Warrant to Purchase Shares of Common Stock - Cheap Tickets Inc. and Delta Air Lines Inc.
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
ANY STATE SECURITIES LAWS, AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS THERE IS (i) AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT RELATED THERETO, (ii) AN OPINION OF
COUNSEL FOR THE HOLDER, REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED, (iii) RECEIPT OF A NO-ACTION LETTER(S) FROM THE
APPROPRIATE GOVERNMENTAL AUTHORITY(IES), OR (iv) UNLESS PURSUANT TO AN EXEMPTION
THEREFROM UNDER RULE 144 (OR ANY SUCCESSOR PROVISION) OF THE ACT.
WARRANT TO PURCHASE
1,626,426 SHARES OF COMMON STOCK OF
CHEAP TICKETS, INC.
This certifies that Delta Air Lines, Inc., a Delaware corporation (the
"Initial Holder"), or its registered transferees, successors or assigns (each, a
"Holder"), for value received, is entitled to purchase at the Exercise Price (as
defined below) from Cheap Tickets, Inc., a Delaware corporation (the "Company"),
up to One Million Six Hundred Twenty Six Thousand Four Hundred Twenty Six
(1,626,426) fully paid and nonassessable shares (the "Warrant Shares") of the
Company's Common Stock, par value $0.001 per share (the "Common Stock"), subject
to adjustment pursuant to Section 4 hereof and the terms and conditions set
forth herein. This Warrant shall be exercisable during the period beginning on
May 14, 2006 until the Expiration Date (as defined below), unless the exercise
period is accelerated as provided in the exercise schedule contained in Schedule
--------
A hereto (the "Exercise Schedule").
-
As used herein, (a) the term "Issue Date" shall mean May 14, 2001, (b) the
term "Expiration Date" shall mean the earlier of the date upon which all Warrant
Shares shall have been exercised or December 31, 2006, (c) the term "Exercise
Price" shall mean $11.805, subject to adjustment pursuant to Section 4 hereof,
and (d) the term "General Agreement" shall mean that certain General Agreement
of even date herewith between the Company and the Initial Holder. This Warrant
is being issued pursuant to the General Agreement. The Initial Holder is
entitled to the rights and benefits and subject to the obligations under that
certain Investor Rights Agreement of even date herewith between the Initial
Holder and the Company.
1. Exercise; Issuance of Certificates; Acknowledgement. This
---------------------------------------------------
Warrant may be exercised, in whole or in part, for shares of Common Stock (but
not for a fraction of a share) upon surrender to the Company at its principal
office (or at such other location as the Company may advise the Holder in
writing) of this Warrant properly endorsed with (i) the Form of Subscription
attached as Annex A hereto duly completed and executed, and (ii) payment
-------
pursuant to Section 2 of the aggregate Exercise Price for the number of shares
for which this Warrant is being exercised determined in accordance with the
provisions hereof. The shares of Common Stock purchased under this Warrant shall
be and are deemed to be issued to the Holder, as the record owner of such
shares, as of the close of business on the date of exercise. Certificates for
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the shares of the Common Stock so purchased, together with any other securities
or property to which the Holder hereof is entitled upon such exercise, shall be
delivered to the Holder hereof by the Company at the Company's expense as soon
as practicable after the rights represented by this Warrant have been so
exercised, but in any event within ten (10) business days after the date of
exercise. Each stock certificate so delivered shall be in such denominations of
Common Stock as may be requested by the Holder hereof and shall be registered in
the name of such Holder. In case of a purchase of less than all the Warrant
Shares, the Company shall execute and deliver to Holder within a reasonable time
an Acknowledgement in the form attached hereto indicating the number of Warrant
Shares which remain subject to this Warrant, if any.
2. Payment for Shares. The aggregate purchase price for Warrant
------------------
Shares being purchased hereunder may be paid either (i) by check or wire
transfer of immediately available funds or (ii) by surrender of a number of
Warrant Shares which have a fair market value equal to the aggregate purchase
price of the Warrant Shares being purchased ("Net Issuance") as determined
herein. If the Holder elects the Net Issuance method of payment, the Company
shall issue to Holder upon exercise a number of shares of Warrant Shares
determined in accordance with the following formula:
X = Y(A-B)
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A
where: X = the number of Warrant Shares to be issued to the Holder;
Y = the number of Warrant Shares with respect to which the
Holder is exercising its purchase rights under this
Warrant;
A = the fair market value of one (1) Warrant Share on the date
of exercise; and
B = the Exercise Price on the date of exercise.
No fractional shares arising out of the above formula for determining
the number of shares to be issued to the Holder shall be issued, and the Company
shall in lieu thereof make payment to the Holder of cash in the amount of such
fraction multiplied by the fair market value of one share of the Warrant Shares
on the date of exercise. For purposes of the above calculation, the fair market
value of one (1) share of the Warrant Shares shall mean (a) if the Common Stock
is then traded on a national securities exchange or Nasdaq, the average of the
high and low trading prices of such Common Stock on such exchange on the date of
exercise, multiplied by the number of shares of Common Stock into which each
share of the Warrant Shares is then convertible, (b) if the Common Stock is then
regularly traded over-the-counter, the average of the high and low trading
prices of such Common Stock on the over-the-counter market on the date of
exercise, multiplied by the number of shares of Common Stock into which each
share of the Warrant Shares is then convertible, or (c) if there is no active
public market for the Common Stock, the fair market value thereof as determined
in good faith by the Board of Directors of the Company, multiplied by the number
of shares of Common Stock into which each share of the Warrant Shares is then
convertible.
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3. Shares to be Fully Paid; Reservation of Shares.
----------------------------------------------
3.1 The Company covenants and agrees that all shares of Common
Stock which may be issued upon the exercise of the rights represented by this
Warrant will, upon issuance, be duly authorized, validly issued, fully paid and
nonassessable and free from all preemptive rights of any stockholder and free of
all taxes, liens and charges with respect to the issue thereof. The Company
further covenants and agrees that during the period within which the rights
represented by this Warrant may be exercised, the Company will at all times have
authorized and reserved, for the purpose of issue or transfer upon exercise of
the subscription rights evidenced by this Warrant, a sufficient number of shares
of authorized but unissued shares of Common Stock or other securities and
property, when and as required to provide for the exercise of the rights
represented by this Warrant. If at any time prior to the Expiration Date the
number of authorized but unissued shares of Common Stock shall not be sufficient
to permit the exercise of the rights represented by this Warrant, the Company
will take such corporate action, subject to receipt of any required stockholder
approval, as may be necessary to increase its authorized but unissued shares of
Common Stock as shall be sufficient for such purpose.
3.2 The Company hereby represents and warrants to the Initial
Holder that (a) as of the Issue Date the authorized equity securities of the
Company consist of 70,000,000 shares of Common Stock, of which 23,234,654 shares
were issued and outstanding as of April 1, 2001, and 10,000,000 shares of
preferred stock, none of which are issued or outstanding, and (b) as of April 1,
2001, the Warrant Shares represent seven percent (7%) of the issued and
outstanding shares of Common Stock.
4. Adjustment of Exercise Price and Number of Shares. The Exercise
-------------------------------------------------
Price and the number of shares purchasable upon the exercise of this Warrant
shall be subject to adjustment from time to time upon the occurrence of certain
events described in this Section 4. Upon each adjustment of the Exercise Price,
the Holder of this Warrant shall thereafter be entitled to purchase, at the
Exercise Price resulting from such adjustment, the number of shares obtained by
multiplying the Exercise Price in effect immediately prior to such adjustment by
the number of shares purchasable pursuant hereto immediately prior to such
adjustment, and dividing the product thereof by the Exercise Price resulting
from such adjustment.
4.1 Stock Dividends. If the Company at any time while this
---------------
Warrant is outstanding and unexpired shall pay a dividend or distribution
payable in Common Stock, then the Exercise Price shall be adjusted, from and
after the date of determination of stockholders entitled to receive such
dividend or distribution, to that price determined by multiplying the Exercise
Price in effect immediately prior to such date of determination by a fraction
(i) the numerator of which shall be the total number of shares of Common Stock
issued and outstanding immediately prior to such dividend or distribution, and
(ii) the denominator of which shall be the total number of shares of Common
Stock issued and outstanding immediately after such dividend or distribution.
4.2 Stock Splits, Subdivisions or Combinations. In case the
------------------------------------------
Company shall at any time split or subdivide its outstanding shares of Common
Stock into a greater number of shares, the Exercise Price in effect immediately
prior to such subdivision shall be
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<PAGE>
proportionately reduced, and in case the outstanding shares of the Common Stock
of the Company shall be combined or reverse split into a smaller number of
shares, the Exercise Price in effect immediately prior to such combination shall
be proportionately increased.
4.3 Reclassification. In case of any reclassification, change
----------------
or conversion of securities of the class issuable upon exercise of this Warrant
(other than a change in par value, or from par value to no par value, or from no
par value to par value, or as a result of a subdivision or combination described
in Section 4.2 hereof), then the Company shall take all necessary actions
(including but not limited to executing and delivering to the Holder of this
Warrant an additional Warrant or other instrument, in form and substance
satisfactory to the holder of this Warrant) to ensure that the Holder of this
Warrant shall thereafter have the right to receive, at a total purchase price
not to exceed that payable upon the exercise of the unexercised portion of this
Warrant, and in lieu of the shares of Common Stock theretofore issuable upon
exercise of this Warrant, the kind and amount of shares of stock, other
securities, money and property receivable upon such reclassification, change or
conversion by a holder of the number of shares of Common Stock then purchasable
under this Warrant. Such new Warrant shall provide for adjustments that shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Section 4. The provisions of this Section 4.3 shall similarly apply to
successive reclassifications, changes and conversions.
4.4 Consolidation, Merger or Sale. In case of any
-----------------------------
consolidation or merger of the Company with or into any other corporation,
entity or person, or any other corporate reorganization in which the Company
shall not be the continuing or surviving entity of such consolidation, merger or
reorganization, or any transaction in which in excess of 50% of the Company's
voting power is transferred, or any sale of all or substantially all of the
assets of the Company (any such transaction being hereinafter referred to as a
"Reorganization"), then the Company will have the right to cancel this Warrant,
provided, however, that, upon the consummation or effective date of such
Reorganization, the Holder will receive, in lieu of this Warrant, the stock and
other securities and property (including cash) to which such Holder would have
been entitled upon the date of such Reorganization if such Holder had exercised
this Warrant immediately prior thereto pursuant to the Net Issuance provisions
of Section 2 hereof and this Warrant had been exercisable for all of the Warrant
Shares (notwithstanding the Exercise Schedule) as of the date of such
Reorganization.
4.5 Notice of Adjustment. Upon any adjustment provided for
--------------------
under this Section 4, the Company shall give written notice thereof, by first
class mail postage prepaid, addressed to the registered Holder of this Warrant
at the address of such Holder as shown on the books of the Company. The notice
shall be signed by the Company's chief financial officer and shall state the
Exercise Price resulting from such adjustment and the increase, decrease or
change, if any, in the number or type of shares purchasable at such price upon
the exercise of this Warrant, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based.
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<PAGE>
4.6 Other Notices. If at any time:
-------------
(1) the Company shall declare any cash dividend upon its
Common Stock;
(2) there shall be any capital reorganization or
reclassification of the capital stock of the Company; or consolidation or merger
of the Company with, or sale of all or substantially all of its assets to,
another entity or person; or
(3) there shall be a voluntary or involuntary dissolution,
liquidation or winding-up of the Company;
then, in any one or more of said cases, the Company shall give, by first class
mail, postage prepaid, addressed to the Holder of this Warrant at the address of
such Holder as shown on the books of the Company, (a) at least ten (10) days
prior written notice of the date on which the books of the Company shall close
or a record shall be taken for such dividend or for determining rights to vote
in respect of any such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding-up, and (b) in the case of any such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, winding-up or public offering, at least thirty (30) days prior
written notice of the date when the same shall take place; provided, however,
that the Holder shall use its reasonable best efforts to respond to such notice
as early as possible after the receipt thereof. Any notice given in accordance
with the foregoing clause (a) shall also specify, in the case of any such
dividend, the date on which the holders of Common Stock shall be entitled
thereto. Any notice given in accordance with the foregoing clause (b) shall
also specify the date on which the holders of Common Stock shall be entitled to
exchange their Common Stock for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, winding-up, conversion or public offering, as the case may be.
5. No Impairment. Except and to the extent as waived or consented
-------------
to by the Holder, the Company will not, by amendment of its Certificate of
Incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of this Warrant and in
the taking of all such action as may be necessary or appropriate in order to
protect the exercise rights of the Holder against impairment.
6. No Voting or Dividend Rights. Nothing contained in this Warrant
----------------------------
shall be construed as conferring upon the Holder hereof the right to vote or to
consent to receive notice as a stockholder of the Company or any other matters
or any rights whatsoever as a stockholder of the Company prior to the exercise
of the Holder's right to purchase the Warrant Shares. No cash dividends or
interest shall be payable or accrued in respect of this Warrant or the interest
represented hereby until, and only to the extent that, this Warrant shall have
been exercised.
5
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7. Transfer. Subject to compliance with applicable laws, this
--------
Warrant and all rights hereunder may be transferred by a Holder, in whole or in
part, only to an affiliate (as such term is defined under Rule 405 of the Act)
of such Holder. Any such transfer to an affiliate shall be made upon surrender
of this Warrant together with a written request for transfer accompanied by an
opinion of counsel that such transfer is in compliance with applicable federal
and state securities laws, or the Company is provided with information
sufficient for the Company to make such determination. Except as expressly
permitted by this Section 7, this Warrant may not be transferred by the Holder.
8. Representations and Warranties of Holder. Holder hereby agrees,
----------------------------------------
represents and warrants as follows: (i) Holder is acquiring this Warrant solely
for its own account for investment and not with a view to or for sale or
distribution of the Warrant or any portion thereof in violation of the Act; (ii)
Holder is an "accredited investor" within the meaning of Rule 501 under the Act,
as presently in effect; (iii) the entire legal and beneficial interest of the
Warrant is being acquired for, and will be held for the account of, Holder only
and neither in whole nor in part for any other person, except for such transfer
of any of the Warrant as may be permitted hereunder; (iv) Holder either (a) has
a prior business relationship with the Company and/or its officers and
directors, or (b) by reason of its business or financial experience or the
business or financial experience of its professional advisors who are
unaffiliated with the Company, and who are not compensated by the Company, has
the capacity to protect its own interests in connection with its acquisition of
the Warrant; and (v) the transaction under which Holder is acquiring the Warrant
has not been registered under the Act and the Warrant must be held indefinitely
unless subsequently registered under the Act or an exemption from such
registration is available.
9. Lost Warrants. Upon receipt of evidence reasonably satisfactory
-------------
to the Company of the loss, theft, destruction, or mutilation of this Warrant
and, in the case of any such loss, theft or destruction, upon receipt of an
indemnity reasonably satisfactory to the Company, or in the case of any such
mutilation upon surrender and cancellation of such Warrant, the Company, at its
expense, will make and deliver a new Warrant, of like tenor, in lieu of the
lost, stolen, destroyed or mutilated Warrant.
10. Modification and Waiver. Any term of this Warrant may be amended
-----------------------
and the observance of any term of this Warrant may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the Company and the holders of Warrants representing
at least a majority of the aggregate number of Warrant Shares then issuable upon
exercise of this Warrant. Any amendment or waiver effected in accordance with
this paragraph shall be binding upon the Company, the Holder and the holders of
all Warrants issued pursuant to this Warrant.
11. Notices. Except as may be otherwise provided herein, all
-------
notices, requests, waivers and other communications made pursuant to this
Warrant shall be in writing and shall be conclusively deemed to have been duly
given (a) when hand delivered to the other party; (b) when sent by facsimile to
the number set forth below if sent between 8:00 a.m. and 5:00 p.m. recipient's
local time on a business day, or on the next business day if sent by facsimile
to the number set forth below if sent other than between 8:00 a.m. and 5:00 p.m.
recipient's local
6
<PAGE>
time on a business day; (c) three business days after deposit in the U.S. mail
with first class or certified mail receipt requested postage prepaid and
addressed to the other party at the address set forth below; or (d) the next
business day after deposit with a national overnight delivery service, postage
prepaid, addressed to the parties as set forth below with next business day
delivery guaranteed, provided that the sending party receives a confirmation of
delivery from the delivery service provider. Each person making a communication
hereunder by facsimile shall promptly confirm by telephone to the person to whom
such communication was addressed each communication made by it by facsimile
pursuant hereto but the absence of such confirmation shall not affect the
validity of any such communication. A party may change or supplement the
addresses given above, or designate additional addresses, for purposes of this
Section 11 by giving the other party written notice of the new address in the
manner set forth above.
12. Titles and Subtitles; Governing Law; Venue. The titles and
------------------------------------------
subtitles used in this Warrant are used for convenience only and are not to be
considered in construing or interpreting this Agreement. This Warrant is to be
construed in accordance with and governed by the internal laws of the State of
Delaware without giving effect to any choice of law rule that would cause the
application of the laws of any jurisdiction other than the internal laws of the
State of Delaware to the rights and duties of the Company and the Holder. All
disputes and controversies arising out of or in connection with this Warrant
shall be resolved exclusively by the state and federal courts located in the
State of Delaware , and each of the Company and the Holder hereto agrees to
submit to the jurisdiction of said courts and agrees that venue shall lie
exclusively with such courts.
13. Counterparts. This Warrant may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
14. Publicity. This Warrant and the transactions contemplated hereby
---------
shall be considered "Confidential Information" for purposes of the General
Agreement and neither party shall make any disclosure of such Confidential
Information except in accordance with the provisions of the General Agreement
relating to Confidential Information, except that nothing in this Warrant or the
General Agreement shall restrict the Holder from disclosing such Confidential
Information to its attorneys, accountants, consultants and other advisors to the
extent necessary to obtain their services in connection with the Holder's
investment or participation in the Company.
15. Charges; Taxes and Expenses. Issuance of certificates for shares
---------------------------
upon the exercise of the Warrant shall be made without charge to the Holder for
any issue or transfer tax or other incidental expense in respect of the issuance
of such certificates, all of which taxes and expenses shall be paid by the
Company.
16. Redemption. This Warrant is not redeemable by the Company.
----------
17. Further Assurances. Each of the parties shall execute such
------------------
documents and perform such further acts (including, without limitation,
obtaining any consents, exemptions,
7
<PAGE>
authorizations or other actions by, or giving any notices to, or making any
filings with, any governmental authority or any other person, and otherwise
fulfilling, or causing the fulfillment of, the various obligations made herein,
as may be reasonably required or desirable to carry out or to perform the
provisions of this Warrant and to consummate and make effective as promptly as
possible the transactions contemplated by this Warrant.
[Signatures on following page]
8
<PAGE>
IN WITNESS WHEREOF, the Company and the Initial Holder have caused this
Warrant to be duly executed by its officers, thereunto duly authorized, as of
the date first above written.
CHEAP TICKETS, INC. DELTA AIR LINES, INC.
By: /s/ Sam E. Galeotos By: /s/ [SIGNATURE ILLEGIBLE]
------------------------------------ ---------------------------
Sam E. Galeotos, Name:_________________________
President and Chief Executive Officer Its:__________________________
By: /s/ Sam Horgan
------------------------------------
Sam Horgan,
Chief Financial Officer
Address and Facsimile Number for Notice: Address and Facsimile Number for Notice:
--------------------------------------- ---------------------------------------
Cheap Tickets, Inc. Delta Air Lines Inc.
1440 Kapiolani Blvd. 1030 Delta Boulevard
Honolulu, Hawaii 96814 Atlanta Hartsfield International Airport
Facsimile: (808) 946-3844 Atlanta, Georgia 30320
Attention: Chief Financial Officer Facsimile: (404) 715-4098
---------
Attention: Executive Vice President - Chief
---------
Financial Officer
With a copy to: With a copy to:
Morrison & Foerster LLP Delta Air Lines Inc.
555 West 5th Street 1030 Delta Boulevard
Suite 3500 Atlanta Hartsfield International Airport
Los Angeles, California 90013 Atlanta, Georgia 30320
Facsimile: 213-892-5454 Facsimile: (404) 773-1657
Attention: Henry Fields, Esq. Attention: Senior Vice President - General
--------- ---------
Counsel
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SCHEDULE A
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EXERCISE SCHEDULE
1. The dates on which Warrant Shares may be purchased may be accelerated prior
to the Expiration Date according to the following schedule (the "Exercise
Schedule"). Capitalized terms not otherwise defined herein have the meanings
set forth in the General Agreement.
. 25% of the Warrant Shares may be purchased on or after June 1, 2002 if
the Company has earned and been paid an average performance based
incentive of at least [****]% (the "Target Percentage") under the
Override and Incentive Program described in Article 5 of the General
Agreement and as set forth in the Agency Agreement for the twelve-
month period ending March 31 (the "Measuring Period") in the year 2002
(or for such shorter period that the General Agreement was effective);
. an additional 25% of the Warrant Shares may be purchased on or after
June 1, 2003 if the Company has earned and been paid at least the
Target Percentage for the Measuring Period in the year 2003;
. an additional 25% of the Warrant Shares may be purchased on or after
June 1, 2004 if the Company has earned and been paid at least the
Target Percentage for the Measuring Period in the year 2004; and
. an additional 25% of the Warrant Shares may be purchased on or after
June 1, 2005 if the Company has earned and been paid at least the
Target Percentage for the Measuring Period in the year 2005.
In addition, if the Warrant is not accelerated for any Measuring Period
described above, but as of the end of any subsequent Measuring Period it is
determined that the Company has earned and been paid a cumulative average
performance based incentive of at least the Target Percentage over the failed
Measuring Period, such subsequent Measuring Period and any intervening Measuring
Periods, then the amount of Warrant Shares for which this Warrant is exercisable
shall, as of June 1 following the end of such subsequent Measuring Period,
include the amount of Warrant Shares for the failed Measuring Period(s). For
example, if the Company fails to obtain the Target Percentage for the Measuring
Period ending March 31, 2003, but obtains a cumulative average market share of
at least the Target Percentage for the Measuring Periods ending March 31, 2003
and 2004, then the number of exercisable Warrant Shares shall, as of June 1,
2004 include the 25% of the Warrant Shares that were previously excluded for the
Measuring Period ending March 31, 2003, as well as the additional 25% of the
Warrant Shares for the Measuring Period ending March 31, 2004.
2. Additionally, in the event that the Initial Holder terminates the General
Agreement or the Agency Agreement pursuant to the terms thereof, the dates on
which the Warrant Shares may be purchased shall be accelerated to the effective
date of any such termination.
[****] - CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
<PAGE>
ANNEX A
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FORM OF SUBSCRIPTION
--------------------
(To be signed only upon exercise of the Warrant)
To: Cheap Tickets, Inc.
The undersigned, the holder of a right to purchase shares of Common Stock
of Cheap Tickets, Inc. (the "Company") pursuant to that certain Warrant to
Purchase Common Stock of Cheap Tickets, Inc. (the "Warrant"), dated as of May
14, 2001, hereby irrevocably elects to exercise the purchase right represented
by such Warrant for, and to purchase thereunder, __________________________
(_________) shares of Common Stock of the Company and herewith makes payment of
_________________________________ Dollars ($__________) therefor by the
following method:
(Check one of the following):
_______ (check if applicable) The undersigned hereby elects to make payment
of ______________ Dollars ($___________)
therefor in cash.
_______ (check if applicable) The undersigned hereby elects to make payment
for the aggregate exercise price of this
exercise using the Net Issuance method pursuant
to Section 2 of the Warrant.
The undersigned, in order to induce the issuance of such securities, makes to
the Company, as of the date hereof, the following representations and
warranties:
1. Purchase for Own Account. The undersigned represents that it is acquiring
------------------------
the Common Stock issuable upon exercise of the Warrant (collectively, the
"Shares") solely for investment for such undersigned's own account not as a
nominee or agent, and not with a view to the resale or distribution of any
part thereof, except as may be permitted under the federal securities laws,
and that such undersigned has no present intention of selling, granting any
participation in, or otherwise distributing the same. The acquisition by
such undersigned of any of the Shares shall constitute confirmation of the
representation by such undersigned that such undersigned does not have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to any of the Shares.
2. Disclosure of Information. Such undersigned has received all the information
-------------------------
it considers necessary or appropriate for deciding whether to acquire the
Shares. Such undersigned
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<PAGE>
ANNEX A
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further represents that it has had an opportunity to ask questions and
receive answers from the Company regarding the terms and conditions of the
Shares and the business, properties, prospects and financial condition of the
Company.
3. Investment Experience. Such undersigned represents that it is able to fend
---------------------
for itself and can bear the economic risk of its investment in the Shares,
and has such knowledge and experience in financial or business matters that
it is capable of evaluating the merits and risks of the investment in the
Shares. If other than an individual, such undersigned also represents it has
not been organized for the purpose of acquiring the Shares. Such undersigned
acknowledges that any investment in the Shares involves a high degree of
risk, and represents that it is able, without materially impairing its
financial condition, to hold the Shares for an indefinite period of time and
to suffer a complete loss of its investment.
4. Accredited Investor. Such undersigned represents that it is an "accredited
-------------------
investor" within the meaning of Securities and Exchange Commission ("SEC")
Rule 501 of Regulation D, as presently in effect.
5. Further Limitations on Disposition. Without in any way limiting the
----------------------------------
representations set forth above, such undersigned further agrees not to make
any disposition of all or any portion of the Shares unless and until:
a) there is then in effect a registration statement under the Securities
Act of 1933, as amended (the "Act") covering such proposed disposition
and such disposition is made in accordance with such registration
statement; or
b) such undersigned shall have furnished the Company with an opinion of
counsel reasonably satisfactory to the Company that such disposition
will not require registration of such shares under the Act.
c) Notwithstanding the provisions of paragraphs (a) and (b) above, no
such registration statement or opinion of counsel shall be necessary
for a transfer by the undersigned (i) to any entity that, directly or
indirectly, is in control of, is controlled by, or is under common
control with, the undersigned ("control" shall mean the power,
directly or indirectly, to vote 51% or more of the voting securities
of an entity) or (ii) the transfer by gift, provided that the
transferee agrees in writing to be subject to the terms hereof to the
same extent as the original undersigned hereunder.
DATED: ________________
DELTA AIR LINES, INC.
By:____________________
Name:__________________
Its:___________________
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ANNEX A
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ACKNOWLEDGMENT
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To: Delta Air Lines, Inc.
The undersigned hereby acknowledges that as of the date hereof,
__________________ (_______) shares of Common Stock remain subject to the right
of purchase in favor of Delta Air Lines pursuant to that certain Warrant to
Purchase Common Stock of Cheap Tickets, Inc. dated as of May 14, 2001.
DATED: ________________
CHEAP TICKETS, INC.
By:__________________________
Name:________________________
Its:_________________________
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