0001104659-11-033222.txt : 20110603 0001104659-11-033222.hdr.sgml : 20110603 20110603172431 ACCESSION NUMBER: 0001104659-11-033222 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 10 FILED AS OF DATE: 20110603 DATE AS OF CHANGE: 20110603 GROUP MEMBERS: OAKTREE CAPITAL GROUP HOLDINGS GP, LLC GROUP MEMBERS: OAKTREE CAPITAL GROUP HOLDINGS, L.P. GROUP MEMBERS: OAKTREE CAPITAL GROUP, LLC GROUP MEMBERS: OAKTREE CAPITAL I, L.P. GROUP MEMBERS: OAKTREE FUND GP I, L.P. GROUP MEMBERS: OAKTREE HOLDINGS, INC. GROUP MEMBERS: OAKTREE HOLDINGS, LLC GROUP MEMBERS: OCM HOLDINGS I, LLC GROUP MEMBERS: OCM PRINCIPAL OPPORTUNITIES FUND II, L.P. GROUP MEMBERS: OCM PRINCIPAL OPPORTUNITIES FUND III G.P., L.P. GROUP MEMBERS: OCM PRINCIPAL OPPORTUNITIES FUND III, L.P. GROUP MEMBERS: OCM SPIRIT HOLDINGS II, LLC GROUP MEMBERS: OCM SPIRIT HOLDINGS, LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Spirit Airlines, Inc. CENTRAL INDEX KEY: 0001498710 STANDARD INDUSTRIAL CLASSIFICATION: AIR TRANSPORTATION, SCHEDULED [4512] IRS NUMBER: 381747023 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-86262 FILM NUMBER: 11893223 BUSINESS ADDRESS: STREET 1: 2800 EXECUTIVE WAY CITY: MIRAMAR STATE: FL ZIP: 33025 BUSINESS PHONE: 954-447-7920 MAIL ADDRESS: STREET 1: 2800 EXECUTIVE WAY CITY: MIRAMAR STATE: FL ZIP: 33025 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: OAKTREE CAPITAL MANAGEMENT LP CENTRAL INDEX KEY: 0000949509 IRS NUMBER: 000000000 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 333 S GRAND AVENUE 28TH FL CITY: LOS ANGELES STATE: CA ZIP: 90071 BUSINESS PHONE: 2138306300 MAIL ADDRESS: STREET 1: 333 S GRAND AVE 28TH FL CITY: LOS ANGELES STATE: CA ZIP: 90071 FORMER COMPANY: FORMER CONFORMED NAME: OAKTREE CAPITAL MANAGEMENT LLC DATE OF NAME CHANGE: 20010605 SC 13D 1 a11-14309_1sc13d.htm SC 13D

 

 

UNITED STATES

 

 

SECURITIES AND EXCHANGE COMMISSION

 

 

Washington, D.C. 20549

 

 

 

 

 

SCHEDULE 13D

 

 

Under the Securities Exchange Act of 1934
(Amendment No.     )*

 

Spirit Airlines, Inc.

(Name of Issuer)

 

Common Stock, par value of $0.0001 per share

(Title of Class of Securities)

 

848577102

(CUSIP Number)

 

Todd E. Molz

Managing Director and General Counsel

Oaktree Capital Group Holdings GP, LLC

333 South Grand Avenue, 28th Floor

Los Angeles, CA 90071

(213) 830-6300

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

 

May 27, 2011

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box o.

Note:  Six copies of this statement, including all exhibits, should be filed with the Commission.  See § 240.13d-7 for other parties to whom copies are to be sent.

*The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 



 

SCHEDULE 13D

 

CUSIP No. 848577102

 

 

1

Name of Reporting Person
S.S. OR I.R.S. Identification No. of Above Person

Oaktree Capital Management, L.P. [ID No. 26-0189082]

 

 

2

Check the Appropriate Box if a Member of a Group*

 

 

(a)

 x

 

 

(b)

 o

 

 

3

SEC Use Only

 

 

4

Source of Funds*
Not applicable.

 

 

5

Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Delaware

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
29,402,848 (1)

 

8

Shared Voting Power

 

9

Sole Dispositive Power
29,402,848 (1)

 

10

Shared Dispositive Power

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
29,402,848

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares*   o

 

 

13

Percent of Class Represented by Amount in Row (11)
40.56%

 

 

14

Type of Reporting Person*
PN, IA

 


(1) Solely in its capacity as manager of OCM Spirit Holdings II, LLC, OCM Spirit Holdings, LLC, POF Spirit Foreign Holdings, LLC, OCM Spirit Holdings III, LLC and OCM Spirit Holdings III-A, LLC.

 

2



 

CUSIP No. 848577102

 

 

1

Name of Reporting Person
S.S. OR I.R.S. Identification No. of Above Person

Oaktree Holdings, Inc. [ID No. 26-0179905]

 

 

2

Check the Appropriate Box if a Member of a Group*

 

 

(a)

 x

 

 

(b)

 o

 

 

3

SEC Use Only

 

 

4

Source of Funds*
Not applicable.

 

 

5

Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Delaware

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
29,402,848 (1)

 

8

Shared Voting Power

 

9

Sole Dispositive Power
29,402,848 (1)

 

10

Shared Dispositive Power

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
29,402,848

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares*   o

 

 

13

Percent of Class Represented by Amount in Row (11)
40.56%

 

 

14

Type of Reporting Person*
CO

 


(1) Solely in its capacity as general partner of Oaktree Capital Management, L.P.

 

3



 

CUSIP No. 848577102

 

 

1

Name of Reporting Person
S.S. OR I.R.S. Identification No. of Above Person

Oaktree Capital Group, LLC [ID No. 26-0174894]

 

 

2

Check the Appropriate Box if a Member of a Group*

 

 

(a)

 x

 

 

(b)

 o

 

 

3

SEC Use Only

 

 

4

Source of Funds*
Not applicable.

 

 

5

Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Delaware

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
29,402,848 (1)

 

8

Shared Voting Power

 

9

Sole Dispositive Power
29,402,848 (1)

 

10

Shared Dispositive Power

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
29,402,848

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares*   o

 

 

13

Percent of Class Represented by Amount in Row (11)
40.56%

 

 

14

Type of Reporting Person*
OO

 


(1) Solely in its capacity as sole shareholder of Oaktree Holdings, Inc.

 

4



 

CUSIP No. 848577102

 

 

1

Name of Reporting Person
S.S. OR I.R.S. Identification No. of Above Person

Oaktree Capital Group Holdings, L.P. [ID No. 95-4521152]

 

 

2

Check the Appropriate Box if a Member of a Group*

 

 

(a)

 x

 

 

(b)

 o

 

 

3

SEC Use Only

 

 

4

Source of Funds*
Not applicable.

 

 

5

Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Delaware

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
29,402,848 (1)

 

8

Shared Voting Power

 

9

Sole Dispositive Power
29,402,848 (1)

 

10

Shared Dispositive Power

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
29,402,848

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares*   o

 

 

13

Percent of Class Represented by Amount in Row (11)
40.56%

 

 

14

Type of Reporting Person*
PN

 


(1) Solely in its capacity as majority holder of voting units of Oaktree Capital Group, LLC.

 

5



 

CUSIP No. 848577102

 

 

1

Name of Reporting Person
S.S. OR I.R.S. Identification No. of Above Person

Oaktree Capital Group Holdings GP, LLC [ID No. 26-0174883]

 

 

2

Check the Appropriate Box if a Member of a Group*

 

 

(a)

 x

 

 

(b)

 o

 

 

3

SEC Use Only

 

 

4

Source of Funds*
Not applicable.

 

 

5

Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Delaware

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
29,402,848 (1)

 

8

Shared Voting Power

 

9

Sole Dispositive Power
29,402,848 (1)

 

10

Shared Dispositive Power

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
29,402,848

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares*   o

 

 

13

Percent of Class Represented by Amount in Row (11)
40.56%

 

 

14

Type of Reporting Person*
OO

 


(1) Solely in its capacity as general partner of Oaktree Capital Group Holdings, L.P.

 

6



 

SCHEDULE 13D

 

CUSIP No. 848577102

 

 

1

Name of Reporting Person
S.S. OR I.R.S. Identification No. of Above Person

OCM Principal Opportunities Fund II, L.P. [ID No. 95-4833215]

 

 

2

Check the Appropriate Box if a Member of a Group*

 

 

(a)

 x

 

 

(b)

 o

 

 

3

SEC Use Only

 

 

4

Source of Funds*
Not Applicable.

 

 

5

Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Delaware

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power

 

8

Shared Voting Power

 

9

Sole Dispositive Power

 

10

Shared Dispositive Power

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
28,102,628

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares*   o

 

 

13

Percent of Class Represented by Amount in Row (11)
38.77%

 

 

14

Type of Reporting Person*
PN

 

7



 

SCHEDULE 13D

 

CUSIP No. 848577102

 

 

1

Name of Reporting Person
S.S. OR I.R.S. Identification No. of Above Person

OCM Principal Opportunities Fund III, L.P. [ID No. 20-0379312]

 

 

2

Check the Appropriate Box if a Member of a Group*

 

 

(a)

 x

 

 

(b)

 o

 

 

3

SEC Use Only

 

 

4

Source of Funds*
Not Applicable.

 

 

5

Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Delaware

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power

 

8

Shared Voting Power

 

9

Sole Dispositive Power

 

10

Shared Dispositive Power

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
28,823,203

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares*   o

 

 

13

Percent of Class Represented by Amount in Row (11)
39.76%

 

 

14

Type of Reporting Person*
PN

 

8



 

CUSIP No. 848577102

 

 

1

Name of Reporting Person
S.S. OR I.R.S. Identification No. of Above Person

OCM Spirit Holdings II, LLC [ID No. 20-3673223]

 

 

2

Check the Appropriate Box if a Member of a Group*

 

 

(a)

 x

 

 

(b)

 o

 

 

3

SEC Use Only

 

 

4

Source of Funds*
WC

 

 

5

Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Delaware

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
20,843,307

 

8

Shared Voting Power

 

9

Sole Dispositive Power
20,843,307

 

10

Shared Dispositive Power

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
20,843,307

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares*   o

 

 

13

Percent of Class Represented by Amount in Row (11)
28.75%

 

 

14

Type of Reporting Person*
OO

 

9



 

CUSIP No. 848577102

 

 

1

Name of Reporting Person
S.S. OR I.R.S. Identification No. of Above Person

OCM Spirit Holdings, LLC [ID No. 20-0673251]

 

 

2

Check the Appropriate Box if a Member of a Group*

 

 

(a)

 x

 

 

(b)

 o

 

 

3

SEC Use Only

 

 

4

Source of Funds*
WC

 

 

5

Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Delaware

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power
6,244,144

 

8

Shared Voting Power

 

9

Sole Dispositive Power
6,244,144

 

10

Shared Dispositive Power

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
6,244,144

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares*   o

 

 

13

Percent of Class Represented by Amount in Row (11)
8.59%

 

 

14

Type of Reporting Person*
OO

 

10



 

CUSIP No. 848577102

 

 

1

Name of Reporting Person
S.S. OR I.R.S. Identification No. of Above Person

OCM Principal Opportunities Fund III G.P., L.P. [ID No. 20-0379203]

 

 

2

Check the Appropriate Box if a Member of a Group*

 

 

(a)

 x

 

 

(b)

 o

 

 

3

SEC Use Only

 

 

4

Source of Funds*
Not Applicable.

 

 

5

Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Delaware

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power

 

8

Shared Voting Power

 

9

Sole Dispositive Power

 

10

Shared Dispositive Power

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
28,823,203

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares*   o

 

 

13

Percent of Class Represented by Amount in Row (11)
39.76%

 

 

14

Type of Reporting Person*
PN

 

11



 

CUSIP No. 848577102

 

 

1

Name of Reporting Person
S.S. OR I.R.S. Identification No. of Above Person

Oaktree Fund GP I, L.P. [ID No. 26-0182151]

 

 

2

Check the Appropriate Box if a Member of a Group*

 

 

(a)

 x

 

 

(b)

 o

 

 

3

SEC Use Only

 

 

4

Source of Funds*
Not Applicable.

 

 

5

Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Delaware

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power

 

8

Shared Voting Power

 

9

Sole Dispositive Power

 

10

Shared Dispositive Power

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
29,402,848

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares*   o

 

 

13

Percent of Class Represented by Amount in Row (11)
40.56%

 

 

14

Type of Reporting Person*
PN

 

12



 

CUSIP No. 848577102

 

 

1

Name of Reporting Person
S.S. OR I.R.S. Identification No. of Above Person

Oaktree Capital I, L.P. [ID No. 26-0181836]

 

 

2

Check the Appropriate Box if a Member of a Group*

 

 

(a)

 x

 

 

(b)

 o

 

 

3

SEC Use Only

 

 

4

Source of Funds*
Not applicable.

 

 

5

Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Delaware

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power

 

8

Shared Voting Power

 

9

Sole Dispositive Power

 

10

Shared Dispositive Power

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
29,402,848

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares*   o

 

 

13

Percent of Class Represented by Amount in Row (11)
40.56%

 

 

14

Type of Reporting Person*
PN

 

13



 

CUSIP No. 848577102

 

 

1

Name of Reporting Person
S.S. OR I.R.S. Identification No. of Above Person

OCM Holdings I, LLC [ID No. 26-0181752]

 

 

2

Check the Appropriate Box if a Member of a Group*

 

 

(a)

 x

 

 

(b)

 o

 

 

3

SEC Use Only

 

 

4

Source of Funds*
Not applicable.

 

 

5

Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Delaware

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power

 

8

Shared Voting Power

 

9

Sole Dispositive Power

 

10

Shared Dispositive Power

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
29,402,848

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares*   o

 

 

13

Percent of Class Represented by Amount in Row (11)
40.56%

 

 

14

Type of Reporting Person*
OO

 

14



 

CUSIP No. 848577102

 

 

1

Name of Reporting Person
S.S. OR I.R.S. Identification No. of Above Person

Oaktree Holdings, LLC [ID No. 26-0174909]]

 

 

2

Check the Appropriate Box if a Member of a Group*

 

 

(a)

 x

 

 

(b)

 o

 

 

3

SEC Use Only

 

 

4

Source of Funds*
Not applicable.

 

 

5

Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6

Citizenship or Place of Organization
Delaware

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7

Sole Voting Power

 

8

Shared Voting Power

 

9

Sole Dispositive Power

 

10

Shared Dispositive Power

 

 

11

Aggregate Amount Beneficially Owned by Each Reporting Person
29,402,848

 

 

12

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares*   o

 

 

13

Percent of Class Represented by Amount in Row (11)
40.56%

 

 

14

Type of Reporting Person*
OO

 

15



 

Item 1.

Security and Issuer

This statement on Schedule 13D relates to the shares of common stock, par value $.0001 per share (the “Common Stock”), of Spirit Airlines, Inc. (the “Issuer”).  The principal executive offices of the Issuer are located at 2800 Executive Way, Miramar, Florida 33025.

 

The Issuer completed an initial public offering on June 2, 2011.  The number of shares of Common Stock beneficially owned by the Reporting Persons has been adjusted to reflect the initial public offering.

 

 

Item 2.

Identity and Background

(a)                                  This Schedule 13D is being filed on behalf of:

(1)                                  OCM Spirit Holdings, LLC, a Delaware limited liability company (“Holdings”), whose principal business is to invest in the securities of the Issuer;

(2)                                  OCM Spirit Holdings II, LLC, a Delaware limited liability company (“Holdings II”), whose principal business is to invest in the securities of the Issuer;

(3)                                  Oaktree Capital Management, L.P., a Delaware limited partnership and a registered investment adviser under the Investment Advisers Act of 1940, as amended (“Capital Management”), whose principal business is to provide investment management services to certain funds and accounts, in its capacity as manager of Holdings, Holdings II, POF Spirit Foreign Holdings, LLC (“POF Foreign Holdings”), OCM Spirit Holdings III, LLC (“Holdings III”), and OCM Spirit Holdings III-A, LLC (“Holdings III-A”);

(4)                                  Oaktree Holdings, Inc., a Delaware corporation (“OHI”), whose principal business is to serve as, and perform the functions of, the general partner of Capital Management, in its capacity as general partner of Capital Management;

(5)                                  Oaktree Capital Group, LLC, a Delaware limited liability company (“OCG”), whose principal business is to serve as the holding company and controlling entity for each of the general partner and investment adviser of certain investment funds and separately managed accounts, in its capacity as sole shareholder of OHI;

(6)                                  Oaktree Capital Group Holdings, L.P., a Delaware limited partnership (“OCGH LP”), whose principal business is to hold voting interests in OCG and other interests in each of the general partner and investment adviser of certain investment funds and separately managed accounts, in its capacity as the majority holder of the voting units of OCG;

(7)                                  Oaktree Capital Group Holdings GP, LLC, a Delaware limited liability company (“OCGH GP”), whose principal business is to serve as, and perform the functions of, the general partner of OCGH LP, in its capacity as the general partner of OCGH LP;

(8)                                  OCM Principal Opportunities Fund II, L.P., a Delaware limited partnership (“POF II”), whose principal business is investing in entities over which there is the potential for such fund to exercise significant influence, in its capacity as a member of POF Foreign Holdings, Holdings II, and Holdings III-A;

(9)                                  OCM Principal Opportunities Fund III, L.P., a Delaware limited partnership (“POF III”), whose principal business is investing in entities over which there is the potential for such fund to exercise significant influence, in its capacity as a member of POF Foreign Holdings, Holdings II, and Holdings III;

 

16



 

(10)                            OCM Principal Opportunities Fund III GP, L.P., a Delaware limited partnership (“Fund III GP”), whose principal business is to serve as, and perform the functions of, the general partner of POF III, in its capacity as general partner of POF III;

(11)                            Oaktree Fund GP I, L.P., a Delaware limited partnership (“Oaktree GP”), whose principal business is to (i) serve as, and perform the functions of, the general partner or the managing member of the general partner of certain investment funds and (ii) act as the sole shareholder of certain controlling entities of certain investment funds, in its capacity as general partner of Fund III GP and POF II;

(12)                            Oaktree Capital I, L.P., a Delaware limited partnership (“Oaktree LP”), whose principal business is to (i) serve as, and perform the functions of, the general partner of Oaktree GP and (ii) hold limited partnership interests in Oaktree GP, in its capacity as general partner of Oaktree GP;

(13)                            OCM Holdings I, LLC, a Delaware limited liability company (“OCM Holdings”), whose principal business is to serve as, and perform the functions of, the general partner of Oaktree LP, in its capacity as general partner of Oaktree LP; and

(14)                            Oaktree Holdings, LLC, a Delaware limited liability company (“OHL” and together with Holdings, Holdings II, Capital Management, OHI, OCG, OCGH LP, OCGH GP, POF II, POF III, Fund III GP, Oaktree GP, Oaktree LP and OCM Holdings, collectively the “Reporting Persons”), whose principal business is to serve as, and perform the functions of, the managing member of OCM Holdings, in its capacity as managing member of OCM Holdings.

 

(b)                                 The address of each of the Reporting Persons and Covered Persons is 333 South Grand Ave., 28th Floor, Los Angeles, CA 90071.

 

(c)                                  The name and positions of the executive officers and directors of the Reporting Persons (the “Covered Persons”) are set forth on Annex A hereto.

 

(d)                                 None of the Reporting Persons nor, to the knowledge of any of the Reporting Persons, any of the Covered Persons, has, during the past five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

 

(e)                                  During the past five years, none of the Reporting Persons nor, to the knowledge of any of the Reporting Persons, any of the Covered Persons, was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding such person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activity subject to, federal or state securities laws or finding any violation with respect to such laws.

 

(f)                                    All of the Covered Persons are natural persons and are citizens of the United States of America.

 

 

Item 3.

Source and Amount of Funds or Other Consideration

On September 17, 2010 the Issuer, Holdings, Holdings II, Holdings III, Holdings III-A, POF Foreign Holdings, POF II, POF III, Indigo Florida L.P., Indigo Miramar LLC, Indigo Partners LLC, Jacob Schorr, Julianne B. Schorr, The David B. Schorr Trust U/T/A dated December 31, 1977, The Dina L. Schorr Trust U/T/A dated July 1, 1980, The Elliott A. Schorr Trust U/T/A dated December 31, 1977, The Raphael A. Schorr Trust U/T/A Dated December 31, 1977, Taurus Investment Partners LLC, Edward Homfeld, Homfeld II, LLC, Mark Kahan 2005 Irrevocable Trust F/B/O Eliyahu Moshe Kahan and Mark Kahan entered into a Recapitalization Agreement (as amended, the “Recapitalization Agreement”), which provided for the recapitalization of the Issuer upon

 

17



 

closing of an initial public offering of the Issuer’s Common Stock (the “IPO”).  Pursuant to the Recapitalization Agreement, the Issuer agreed to use the net proceeds to, among other things, repay indebtedness and accrued interest thereon, and to exchange for Common Stock (at the price per share equal to the public offering price per share in the IPO) any indebtedness of the Issuer held by Holdings II, Holdings III, and Holdings III-A that remains outstanding after the application of such net proceeds.

 

The Issuer completed the IPO on June 2, 2011.  Prior to the recapitalization and IPO, (a) Holdings was the beneficial owner of 470,000 shares of Common Stock and 93,114 shares of Class A Preferred Stock of the Issuer, (b) Holdings II was the beneficial owner of 8,580,442 shares of Common Stock and $66,682,548 aggregate principal amount of Tranche A Notes of the Issuer, (c) Holdings III was the beneficial owner of $10,374,843 aggregate principal amount of Tranche B Notes of the Issuer and $1,607,142.85 aggregate principal amount of Short Term Notes of the Issuer, (d) Holdings III-A was the beneficial owner of $4,625,157 aggregate principal amount of Tranche B Notes of the Issuer, and (e) POF Foreign Holdings was the beneficial owner of 30,000 shares of Common Stock and 6,886 shares of Class A Preferred Stock of the Issuer.  Such securities were originally purchased with the working capital of the purchasing entity.

 

Immediately prior to the IPO, (i) Holdings received 5,754,144 shares of Common Stock in exchange for the Class A Preferred Stock, (ii) Holdings II received 12,262,865 shares of Common Stock in exchange for the Tranche A Notes, (iii) Holdings III received 1,300,220 shares of Common Stock automatically in exchange for the Tranche B Notes, (iv) Holdings III-A received 579,645 shares of Common Stock automatically upon the conversion of the Tranche B Notes, and (v) POF Foreign Holdings received 425,532 shares of Common Stock in exchange for the Class A Preferred Stock. Such shares of Common Stock were issued at a price of $12 per share.

 

In connection with the IPO, Holdings II has agreed to sell 2,133,333 shares of Common Stock pursuant to the exercise of the overallotment option in the underwritten offering discussed in the registration statement on Form S-1 (File No. 333-169474) filed by the Issuer with the Securities and Exchange Commission on September 17, 2010 (thereafter amended on October 28, 2010, November 18, 2010, November 19, 2010, February 28, 2011, March 16, 2011, April 27, 2011, May 12, 2011, and May 19, 2011 and as amended, the “Registration Statement”).

 

After giving effect to the recapitalization and the IPO, (i) Holdings is the direct beneficial owner of 6,224,144 shares of Common Stock, (ii) Holdings II is the direct beneficial owner of 20,843,307 shares of Common Stock, (iii) Holdings III is the direct beneficial owner of 1,300,220 shares of Common Stock, (iv) Holdings III-A is the direct beneficial owner of 579,645 shares of Common Stock, and (v) POF Foreign Holdings is the direct beneficial owner of 455,532 shares of Common Stock,

 

 

Item 4.

Purpose of the Transaction

As described in Item 3 above, the shares of the Common Stock were held by the Reporting Persons prior to the IPO.  The Reporting Persons currently intend to hold such shares for investment purposes subject to the next paragraph.

 

The Reporting Persons continuously evaluate the Issuer’s businesses and prospects, alternative investment opportunities and all other factors deemed relevant in determining whether additional shares of the Issuer’s Common Stock will be acquired by the Reporting Persons or by other accounts or funds of which any of the Reporting Persons serve as the general partner and/or investment manager or whether the Reporting Persons or

 

18



 

any such other accounts or funds will dispose of shares of the Issuer’s Common Stock.  At any time, additional shares of Common Stock may be acquired or some or all of the shares of the Issuer’s Common Stock beneficially owned by the Reporting Persons may be sold, in either case in the open market, in privately negotiated transactions or otherwise.  In addition to the foregoing, Holdings II may sell shares of Common Stock pursuant to the underwritten offering discussed in the Registration Statement and the exercise by the IPO’s underwriters of their overallotment option.

 

Except as otherwise disclosed herein, the Reporting Persons currently have no agreements, beneficially or otherwise, which would be related to or would result in any of the matters described in Items 4(a)-(j) of Schedule 13D; however, as part of its ongoing evaluation of this investment and investment alternatives, the Reporting Persons may consider such matters and, subject to applicable law, may formulate a plan with respect to such matters, and, from time to time, the Reporting Persons may hold discussions with or make formal proposals to management or the Board of Directors of the Issuer, other shareholders of the Issuer or other third parties regarding such matters.

 

A Managing Director at Capital Management, Jordon Kruse, serves as a director of the Issuer.  As a director, Mr. Kruse may have influence over the corporate activity of the Issuer, including activity which may relate to transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D.

 

 

Item 5.

Interest in Securities of the Issuer

(a) As of the date hereof, (i) Holdings directly owns 6,224,144 shares of Common Stock, representing 8.59% of the number of shares of Common Stock outstanding after the IPO, (ii) Holdings II directly owns 20,843,307 shares of Common Stock, representing approximately 28.75% of the number of shares of Common Stock outstanding after the IPO, (iii) Holdings III directly owns 1,300,220 shares of Common Stock, representing 1.79% of the number of shares of Common Stock outstanding after the IPO, (iv) Holdings III-A directly owns 579,645 shares of Common Stock, representing 0.80% of the number of shares of Common Stock outstanding after the IPO, and (v) POF Foreign Holdings directly owns 455,532 shares of Common Stock, representing 0.63% of the number of shares of Common Stock outstanding after the IPO,

 

Capital Management, in its capacity as manager of Holdings, Holdings II, Holdings III, Holdings III-A and POF Foreign Holdings (collectively, the “OCM Entities”) has the ability to direct the management of each of the OCM Entities’ business, including the power to direct the decisions of each of the OCM Entities regarding the vote and disposition of securities held by each of the OCM Entities; therefore, Capital Management may be deemed to have indirect beneficial ownership of the 29,402,848 shares of Common Stock (approximately 40.56% of the Common Stock outstanding after the IPO) comprised of the aggregate number of shares of Common Stock directly held by the OCM Entities.

 

OHI, in its capacity as general partner of Capital Management, has the ability to direct the management of Capital Management’s business, including the power to direct the decisions of Capital Management regarding the vote and disposition of securities held by the OCM Entities; therefore, Capital Management may be deemed to have indirect beneficial ownership of the 29,402,848 shares of Common Stock (approximately 40.56% of the Common Stock outstanding after the IPO) comprised of the aggregate number of shares of Common Stock directly held by the OCM Entities.

 

OCG, in its capacity as sole shareholder of OHI, has the ability to appoint and remove directors of OHI and as such, may indirectly control the decisions of OHI regarding the vote and disposition of securities held by the

 

19



 

OCM Entities; therefore, OCG may be deemed to have indirect beneficial ownership of the 29,402,848 shares of Common Stock (approximately 40.56% of the Common Stock outstanding after the IPO) comprised of the aggregate number of shares of Common Stock directly held by the OCM Entities.

 

OCGH LP, in its capacity as the majority holder of the voting units of OCG, has the ability to appoint and remove directors of OCG and as such, may indirectly control the decisions of OCG regarding the vote and disposition of securities held by the OCM Entities; therefore, OCGH LP may be deemed to have indirect beneficial ownership of the 29,402,848 shares of Common Stock (approximately 40.56% of the Common Stock outstanding after the IPO) comprised of the aggregate number of shares of Common Stock directly held by the OCM Entities.

 

OCGH GP, in its capacity as the general partner of OCGH LP, has the ability to direct the management of OCGH LP’s business, including the power to direct the decisions of OCGH LP regarding the vote and disposition of securities held by the OCM Entities; therefore, OCGH GP may be deemed to have indirect beneficial ownership of the 29,402,848 shares of Common Stock (approximately 40.56% of the Common Stock outstanding after the IPO) comprised of the aggregate number of shares of Common Stock directly held by the OCM Entities.

 

POF II, in its capacity as a member of Holdings, Holdings II, Holdings III-A and POF Foreign Holdings, may be deemed to have a direct pecuniary interest in 28,102,628 shares of Common Stock (approximately 38.77% of the Common Stock outstanding after the IPO) comprised of the aggregate number of shares of Common Stock directly held by Holdings, Holdings II, Holdings III-A and POF Foreign Holdings.

 

POF III, in its capacity as a member of Holdings, Holdings II, Holdings III and POF Foreign Holdings, may be deemed to have a direct pecuniary interest in 28,823,203 shares of Common Stock (approximately 39.76% of the Common Stock outstanding after the IPO) comprised of the aggregate number of shares of Common Stock directly held by Holdings, Holdings II, Holdings III and POF Foreign Holdings.

 

Fund III GP, in its capacity as general partner of POF III, may be deemed to have an indirect beneficial ownership of 28,823,203 shares of Common Stock (approximately 39.76% of the Common Stock outstanding after the IPO) comprised of the aggregate number of shares of Common Stock directly held by Holdings, Holdings II, Holdings III and POF Foreign Holdings.

 

Oaktree GP, in its capacity as general partner of POF II and Fund III GP, may be deemed to have an indirect beneficial ownership of 29,402,848 shares of Common Stock (approximately 40.56% of the Common Stock outstanding after the IPO) comprised of the aggregate number of shares of Common Stock directly held by the OCM Entities.

 

Oaktree LP, in its capacity as general partner of Oaktree GP, may be deemed to have an indirect beneficial ownership of 29,402,848 shares of Common Stock (approximately 40.56% of the Common Stock outstanding after the IPO) comprised of the aggregate number of shares of Common Stock directly held by the OCM Entities.

 

OCM Holdings, in its capacity as general partner of Oaktree LP, may be deemed to have an indirect beneficial ownership of 29,402,848 shares of Common Stock (approximately 40.56% of the Common Stock outstanding after the IPO) comprised of the aggregate number of shares of Common Stock directly held by the OCM Entities.

 

20



 

OHL, in its capacity as managing member of OCM Holdings, may be deemed to have an indirect beneficial ownership of 29,402,848 shares of Common Stock (approximately 40.56% of the Common Stock outstanding after the IPO) comprised of the aggregate number of shares of Common Stock directly held by the OCM Entities.

 

In addition, Indigo Florida L.P. (“Indigo Florida”) and Indigo Miramar LLC (“Indigo Miramar,” and together with Indigo Florida, the “Indigo Investors”), which also comprise a “group” with the Reporting Persons as a result of the Stockholders Agreement described in Item 6 below, own in the aggregate 22,856,930 shares of Common Stock.  The Indigo Investors beneficially own in the aggregate approximately 31.53% of the Common Stock outstanding after the IPO.

 

(b) With respect to the shares of Common Stock reported herein, each of Holdings, Holdings II, Capital Management, OHI, OCG, OCGH LP and OCGH GP may be deemed to have sole voting and dispositive power to direct the vote and disposition of the shares of Common Stock which such Reporting Person may be deemed to beneficially own as set forth above.

 

Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by any of the Reporting Persons, other than Holdings and Holdings II, or by any of the Covered Persons that it is the beneficial owner of any of the Common Stock referred to herein for the purposes of Section 13(d) of the Securities Exchange Act of 1934, or for any other purpose, and such beneficial ownership is expressly disclaimed by each Reporting Person, other than Holdings and Holdings II, and each Covered Person.

 

(c) Other than the transactions described in Item 3, none of the Reporting Persons nor, to the knowledge of any of the Reporting Persons, any of the Covered Persons, has effected any transaction involving the Issuer’s Common Stock during the last 60 days from the date hereof.

 

(d) Not applicable.

 

(e) Not applicable.

 

 

Item 6.

Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

To the knowledge of the Reporting Persons, there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the Covered Persons and between such persons and any person with respect to any securities of the Company other than the following:

 

Stockholders Voting Agreement

 

On May 27, 2011, a Stockholders Agreement (“Stockholders Agreement”) was entered into by and among (i) the Issuer, (ii) Holdings, (iii) Holdings II, (iv) Holdings III, (v) Holdings III-A, (vi) POF II, (vii) POF III (together with POF II, collectively, the “POF Investors”) (viii) POF Foreign Holdings (together with Holdings, Holdings II, Holdings III, Holdings III-A, the POF Investors, collectively, the “Oaktree Investors”), and (ix) Indigo Investors.  The Stockholders Agreement provides for certain matters pertaining to the election of the Issuer’s board of directors.  The Indigo Investors and Oaktree Investors each have the right to designate a

 

21



 

number of director nominees to the Issuer’s board of directors, and each of Indigo Investors and Oaktree Investors shall vote all of the voting securities of the Issuer held by it in order to elect such nominees.  The Stockholders Agreement will terminate automatically at such time that Indigo Investors and the Oaktree Investors, as a group, own less than 50% of the Issuer’s outstanding voting securities entitled to vote in the election of directors.

 

Jordon Kruse, Managing Director at Oaktree Capital Management, LP, serves on the Board of Directors of the Issuer as of the date hereof.

 

Investor Rights Agreement

 

On July 13, 2006, a Second Amended and Restated Investor Rights Agreement (as amended by that certain Amendment to Second Amended and Restated Investor Rights Agreement dated as of July 20, 2010, that certain Second Amendment to Second Amended and Restated Investor Rights Agreement, dated as of February 1, 2011 and that certain Third Amendment to Second Amended and Restated Investor Rights Agreement, dated as of May 25, 2011, the “Investor Rights Agreement”) was entered into by and among (i) the Issuer, (ii) the Oaktree Investors, (iii) Indigo Investors, and (iv) certain other investors of the Issuer named therein.  After the completion of the IPO, the holders of Common Stock will be entitled to certain demand and piggy-back registration rights, subject to lock-up arrangements.

 

Overallotment

 

On May 25, 2011, Holdings II entered into an Underwriting Agreement with Citigroup Global Markets Inc. and Morgan Stanley & Co. Incorporated, as representatives of the several underwriters (the “Underwriters”), the other selling stockholders named in Schedule II thereto (together with Holdings II, the “Selling Stockholders”) and the Issuer for the sale by the Issuer of an aggregate of 15,600,000 shares of Common Stock, and at the election of the Underwriters up to 2,340,000 additional shares of Common Stock to cover over-allotments.

 

Lock-Up Agreements

 

Notwithstanding the foregoing, the Issuer and the Selling Stockholders have agreed, subject to certain exceptions, not to dispose of or hedge any of their shares of Common Stock or any securities convertible into or exchangeable for shares of Common Stock during the period from the date of the Underwriting Agreement continuing through the date that is 180 days thereafter.

 

 

Item 7.

Material to be Filed as Exhibits

Exhibit 1:                                                A written agreement relating to the filing of the joint acquisition statement as required by Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended.

 

Exhibit 2:                                                Underwriting Agreement, dated as of May 25, 2011, among Spirit Airlines, Inc., Citgigroup Global Markets Inc and Morgan Stanley & Co. Incorporated as representatives of the underwriters, and the selling stockholders named on Schedule II thereto.

 

Exhibit 3:                                                Recapitalization Agreement, dated as of September 17, 2010, among Spirit Airlines, Inc., POF Spirit Foreign Holdings, LLC, OCM Principal Opportunities Fund II, L.P., OCM Principal Opportunities Fund III, L.P., OCM Spirit Holdings, LLC, Holdings II, OCM Spirit Holdings, LLC, OCM Sprit Holdings III-A, LLC, Indigo Florida L.P., Indigo Miramar LLC, Indigo Partners LLC, Jacob Schorr, Julianne B. Schorr, The

 

22



 

David B. Schorr Trust U/T/A dated December 31, 1977, The Dina L. Schorr Trust U/T/A dated July 1, 1980, The Elliott A. Schorr Trust U/T/A dated December 31, 1977, The Raphael A. Schorr Trust U/T/A Dated December 31, 1977, Taurus Investment Partners LLC, Edward Homfeld, Homfeld II, LLC, Mark Kahan 2005 Irrevocable Trust F/B/O Eliyahu Moshe Kahan and Mark Kahan.

 

Exhibit 4:                                                Amendment No. 1 to Recapitalization Agreement, dated as of May 25, 2011, among Spirit Airlines, Inc., POF Spirit Foreign Holdings, LLC, OCM Principal Opportunities Fund II, L.P., OCM Principal Opportunities Fund III, L.P., OCM Spirit Holdings, LLC, Holdings II, OCM Spirit Holdings, LLC, OCM Sprit Holdings III-A, LLC, Indigo Florida L.P., Indigo Miramar LLC, Indigo Partners LLC, Jacob Schorr, Julianne B. Schorr, The David B. Schorr Trust U/T/A dated December 31, 1977, The Dina L. Schorr Trust U/T/A dated July 1, 1980, The Elliott A. Schorr Trust U/T/A dated December 31, 1977, The Raphael A. Schorr Trust U/T/A Dated December 31, 1977, Taurus Investment Partners LLC, Edward Homfeld, Homfeld II, LLC, Mark Kahan 2005 Irrevocable Trust F/B/O Eliyahu Moshe Kahan and Mark Kahan.

 

Exhibit 5:                                                Second Amended and Restated Investor Rights Agreement, dated as of July 13, 2006, among Spirit Airlines, Inc., Indigo Florida, L.P., Indigo Miramar LLC, OCM Spirit Holdings, LLC, OCM Spirit Holdings II, LLC, OCM Spirit Holdings III, LLC, OCM Spirit Holdings III-A, LLC, OCM Principal Opportunities Fund II, L.P., OCM Principal Opportunities Fund III, L.P., POF Spirit Foreign Holdings, LLC, and certain other investors.

 

Exhibit 7:                                                Amendment to Second Amended and Restated Investor Rights Agreement, dated as of July 20, 2010, by and among Spirit Airlines, Inc., Indigo Florida, L.P., Indigo Miramar LLC, OCM Spirit Holdings, LLC, OCM Spirit Holdings II, LLC, OCM Spirit Holdings III, LLC, OCM Spirit Holdings III-A, LLC, OCM Principal Opportunities Fund II, L.P., OCM Principal Opportunities Fund III, L.P., POF Spirit Foreign Holdings, LLC, and certain other investors.

 

Exhibit 8:                                                Second Amendment to Second Amended and Restated Investor Rights Agreement, dated as of July 20, 2010, by and among Spirit Airlines, Inc., Indigo Florida, L.P., Indigo Miramar LLC, OCM Spirit Holdings, LLC, OCM Spirit Holdings II, LLC, OCM Spirit Holdings III, LLC, OCM Spirit Holdings III-A, LLC, OCM Principal Opportunities Fund II, L.P., OCM Principal Opportunities Fund III, L.P., POF Spirit Foreign Holdings, LLC, and certain other investors.

 

Exhibit 9:                                                Third Amendment to Second Amended and Restated Investor Rights Agreement, dated as of May 25, 2011, by and among Spirit Airlines, Inc., Indigo Florida, L.P., Indigo Miramar LLC, OCM Spirit Holdings, LLC, OCM Spirit Holdings II, LLC, OCM Spirit Holdings III, LLC, OCM Spirit Holdings III-A, LLC, OCM Principal Opportunities Fund II, L.P., OCM Principal Opportunities Fund III, L.P., POF Spirit Foreign Holdings, LLC, and certain other investors.

 

Exhibit 10:                                          Stockholders Voting Agreement, dated as of June 1, 2011, by Spirit Airlines, Inc., OCM Spirit Holdings, LLC, OCM Spirit Holdings II, LLC, OCM Principal Opportunities Fund II, L.P., OCM Principal Opportunities Fund III, L.P., POF Spirit Foreign Holdings, LLC, Indigo Florida L.P., and Indigo Miramar LLC.

 

23



 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

Date:  June 3, 2011

 

 

 

OCM SPIRIT HOLDINGS, LLC

 

 

 

 

 

 

By:

Oaktree Capital Management, L.P.,

 

 

Its:

Managing Member

 

 

 

 

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Managing Director

 

 

 

 

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Senior Vice President

 

 

 

 

 

 

 

 

 

 

OCM SPIRIT HOLDINGS II, LLC

 

 

 

 

 

 

By:

Oaktree Capital Management, L.P.,

 

 

Its:

Managing Member

 

 

 

 

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Managing Director

 

 

 

 

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Senior Vice President

 

 

 

 

 

 

 

 

 

 

OCM PRINCIPAL OPPORTUNITIES FUND II, L.P.

 

 

 

 

 

 

By:

Oaktree Fund GP I, L.P.,

 

 

Its:

General Partner

 

 

 

 

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Authorized Signatory

 

 

 

 

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Authorized Signatory

 

24



 

 

 

OCM PRINCIPAL OPPORTUNITIES FUND III GP, L.P.

 

 

 

 

 

 

By:

Oaktree Fund GP I, L.P.,

 

 

Its:

General Partner

 

 

 

 

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Authorized Signatory

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Authorized Signatory

 

 

 

 

 

 

 

 

 

 

OAKTREE FUND GP I, L.P.

 

 

 

 

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Authorized Signatory

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Authorized Signatory

 

 

 

 

 

 

 

 

 

 

OAKTREE CAPITAL I, L.P.

 

 

 

 

 

 

By:

OCM Holdings I, LLC

 

 

Its:

General Partner

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Managing Director

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Senior Vice President

 

 

 

 

 

 

 

 

 

 

OCM HOLDINGS I, LLC

 

 

 

 

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Managing Director

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Senior Vice President

 

25



 

 

 

OAKTREE HOLDINGS, LLC

 

 

 

 

 

 

By:

Oaktree Capital Group, LLC

 

 

Its:

Managing Member

 

 

 

 

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Managing Director & Assistant Secretary

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Senior Vice President

 

 

 

 

 

 

 

 

 

 

OCM PRINCIPAL OPPORTUNITIES FUND III, L.P.

 

 

 

 

 

 

By:

OCM Principal Opportunities Fund III GP, L.P.

 

 

Its:

General Partner

 

 

 

 

 

 

By:

Oaktree Fund GP I, L.P.

 

 

Its:

General Partner

 

 

 

 

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Authorized Signatory

 

 

 

 

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Authorized Signatory

 

 

 

 

 

 

OAKTREE CAPITAL MANAGEMENT, L.P.

 

 

 

 

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Managing Director

 

 

 

 

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Senior Vice President

 

 

 

 

 

 

OAKTREE HOLDINGS, INC.

 

 

 

 

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Managing Director

 

 

 

 

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Senior Vice President

 

26



 

 

 

OAKTREE CAPITAL GROUP, LLC

 

 

 

 

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Managing Director & Assistant Secretary

 

 

 

 

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Senior Vice President

 

 

 

 

 

 

 

 

 

 

OAKTREE CAPITAL GROUP HOLDINGS, L.P.

 

 

 

 

 

 

By:

Oaktree Capital Group Holdings GP, LLC,

 

 

Its:

General Partner

 

 

 

 

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Managing Director

 

 

 

 

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Senior Vice President

 

 

 

 

 

 

 

 

 

 

OAKTREE CAPITAL GROUP HOLDINGS GP, LLC

 

 

 

 

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Managing Director

 

 

 

 

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Senior Vice President

 

27



 

ANNEX A

 

OAKTREE CAPITAL GROUP HOLDINGS GP, LLC

 


 

The name and principal occupation of each of the members of the executive committee of Oaktree Capital Group Holdings GP, LLC and its executive officers are listed below.

 

NAME

 

PRINCIPAL OCCUPATION

 

 

 

Howard S. Marks

 

Chairman of the Board of Oaktree Capital Group, LLC and Chairman of Oaktree Capital Management, L.P.

 

 

 

Bruce A. Karsh

 

President and Director of Oaktree Capital Group, LLC and President of Oaktree Capital Management, L.P.

 

 

 

John B. Frank

 

Managing Principal and Director of Oaktree Capital Group, LLC and Managing Principal of Oaktree Capital Management, L.P.

 

 

 

David M. Kirchheimer

 

Chief Financial Officer, Chief Administrative Officer and Director of Oaktree Capital Group, LLC and Chief Financial Officer, Chief Administrative Officer and Principal of Oaktree Capital Management, L.P.

 

 

 

Sheldon M. Stone

 

Principal and Director of Oaktree Capital Group, LLC and Principal of Oaktree Capital Management, L.P.

 

 

 

Larry W. Keele

 

Principal and Director of Oaktree Capital Group, LLC and Principal of Oaktree Capital Management, L.P.

 

 

 

Stephen A. Kaplan

 

Principal and Director of Oaktree Capital Group, LLC and Principal of Oaktree Capital Management, L.P.

 

 

 

Kevin L. Clayton

 

Principal and Director of Oaktree Capital Group, LLC and Principal of Oaktree Capital Management, L.P.

 

OAKTREE CAPITAL GROUP HOLDINGS, L.P.

 


 

The general partner of Oaktree Capital Group Holdings, L.P. is Oaktree Capital Group Holdings GP, LLC. There are no executive officers and directors appointed at Oaktree Capital Group Holdings, L.P.

 

28



 

OAKTREE CAPITAL GROUP, LLC

 


 

The name and principal occupation of each of the directors and executive officers of Oaktree Capital Group, LLC are listed below.

 

NAME

 

PRINCIPAL OCCUPATION

 

 

 

Howard S. Marks

 

Chairman of the Board of Oaktree Capital Group, LLC and Chairman of Oaktree Capital Management, L.P.

 

 

 

Bruce A. Karsh

 

President and Director of Oaktree Capital Group, LLC and President of Oaktree Capital Management, L.P.

 

 

 

John B. Frank

 

Managing Principal and Director of Oaktree Capital Group, LLC and Managing Principal of Oaktree Capital Management, L.P.

 

 

 

David M. Kirchheimer

 

Chief Financial Officer, Chief Administrative Officer and Director of Oaktree Capital Group, LLC and Chief Financial Officer, Chief Administrative Officer and Principal of Oaktree Capital Management, L.P.

 

 

 

Sheldon M. Stone

 

Principal and Director of Oaktree Capital Group, LLC and Principal of Oaktree Capital Management, L.P.

 

 

 

Larry W. Keele

 

Principal and Director of Oaktree Capital Group, LLC and Principal of Oaktree Capital Management, L.P.

 

 

 

Stephen A. Kaplan

 

Principal and Director of Oaktree Capital Group, LLC and Principal of Oaktree Capital Management, L.P.

 

 

 

Kevin L. Clayton

 

Principal and Director of Oaktree Capital Group, LLC and Principal of Oaktree Capital Management, L.P.

 

OAKTREE HOLDINGS, INC.

 


 

Oaktree Capital Group, LLC is the sole shareholder of Oaktree Holdings, Inc.  The name and principal occupation of each of the directors and executive officers of Oaktree Holdings, Inc. are listed below.

 

NAME

 

PRINCIPAL OCCUPATION

 

 

 

Howard S. Marks

 

Chairman of the Board of Oaktree Capital Group, LLC and Chairman of Oaktree Capital Management, L.P.

 

29



 

Bruce A. Karsh

 

President and Director of Oaktree Capital Group, LLC and President of Oaktree Capital Management, L.P.

 

 

 

John B. Frank

 

Managing Principal and Director of Oaktree Capital Group, LLC and Managing Principal of Oaktree Capital Management, L.P.

 

 

 

David M. Kirchheimer

 

Chief Financial Officer, Chief Administrative Officer and Director of Oaktree Capital Group, LLC and Chief Financial Officer, Chief Administrative Officer and Principal of Oaktree Capital Management, L.P.

 

OAKTREE CAPITAL MANAGEMENT, L.P.

 


 

Oaktree Holdings, Inc. is the general partner of Oaktree Capital Management, L.P.  The name and principal  occupation of each of the members and the executive officers of Oaktree Capital Management, L.P. are listed below.

 

NAME

 

PRINCIPAL OCCUPATION

 

 

 

Howard S. Marks

 

Chairman of the Board of Oaktree Capital Group, LLC and Chairman of Oaktree Capital Management, L.P.

 

 

 

Bruce A. Karsh

 

President and Director of Oaktree Capital Group, LLC and President of Oaktree Capital Management, L.P.

 

 

 

John B. Frank

 

Managing Principal and Director of Oaktree Capital Group, LLC and Managing Principal of Oaktree Capital Management, L.P.

 

 

 

David M. Kirchheimer

 

Chief Financial Officer, Chief Administrative Officer and Director of Oaktree Capital Group, LLC and Chief Financial Officer, Chief Administrative Officer and Principal of Oaktree Capital Management, L.P.

 

 

 

Sheldon M. Stone

 

Principal and Director of Oaktree Capital Group, LLC and Principal of Oaktree Capital Management, L.P.

 

 

 

Larry W. Keele

 

Principal and Director of Oaktree Capital Group, LLC and Principal of Oaktree Capital Management, L.P.

 

 

 

Stephen A. Kaplan

 

Principal and Director of Oaktree Capital Group, LLC and Principal of Oaktree Capital Management, L.P.

 

 

 

Kevin L. Clayton

 

Principal and Director of Oaktree Capital Group, LLC and Principal of Oaktree Capital Management, L.P.

 

30


EX-1 2 a11-14309_1ex1.htm EX-1

EXHIBIT 1

 

JOINT FILING AGREEMENT

 

Pursuant to Rule 13(d)-1(k)(1) promulgated under the Securities Exchange Act of 1934, as amended, each of the undersigned acknowledges and agrees that the foregoing statement on this Schedule 13D is filed on behalf of the undersigned and that all subsequent amendments to this statement on Schedule 13D shall be filed on behalf of the undersigned without the necessity of filing additional joint acquisition statements.  Each of the undersigned  acknowledges that it shall be responsible for the timely filing of such amendments, and for the completeness and accuracy of the information concerning it contained therein, but shall not be responsible for the completeness and accuracy of the information concerning the other, except to the extent that he or it knows or has reason to believe that such information is inaccurate.

 

Dated as of June 3, 2011.

 

 

 

OCM SPIRIT HOLDINGS, LLC

 

 

 

 

 

By:

Oaktree Capital Management, L.P.,

 

 

Its:

Managing Member

 

 

 

 

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Managing Director

 

 

 

 

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Senior Vice President

 

 

 

 

 

 

 

 

 

 

OCM SPIRIT HOLDINGS II, LLC

 

 

 

 

 

By:

Oaktree Capital Management, L.P.,

 

 

Its:

Managing Member

 

 

 

 

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Managing Director

 

 

 

 

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Senior Vice President

 



 

 

 

OCM PRINCIPAL OPPORTUNITIES FUND II, L.P.

 

 

 

 

 

 

By:

Oaktree Fund GP I, L.P.,

 

 

Its:

General Partner

 

 

 

 

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Authorized Signatory

 

 

 

 

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Authorized Signatory

 

 

 

 

 

 

 

 

 

 

OCM PRINCIPAL OPPORTUNITIES FUND III GP, L.P.

 

 

 

 

 

 

By:

Oaktree Fund GP I, L.P.,

 

 

Its:

General Partner

 

 

 

 

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Authorized Signatory

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Authorized Signatory

 

 

 

 

 

 

 

 

 

 

OAKTREE FUND GP I, L.P.

 

 

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Authorized Signatory

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Authorized Signatory

 

 

 

 

 

 

 

 

 

 

OAKTREE CAPITAL I, L.P.

 

 

 

 

 

By:

OCM Holdings I, LLC

 

 

Its:

General Partner

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Managing Director

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Senior Vice President

 

 

 

 

 

 

OCM HOLDINGS I, LLC

 



 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Managing Director

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Senior Vice President

 

 

 

 

 

 

 

 

 

 

OAKTREE HOLDINGS, LLC

 

 

 

 

 

 

By:

Oaktree Capital Group, LLC

 

 

Its:

Managing Member

 

 

 

 

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Managing Director & Assistant Secretary

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Senior Vice President

 

 

 

 

 

 

OCM PRINCIPAL OPPORTUNITIES FUND III, L.P.

 

 

 

 

 

 

By:

OCM Principal Opportunities Fund III GP, L.P.

 

 

Its:

General Partner

 

 

 

 

 

 

By:

Oaktree Fund GP I, L.P.

 

 

Its:

General Partner

 

 

 

 

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Authorized Signatory

 

 

 

 

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Authorized Signatory

 

 

 

 

 

 

OAKTREE CAPITAL MANAGEMENT, L.P.

 

 

 

 

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Managing Director

 

 

 

 

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Senior Vice President

 

 

 

 

 

 

OAKTREE HOLDINGS, INC.

 

 

 

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Managing Director

 



 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Senior Vice President

 

 

 

 

 

 

 

 

 

 

OAKTREE CAPITAL GROUP, LLC

 

 

 

 

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Managing Director & Assistant Secretary

 

 

 

 

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Senior Vice President

 

 

 

 

 

 

 

 

 

 

OAKTREE CAPITAL GROUP HOLDINGS, L.P.

 

 

 

 

 

 

By:

Oaktree Capital Group Holdings GP, LLC,

 

 

Its:

General Partner

 

 

 

 

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Managing Director

 

 

 

 

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Senior Vice President

 

 

 

 

 

 

 

 

 

 

OAKTREE CAPITAL GROUP HOLDINGS GP, LLC

 

 

 

 

 

 

 

 

 

 

By:

/s/ Emily Alexander

 

 

Name:

Emily Alexander

 

 

Title:

Managing Director

 

 

 

 

 

 

 

 

 

 

By:

/s/ Martin Boskovich

 

 

Name:

Martin Boskovich

 

 

Title:

Senior Vice President

 


 

EX-2 3 a11-14309_1ex2.htm EX-2

Exhibit 2

 

Spirit Airlines, Inc.

 

15,600,000 Shares
Common Stock
($0.0001 par value)

 

Underwriting Agreement

 

New York, New York
May 25, 2011

 

Citigroup Global Markets Inc.
Morgan Stanley & Co. Incorporated
As Representatives of the several Underwriters,

 

c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013

 

c/o Morgan Stanley & Co. Incorporated

1585 Broadway

New York, New York 10036

 

Ladies and Gentlemen:

 

Spirit Airlines, Inc., a corporation incorporated under the laws of Delaware (the “Company”), proposes to sell to the several underwriters named in Schedule I hereto (the “Underwriters”), for whom you (the “Representatives”) are acting as representatives,  15,600,000 shares of common stock, $0.0001 par value (“Common Stock”) of the Company (said shares to be issued and sold by the Company being hereinafter called the “Underwritten Securities”).  The persons named in Schedule II hereto (the “Selling Stockholders”) propose to grant to the Underwriters an option to purchase up to 2,300,400 shares of Common Stock to cover over-allotments, if any, in the amounts and in the manner described in Schedule II (the “Option Securities”; the Option Securities, together with the Underwritten Securities, being hereinafter called the “Securities”).  To the extent there are no additional Underwriters listed on Schedule I other than you, the term Representatives as used herein shall mean you, as Underwriters, and the terms Representatives and Underwriters shall mean either the singular or plural as the context requires.  In addition, to the extent that there is not more than one Selling Stockholder named in Schedule II, the term Selling Stockholder shall mean either the singular or plural.  The use of the neuter in this Agreement shall include the feminine and masculine wherever appropriate.  Certain terms used herein are defined in Section 20 hereof.

 



 

1.             Representations and Warranties.

 

(i)            The Company represents and warrants to, and agrees with, each Underwriter as set forth below in this Section 1.

 

(a)           The Company has prepared and filed with the Commission a registration statement (file number 333-169474) on Form S-1, including a related preliminary prospectus, for registration under the Act of the offering and sale of the Securities.  Such Registration Statement, including any amendments thereto filed prior to the Execution Time, has become effective. The Company may have filed one or more amendments thereto, including a related preliminary prospectus, each of which has previously been furnished to you.  The Company will file with the Commission a final prospectus in accordance with Rule 424(b).  As filed, such final prospectus shall contain all information required by the Act and the rules thereunder and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus) as the Company has advised you, prior to the Execution Time, will be included or made therein.

 

(b)           On the Effective Date, the Registration Statement did, and when the Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date (as defined herein) and on any date on which Option Securities are purchased, if such date is not the Closing Date (a “settlement date”), the Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Act and the rules thereunder; on the Effective Date and at the Execution Time, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date and any settlement date, the Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to the information contained in or omitted from the Registration Statement, or the Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion in the Registration Statement or the Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 8 hereof.

 

(c)           (i) The Disclosure Package and the price to the public, the number of Underwritten Securities, the number of Option Securities and the underwriting discount to be included on the cover page of the Prospectus, when taken together as a whole and (ii) each electronic road show when taken together as a whole with the Disclosure Package and the price to the public, the number of Underwritten

 

2



 

Securities, the number of Option Securities and the underwriting discount to be included on the cover page of the Prospectus, does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.  The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.

 

(d)           (i) At the time of filing the Registration Statement and (ii) as of the Execution Time (with such date being used as the determination date for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.

 

(e)           Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, including any document incorporated by reference therein that has not been superseded or modified.  The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.

 

(f)            The Company (1) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Prospectus, and (2) is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification except where the failure to be so qualified or in good standing would not reasonably be expected, individually or in the aggregate, to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, businesses or properties of the Company, whether or not arising from transactions in the ordinary course of business (a “Material Adverse Effect”).

 

(g)           There is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required (and the Preliminary Prospectus contains in all material respects the same description of the foregoing matters contained in the Prospectus); and the statements in the Preliminary Prospectus and the Prospectus under the headings “Material U.S.

 

3



 

Federal Income Tax Consequences to Non-U.S. Holders”, “Business—  Government Regulation” and “Description of Capital Stock”,  insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings.

 

(h)           This Agreement has been duly authorized, executed and delivered by the Company.

 

(i)            All the outstanding shares of capital stock have been duly and validly authorized and issued and are fully paid and nonassessable.

 

(j)            The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended.

 

(k)           The Securities have been approved for listing on the Nasdaq Global Select Market, subject to notice of issuance.

 

(l)            No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except (i) filing with the Secretary of State of Delaware one or more Amended and Restated Certificates of Incorporation of the Company as part of the 2011 Recapitalization described in the Disclosure Package and the Prospectus, (ii) such as have been obtained under the Act and (iii) such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Disclosure Package and the Prospectus.

 

(m)          Neither the issue and sale of the Securities nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to, (i) the charter or by-laws of the Company, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its properties, except, in the case of clauses (ii) and (iii), a conflict, breach,  violation or imposition that would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect or a material adverse effect on the consummation of the transactions contemplated hereby.

 

4



 

(n)           No holders of securities of the Company have rights to the registration of such securities under the Registration Statement that have not been previously waived.

 

(o)           The consolidated historical financial statements and schedules of the Company included in the Preliminary Prospectus, the Prospectus and the Registration Statement present fairly in all material respects the financial condition, results of operations and cash flows of the Company as of the dates and for the periods indicated, comply as to form in all material respects with the applicable accounting requirements of the Act and have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis throughout the periods involved (except as otherwise noted therein).  The pro forma financial statements included in the Preliminary Prospectus, the Prospectus and the Registration Statement include assumptions that provide a reasonable basis for presenting the significant effects directly attributable to the transactions and events described therein, the related pro forma adjustments give appropriate effect to those assumptions, and the pro forma adjustments reflect the proper application of those adjustments to the historical financial statement amounts in the pro forma financial statements included in the Preliminary Prospectus, the Prospectus and the Registration Statement.  The pro forma financial statements included in the Preliminary Prospectus, the Prospectus and the Registration Statement comply as to form in all material respects with the applicable accounting requirements of Regulation S-X under the Act.

 

(p)           No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or its property is pending or, to the best knowledge of the Company, threatened that could reasonably be expected to have a Material Adverse Effect or a material adverse effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby , except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).

 

(q)           The Company owns, leases or licenses or has the right to use all such properties as are necessary to the conduct of its operations as presently conducted.

 

(r)            The Company is not in violation or default of (i) any provision of its charter or bylaws, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its properties, as applicable, which violation or default, in the case of clauses (ii) and (iii), would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.

 

5



 

(s)           Ernst & Young LLP, who have certified certain financial statements of the Company and delivered their report with respect to the audited consolidated financial statements and schedules included in the Disclosure Package and the Prospectus, are independent public accountants with respect to the Company within the meaning of the Act and the applicable published rules and regulations thereunder.

 

(t)            There are no transfer taxes or other similar fees or charges under Federal law or the laws of any state, or any political subdivision thereof, required to be paid in connection with the execution and delivery of this Agreement or the issuance by the Company or sale by the Company of the Securities.

 

(u)           The Company has filed all tax returns that are required to be filed or has requested extensions thereof (except in any case in which the failure so to file would not have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto)) and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith and for which the Company has set aside on its books adequate reserves with respect thereto in conformity with GAAP or as would not have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).

 

(v)           No labor problem or dispute with the employees of the Company exists or is threatened or, to the Company’s knowledge, imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its principal suppliers, contractors or customers, that could have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).

 

(w)          The Company is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which it is engaged, including war risk insurance on its aircraft under the FAA’s insurance program authorized under 49 U.S.C. § 44301 et seq.; all policies of insurance and fidelity or surety bonds insuring the Company or its businesses, assets, employees, officers and directors are in full force and effect; the Company is in compliance with the terms of such policies and instruments in all material respects; and there are no claims by the Company under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; the Company has not been refused any insurance coverage sought or applied for; and the Company has no reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect, except as set forth in or

 

6



 

contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).

 

(x)            The Company possesses all licenses, certificates, permits and other authorizations issued by all applicable authorities, including the Department of Transportation, the Federal Aviation Administration and the Federal Communications Commission, necessary to conduct its business and the Company has not received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).

 

(y)           The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.  Except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), since the end of the Company’s most recent audited fiscal year, there has been (i) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.

 

(z)            The Company maintains “disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) under the Exchange Act); such disclosure controls and procedures are effective at the reasonable assurance level.

 

(aa)         The Company has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.

 

(bb)         The Company is (i) in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) has received and is in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct its business and (iii) has not received notice of any actual or potential liability under any environmental law,

 

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except where such non-compliance with Environmental Laws, failure to receive required permits, licenses or other approvals, or liability would not, individually or in the aggregate, have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).  Except as set forth in the Disclosure Package and the Prospectus, the Company has not been named as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended.

 

(cc)         In the ordinary course of its business, the Company periodically reviews the effect of Environmental Laws on the business, operations and properties of the Company, in the course of which it identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties).  On the basis of such review, the Company has reasonably concluded that such associated costs and liabilities would not, singly or in the aggregate, have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).

 

(dd)         None of the following events has occurred or exists:  (i) a failure to fulfill the obligations, if any, under the minimum funding standards of Section 302 of the United States Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and the regulations and published interpretations thereunder with respect to a Plan, determined without regard to any waiver of such obligations or extension of any amortization period; (ii) an audit or investigation by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other federal or state governmental agency or any foreign regulatory agency with respect to the employment or compensation of employees by the Company that could have a Material Adverse Effect; (iii) any breach of any contractual obligation, or any violation of law or applicable qualification standards, with respect to the employment or compensation of employees by the Company that could have a Material Adverse Effect.  None of the following events has occurred or is reasonably likely to occur:  (i) a material increase in the aggregate amount of contributions required to be made to all Plans in the current fiscal year of the Company compared to the amount of such contributions made in the most recently completed fiscal year of the Company; (ii) a material increase in the “accumulated post-retirement benefit obligations” (within the meaning of Statement of Financial Accounting Standards 106) of the Company compared to the amount of such obligations in the most recently completed fiscal year of the Company; (iii) any event or condition giving rise to a liability under Title IV of ERISA that could have a Material Adverse Effect; or (iv) the filing of a claim by one or more employees or former employees of the Company related to their employment that could have a Material Adverse Effect.  For purposes of this paragraph, the term “Plan” means a plan (within the meaning

 

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of Section 3(3) of ERISA) subject to Title IV of ERISA with respect to which the Company may have any liability.

 

(ee)         There is and has been no failure on the part of the Company and any of the Company’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”) that are effective and applicable to the Company as of the date hereof, including Section 402 relating to loans.  The Company presently expects to be in compliance with all additional provisions of the Sarbanes-Oxley Act that will become applicable to it, including those provisions relating to internal controls over financial reporting, when such provisions become applicable to the Company.

 

(ff)           Neither the Company nor any director, officer, employee or affiliate of the Company, nor, to the Company’s knowledge, any agent or representative of the Company or of any of its affiliates, has taken or will take any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA; and the Company and its affiliates have conducted their businesses in compliance with the FCPA and other applicable anti-corruption laws and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.

 

(gg)         The operations of the Company are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements and the anti-money laundering statutes of jurisdictions where the Company conducts business and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.

 

(hh)         The Company represents that neither the Company nor any director or officer of the Company nor, to the knowledge of the Company, any agent, employee or affiliate of the Company is an individual or entity (“Person”) that is, or is owned or controlled by a Person that is (i) currently subject to any sanctions administered by the Office of Foreign Assets Control of the U.S.

 

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Treasury Department (“OFAC”) or (ii) located, organized or resident in a country or territory that is the subject of sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran, North Korea, Sudan and Syria) and the Company will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any joint venture partner or other Person to fund or facilitate any activities of any Person currently subject to any U.S. sanctions administered by OFAC or in any other manner that will result in a violation of such sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise). The Company represents that for the past 5 years, it has not knowingly engaged in and is not now knowingly engaged in any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of sanctions.

 

(ii)           The Company owns, possesses, licenses or has other rights to use, on reasonable terms, all patents, patent applications, trade and service marks, trade and service mark registrations, trade names, copyrights, licenses, inventions, trade secrets, technology, know-how and other intellectual property (collectively, the “Intellectual Property”) necessary for the conduct of the Company’s business as now conducted or as proposed in the Prospectus to be conducted except where the failure to own or possess or otherwise be able to acquire such Intellectual Property would not, individually or in the aggregate, have a Material Adverse Effect.  To the Company’s knowledge, (i) there is no material infringement by third parties of any such Intellectual Property; (ii) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the Company’s rights in or to any such Intellectual Property; (iii) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the validity or scope of any such Intellectual Property; and (iv) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others that the Company infringes or otherwise violates any patent, trademark, copyright, trade secret or other proprietary rights of others; except for the foregoing items set forth in clauses (i) through (iv) of this subparagraph, which would not, individually or in the aggregate, have a Material Adverse Effect.

 

(jj)           The Company (i) is an “air carrier” within the meaning of 49 U.S.C. Section 40102(a); (ii) holds an air carrier operating certificate issued by the Secretary of Transportation pursuant to Chapter 447 of Title 49 of the United States Code for aircraft capable of carrying 10 or more individuals or 6,000 pounds or more of cargo; and (iii) is a “citizen of the United States” as defined in 49 U.S.C. Section 40102.

 

Any certificate signed by any officer of the Company on its behalf and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.

 

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(ii)           Each Selling Stockholder, severally and not jointly, as to itself represents and warrants to, and agrees with, the Underwriters and the Company that:

 

(a)           Such Selling Stockholder is the record and beneficial owner of the Securities to be sold by it hereunder free and clear of all liens, encumbrances, equities and claims and has duly endorsed such Securities in blank, and has full power and authority to sell its interest in the Securities, and, assuming that each Underwriter acquires its interest in the Securities it has purchased from such Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (“UCC”)), each Underwriter that has purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Securities.

 

(b)           Such Selling Stockholder has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.

 

(c)           Certificates in negotiable form for all of the Option Securities to be sold by such Selling Stockholder hereunder have been placed in custody, for delivery pursuant to the terms of this Agreement, under a Custody Agreement and Power of Attorney duly authorized (if applicable), executed and delivered by such Selling Stockholder, in the form heretofore furnished to you (the “Custody Agreement”) with Wells Fargo Shareholder Services, as Custodian (the “Custodian”); the Option Securities represented by the certificates so held in custody for each Selling Stockholder are subject to the interests hereunder of the Underwriters; the arrangements for custody and delivery of such certificates, made by such Selling Stockholder hereunder and under the Custody Agreement, are not subject to termination by any acts of such Selling Stockholder, or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event; and if any such death, incapacity or any other such event shall occur before the delivery of such Option Securities hereunder, certificates for the Option Securities will be delivered by the Custodian in accordance with the terms and conditions of this Agreement and the Custody Agreement as if such death, incapacity or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity or other event.

 

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(d)           No consent, approval, authorization, filing or order of any court or governmental agency or body is required for the consummation by such Selling Stockholder of the transactions contemplated herein, except (i) such as may have been obtained under the Act or under the blue sky laws of any jurisdiction or the approval by FINRA of the underwriting terms and arrangements in connection with the purchase and distribution of the Option Securities by the Underwriters, (ii) filing with the Secretary of State of Delaware one or more Amended and Restated Certificates of Incorporation of the Company as part of the 2011 Recapitalization described in the Disclosure Package and the Prospectus,  and (iii) such other approvals as have been obtained.

 

(e)           Neither the sale of the Option Securities being sold by such Selling Stockholder nor the consummation of any other of the transactions herein contemplated by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the organizational documents of such Selling Stockholder or the terms of any indenture or other agreement or instrument to which such Selling Stockholder or any of its subsidiaries, if any, is a party or bound, or any judgment, order or decree applicable to such Selling Stockholder or any of its subsidiaries, if any, of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over such Selling Stockholder or any of its subsidiaries, if any.

 

(f)            The sale of Securities by such Selling Stockholder pursuant hereto is not prompted by any information concerning the Company or any of its subsidiaries which is not set forth in the Disclosure Package and the Prospectus.

 

(g)           In respect of any statements in or omissions from the Registration Statement, the Prospectus, any Preliminary Prospectus or any Free Writing Prospectus or any amendment or supplement thereto used by the Company or any Underwriter, as the case may be, made in reliance upon and in conformity with information furnished in writing to the Company by any Selling Stockholder specifically for use in connection with the preparation thereof, such Selling Stockholder hereby makes the same representations and warranties to each Underwriter as the Company makes to such Underwriter under paragraphs (i)(b), (i)(c) and (i)(e) of this Section 1.

 

Any certificate signed by any officer of any Selling Stockholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Option Securities shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.

 

2.             Purchase and Sale.  (a)  Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at a purchase price of $11.28 per share,

 

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the amount of the Underwritten Securities set forth opposite such Underwriter’s name in Schedule I hereto.

 

(b)           Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Selling Stockholders hereby grant an option to the several Underwriters to purchase, severally and not jointly, up to 2,340,000 Option Securities at the same purchase price per share as the Underwriters shall pay for the Underwritten Securities.  Said option may be exercised only to cover over-allotments in the sale of the Underwritten Securities by the Underwriters.  Said option may be exercised in whole or in part at any time  or from time to time on or before the 30th day after the date of the Prospectus upon written or telegraphic notice by the Representatives to the Company and the Selling Stockholders setting forth the number of shares of the Option Securities as to which the several Underwriters are exercising the option and the settlement date. The amount of Option Securities each Selling Stockholder agrees to sell to the Underwriters pursuant hereto is set forth in Schedule II hereto.  In the event that the Underwriters exercise less than their full over-allotment option, the number of Option Securities to be sold by each Selling Stockholder shall be as set forth in the manner described in Schedule II hereto.  The number of Option Securities to be purchased by each Underwriter shall be the same percentage of the total number of shares of the Option Securities to be purchased by the several Underwriters as such Underwriter is purchasing of the Underwritten Securities, subject to such adjustments as you in your absolute discretion shall make to eliminate any fractional shares.

 

3.             Delivery and Payment.  Delivery of and payment for the Underwritten Securities and the Option Securities (if the option provided for in Section 2(b) hereof shall have been exercised on or before the third Business Day immediately preceding the Closing Date) shall be made at 10:00 AM, New York City time, on  June 1, 2011, or at such time on such later date not more than three Business Days after the foregoing date as the Representatives shall designate, which date and time may be postponed by agreement between the Representatives and the Company, with respect to the Underwritten Securities, or among the Representatives, the Company and the Selling Stockholders, with respect to the Option Securities, or as provided in Section 9 hereof (such date and time of delivery and payment for the Securities being herein called the “Closing Date”).  Delivery of the Securities shall be made to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the respective aggregate purchase prices of the Securities being sold by the Company and each of the Selling Stockholders to or upon the order of the Company  and the Selling Stockholders by wire transfer payable in same-day funds to the accounts specified by the Company.  Delivery of the Underwritten Securities and the Option Securities shall be made through the facilities of The Depository Trust Company unless the Representatives shall otherwise instruct.

 

Each Selling Stockholder will pay all applicable state transfer taxes, if any, involved in the transfer to the several Underwriters of the Option Securities to be

 

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purchased by them from such Selling Stockholder and the respective Underwriters will pay any additional stock transfer taxes involved in further transfers.

 

If the option provided for in Section 2(b) hereof is exercised after the third Business Day immediately preceding the Closing Date, the Selling Stockholders named in Schedule II hereto will deliver in accordance with Schedule II hereto the Option Securities (at the expense of the Company) to the Representatives, at 1585 Broadway, New York, New York, on the date specified by the Representatives (which shall be within three Business Days after exercise of said option) for the respective accounts of the several Underwriters, against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Selling Stockholders by wire transfer payable in same-day funds to an account specified by the Selling Stockholders. If settlement for the Option Securities occurs after the Closing Date, the Company and the Selling Stockholders will deliver to the Representatives on the settlement date for the Option Securities, and the obligation of the Underwriters to purchase the Option Securities shall be conditioned upon receipt of, supplemental opinions, certificates and letters confirming as of such date the opinions, certificates and letters delivered on the Closing Date pursuant to Section 6 hereof.

 

4.             Offering by Underwriters.  It is understood that the several Underwriters propose to offer the Securities for sale to the public as set forth in the Prospectus.

 

5.             Agreements.

 

(i)            The Company agrees with the several Underwriters that:

 

(a)           Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. The Company will cause the Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing.  The Company will promptly advise the Representatives (1) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Prospectus or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that

 

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purpose and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose.  The Company will use its reasonable best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable.

 

(b)           If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, the Company will (1) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (2) amend or supplement the Disclosure Package to correct such statement or omission; and (3) supply any amendment or supplement to you in such quantities as you may reasonably request.

 

(c)           If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, the Company promptly will (1) notify the Representatives of any such event; (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance; and (3) supply any supplemented Prospectus to you in such quantities as you may reasonably request.

 

(d)           As soon as practicable, but not later than the Availability Date (as defined below), the Company will make generally available to its security holders an earnings statement covering a period of at least 12 months beginning after the Effective Date of the Registration Statement that will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.  For the purpose of the preceding sentence, “Availability Date” means the day after the end of the fourth fiscal quarter following the fiscal quarter that includes such Effective Time on which the Company is required to file its Form 10-Q for such fiscal quarter except that, if such fourth fiscal quarter is the last quarter of the Company’s fiscal year, “Availability Date” means the day after the end of such fourth fiscal quarter on which the Company is required to file its Form 10-K.

 

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(e)           The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request.  The Company will pay the expenses of printing or other production of all documents relating to the offering.

 

(f)            The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to taxation in excess of a nominal amount or to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.

 

(g)           The Company will not, without the prior written consent of Citigroup Global Markets Inc. and Morgan Stanley & Co. Incorporated, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to effect any such transaction, for a period of 180 days after the date of the Underwriting Agreement, provided, however, that the Company may issue and sell Common Stock, or securities convertible into or exercisable or exchangeable for shares of Common Stock, pursuant to any compensatory stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion of securities outstanding at the Execution Time or as disclosed in the Prospectus. Notwithstanding the foregoing, if (x) during the last 17 days of the 180-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs, or (y) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day period,

 

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the restrictions imposed in this clause shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless otherwise waived by Citigroup Global Markets Inc. and Morgan Stanley & Co. Incorporated.  The Company will provide the Representatives and each individual subject to the restricted period pursuant to the lock-up letter described in Section 6(m) with prior notice of any such announcement that gives rise to an extension of the restricted period.

 

(h)           The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.

 

(i)            The Company agrees to file the Amended and Restated Certificate of Incorporation as part of the 2011 Recapitalization described in the Disclosure Package and the Prospectus with the Secretary of the State of Delaware on the Closing Date for the Underwritten Securities.

 

(j)            The Company will use the net proceeds received by it in connection with the offering in the manner described in the “Use of Proceeds” section of the Disclosure Package and, except as disclosed in the Disclosure Package, the Company does not intend to use any of the proceeds from the sale of the Underwritten Securities hereunder to repay any outstanding debt known by it to be owed to any affiliate of any Underwriter.

 

(k)           The Company agrees to pay the costs and expenses relating to the following matters:  (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the [Nasdaq Global Select Market]; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for

 

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the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company and the Selling Stockholders; and (x) all other costs and expenses incident to the performance by the Company and the Selling Stockholders of their obligations hereunder.  If the transactions contemplated herein are consummated, the Representatives agree to pay (1) to the Company, $0.06 per share of the Underwritten Securities with respect to reimbursement of the total documented out-of-pocket expenses incurred by the Company in connection with the Offering and (2) to each Selling Stockholder, $0.06 per share of the Option Securities sold by such Selling Stockholder with respect to reimbursement of the expenses incurred by such Selling Stockholder in connection with the Offering. If the transactions contemplated herein are not consummated, no amounts shall be payable by the Representatives pursuant to this paragraph.

 

(l)            The Company agrees that, unless it has or shall have obtained the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto.  Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.”  The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.

 

(ii)           Each Selling Stockholder agrees with the several Underwriters that:

 

(a)           Such Selling Stockholder will not, without the prior written consent of Citigroup Global Markets Inc. and Morgan Stanley & Co. Incorporated, offer, sell, contract to sell, pledge or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Selling Stockholder or any

 

18



 

affiliate of the Selling Stockholder or any person in privity with the Selling Stockholder or any affiliate of the Selling Stockholder) directly or indirectly, or file (or participate in the filing of) a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period of 180 days after the date of this Agreement.  The restrictions contained in the preceding sentence shall not apply as provided on Exhibit A.  Notwithstanding the foregoing, if (x) during the last 17 days of the 180-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs, or (y) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day period, the restrictions imposed in this clause shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless otherwise waived by Citigroup Global Markets Inc. and Morgan Stanley & Co. Incorporated.

 

(b)           Such Selling Stockholder agrees that, unless Citigroup Global Markets Inc. and Morgan Stanley & Co. Incorporated waive the restricted period applicable to its securities as described in (a) above, it will not waive the restricted period applicable to the securities owned by other stockholders of the Company that are subject to the lock-up agreement contained in the Recapitalization Agreement dated September 17, 2010 between the Company, each Selling Stockholder and such other stockholders of the Company.

 

(c)           Such Selling Stockholder will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.

 

(d)           Such Selling Stockholder will advise you promptly, and if requested by you, will confirm such advice in writing, so long as delivery of a prospectus relating to the Securities by an underwriter or dealer may be required under the Act, of any change in information in the Registration Statement, the Prospectus any Preliminary Prospectus or any Free Writing Prospectus or any amendment or supplement thereto relating to such Selling Stockholder.

 

(e)           Such Selling Stockholder represents that it has not prepared or had prepared on its behalf or used or referred to, and agrees that it will not prepare or have prepared on its behalf or use or refer to, any Free Writing Prospectus, and has not distributed and will not distribute any written materials in connection with the offer or sale of the Option Securities.

 

19



 

6.             Conditions to the Obligations of the Underwriters.  The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of their respective obligations hereunder and to the following additional conditions:

 

(a)           The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.

 

(b)           The Company shall have requested and caused Latham & Watkins LLP, counsel for the Company, to have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, as set forth in Exhibit B.

 

(c)           The Company shall have requested and caused Kirstein & Young, PLLC, regulatory counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives as set forth in Exhibit C.

 

(d)           The Selling Stockholders shall have requested and caused Latham & Watkins LLP, counsel for Indigo Miramar LLC, Walkers, counsel for Indigo Florida L.P. and Milbank, Tweed, Hadley & McCloy LLP, counsel for OCM Spirit Holdings, LLC, OCM Spirit Holdings II, LLC and POF Spirit Foreign Holdings, LLC to have furnished to the Representatives their opinions, dated the settlement date for the Option Securities and addressed to the Representatives as set forth in Exhibit D.

 

(e)           The Representatives shall have received from Cleary Gottlieb Steen & Hamilton LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.

 

(f)            The Company shall have furnished to the Representatives a certificate of the Company, executed on its behalf by the Chairman of the Board

 

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or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that:

 

(i)            the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;

 

(ii)           no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and

 

(iii)          since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).

 

(g)           Each Selling Stockholder shall have furnished to the Representatives a certificate, signed by the Chairman of the Board or the President and the principal financial or accounting officer of such Selling Stockholder, dated the settlement date of the Option Securities, to the effect that the representations and warranties of such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the settlement date of the Option Securities and that the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such settlement date.

 

(h)           The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representatives at the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, to the effect set forth in Exhibit E.

 

(i)            Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (h) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred

 

21



 

to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).

 

(j)            Prior to the Closing Date, the Company and the Selling Stockholders shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.

 

(k)           The Securities shall have been listed and admitted and authorized for trading on the Nasdaq Global Select Market, and satisfactory evidence of such actions shall have been provided to the Representatives.

 

(l) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company and each Selling Stockholder addressed to the Representatives.

 

If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives.  Notice of such cancellation shall be given to the Company and each Selling Stockholder in writing or by telephone or facsimile confirmed in writing.

 

The documents required to be delivered by this Section 6 shall be delivered at the office of Cleary Gottlieb Steen & Hamilton LLP, counsel for the Underwriters, at One Liberty Plaza, New York, New York 10006, on the Closing Date.

 

7.             Reimbursement of Underwriters’ Expenses.  If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any refusal, inability or failure on the part of the Company or any Selling Stockholder to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company and the Selling Stockholders will reimburse the Underwriters severally through Citigroup Global Markets Inc. and Morgan Stanley & Co. Incorporated on demand for all out of pocket expenses (including reasonable fees and disbursements of counsel) that shall have been reasonably incurred by them in connection with the proposed purchase and sale of the Securities.  If the Company is required to make any payments to the Underwriters under this Section 7 because of any Selling Stockholder’s refusal, inability or failure to satisfy any condition to the obligations of the Underwriters set forth in Section 6, the Selling Stockholders pro rata in proportion to the percentage of Securities to be sold by each shall reimburse the Company on demand for all amounts so paid.  If this Agreement is terminated pursuant to

 

22



 

Section 9 by reason of the default of one or more Underwriters, neither the Company nor any Selling Stockholder shall be obligated to reimburse any defaulting Underwriter on account of those expenses.

 

8.             Indemnification and Contribution.  (a)  The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and agents of each Underwriter, each person who controls any Underwriter within the meaning of either the Act or the Exchange Act, and each affiliate of any Underwriter within the meaning of the Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon  any untrue statement or alleged untrue statement of a material fact contained in the registration statement for the registration of the Securities as originally filed or in any amendment thereof, or in any Preliminary Prospectus, the Prospectus, or any Issuer Free Writing Prospectus or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion therein.  This indemnity agreement will be in addition to any liability which the Company may otherwise have.

 

(b)           Each Selling Stockholder severally agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and agents of each Underwriter and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act and each other Selling Stockholder, if any, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information furnished to the Company by or on behalf of such Selling Stockholder specifically for inclusion in the documents referred to in the foregoing indemnity.  The liability of each Selling Stockholder under such Selling Stockholder’s representations and warranties contained in Section 1 hereof and under the indemnity and contribution agreements contained in this Section 8 shall be limited to an amount equal to the total net proceeds (after deducting underwriters’ discounts and commissions but before deducting expenses) from the sale of the Option Securities by such Selling Stockholder to the Underwriters pursuant to this Agreement at the initial public offering price as set forth in the table on the cover page of the Prospectus.  The  Company and the Selling Stockholders may agree, as among themselves and

 

23



 

without limiting the rights of the Underwriters under this Agreement, as to the respective amounts of such liability for which they each shall be responsible.  This indemnity agreement will be in addition to any liability which any Selling Stockholder may otherwise have.

 

(c)           Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company and each Selling Stockholder, each of its directors, each of its officers who signs the Registration Statement, and each person who controls the Company or such Selling Stockholder within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in the foregoing indemnity.  This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have.  The Company and each Selling Stockholder acknowledges that the statements set forth (i) in the last paragraph of the cover page regarding delivery of the Securities and, under the heading “Underwriting”, (ii) the list of Underwriters and their respective participation in the sale of the Securities, (iii) the sentences related to concessions and reallowances and (iv) the paragraph related to stabilization, syndicate covering transactions and penalty bids in the Preliminary Prospectus and the Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus.

 

(d)           Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a), (b) or (c) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a), (b) or (c) above.  The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party.  Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the

 

24



 

indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party.  An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.

 

(e)           In the event that the indemnity provided in paragraph (a),  (b), (c) or (d) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party  for any reason, then each indemnifying party shall contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the same) (collectively “Losses”) to which the Company, the Selling Stockholders and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company and the Selling Stockholders, on the one hand, and by the Underwriters, on the other, from the offering of the Securities; provided, however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder.  If the allocation provided by the immediately preceding sentence is unavailable for any reason, then each indemnifying party shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Selling Stockholders, on the one hand, and of the Underwriters, on the other, in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations.  Benefits received by the Company and the Selling Stockholders shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by them, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information

 

25



 

provided by the Company or the Selling Stockholders, on the one hand, or the Underwriters, on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission.  The Company, the Selling Stockholders and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above.  Notwithstanding the provisions of this paragraph (e), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.  For purposes of this Section 8, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act and each affiliate, director, officer, employee and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (e).

 

9.             Default by an Underwriter.  If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the amount of Securities set forth opposite their names in Schedule I hereto bears to the aggregate amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate amount of Securities set forth in Schedule I hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter, the Selling Stockholders or the Company.  In the event of a default by any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representatives shall determine in order that the required changes in the Registration Statement and the Prospectus or in any other documents or arrangements may be effected.  Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company, the Selling Stockholders or any nondefaulting Underwriter for damages occasioned by its default hereunder.

 

10.           Termination.  This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Company prior to delivery of and payment for the Securities, if at any time prior to such delivery and payment (i) trading in the Company’s Common Stock shall have been suspended by the

 

26



 

Commission or the Nasdaq Global Select Market or trading in securities generally on the New York Stock Exchange or the American Stock Exchange shall have been suspended or limited or minimum prices shall have been established on any of such exchanges, (ii) a banking moratorium shall have been declared either by Federal or New York State authorities or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Preliminary Prospectus or the Prospectus (exclusive of any amendment or supplement thereto).

 

11.           Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers, of each Selling Stockholder and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of the officers, directors, employees, agents or controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for the Securities.  The provisions of Sections 7 and 8 hereof shall survive the termination or cancellation of this Agreement.

 

12.           Notices.  All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to (a) the Citigroup Global Markets Inc. General Counsel (fax no.: (212) 816-7912) and confirmed to the General Counsel, Citigroup Global Markets Inc., at 388 Greenwich Street, New York, New York, 10013, Attention: General Counsel; (b) Morgan Stanley & Co. Incorporated, Attention: Equity Syndicate Desk fax no.: (212) 507 - 4075 and confirmed to the Legal Department, Morgan Stanley & Co. Incorporated, at 1585 Broadway, New York, New York 10036, Attention: General Counsel; or (c) if sent to the Company, will be mailed, delivered or telefaxed to (954) 447-7854 and confirmed to it at Spirit Airlines, Inc., 2800 Executive Way, Miramar, Florida, 33025, Attention:  Thomas Canfield, General Counsel; or if sent to any Selling Stockholder, will be mailed, delivered or telefaxed and confirmed to it at the address set forth in Schedule II hereto.

 

13.           Successors.  This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors, employees, agents and controlling persons referred to in Section 8 hereof, and no other person will have any right or obligation hereunder.

 

14.           No fiduciary duty.  The Company and each Selling Stockholder hereby acknowledges that (a) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company or Selling Stockholder, on the one hand, and the Underwriters and any affiliate through which it may be acting, on the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the Company or any Selling Stockholder and (c) the Company’s engagement of the Underwriters in connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore, the Company and each Selling Stockholder agrees that it is solely

 

27



 

responsible for making its own judgments in connection with the offering (irrespective of whether any of the Underwriters has advised or is currently advising the Company or any Selling Stockholder on related or other matters).  The Company and each Selling Stockholder agrees that it will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company or such Selling Stockholder, as the case may be, in connection with such transaction or the process leading thereto.

 

15.           Integration.  This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company, the Selling Stockholders and the Underwriters, or any of them, with respect to the subject matter hereof.

 

16.           Applicable Law.  This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.

 

17.           Waiver of Jury Trial.  The Company and each Selling Stockholder hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.

 

18.           Counterparts.  This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.

 

19.           Headings.  The section headings used herein are for convenience only and shall not affect the construction hereof.

 

20.           Definitions.  The terms that follow, when used in this Agreement, shall have the meanings indicated.

 

“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.

 

“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.

 

“Commission” shall mean the Securities and Exchange Commission.

 

“Disclosure Package” shall mean (i) the Preliminary Prospectus that is generally distributed to investors and used to offer the Securities, (ii) the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto, and (iii) any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package.

 

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“Effective Date” shall mean each date and time that the Registration Statement, any post-effective amendment or amendments thereto and any Rule 462(b) Registration Statement became or becomes effective.

 

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.

 

“Execution Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.

 

“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.

 

“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.

 

“Preliminary Prospectus” shall mean any preliminary prospectus referred to in paragraph 1(i)(a) above and any preliminary prospectus included in the Registration Statement at the Effective Date that omits Rule 430A Information.

 

“Prospectus” shall mean the prospectus relating to the Securities that is first filed pursuant to Rule 424(b) after the Execution Time.

 

“Registration Statement” shall mean the registration statement referred to in paragraph 1(a) above, including exhibits and financial statements and any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430A, as amended at the Execution Time and, in the event any post-effective amendment thereto or any Rule 462(b) Registration Statement becomes effective prior to the Closing Date, shall also mean such registration statement as so amended or such Rule 462(b) Registration Statement, as the case may be.

 

“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”, “Rule 430A” and “Rule 433” refer to such rules under the Act.

 

“Rule 430A Information” shall mean information with respect to the Securities and the offering thereof permitted to be omitted from the Registration Statement when it becomes effective pursuant to Rule 430A.

 

“Rule 462(b) Registration Statement” shall mean a registration statement and any amendments thereto filed pursuant to Rule 462(b) relating to the offering covered by the registration statement referred to in Section 1(a) hereof.

 

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If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company, the Selling Stockholder(s) and the several Underwriters.

 

 

 

Very truly yours,

 

 

 

 

 

Spirit Airlines, Inc.

 

 

 

 

 

 

By:

/s/ Thomas C. Canfield

 

 

 

Name: Thomas C. Canfield

 

 

 

Title: SVP, General Counsel & Secretary

 

 

 

 

 

 

 

 

 

 

INDIGO FLORIDA, L.P., a Cayman Islands exempted limited partnership

 

 

 

 

 

 

 

 

 

 

By:

INDIGO PACIFIC MANAGEMENT LP,

 

 

 

A Cayman Islands exempted limited partnership, its general partner

 

 

 

 

 

 

By:

INDIGO PACIFIC CAPITAL LLC,

 

 

 

a Delaware limited liability company, its general partner

 

 

 

 

 

 

 

 

 

 

By:

/s/ Thomas C. Canfield

 

 

 

Name: Thomas C. Canfield

 

 

 

Its: Attorney-in-Fact

 

 

 

 

 

 

 

 

 

 

INDIGO MIRAMAR LLC, a Delaware limited liability company

 

 

 

 

 

 

By:

INDIGO MANAGEMENT LLC, a Delaware limited liability company, its manager

 

 

 

 

 

 

 

 

 

 

By:

/s/ Thomas C. Canfield

 

 

 

Name: Thomas C. Canfield

 

 

 

Its: Attorney-in-Fact

 

30



 

 

 

OCM SPIRIT HOLDINGS II, LLC

 

 

 

 

 

 

By:

/s/ Thomas C. Canfield

 

 

 

Name: Thomas C. Canfield

 

 

 

Its: Attorney-in-Fact

 

31



 

The foregoing Agreement is hereby confirmed and accepted as of the date first above written.

 

 

 

Citigroup Global Markets Inc.

 

Morgan Stanley & Co. Incorporated

 

 

 

By:

Citigroup Global Markets Inc.

 

 

 

By:

/s/ Alex Setnessi

 

 

Name: Alex Setnessi

 

 

Title: Vice President

 

 

 

 

 

 

 

By:

Morgan Stanley & Co. Incorporated

 

 

 

 

By:

/s/ Kenneth Pott

 

 

Name: Kenneth Pott

 

 

Title: Managing Director

 

 

 

 

For themselves and the other several Underwriters named in Schedule I to the foregoing Agreement.

 

 

32


EX-3 4 a11-14309_1ex3.htm EX-3

Exhibit 3

 

RECAPITALIZATION AGREEMENT

 

by and among

 

SPIRIT AIRLINES, INC.,

 

POF SPIRIT FOREIGN HOLDINGS,

 

OCM PRINCIPAL OPPORTUNITIES FUND II, L.P.

 

OCM PRINCIPAL OPPORTUNITIES FUND III, L.P.

 

OCM SPIRIT HOLDINGS, LLC,

 

OCM SPIRIT HOLDINGS II, LLC,

 

OCM SPIRIT HOLDINGS III, LLC,

 

OCM SPIRIT HOLDINGS III-A, LLC,

 

INDIGO FLORIDA L.P.,

 

INDIGO MIRAMAR LLC,

 

INDIGO PARTNERS LLC,

 

JACOB SCHORR,

 

JULIANNE B. SCHORR,

 

THE DAVID B. SCHORR TRUST U/T/A DATED DECEMBER 31, 1977,

 

THE DINA L. SCHORR TRUST U/T/A DATED JULY 1, 1980,

 

THE ELLIOTT A. SCHORR TRUST U/T/A DATED DECEMBER 31, 1977,

 

THE RAPHAEL A. SCHORR TRUST U/T/A DATED DECEMBER 31, 1977,

 

TAURUS INVESTMENT PARTNERS LLC,

 

EDWARD HOMFELD,

 

HOMFELD II, LLC,

 

MARK KAHAN 2005 IRREVOCABLE TRUST F/B/O ELIYAHU MOSHE KAHAN

 

AND

 

MARK KAHAN

 

Dated as of September 17, 2010

 



 

TABLE OF CONTENTS

 

 

 

Page

SECTION 1 DEFINITIONS

3

Section 1.1

Defined Terms

3

Section 1.2

Interpretation

7

SECTION 2 RECAPITALIZATION

8

Section 2.1

Expenses of the Initial Public Offering

8

Section 2.2

Termination of Professional Services Agreement

8

Section 2.3

Individual Noteholders Fee

8

Section 2.4

Proceeds to the Company

8

Section 2.5

Repayment of Notes and Redemption of Preferred Stock

9

Section 2.6

Exchange of Remaining Notes and Preferred Stock

10

Section 2.7

Tax Receivable Agreement

11

Section 2.8

Investors Rights Agreement

11

Section 2.9

Termination of Security Agreement

12

Section 2.10

Regulatory Matters

13

SECTION 3 CERTIFICATE OF INCORPORATION; VOTING AND COOPERATION; PROXY AND LOCK-UP

13

Section 3.1

Amendment to Certificate of Incorporation

13

Section 3.2

Voting and Cooperation

13

Section 3.3

Proxy

13

Section 3.4

Lock-up Agreement

13

SECTION 4 REPRESENTATIONS AND WARRANTIES

14

Section 4.1

Representations and Warranties of the Company

14

Section 4.2

Representations and Warranties of the Equityholders

14

SECTION 5 MISCELLANEOUS

16

Section 5.1

Waivers and Amendments

16

Section 5.2

Notices

16

Section 5.3

Governing Law; Submission to Process

18

Section 5.4

Waiver of Jury Trial, Punitive Damages, Etc.

18

Section 5.5

Entire Agreement

18

Section 5.6

Assignment; Successors and Assigns

19

Section 5.7

Counterparts

19

Section 5.8

Severability

19

Section 5.9

Specific Performance

19

Section 5.10

Further Assurances

19

Section 5.11

Restrictive Legends

19

Section 5.12

Removal of Legends

20

Section 5.13

Withholding

20

Section 5.14

Effectiveness

21

 

i



 

RECAPITALIZATION AGREEMENT

 

THIS RECAPITALIZATION AGREEMENT (this “Agreement”) is dated as of September 17, 2010, and is being entered into by and among Spirit Airlines, Inc., a Delaware corporation (the “Company”); POF Spirit Foreign Holdings, LLC, a Delaware limited liability company (“POF Spirit”); OCM Spirit Holdings, LLC, a Delaware limited liability company (“Holdings”); OCM Spirit Holdings II, LLC, a Delaware limited liability company (“Holdings II”); OCM Principal Opportunities Fund II, L.P., a Delaware limited partnership (“POF II”); OCM Principal Opportunities Fund III, L.P., a Delaware limited partnership (“POF III”); OCM Spirit Holdings III, LLC, a Delaware limited liability company (“Holdings III”); OCM Spirit Holdings III-A, LLC, a Delaware limited liability company (“Holdings III-A”); Indigo Florida L.P., a Cayman Islands exempt limited partnership, Indigo Miramar LLC, a Delaware limited liability company and Indigo Partners LLC, a Delaware limited liability company (collectively, the “Indigo Equityholders”); Jacob Schorr, Julianne B. Schorr, The David B. Schorr Trust U/T/A dated December 31, 1977, The Dina L. Schorr Trust U/T/A dated July 1, 1980, The Elliott A. Schorr Trust U/T/A dated December 31, 1977, and The Raphael A. Schorr Trust U/T/A dated December 31, 1977 (collectively, the “Schorr Family”), Taurus Investment Partners LLC, an Alaskan limited liability company (“Taurus” and together with the Schorr Family the “Schorr Parties”), Edward Homfeld and Homfeld II, LLC (collectively, the “Homfeld Parties”), Mark Kahan 2005 Irrevocable Trust f/b/o Eliyahu Moshe Kahan and Mark Kahan.

 

RECITALS

 

WHEREAS, the Company has issued (i) Pari Passu Notes in an aggregate principal amount of $2,772,117 to certain of the Equityholders as set forth on Exhibit A attached hereto; (ii) Subordinated Notes in an aggregate principal amount of $10,905,792 to certain of the Equityholders as set forth on Exhibit B attached hereto; (iii) Tranche A Notes in an aggregate principal amount of $66,682,548 to certain of the Equityholders as set forth on Exhibit C attached hereto; (iv) Tranche B Notes in an aggregate principal amount of $60,000,000 to certain of the Equityholders as set forth on Exhibit D attached hereto and (v) Short Term Notes in an aggregate principal amount of approximately $5,000,000 to certain of the Equityholders as set forth on Exhibit E attached hereto.

 

WHEREAS, Holdings and POF Spirit own an aggregate of 100,000 shares of Class A Preferred Stock, which shares accrue dividends on a daily basis at a rate of 5% per annum, and Edward Homfeld, Mark Kahan and Taurus own an aggregate of 2,850 shares of Class B Preferred Stock, which shares accrue dividends on a daily basis at a rate of 17% per annum, each subject to the terms of the Certificate of Incorporation.

 

WHEREAS, the payment of the principal amounts of any Notes and any accrued and unpaid interest thereon, or the redemption of any shares of Class A Preferred Stock or Class B Preferred Stock, is expressly subordinated to the Company’s obligations to Goldman Sachs pursuant to the Intercreditor Agreement and Reimbursement Agreement (the “Goldman Obligations”).

 



 

WHEREAS, in connection with and in order to facilitate an Initial Public Offering, and subject to any filings required by the HSR Act, and the related expiration or early termination of any required waiting period thereunder, the parties hereto wish to recapitalize the Company’s debt and equity securities such that (i) the Company pays all underwriter commissions and transactions expenses incurred in connection with the Initial Public Offering; (ii) Indigo Partners LLC receives Net Proceeds from the Initial Public Offering in an amount equal to $1,600,000 and terminates the Professional Services Agreement; (iii) certain of the Individual Equityholders receive Net Proceeds from the Initial Public Offering in an aggregate amount equal to $450,000; (iv) the Company retains Net Proceeds from the Initial Public Offering in an amount equal to $150,000,000, or a lesser amount as determined by the Board of Directors of the Company; (v) the remaining Net Proceeds of the Initial Public Offering are used by the Company to pay the outstanding principal amounts of the Short Term Notes, Tranche A Notes and Tranche B Notes and all accrued and unpaid interest thereon, with such accrued and unpaid interest being paid prior to the payment of any principal amounts, and to redeem certain outstanding shares of Preferred Stock in accordance with the Company’s Certificate of Incorporation; (vi) the principal amounts of all Notes and the accrued and unpaid interest thereon that will not be paid with the Net Proceeds of the Initial Public Offering, and all outstanding shares of Preferred Stock that will not be redeemed with the Net Proceeds of the Initial Public Offering, shall be exchanged for shares of Common Stock at the price per share equal to the public offering price per share in the Initial Public Offering (the “Offering Price”) and (vii) each share of Class B Common Stock shall be exchanged for one share of Common Stock or another non-voting security, which shall be convertible into Common Stock on a share-for-share basis at the election of the holder, as set forth herein; provided, that, if the Company has not paid all of the guarantee fees and other amounts owing to certain of the Equityholders pursuant to the Guarantee Fee Letter Agreement (the “Guarantee Fees”), then Net Proceeds from the Initial Public Offering shall be used to pay such Guarantee Fees prior to any payment in respect of any outstanding principal amounts of the Notes and all accrued and unpaid interest thereon or redemption of any outstanding shares of Class A Preferred Stock.

 

WHEREAS, in connection with the recapitalization, the Company, the Oaktree Equityholders and the Indigo Equityholders have agreed to amend the Investor Rights Agreement to (i) provide that Holdings II and the Indigo Equityholders shall have the right to sell shares of Capital Stock in the Initial Public Offering solely and to the extent that the underwriters of the Initial Public Offering exercise their overallotment option to purchase additional shares of Common Stock (the “Overallotment Option”) and (ii) amend the priority of the sale of shares of Capital Stock by the Oaktree Equityholders and the Indigo Equityholders with respect to registered offerings following the expiration or waiver of any lock-up periods applicable to the Initial Public Offering.

 

WHEREAS, if approved by the Board of Directors of the Company, immediately prior to the closing of the Initial Public Offering, the Company will enter into a tax receivable agreement and thereby distribute to each holder of Common Stock the right to receive such stockholders’ pro rata share of certain future payments related to the Company’s net operating loss, deferred interest deductions, and certain tax credits for federal income tax purposes (the “Tax Receivable Agreement”).

 

2



 

AGREEMENT

 

NOW, THEREFORE, in consideration of the mutual promises, representations, warranties, covenants, conditions and agreements contained herein, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound by the terms hereof, hereby as follows:

 

SECTION 1

DEFINITIONS

 

Section 1.1 Defined Terms. As used in this Agreement, each capitalized term has the meaning ascribed to it in this Section 1.1:

 

Agreement” has the meaning ascribed to such term in the preamble hereto, as amended from time to time.

 

Business” shall mean the business of the Company and its Subsidiaries as currently conducted.

 

Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to remain closed.

 

Capital Stock” means the Common Stock, Class B Common Stock or Preferred Stock of the Company.

 

Certificate of Incorporation” means the Third Amended and Restated Certificate of Incorporation of the Company as filed with the Secretary of State of the State of Delaware, as amended to date.

 

Class B Common Stock” means the Class B Common Stock of the Company, par value $0.0001 per share.

 

Class A Preferred Stock” means the Class A Preferred Stock of the Company, par value $0.0001 per share.

 

Class B Preferred Stock” means the Class B Preferred Stock of the Company, par value $0.0001 per share.

 

Common Stock” means the Class A Common Stock, par value $0.0001 per share, of the Company, or any successor shares into which such Common Stock is exchanged or reclassified.

 

Company” has the meaning ascribed to such term in the preamble hereto.

 

Company Proceeds” has the meaning ascribed to such term in Section 2.4.

 

“Entity” has the meaning ascribed to such term in Exhibit F.

 

3



 

Equityholders” mean, collectively, the Oaktree Equityholders, the Indigo Equityholders, the Schorr Parties, the Homfeld Parties, Mark Kahan 2005 Irrevocable Trust f/b/o Eliyahu Moshe Kahan and Mark Kahan.

 

Exchange Act” has the meaning ascribed to such term in Exhibit F.

 

Goldman Sachs” means Goldman Sachs Credit Partners L.P., a Bermuda limited partnership.

 

Goldman Obligations” has the meaning ascribed to such term in the recitals.

 

Governmental Authority” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

 

Governmental Requirement” shall mean any law, statute, code, ordinance, order, determination, rule, regulation, judgment, decree, injunction, franchise, permit, certificate, license, authorization or other directive or requirement (whether or not having the force of law), including, without limitation, environmental laws, energy regulations and occupational, safety and health standards or controls, of any Governmental Authority.

 

Guarantee Fee Letter Agreement” shall mean that certain letter agreement, dated as of December 12, 2008, made by the Company in favor of Indigo Pacific Partners L.P., a Cayman Islands exempt limited partnership, Long Bar Miramar LLC, a Delaware limited liability company, POF II and POF III relating to payment of the Guarantee Fees.

 

Guarantee Fees” has the meaning ascribed to such term in the preamble hereto.

 

Holdings” has the meaning ascribed to such term in the preamble hereto.

 

Holdings II” has the meaning ascribed to such term in the preamble hereto.

 

Holdings III” has the meaning ascribed to such term in the preamble hereto.

 

Holdings III-A” has the meaning ascribed to such term in the preamble hereto.

 

Homfeld Parties” has the meaning ascribed to such term in the preamble hereto.

 

HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

 

Indigo Equityholders” has the meaning ascribed to such term in the preamble hereto.

 

Individual Equityholders” means, collectively, the Schorr Parties, Homfeld Parties, Mark Kahan 2005 Irrevocable Trust f/b/o Eliyahu Moshe Kahan and Mark Kahan.

 

4



 

Individual Noteholders Fee” has the meaning ascribed to such term in Section 2.3.

 

Initial Public Offering” shall mean the consummation by the Company of the sale of shares of Common Stock pursuant to a firm underwritten public offering registered on a registration statement on Form S-1 (or any successor thereto) and made effective pursuant to the Securities Act, that results in aggregate gross proceeds to the Company in such Public Offering of at least $200,000,000.

 

Intercreditor Agreement” means that certain Amended and Restated Shareholder Note Intercreditor Agreement, dated as of July 13, 2006, by and among the Company, Goldman Sachs and the other parties thereto.

 

Investor Rights Agreement” means the Second Amended and Restated Investor Rights Agreement, dated as of July 13, 2006, by and among the Company, the Equityholders and the other parties thereto, as amended to date.

 

Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, security agreement, encumbrance, charge, option or security interest in, on or of such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.

 

Liquidation Value” has the meaning ascribed to such term in the Certificate of Incorporation.

 

Lock-up Agreement” has the meaning ascribed to such term in Section 3.4.

 

“Lock-up Period” has the meaning ascribed to such term in Exhibit F.

 

Material Adverse Effect” means any event, change or development, or combination of events, changes or developments, individually or in the aggregate, that has or would reasonably be expected to have a material adverse effect on the Business, results of operations, assets, liabilities, operations, property, prospects or financial condition of the Company, or the Company and its Subsidiaries taken as a whole.

 

Net Proceeds” has the meaning ascribed to such term in Section 2.1.

 

Notes” mean, collectively, the Pari Passu Notes, Subordinated Notes, Tranche A Notes, Tranche B Notes and Short Term Notes.

 

Oaktree Equityholders” mean, collectively, Holdings II, Holdings III, Holdings III-A, POF II and POF III.

 

Offering Price” has the meaning ascribed to such term in the recitals hereto.

 

Overallotment Option” has the meaning ascribed to such term in the recitals hereto.

 

5



 

Pari Passu Notes” means those certain notes issued by the Company to certain shareholders of the Company and described on Exhibit A attached hereto as such notes are in effect as of the date hereof.

 

Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

 

POF II” has the meaning ascribed to such term in preamble hereto.

 

POF III” has the meaning ascribed to such term in preamble hereto.

 

POF Spirit” has the meaning ascribed to such term in the preamble hereto.

 

Preferred Stock” means the Class A Preferred Stock and the Class B Preferred Stock.

 

Professional Services Agreement” means the Professional Services Agreement, dated as of July 13, 2006, between the Company and Indigo Partners LLC.

 

Pro Rata Basis” has the meaning ascribed to such term in Section 2.8(a).

 

Reimbursement Agreement” means that certain Letter of Credit Reimbursement Agreement, dated as of July 15, 2005, by and among the Company and Goldman Sachs, as amended and reaffirmed from time to time.

 

Remaining Proceeds” has the meaning ascribed to such term in Section 2.5.

 

Requisite Equityholders” means the Indigo Equityholders and the Oaktree Equityholders.

 

Schorr Family” has the meaning ascribed to such term in the preamble hereof.

 

Schorr Parties” has the meaning ascribed to such term in the preamble hereof.

 

Securities Act” means the Securities Act of 1933, as amended.

 

Securities Purchase Agreement” means that certain Amended and Restated Securities Purchase Agreement, dated as of July 13, 2006, by and among the parties hereto.

 

Security Agreement” shall have the meaning ascribed to it in the Securities Purchase Agreement.

 

Short Term Notes” means those certain notes issued by the Company and described on Exhibit E attached hereto as such notes are in effect as of the date hereof.

 

Subordinated Notes” means those certain notes issued by the Company and described on Exhibit B attached hereto as such notes are in effect as of the date hereof.

 

6



 

subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with generally accepted accounting principles applied in the United States as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

 

Subsidiary” means any subsidiary of the Company.

 

Taurus” has the meaning ascribed to such term in the preamble hereof.

 

Tax Receivable Agreement” has the meaning ascribed to such term in the preamble hereto.

 

Termination Fee” has the meaning ascribed to such term in Section 2.2 hereof.

 

Tranche A Notes” means those certain notes issued by the Company and described on Exhibit C attached hereto as such notes are in effect as of the date hereof.

 

Tranche B Notes” means those certain notes issued by the Company and described on Exhibit D attached hereto as such notes are in effect as of the date hereof.

 

UCC” means the Uniform Commercial Code as adopted in the States of New York and Florida, as from time to time amended.

 

Underwriting Agreement” has the meaning ascribed to such term in Exhibit F.

 

Section 1.2 Interpretation. In this Agreement, unless otherwise indicated, the singular includes the plural and conversely; words importing one gender include the others; references to statutes or regulations are to be construed as including all statutory or regulatory provisions consolidating, amending or replacing the statute or regulation referred to; references to “writing” include printing, typing, lithography and other means of reproducing words in a tangible visible form; the word “or” shall not be exclusive (i.e., shall be deemed to include “and/or”); the words “including,” “includes” and “include” shall be deemed to be followed by the words “without limitation;” references to articles, sections (or subdivisions of sections), exhibits, annexes or schedules are to such parts of this Agreement; references to agreements and other contractual instruments shall be deemed to include all subsequent amendments, restatements, amendments and restatements, supplements, extensions and other modifications to such instruments (without, however, limiting any prohibition on any such amendments, extensions and other modifications by the terms of this Agreement); and references to Persons include their respective permitted successors and assigns and, in the case of any Governmental Authority, Persons succeeding to their respective functions and capacities.

 

7



 

SECTION 2

RECAPITALIZATION

 

Section 2.1 Expenses of the Initial Public Offering. The Company shall pay all (i) of its underwriters commissions and (ii) transaction expenses of the Company, the Indigo Equity Holders and the Oaktree Equityholders incurred, as estimated in good faith by the Chief Financial Officer of the Company, in connection with an Initial Public Offering, and all remaining net proceeds (the “Net Proceeds”) received by the Company shall be applied as set forth in this Section 2. The selling stockholders in the Overallotment Option shall pay all underwriters commissions for any shares of Common Stock sold in the Overallotment Option, and the Company shall pay all transaction expenses incurred in connection with the Overallotment Option.

 

Section 2.2 Termination of Professional Services Agreement. At the closing of the Initial Public Offering, the Company shall apply a portion of Net Proceeds of the Initial Public Offering to pay in immediately available funds to Indigo Partners LLC a fee equal to $1,600,000 (the “Termination Fee”). Upon payment of the Termination Fee, the Professional Services Agreement shall be terminated and shall be of no further force and effect and no further payments shall be due, or payable, and the Company shall have no further liability, under or in respect of the Professional Services Agreement, without any further or additional action by any of the parties thereto; provided, that, Sections 7 and 8 of the Professional Services Agreement shall survive such termination.

 

Section 2.3 Individual Noteholders Fee. Following the payment of underwriters commissions, transaction expenses and the Termination Fee, at the closing of the Initial Public Offering, the Company shall apply a portion of Net Proceeds of the Initial Public Offering to pay an aggregate sum of $450,000 to certain of holders of the Pari Passu Notes and the Subordinated Notes as follows (i) Jacob Schorr an amount equal to $275,000, (ii) Edward Homfeld an amount equal to $152,000 and (iii) Mark Kahan an amount equal to $23,000 (such amounts, in the aggregate, the “Individual Noteholders Fee”).

 

Section 2.4 Proceeds to the Company. Following the payment of underwriters commissions, transaction expenses, the Termination Fee and the Individual Equityholders Fee, at the closing of an Initial Public Offering, the Company shall retain Net Proceeds equal to $150,000,000, or another amount as determined by the Board of Directors of the Company not to exceed $150,000,000 (the “Company Proceeds”), prior to the payment of the outstanding principal amount and accrued and unpaid interest on the Notes, redemption of any shares of Preferred Stock or, if applicable, payment of the Guarantee Fees.

 

8



 

Section 2.5 Repayment of Notes and Redemption of Preferred Stock. Following the receipt by the Company of the Company Proceeds and the payment of (x) the Termination Fee, (y) the Individual Noteholders Fee and (z) any amounts payable pursuant to Section 2.5(e), and immediately upon the closing of an Initial Public Offering, the remaining Net Proceeds of the Initial Public Offering (the “Remaining Proceeds”) shall be paid to the holders of Short Term Notes, Tranche A Notes, Tranche B Notes and Preferred Stock as follows:

 

(a) Twenty-five percent (25%) of Remaining Proceeds shall be used (i) first to repay the accrued and unpaid (by way of PIK or otherwise) interest and then outstanding principal amounts on the Short Term Notes held by the Indigo Equityholders on a pro rata basis determined by the principal amount of the Short Term Notes held by each of the Indigo Equityholders and (ii) second to repay the accrued and unpaid (by way of PIK or otherwise) interest and then outstanding principal amounts on the Tranche B Notes held by the Indigo Equityholders on a pro rata basis determined by the principal amount of the Tranche B Notes held by each of the Indigo Equityholders. Notwithstanding the foregoing, upon written instruction delivered to the Company prior to the Initial Public Offering, the Indigo Equityholders shall have the right to amend the foregoing priority and order in which the outstanding principal amount and accrued and unpaid interest on Short Term Notes and Tranche B Notes is paid to the Indigo Equityholders pursuant to this Section 2.5(a).

 

(b) Seventy-five percent (75%) of Remaining Proceeds shall be used (i) first to repay the accrued and unpaid interest (by way of PIK or otherwise) interest and then outstanding principal amounts on the Short Term Notes held by the Oaktree Equityholders on a pro rata basis determined by the principal amount of the Short Term Notes held by each of the Oaktree Equityholders; (ii) second to repay accrued and unpaid (by way of PIK or otherwise) interest and then outstanding principal amounts on the Tranche B Notes held by the Oaktree Equityholders on a pro rata basis determined by the principal amount of the Tranche B Notes held by each of the Oaktree Equityholders; (iii) third to repay accrued and unpaid (by way of PIK or otherwise) interest and then outstanding principal amounts on the Tranche A Notes held by the Oaktree Equityholders and redeem the Class B Preferred Stock held by Mr. Kahan pursuant to the terms and conditions of the Certificate of Incorporation on a pro rata basis determined by the principal amount and accrued and unpaid interest (by way of PIK or otherwise) of the Tranche A Notes held by each of the Oaktree Equityholders and the Liquidation Value of the Class B Preferred Stock held by Mr. Kahan; and (iv) fourth to redeem the Class A Preferred Stock held by the Oaktree Equityholders pursuant to the terms and conditions of the Certificate of Incorporation and on a pro rata basis determined by the number of shares of Class A Preferred Stock held by each of the Oaktree Equityholders. Notwithstanding the foregoing, upon written instruction delivered to the Company prior to the Initial Public Offering, the Oaktree Equityholders shall have the right to amend the foregoing priority and order in which the outstanding principal amount and accrued and unpaid interest on Short Term Notes, Tranche A and Tranche B Notes is paid to the Oaktree Equityholders or the Class A Preferred Stock is redeemed from the Oaktree Equityholders pursuant to this Section 2.5(b); provided, that the amount payable to Mr. Kahan pursuant to Section 2.5(b)(iii) may not be reduced by such amendment without the written consent of Mr. Kahan. In connection with any redemption of Preferred Stock pursuant to this Section 2.5, each of the Oaktree Equityholders hereby waives the notice requirements set forth in Sections 2(e)(vi) and 3(e)(vi) of Article Four of the Certificate of Incorporation, and agrees that such redemption shall take place at the closing of the Initial Public Offering.

 

(c) The outstanding principal amount and accrued and unpaid interest on any Notes that will not be paid pursuant to this Section 2.5, and the shares of Preferred Stock that will not be redeemed pursuant to this Section 2.5, shall be exchanged or reclassified as the case may be into Common Stock pursuant to Section 2.6 of this Agreement.

 

9



 

(d) Each Equityholder expressly consents to the repayment of the Notes and redemption of shares of Preferred Stock as set forth in this Section 2.5.

 

(e) If the Company has not paid all of Guarantee Fees immediately prior to the Initial Public Offering, the parties agree that prior to the payment of any outstanding principal amounts and accrued and unpaid interest on any Notes or redemption of any outstanding shares of Class A Preferred Stock pursuant to this Section 2.5, Net Proceeds shall be used to pay such Guarantee Fees.

 

Section 2.6 Exchange of Remaining Notes and Preferred Stock. Substantially contemporaneously with an Initial Public Offering, any outstanding principal amount and accrued and unpaid interest on the Notes that will not be paid pursuant to Section 2.5, and any shares of Preferred Stock that will not be redeemed pursuant to Section 2.5, shall be exchanged or reclassified as the case may be as follows:

 

(a) The outstanding principal amount and accrued and unpaid interest on each of the Notes that will not be paid pursuant to Section 2.5 shall be automatically exchanged and, effective upon such exchange, canceled, and each Equityholder holding such Notes forgives and extinguishes all indebtedness represented by such Note, including all accrued and unpaid interest thereon, and waives receipt of all amounts due and owing on the Note, in exchange for a number of shares of Common Stock (rounded down to the nearest whole share) equal to the quotient of (i) the outstanding principal amount and accrued and unpaid interest on such Note divided by (ii) the Offering Price. The Company acknowledges and agrees that until such Notes are canceled or terminated pursuant to this Section 2.6 or otherwise, it will continue to pay in cash all outstanding current accrued interest owing on the Notes held by the Individual Equityholders. Each Equityholder holding a Note exchanged pursuant to this Section 2.6 agrees to the cancellation and termination of all rights relating to the Note upon the exchange of the Note, whether or not the Note has been surrendered. Notwithstanding the foregoing, such Equityholder agrees to surrender, on or before an Initial Public Offering, the Note to the Company for exchange and cancellation in connection herewith or to execute and deliver to the Company a lost note affidavit and indemnity.

 

(b) Each holder of shares of Class A Preferred Stock hereby consents and agrees that all shares of Class A Preferred Stock that will not be redeemed pursuant to Section 2.5 shall be exchanged or reclassified at the direction of the Company into a number shares Common Stock (rounded down to the nearest whole share) equal to the quotient of (i) the Liquidation Value for such share of Class A Preferred Stock plus any accrued and unpaid dividends divided by (ii) the Offering Price and hereby consents to any and all amendments to the certificate of incorporation of the Company as shall be necessary or desirable to effect such exchange or reclassification. Each holder of shares of Class B Preferred Stock hereby consents and agrees that all shares of Class B Preferred Stock that will not be redeemed pursuant to Section 2.5 shall be exchanged or reclassified at the direction of the Company into a number shares of Common Stock (rounded down to the nearest whole share) equal to the quotient of (i) the Liquidation Value for such share of Class B Preferred Stock plus any accrued and unpaid dividends divided by (ii) the Offering Price and hereby consents to any and all amendments to the certificate of incorporation of the Company as shall be necessary or desirable to effect such exchange or reclassification. Notwithstanding the foregoing, each holder of Class A Preferred Stock and

 

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Class B Preferred Stock agrees to surrender, on or before an Initial Public Offering, the Class A Preferred Stock and Class B Preferred Stock certificates held by such holder for exchange and reclassification in connection herewith or to execute and deliver to the Company a lost stock certificate affidavit and indemnity.

 

(c) Each holder of shares of Class B Common Stock hereby consents and agrees that all shares of Class B Common Stock outstanding at the closing of the Initial Public Offering shall be exchanged or reclassified at the direction of the Company for one share of Common Stock and hereby consents to any and all amendments to the certificate of incorporation of the Company as shall be necessary or desirable to effect such reclassification; provided, that, at the written request of the Indigo Equityholders made prior to the Initial Public Offering, all or a portion of the shares of Class B Common Stock held by the Indigo Equityholders may remain as Class B Common Stock or be exchanged for shares of non-voting securities of the Company, such securities which may be created at any time prior to or in connection with the Initial Public Offering and will be convertible into Common Stock of the Company on a share-for-share basis at the election of the holder. Notwithstanding the foregoing, each holder of Class B Common Stock agrees to surrender, on or before an Initial Public Offering, the Class B Common Stock certificates held by such holder for exchange and reclassification in connection herewith or to execute and deliver to the Company a lost stock certificate affidavit and indemnity.

 

Section 2.7 Tax Receivable Agreement. If approved by the Board of Directors of the Company, in its sole and absolute discretion, immediately prior to the closing of an Initial Public Offering, the Company will enter into the Tax Receivable Agreement with certain of the Requisite Equityholders that will provide for future payments by the Company to our stockholders of record immediately prior to the IPO (taking into account the exchange or reclassification of the Notes and the Capital Stock of the Company pursuant to Section 2.6), based on the Company’s future utilization of certain net operating losses, deferred interest deductions and alternative minimum tax credits for federal income tax purposes.

 

Section 2.8 Investors Rights Agreement. Notwithstanding the provisions of Section 9 and 10 of the Investor Rights Agreement, the Company, the Oaktree Equityholders and the Indigo Equityholders agree that, effective upon consummation of the Initial Public Offering, the Investor Rights Agreement shall be deemed to have been amended to provide that:

 

(a) Solely to the extent that the Overallotment Option is exercised by the underwriters, (i) Holdings II shall have the right to first sell a number of shares of Common Stock in the Overallotment Option such that Holdings II receives, in the aggregate, an amount equal to $20,000,000 in gross proceeds (before deduction of underwriters commissions); (ii) to the extent there are any additional shares that may be sold in the Overallotment Option after the sale described in clause (i) of this Section 2.8(a), the Indigo Equityholders shall next have the right to sell a number of shares of Common Stock in the Overallotment Option such that the Indigo Equityholders receive, in the aggregate, an amount equal to $5,000,000 in gross proceeds (before deduction of underwriters commissions); and (iii) to the extent there are any additional shares that may be sold in the Overallotment Option after the sales described in clauses (i) and (ii) of this Section 2.8(a), the Oaktree Equityholders and the Indigo Equityholders shall have the right to sell shares of Common Stock owned by such Oaktree Equityholders and Indigo Equityholders on a Pro Rata Basis. For the purposes of this Section 2.8 only, a “Pro Rata

 

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Basis” shall mean with respect to any Oaktree Equityholder or Indigo Equityholder the quotient of (x) the number of shares of Common Stock held by such Oaktree Equityholder or Indigo Equityholder following the recapitalization described in this Agreement and immediately prior to the Initial Public Offering, divided by (y) the number of shares of Common Stock beneficially owned by all Oaktree Equityholders and Indigo Equityholders following the recapitalization described in this Agreement and immediately prior to the Initial Public Offering.

 

(b) Notwithstanding the provisions of Section 9D and 10C of the Investor Rights Agreement, to the extent that Holdings II does not receive at least $20,000,000 in gross proceeds (before deduction of underwriters commissions) from the sale of Common Stock in the Overallotment Option and/or the Indigo Equityholders do not receive at least $5,000,000 in gross proceeds (before deduction of underwriters commissions) from the sale of Common Stock in the Overallotment Option, then, following the expiration of the lock-up period set forth in a lock-up agreement signed by such Equityholders pursuant to the Underwriting Agreement, whenever the Company proposes to register securities under the Securities Act (as defined in the Investor Rights Agreement) (other than pursuant to a registration on Form S-3 or S-8 or any successor or similar forms), the Company will include in such registration (i) first, the securities that the Company proposes to sell, (ii) second, Common Stock that Holdings II (or such other Oaktree Equityholders as shall be designated in writing by POF II and POF III) proposes to sell until such sellers have received gross proceeds (before deduction of underwriters commissions) equal to the difference between $20,000,000 and the gross proceeds of the sale of shares of Common Stock by Holdings II (or such other Oaktree Equityholders as shall be designated in writing by POF II and POF III) in the Overallotment Option and any other sales of Common Stock pursuant to this Section 2.8(b), (iii) third, Common Stock that the Indigo Equityholders propose to sell until the Indigo Equityholders have received gross proceeds (before deduction of underwriters commissions) equal to the difference between $5,000,000 and the gross proceeds of the sale of shares of Common Stock by the Indigo Equityholders in the Overallotment Option and any other sales of Common Stock pursuant to this Section 2.8(b), (iv) fourth, following the sales of Common Stock described in clauses (ii) and (iii) above, as set forth in the Investor Rights Agreement as in effect on the date hereof.

 

(c) All determinations made pursuant to this Section 2.8 shall be rounded down to the nearest full share.

 

(d) For the avoidance of doubt, for purposes of all calculation of shares owned by a party hereunder, the number of shares of Common Stock owned by Indigo shall be deemed to include all shares of Common Stock plus any shares of non-voting common stock.

 

Section 2.9 Termination of Security Agreement. Following the payments, redemptions and exchanges set forth in this Section 2, (i) the Company and the Equityholders shall use their commercially reasonable efforts to terminate the Security Agreement and any related financing statements made under the UCC, and (ii) each Equityholder terminates, releases and discharges, without recourse, all of the Liens on any assets of the Company created by the Notes.

 

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Section 2.10 Regulatory Matters. All filings required under the HSR Act shall have been made, and any required waiting period thereunder shall have expired or been earlier terminated, prior to the consummation of any of the transactions contemplated by this Section 2. If any filings are required by the HSR Act for any transactions contemplated by this Section 2, the Company will cooperate reasonably with the Equityholders to prepare and make such filings and shall pay for any reasonable out-of-pocket expenses of the Equityholders made in connection with the preparation and filing of any filings required under the HSR Act, including, but not limited to, any filings made in connection with the conversion or exchange of any non-voting common stock into voting common stock of the Company.

 

SECTION 3

CERTIFICATE OF INCORPORATION; VOTING AND COOPERATION;

PROXY AND LOCK-UP

 

Section 3.1 Amendment to Certificate of Incorporation. The Company and the Equityholders shall take all reasonable steps necessary to amend, modify or waive the Certificate of Incorporation, to the extent necessary, to provide for the redemption, reclassification or exchange of the Preferred Stock and payment of the outstanding principal amounts and accrued and unpaid interest on the Notes as set forth in this Agreement.

 

Section 3.2 Voting and Cooperation. In order to facilitate the transactions contemplated by this Agreement, each Equityholder agrees to vote all of such Equityholder’s shares of Capital Stock in favor of any amendments, modifications or waivers of the Certificate of Incorporation in order to effect the transactions contemplated by this Agreement. In addition, each Equityholder agrees to execute and deliver all related documentation and take such other action in support of the transactions as contemplated by this Agreement as shall be reasonably requested by the Company.

 

Section 3.3 Proxy. To secure the obligations to vote the Capital Stock in accordance with this Agreement, each of the Individual Equityholders hereby appoints the Chairman of the Board of Directors of the Company and the Chief Executive Officer of the Company, from time to time, or their designees, as such Individual Equityholder’s true and lawful proxy and attorney, with the power to act alone and with full power of substitution, to vote all of such Individual Equityholder’s Capital Stock in any way necessary to effect the transactions contemplated by this Agreement and to execute all necessary actions by written consent of the holders of such Individual Equityholder’s Capital Stock consistent with this Agreement on behalf of such Individual Equityholder if such Individual Equityholder fails to vote all of such Individual Equityholder’s Capital Stock or execute such other necessary actions by written consent within two (2) days of the Company’s or any other party’s written request for such Individual Equityholder’s written consent or signature. The proxy and power granted by each of the Individual Equityholders pursuant to this Section 3.3 are coupled with an interest and are given to secure the performance of such party’s duties under this Agreement. Each such proxy and power will be irrevocable for the term of this Agreement.

 

Section 3.4 Lock-up Agreement. Each Individual Equityholder agrees in connection with the Initial Public Offering to be bound by the terms and conditions set forth hereto on Exhibit F (the “Lock-up Agreement”), such terms and conditions which are incorporated herein. The Company is an intended third party beneficiary of the Lock-up Agreement and has the right, power and authority to enforce the provisions thereof as though they were a party thereto. Without limiting the foregoing, the Company may impose stop-transfer instructions with respect to the shares of capital stock subject to the Lock-up Agreement.

 

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SECTION 4

REPRESENTATIONS AND WARRANTIES

 

Section 4.1 Representations and Warranties of the Company. The Company hereby represents, warrants and covenants to the Equityholders that, as of the date hereof, each of the following representations and warranties set forth below in this Section 4.1 is true and correct:

 

(a) Organization; Powers. Each of the Company and its Subsidiaries is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its Business, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required.

 

(b) Authorization; Enforceability. This Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

 

(c) Consents and Approvals; No Conflicts. The transactions contemplated hereby (i) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority or any other Person, except such as have been obtained or made and are in full force and effect, where failure to obtain such consent or approval would not reasonably be expected to have a Material Adverse Effect or other than as may be required under the HSR Act, (ii) will not violate the charter, by-laws or other organizational documents of the Company or any of its Subsidiaries or any order of any Governmental Authority and (iii) will not violate any material Governmental Requirement.

 

Section 4.2 Representations and Warranties of the Equityholders. Each Equityholder, severally and not jointly, hereby, represents, warrants and covenants to the Company, as of the date hereof, as follows:

 

(a) Authorization; Enforceability. Such Equityholder, if not a natural person, has been duly formed and is validly existing as a legal entity in good standing under the laws of its jurisdiction of organization. Such Equityholder has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder and to consummate the transactions contemplated hereby. Such Equityholder, if a natural person, has the requisite legal capacity to execute and deliver this Agreement and to perform his/her obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery by such Equityholder of this Agreement, and the performance of its obligations hereunder, have been duly and validly authorized by all necessary actions of such Equityholder. This Agreement and all other documents referenced herein executed by such Equityholder have been duly and validly

 

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executed and delivered by such Equityholder and constitute the legal, valid and binding obligations of such Equityholder, enforceable against such Equityholder, in accordance with their terms, except to the extent such enforceability (a) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally and (b) is subject to general principles of equity.

 

(b) Compliance with Governmental Requirements and Other Instruments. The consummation of the transactions contemplated by this Agreement and the execution, delivery and performance of the documents referenced herein to which such Equityholder is a party will not (i) contravene, result in any breach of, or constitute a default under, any charter or bylaws or other organizational documents of such Equityholder, or material agreement or instrument to which such Equityholder is a party, (ii) conflict with or result in a breach of any of the terms, conditions or provisions of any Order of any court, arbitrator or Governmental Authority applicable to such Equityholder, or (iii) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to such Equityholder.

 

(c) Acquisition for the Account of Each Equityholder. Such Equityholder is acquiring and will acquire all shares of Common Stock for its own account, with no present intention of distributing or reselling such shares of Common Stock or any part thereof in violation of applicable securities laws. Such Equityholder further represents that it does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to any third person with respect to any of the shares of Common Stock to be received pursuant to this Agreement.

 

(d) Equityholder Acknowledgment. Such Equityholder has received and reviewed information about the Company and has had an opportunity to discuss the Company’s business, management and financial affairs with directors, officers and management of the Company and to review the Company’s operations and facilities. Such Equityholder has also had the opportunity to ask questions of and receive answers from, the Company and its management regarding the terms and conditions the transactions contemplated by this Agreement. Such Equityholder believes it has received all the information it considers necessary or appropriate to determine whether to receive the shares of Common Stock as contemplated by this Agreement. Such Equityholder understands and acknowledges that such discussions, as well as any written information issued by the Company may have contained forward-looking statements involving known and unknown risks and uncertainties which may cause the Company’s actual results in future periods or plans for future periods to differ materially from what was anticipated and that no representations or warranties were or are being made with respect to any such forward-looking statements or the probability of achieving any of the results projected in any of such forward-looking statements.

 

(e) Common Stock not Registered. Such Equityholder acknowledges that the share of Common Stock to be received pursuant to this Agreement have not been, and when issued will not be, registered under the Securities Act or the securities laws of any state in the United States or any other jurisdiction and may not be offered or sold by such Equityholder unless subsequently registered under the Securities Act (if applicable to the transaction) and any other securities laws or unless exemptions from the registration or other requirements of the Securities Act and any other securities laws are available for the transaction.

 

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(f) Accredited Investor. Such Equityholder represents that it is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the Securities Act, as presently in effect.

 

(g) Economic Risk. Such Equityholder has substantial experience in evaluating and investing in securities in companies similar to the Company so that it is capable of evaluating the merits and risks of its investment in the Company, has the capacity to protect its own interests and has the ability to bear the economic risks of such Equityholder’s investment. Such Equityholder must bear the economic risk of this investment indefinitely unless the Shares are registered pursuant to the Securities Act, or an exemption from registration is available.

 

(h) Rule 144. Such Equityholder acknowledges and agrees that the shares of Common Stock received pursuant to this Agreement must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. Such Equityholder has been advised or is aware of the provisions of Rule 144 promulgated under the Securities Act as in effect from time to time, which permits limited resale of shares purchased in a private placement subject to the satisfaction of certain conditions, including, among other things: the availability of certain current public information about the Company, the resale occurring following the required holding period under Rule 144 and the number of shares being sold during any three-month period not exceeding specified limitations. Such Equityholder understands that no public market now exists for any of the securities issued by the Company pursuant to this Agreement and that a public market may never exist for the Common Stock.

 

(i) Ownership of Securities. Such Equityholder is the sole beneficial and record owner of the Notes set forth on the exhibits hereto and the Preferred Stock described in the recitals to this Agreement and has good, clear and marketable title to such Notes and Preferred Stock, free of any Liens.

 

SECTION 5

MISCELLANEOUS