s certificate of incorporation substantially in the form agreed to by the Parties, and (ii) a resolution of Delta’s Board of Directors consistent with the provisions of Section 3.01(f) substantially in the form agreed to by the Parties. No other corporate proceedings on the part of Delta and no stockholder votes are necessary to authorize this Agreement or to consummate the transactions contemplated hereby, other than, with respect to the Pilot Equity Issuance, the Requisite Stockholder Approval. This Agreement has been duly and validly executed and delivered by Delta, and, assuming due authorization, execution and delivery by each of the other Parties hereto constitutes a legal, valid and binding obligation of Delta, enforceable against Delta, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

SECTION 4.03. Consents and Approvals; No Violation . (a) Neither the execution and delivery of this Agreement by Delta, nor the consummation of the transactions contemplated hereby will (i) violate or conflict with or result in any breach of any provision of the certificate of incorporation or bylaws of Delta, (ii) assuming all consents, approvals and authorizations contemplated by subsection (b) below have been obtained, and all filings described in such clauses have been made, conflict with or violate any order, writ, injunction, decree, judgment, determination, requirement, award, stipulation, statute, rule or regulation of any Governmental Entity (“ Law ”) applicable to Delta, as the case may be, or any of its Subsidiaries or by which any of their respective assets are bound, or (iii) violate, conflict with or

 

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result in a breach of, or require any consent, waiver or approval under, or result in a default or give rise to any right of termination, cancellation, modification or acceleration (or an event that, with the giving of notice, the passage of time or otherwise, would constitute a default or give rise to any such right) under, any of the terms, conditions or provisions of any note, bond, mortgage, lease, license, agreement, contract, indenture or other instrument or obligation (“ Contract ”) to which Delta or any of its Subsidiaries is a party or by which Delta or any of its Subsidiaries or any of their respective assets are bound, except, in the cases of clauses (ii) or (iii), for any such violations, defaults, consents or breaches that do not or would not reasonably be expected to prohibit, delay, restrict or impair the ability of Delta to consummate the transactions contemplated hereby in any material respect.

(b) The execution, delivery and performance of this Agreement by Delta and the consummation of the transactions contemplated hereby do not and will not require any consent, approval, authorization or permit of, or filing with or notification to, any foreign, federal, state or local government or subdivision thereof, or governmental, judicial, legislative, executive, administrative or regulatory authority, agency, commission, tribunal or body (a “ Governmental Entity ”), except (i) those required to consummate the Merger as specified in Sections 3.1(c)(v) and 3.2(c)(v) of the Merger Agreement, (ii) the pre-merger notification requirements under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “ HSR Act ”), to the extent required, (iii) the applicable requirements of the Exchange Act or, with respect to Section 3.01 hereof and Exhibit A , the Securities Act, or the rules and regulations of the NYSE, and (iv) any such consents, approvals, authorizations or permits the failure of which to obtain does not or would not reasonably be expected to prohibit, delay, restrict or impair the ability of Delta to consummate the transactions contemplated hereby in any material respect.

(c) The Requisite Stockholder Approval constitutes the affirmative vote of at least a majority of the votes cast at the Special Meeting, provided that the total number of votes cast at the Special Meeting represent more than 50% in interest of all securities entitled to vote thereon, as determined by the rules and regulations of the NYSE.

SECTION 4.04. Shares . Upon issuance on the Pilot Equity Issuance Date pursuant to Article III, the Pilot Shares shall have been duly authorized and validly issued, fully paid and nonassessable. Upon delivery to the Initial Holder or its designees and/or the Eligible Pilots at or after the Pilot Equity Issuance Date of (i) in the case of Pilot Shares that are certificated, certificates representing such Pilot Shares, duly endorsed in blank or accompanied by stock or unit powers duly endorsed in blank in proper form for transfer or other proper instruments of transfer and (ii) in the case of Pilot Shares that are not certificated, proper instruments of transfer, good and valid title to the Pilot Shares will pass to the Initial Holder or its designees and/or the Eligible Pilots, as the case may be, free and clear of any Liens, other than those arising from acts of the Initial Holder or its affiliates and/or the Eligible Pilots.

SECTION 4.05. Proxy Statement . The letter to stockholders, notice of meeting, final proxy statement and form of proxy that will be provided to stockholders of Delta in connection with the Merger, including any amendments or supplements thereto (collectively, the “ Proxy Statement ”), at the time the Proxy Statement is first mailed to stockholders and at the time of any meeting of the stockholders, (i) will contain such information as is necessary or required by the rules and regulations of the NYSE or other applicable Law in order to obtain the

 

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Requisite Stockholder Approval, and (ii) in respect of the Pilot Equity Issuance and this Agreement, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading. At the time of its respective filing with the SEC and at the time any amendment of supplement thereto is filed with the SEC, the Proxy Statement will comply as to form in all material respects with the provisions of the Exchange Act and the rules and regulations of the SEC promulgated thereunder.

ARTICLE V

REPRESENTATIONS AND WARRANTIES OF ALPA, THE DELTA MEC AND THE

NORTHWEST MEC

Each of ALPA, the Delta MEC and the Northwest MEC hereby severally, and not jointly, represent and warrant as of the date hereof as follows:

SECTION 5.01. Authority for this Agreement . It has all necessary power and authority to execute and deliver this Agreement and, subject to the ratification and execution of the new PWA as provided in Section 2.01(c), to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by it and, subject to the ratification and execution of the new PWA as provided in Section 2.01(c), the consummation by it of the transactions contemplated hereby have been duly and validly authorized by all necessary proceedings on its part. This Agreement has been duly and validly executed and delivered by it and, assuming due authorization, execution and delivery by the other Parties hereto, constitutes a legal, valid and binding obligation of it, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

SECTION 5.02. Consents and Approvals; No Violation . (a) Subject to the ratification and execution of the new PWA as provided in Section 2.01(c), neither the execution and delivery of this Agreement by it, nor the consummation of the transactions contemplated hereby will (i) violate or conflict with or result in any breach of any provision its bylaws or similar governing documents, (ii) conflict with or violate any Law applicable to it, assuming all consents, approvals and authorizations contemplated by subsection (b) below have been obtained and all filings described in such clause have been made, to the extent required, or (iii) violate, conflict with or result in a breach of, or require any consent, waiver or approval under, or result in a default or give rise to any right of termination, cancellation, modification or acceleration (or an event that, with the giving of notice, the passage of time or otherwise, would constitute a default or give rise to any such right) under, any of the terms, conditions or provisions of any Contract to which it is a party or by which any of its assets are bound, except, in the case of clauses (ii) or (iii), for any such violations, defaults, consents or breaches that do not or would not reasonably be expected to prohibit, delay, restrict or impair its ability to consummate the transactions contemplated hereby in any material respect.

(b) The execution, delivery and performance of this Agreement by it, and the consummation of the transactions contemplated hereby do not and will not require any consent,

 

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approval, authorization or permit of, or filing with or notification to, any Governmental Entity, except (i) the pre-merger notification requirements under the HSR Act, to the extent required, (ii) those required to consummate the Merger, (iii) the applicable requirements of the Exchange Act or, with respect to Section 3.01 and Exhibit A , the Securities Act, or the rules and regulations of the NYSE, and (iv) any such consents, approvals, authorizations or permits the failure of which to obtain does not or would not reasonably be expected to prohibit, delay, restrict or impair the ability of such parties to consummate the transactions contemplated hereby in any material respect.

SECTION 5.03. Proxy Statement . None of the information to be supplied by it in writing in respect of the Pilot Equity Issuance or this Agreement specifically for inclusion in the Proxy Statement will, at the time the Proxy Statement is first mailed to stockholders and at the time of any meeting of the stockholders, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding the foregoing, none of ALPA, the Delta MEC or the Northwest MEC makes any representation or warranty with respect to the information supplied or to be supplied by Delta, Northwest or any Affiliate of either that is contained in any of the foregoing documents.

ARTICLE VI

OTHER COVENANTS

SECTION 6.01. Support of Merger . Subject to the terms and conditions of this Agreement, each of the Delta MEC and the Northwest MEC agrees to (i) recommend the ratification of the new PWA to the Delta Pilot Group (in the case of the Delta MEC) and the Northwest Pilot Group (in the case of the Northwest MEC) and shall use its reasonable best efforts to cause a ratification vote by their respective pilot groups to be concluded within sixty (60) days after the date of this Agreement and (ii) unless a vote with respect to the ratification of the new PWA by the Delta Pilot Group or the Northwest Pilot Group shall have been taken and the requisite approval necessary to ratify the new PWA shall not have been obtained, cooperate with reasonable requests of Delta and Northwest to provide public support to the Merger. Subject to Delta complying with the last sentence of this Section 6.01, prior to any termination of this Agreement, neither the Delta MEC nor the Northwest MEC will make any statements inconsistent with the recommendation of such ratification and/or support of the Merger. Delta agrees that, at any time prior to the earlier of the termination of this Agreement or the consummation of the Merger, it will not (a) enter into any amendment or modification of the Merger Agreement or (b) adopt an alternative structure for the transactions contemplated by the Merger Agreement in accordance with Section 1.8 of the Merger Agreement, that would (in the case of clause (a) and/or (b)) (i) violate or materially frustrate the purposes of this Agreement, the Existing Delta PWA, the Existing Northwest CBA, the Ancillary TFA or the new PWA, (ii) modify in any material respect the form or nature of the Merger Consideration (as defined in the Merger Agreement) to be paid by Delta or the Merged Company in connection with the Merger Agreement to include (whether as a special dividend or otherwise) any amount of cash, fixed income securities or preferred stock (it being understood that such a modification of the Merger Consideration that would change the value of the Pilot Shares relative to the interests of the other stockholders of the Merged Company would constitute such a material modification), or (iii)

 

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otherwise have a material adverse effect on the interests of the Merged Company Pilots under this Agreement, other than in their capacity as stockholders of the Merged Company after the Merger Agreement Effective Date; provided that nothing in this sentence shall be deemed to limit the right of Delta to terminate or agree to terminate the Merger Agreement or the scope of any efforts that Delta may employ to obtain any required governmental or regulatory consents, clearances, approvals or non-objections in connection with the Merger.

SECTION 6.02. No Prejudice . (a) The Parties agree that, if the new PWA does not become effective for the Merged Company Pilots or if the Merger is not consummated for any reason, this Agreement and the new PWA and any discussions, written or oral proposals or agreements or other communications (including any exchange of documents, exhibits and data) between each of them and their Representatives in connection with this Agreement or the new PWA shall be without prejudice to the position of any Party and shall not be referred to in any manner in any subsequent collective bargaining negotiation, nor in any grievance or any other legal proceeding regarding the interpretation, implementation, application or enforcement of the Existing Delta PWA or the Existing Northwest CBA , in each case, as in effect on the date hereof.

(b) This Section 6.02 shall survive the termination of this Agreement, including by consummation of the Merger, and is intended to benefit, and shall be enforceable by ALPA, the Delta MEC, the Northwest MEC and their respective successors and legal representatives.

SECTION 6.03. Fees and Expenses . Delta will (and will cause the Merged Company to) pay the reasonable fees and expenses incurred by each of the Delta MEC, the Northwest MEC, ALPA and the Initial Holder in connection with the negotiation of the Original TFA and this Agreement and the transactions contemplated thereby and hereby (other than any expenses relating to the Shelf Registration Statement and any Takedowns thereunder, which are covered by Exhibit A ), whether or not the Pilot Equity Issuance is consummated, promptly upon notice of such amounts and not later than the earlier of (i) as soon as practicable after the Merger Agreement Effective Date and (ii) as soon as practicable after the termination of this Agreement; provided that (a) in no event shall Delta or the Merged Company be obligated to pay more than $12,000,000 (the “ Reimbursement Cap ”) in the aggregate pursuant to this Section 6.03 (or otherwise, but not including pursuant to Exhibit A ) in respect of the fees and expenses of the Delta MEC, the Northwest MEC, ALPA and the Initial Holder, or (b) in no event shall Delta or the Merged Company be obligated to pay any amount if this Agreement is terminated pursuant to Section 8.01(a)(iv).

SECTION 6.04. Press Release . Each of the Parties agrees that they will consult with each other and provide each other with an opportunity to review the initial press release to be issued by any Party regarding this Agreement.

SECTION 6.05. Reasonable Best Efforts . To the extent required by law, each of the Parties agrees promptly after the date hereof to file any and all Notification and Report Forms required under the HSR Act with respect to the Pilot Equity Issuance and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act. Each of the Parties shall use all reasonable best

 

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efforts to (1) cooperate in all respects with each other in connection with any filing or submission pursuant to the HSR Act and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (2) keep the other Parties reasonably informed of any communication received by such party from, or given by such party to, any U.S. Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby; and (3) cooperate in all respects with each other in connection with any filings or submissions that may be required or appropriate in connection with the transactions contemplated hereby under any foreign Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition (the “ Governmental Filings ”).

SECTION 6.06. Proxy Statement; Stockholder Approval . (a) Delta shall prepare as promptly as practicable after the date of this Agreement the Proxy Statement in preliminary form (which shall be contained in an amended Registration Statement on Form S-4 filed with the SEC) and will provide ALPA, the Delta MEC and the Northwest MEC the reasonable opportunity to review and comment on such Proxy Statement in preliminary form and to have their comments on any descriptions of any of them or of the Pilot Equity Issuance contained therein reasonably considered, after which Delta shall mail to its stockholders at the earliest reasonably practicable date the definitive Proxy Statement.

(b) In accordance with applicable Law, the rules and regulations of the NYSE and Delta’s certificate of incorporation and bylaws, at the meeting of its stockholders convened for the purpose of obtaining stockholder approval of the Merger (the “ Special Meeting ”), Delta will also request the Requisite Stockholder Approval in connection with this Agreement. The Proxy Statement will include the recomme