Frontier Airlines 2006 Annual Report Download - page 213

C. ACQUISITION
1. For purposes of this Article XVII.C, a “Qualifying Transaction” means any actual, contemplated or proposed
(a) merger of Contractor or Republic with another company, (b) sale, transfer or lease by Contractor of substantially all its assets,
rights or powers (other than in the ordinary course of business), or (c) issuance or sale of stock of Contractor or Republic representing
a [*] of beneficial ownership or voting control (other than the issuance or sale of stock in Contractor or Republic in a registered public
offering under the Securities Act of 1933, as amended) in a single transaction or series of related transactions; provided, however, that
a Qualifying Transaction shall not include (d) a corporate reorganization or other transaction that does not result in a change of over
[*] in the ultimate beneficial ownership or voting control of Contractor or Republic from the ownership that existed prior to such
transaction, (e) a transaction in which Contractor or Republic is the surviving entity, (f) a transaction in which the surviving entity is
controlled, directly or indirectly, by Wexford Capital LLC, provided that in each case the surviving entity agrees to be bound by this
Agreement or (g) any proposed sale or disposition by Contractor of its aircraft or assets that: (i) have become worn out or obsolete or
are no longer used and useful in Contractor’s day-to-day business; provided, however, that such sale or disposition does not impair or
negatively affect Contractor’s ability to complete scheduled service on a day to day basis under this Agreement; or (ii) are being
replaced with other assets of a similar type which are at least of equal quality and utility to Contractor in carrying on its day to day
business and meeting its obligation under this Agreement.
2. Contractor and Republic each agrees that if it desires to engage in a Qualifying Transaction, it shall (a) give United written
notice of its intention to engage in such Qualifying Transaction together with the material terms and conditions of such proposed
transaction (the “Notice”), (b) negotiate in good faith with United to determine terms and conditions on which Contractor or Republic
and United could complete such Qualifying Transaction and (c) grant United or any United affiliated entity a right of refusal or of
offer (the “United ROFR”) regarding such proposed Qualifying Transaction, subject to any conflicting prior right of refusal granted
by Contractor, Republic or any of their affiliates before January 27, 2004. The United ROFR shall give United or any United affiliated
entity the right to enter into a Qualifying Transaction upon the terms set forth in the Notice; provided that if United is unable to match
such terms due to United’s inability to provide the specific types of consideration (e.g., stock, rights or assets) to be delivered by a
third party thereunder, Contractor agrees to negotiate promptly in good faith in order to determine an amount and type of
consideration with an equivalent after-tax economic value to Contractor or its affiliates which could be paid or delivered to Contractor
or its affiliates in lieu of such specific consideration. Contractor agrees that any and all information provided to any third party in
connection with a Qualifying Transaction will be provided to United with the Notice or as promptly as possible thereafter.
3. United shall deliver to Contractor written notice of its preliminary election to exercise the United ROFR (a “ROFR
Notice”) not later than 10 business days after the receipt of the Notice by United. Within 10 business days after the later of (a)
United’s delivery of a ROFR Notice, or (b) the delivery to United by Contractor of the information referred to in paragraph 2, United
shall have the right to withdraw its ROFR Notice. If (c) United does not issue a timely ROFR Notice, (d) withdraws a ROFR Notice,
or (e) notwithstanding United’s issuance and failure to withdraw a ROFR Notice, United and Contractor or Republic are unable to
agree on terms and conditions of a Qualifying Transaction among themselves, Contractor or Republic shall have the right to enter into
the Qualifying Transaction with a third party, but may not do so on any terms more beneficial to such third party than was offered to
United.
XVIII. CHANGE OF LAW
Notwithstanding anything herein to the contrary, in the event there is any change in the statutes governing the economic
regulation of air transportation, or in the applicable rules, regulations or orders or interpretation of any such rule, regulation or order of
the DOT or other department of the government having jurisdiction over air transportation, which change or changes materially affect
the rights or obligations of either party hereto under the terms of this Agreement, then the parties hereto will consult, no later than
thirty (30) days after any of the occurrences described herein, in order to determine what, if any, changes to this Agreement are
necessary or appropriate, including but not limited to the early termination of this Agreement. If the parties hereto are unable to agree
whether any change or changes to this Agreement are necessary and proper, or as to the terms of such changes, or whether this
Agreement should be terminated in light of the occurrences described above, and such failure to reach agreement continues for a
period of thirty (30) days following the commencement of the consultations provided for by this Article XVIII, then this Agreement
may be terminated by either party immediately upon providing the other party thirty (30) days’ prior written notice of such
termination. Any such termination will be without additional obligation or liability to both parties except that such termination will not
relieve either party of any debt or obligation, monetary or otherwise, accruing hereunder prior to the effective date of termination.
Source: REPUBLIC AIRWAYS HOLDINGS INC, 10-K, March 15, 2007 Powered by Morningstar® Document Research℠