**Exhibit10.10**

 

AIRTRANCORPORATION

 

STOCK PURCHASE AGREEMENT

 

 

Dated as of

 

October 18, 1993

 

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**TABLE OF CONTENTS**

** **
| 1. Sale and Purchase of  Securities                                        |   |
|----------------------------------------------------------------------------|--------|
| 2. Closing                                                                 |   |
| 3. Restriction on Transfer of  the Securities                              |   |
| 4. Registration of the Stock                                               |   |
| 4.1 Required Registration                                                  |   |
| 4.2 Incidental Registration                                                |   |
| 4.3 Registration Procedures                                                |   |
| 4.4  Expenses                                                              |   |
| 4.5 Indemnification                                                        |   |
| 5. Representations and  Warranties by Company                              |   |
| 5.1 Organization, Standing,  etc.                                          |   |
| 5.2 Financial Statements                                                   |   |
| 5.3 Tax Returns and Audits                                                 |   |
| 5.4 Changes, Dividends, etc.                                               |   |
| 5.5 Title to Properties  and Encumbrances                                  |   |
| 5.6 Litigation;  Governmental Proceedings                                  |   |
| 5.7 Compliance with  Applicable Laws and Other Instruments                 |   |
| 5.8 Securities Laws                                                        |   |
| 5.9 Air Carrier Certification                                              |   |
| 5.10 Capital Stock                                                         |   |
| 5.11 Airline Services  Agreement                                           |   |
| 5.12 Corporate Acts and  Proceedings                                       |   |
| 5.13 No Brokers or Finders                                                 |   |
| 5.14  Licenses                                                             |   |
| 5.15 Registration Rights                                                   |   |
| 5.16 Retirement Plans                                                      |   |
| 6.  Representations and Warranties of Purchasers                           |   |
| 6.1 Investment Intent                                                      |   |
| 6.2 Location of  Principal Office and Qualification as Accredited Investor |   |
| 6.3 Acts and Proceedings                                                   |   |
| 6.4 No Brokers or Finders                                                  |   |

 

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| 6.5 Purchaser Certification                          |   |
|------------------------------------------------------|--------|
| 7. Conditions of Each  Purchaser’s Obligation   |   |
| 7.1 Compliance with Agreement                        |   |
| 7.2 Opinion of Company’s  Counsel               |   |
| 7.3 Proceedings and Documents                        |   |
| 7.4 Purchaser Conditions  Precedent                  |   |
| 8. Consents; Waivers  and Amendments                 |   |
| 9. Changes, Waivers, etc                             |   |
| 10. Payment of Fees and  Expenses of Purchasers      |   |
| 11. Understanding Among  Purchasers                  |   |
| 12. Sale of Purchased Stock  by Purchasers           |   |
| 13. Notices                                          |   |
| 14. Survival of  Representations and Warranties, etc |   |
| 15. Parties in Interest                              |   |
| 16. Headings                                         |   |
| 17. Choice of Law                                    |   |
| 18. Counterparts                                     |   |
| 19. Additional Company  Conditions Precedent         |   |
| 19.1 Valuation Opinion                               |   |
| 19.2 Regulatory and  Contractual Matters             |   |
| 19.3 Final Agreement                                 |   |

 

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**AIRTRANCORPORATION**

** **

**STOCK PURCHASEAGREEMENT**

** **

Dated as of

October 18, 1993

 

To Each of thePersons Named in  Schedule A to this Agreement  (the “Purchasers”)

 

Gentlemen:

 

Inconsideration of the agreement of the Purchasers to purchase the Common Stock,$.01 par value, of AirTran Corporation, a Minnesota corporation (the “Company”),as provided for herein, the Company hereby agrees with each of the Purchasersas follows:

 

1.                                       Sale and Purchase of Securities.  Subject to the terms and conditions hereof,the Company agrees to issue and sell to each Purchaser, and each Purchaseragrees to purchase from the Company, the number of shares of the Company’sCommon Stock set forth opposite such Purchaser’s name in Schedule A hereto (the“Stock”), at the purchase price set forth opposite such Purchaser’s name inSchedule A hereto.

 

2.                                       Closing. The closing of the sale to, and purchase by, the Purchasers of the Stock(the “Closing”) shall occur at the offices of Briggs and Morgan, ProfessionalAssociation, 2400 IDS Center, 80 South Eighth Street, Minneapolis, Minnesota,at the hour of 10 A.M., Minneapolis time, on October 19, 1993 or on such otherday or at such other time or place as the Purchasers and the Company shallagree upon (the “Closing Date”).

 

At theClosing, the Company will deliver to the Purchasers certificates representingthe Stock being purchased by the Purchasers, registered in their respectivenames as stated in Schedule A hereto, against delivery to the Company of theircertified or bank cashier checks in the amounts set forth after theirrespective names in Schedule A hereto, in payment of the total purchase priceof the Stock being purchased by the Purchasers.

 

3.                                       Restriction on Transfer ofthe Securities.  The Stock deliveredat the Closing will not be registered under the Securities Act of 1933, asamended (the “Securities Act”), and will be transferable by the Purchasers onlypursuant to (a) a public offering registered under the Securities Act, or (b)Rule 144 (or any similar rule then in effect) adopted under the Securities Act,if such rule is available, or (c) another legally available exemption fromregistration.  The certificate orcertificates representing the Stock shall be endorsed with substantially thefollowing legend:

 

“The securities evidenced hereby may not betransferred without (i) an opinion of counsel satisfactory to AirTranCorporation that such transfer may be lawfully made without registration underthe Securities Act of 1933 and all applicable state securities laws or (ii)such registration.”

 

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4.                                       Registration of the Stock.

 

4.1                                 Required Registration.  Anytime after March 31, 1995, if the Companyshall receive a written request therefor from any record holder or holders ofan aggregate of at least a majority of the shares of the Stock not theretoforeregistered under the Securities Act and sold, the Company shall prepare andfile one registration statement under the Securities Act covering the Stockwhich are the subject of such request and shall use its best efforts to causesuch registration statement to become effective.  In addition, upon the receipt of suchrequest, the Company shall promptly give written notice to all other recordholders of the Stock not theretofore registered under the Securities Act andsold that such registration is to be effected. The Company shall include in such registration statement such shares ofthe Stock for which it has received written requests to register by such otherrecord holders within 30 days after the delivery of the Company’s writtennotice to such other record holders.  TheCompany shall be obligated to prepare, file and cause to become effective onlyone registration statement pursuant to this Paragraph 4.1, and to pay theexpenses associated with such registration statement.  In the event that the holders of a majorityof the Stock for which registration has been requested pursuant to thisParagraph 4.1 determine for any reason not to proceed with a registration atany time before a registration statement has been declared effective by theCommission, and such registration statement, if theretofore filed with theCommission, is withdrawn with respect to the shares of the Stock coveredthereby, and the holders of such Stock agree to bear their own expensesincurred in connection therewith and to reimburse the Company for the expensesincurred by it attributable to the registration of such Stock, the holders ofsuch shares of the Stock shall not be deemed to have exercised their right torequire the Company to register Stock pursuant to this Paragraph 4.1.

 

If,during the period any written request for registration is pending by theCompany pursuant this Paragraph 4.1, the Company has determined to proceed withthe actual preparation and filing of a registration statement under theSecurities Act in connection with the proposed offer and sale for cash of anyof its securities by it or any of its security holders, such written requestshall be deemed to have been given pursuant to Paragraph 4.2 hereof rather thanthis Paragraph 4.1, and the rights of the holders of Stock covered by suchwritten request shall be governed by Paragraph 4.2.

 

4.2                                 Incidental Registration.  Each time the Company shall determine toproceed with the actual preparation and filing of a registration statementunder the Securities Act in connection with the proposed offer and sale forcash of any of its Common Stock by it or any of its security holders (otherthan a registration statement on a form that does not permit the inclusion ofshares by its security holders), the Company will give written notice of itsdetermination to all record holders of the Stock not theretofore registeredunder the Securities Act and sold.  Uponthe written request of a

 

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record holder or holders representing 10% or more of the shares of theStock given within 30 days after receipt of any such notice from the Company,the Company will, except as herein provided, cause all such shares of theStock, the record holders of which have so requested registration thereof, tobe included in such registration statement, all to the extent necessary topermit the sale or other disposition by the prospective seller or sellers ofthe Stock to be so registered; provided, however, that nothing herein shallprevent the Company from, at any time, abandoning or delaying any suchregistration initiated by it; provided further, however, that if the Companydetermines not to proceed with a registration after the registration statementhas been filed with the Commission and the Company’s decision not to proceed isprimarily based upon the anticipated public offering price of the Stock to besold by the Company, the Company shall promptly complete the registration forthe benefit of those selling security holders who wish to proceed with a publicoffering of their Stock and who bear all expenses in excess of $25,000 incurredby the Company in connection with such registration after the Company hasdecided not to proceed.  If anyregistration pursuant to this Paragraph 4.2 shall be underwritten in whole orin part, the Company may require that the Stock requested for inclusionpursuant to this Paragraph 4.2 be included in the underwriting on the sameterms and conditions as the securities otherwise being sold through theunderwriters.  In the event that theStock requested for inclusion pursuant to this Paragraph 4.2 would constitutemore than 25% of the total number of shares to be included in a proposedunderwritten public offering, and if in the good faith judgment of the managingunderwriter of such public offering the inclusion of all of the Stockoriginally covered by a request for registration would reduce the number ofshares to be offered by the Company or interfere with the successful marketingof the shares of stock offered by the Company, the number of shares of Stockotherwise to be included in the underwritten public offering may be reduced prorata (by number of shares) among the holders thereof requesting such registration.  Those shares of Stock which are thus excludedfrom the underwritten public offering shall be withheld from the market by theholders thereof for a period, not to exceed 90 days, which the managingunderwriter reasonably determines is necessary in order to effect theunderwritten public offering.

 

4.3                                 Registration Procedures.  If and whenever the Company is required bythe provisions of Section 4.1 or 4.2 hereof to effect the registration ofshares of the Stock under the Securities Act, the Company will:

 

a.                                       prepareand file with the Commission a registration statement with respect to suchsecurities, and use its best efforts to cause such registration statement tobecome and remain effective for such period as may be reasonably necessary toeffect the sale of such securities, not to exceed nine months;

 

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b.                                      prepareand file with the Commission such amendments to such registration statement andsupplements to the prospectus contained therein as may be necessary to keepsuch registration statement effective for such period as may be reasonablynecessary to effect the sale of such securities, not to exceed nine months;

 

c.                                       furnishto the security holders participating in such registration and to the underwritersof the securities being registered such reasonable number of copies of theregistration statement, preliminary prospectus, final prospectus and such otherdocuments as such underwriters may reasonably request in order to facilitatethe public offering of such securities;

 

d.                                      useits best efforts to register or qualify the securities covered by suchregistration statement under such state securities or blue sky laws of suchjurisdictions as such participating holders may reasonably request in writingwithin 20 days following the original filing of such registration statement,except that the Company shall not for any purpose be required to execute ageneral consent to service of process or to qualify to do business as a foreigncorporation in any jurisdiction wherein it is not so qualified;

 

e.                                       notifythe security holders participating in such registration, promptly after itshall receive notice thereof, of the time when such registration statement hasbecome effective or a supplement to any prospectus forming a part of suchregistration statement has been filed;

 

f.                                         notifysuch holders promptly of any request by the Commission for the amending orsupplementing of such registration statement or prospectus or for additionalinformation;

 

g.                                      prepareand file with the Commission, promptly upon the request of any such holders,any amendments or supplements to such registration statement or prospectuswhich, in the opinion of counsel for such holders (and concurred in by counselfor the Company), is required under the Securities Act or the rules andregulations thereunder in connection with the distribution of Stock by suchholder;

 

h.                                      prepareand promptly file with the Commission and promptly notify such holders of thefiling of such amendment or supplement to such registration statement orprospectus as may be necessary to correct any statements or omissions if, atthe time when a prospectus relating to such securities is required to bedelivered under the Securities Act, any event shall have occurred as the resultof which any such prospectus or any other prospectus as then in effect wouldinclude an untrue statement of a material fact or omit to state any materialfact necessary to make the statements therein, in the light of thecircumstances in which they were made, not misleading; and

 

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i.                                          advisesuch holders, promptly after it shall receive notice or obtain knowledgethereof, of the issuance of any stop order by the Commission suspending theeffectiveness of such registration statement or the initiation or threateningof any proceeding for that purpose and promptly use its best efforts to preventthe issuance of any stop order or to obtain its withdrawal if such stop ordershould be issued.

 

4.4                                 Expenses. With respect to each registration requested pursuant to Section 4.1hereof (except as otherwise provided in such Section with respect toregistrations voluntarily terminated at the request of the requesting securityholders) and with respect to each inclusion of shares of Stock in aregistration statement pursuant to Section 4.2 hereof (except as otherwiseprovided in Section 4.2 with respect to registrations initiated by the Companybut with respect to which the Company has determined not to proceed), theCompany shall bear the following fees, costs and expenses: all registration,filing and NASD fees, printing expenses, fees and disbursements of counsel andaccountants for the Company, fees and disbursements of counsel for theunderwriter or underwriters of such securities (if the Company and/or sellingsecurity holders are required to bear such fees and disbursements), allinternal Company expenses, all legal fees and disbursements and other expensesof complying with state securities or blue sky laws of any jurisdictions inwhich the securities to be offered are to be registered or qualified, and thepremiums and other costs of policies of insurance (if any) against liabilityarising out of such public offering.  Feesand disbursements of counsel and accountants for the selling security holders,underwriting discounts and commissions and transfer taxes relating to theshares included in the offering by the selling security holders, and any otherexpenses incurred by the selling security holders not expressly included above,shall be borne by the selling security holders.

 

4.5                                 Indemnification.  In the event that any Stock is included in aregistration statement under Section 4.1 or 4.2 hereof:

 

a.                                       TheCompany will indemnify and hold harmless each holder of shares of Stock whichare included in a registration statement pursuant to the provisions of thisSection 4, its directors and officers, and each person, if any, who controlssuch holder within the meaning of the Securities Act, from and against, and willreimburse such holder and controlling person with respect to, any and all loss,damage, liability, cost and expense to which such holder or controlling personmay become subject under the Securities Act or otherwise, insofar as suchlosses, damages, liabilities, costs or expenses are caused by any untruestatement or alleged untrue statement of any material fact contained in suchregistration statement, any prospectus contained therein or any amendment orsupplement thereto, or arise out of or are based upon the omission or allegedomission to state therein a material fact required to be stated therein ornecessary to make the statements therein, in light of the

 

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circumstances in which they were made, not misleading; provided,however, that the Company will not be liable in any such case to the extentthat any such loss, damage, liability, cost or expense arises out of or isbased upon an untrue statement or alleged untrue statement or omission oralleged omission so made in conformity with information furnished by suchholder, or such controlling person, in writing specifically for use in thepreparation thereof.

 

b.                                      Eachholder of shares of Stock which are included in a registration pursuant to theprovisions of this Section 4 will indemnity and hold harmless the Company, itsdirectors and officers, any controlling person from and against, and willreimburse the Company, its directors and officers, any controlling person withrespect to, any and all loss, damage, liability, cost or expense to which theCompany or any controlling person may become subject under the Securities Actor otherwise, insofar as such losses, damages, liabilities, costs or expensesare caused by any untrue or alleged untrue statement of any material factcontained in such registration statement, any prospectus contained therein orany amendment or supplement thereto, or arise out of or are based upon theomission or the alleged omission to state therein a material fact required tobe stated therein or necessary to make the statements therein, in light of thecircumstances in which they were made, not misleading, in each case to theextent, but only to the extent, that such untrue statement or alleged untruestatement or omission or alleged omission was so made in reliance upon and instrict conformity with written information furnished by such holderspecifically for use in the preparation thereof.

 

c.                                       Promptlyafter receipt by an indemnified party pursuant to the provisions of paragraph (a)or (b) of this Section 4.5 of notice of the commencement of any actioninvolving the subject matter of the foregoing indemnity provisions suchindemnified party will, if a claim thereof is to be made against theindemnifying party pursuant to the provisions of said paragraph (a) or (b),promptly notify the indemnifying party of the commencement thereof; but theomission so to notify the indemnifying party will not relieve it from anyliability which it may have to any indemnified party otherwise than hereunder.  In case such action is brought against anyindemnified party and it notifies the indemnifying party of the commencementthereof, the indemnifying party shall have the right to participate in, and, tothe extent that it may wish, jointly with any other indemnifying partysimilarly notified, to assume the defense thereof, with counsel satisfactory tosuch indemnified party, provided, however, if the defendants in any actioninclude both the indemnified party and the indemnifying party and the indemnifiedparty shall have reasonably concluded that there is a conflict of interestwhich would prevent counsel for the indemnifying party from also representingthe indemnified party, the indemnified party or parties shall have the right toselect separate counsel to participate in the defense of such action on behalfof such indemnified party or parties. After notice from the indemnifying party to

 

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such indemnified party of its election so to assume the defensethereof, the indemnifying party will not be liable to such indemnified partypursuant to the provisions of said paragraph (a) or (b) for any legal or otherexpense subsequently incurred by such indemnified party in connection with thedefense thereof other than reasonable costs of investigation, unless (i) theindemnified party shall have employed counsel in accordance with the proviso ofthe preceding sentence, (ii) the indemnifying party shall not have employedcounsel reasonably satisfactory to the indemnified party to represent theindemnified party within a reasonable time after the notice of the commencementof the action, or (iii) the indemnifying party has authorized the employment ofcounsel for the indemnified party at the expense of the indemnifying party.

 

5.                                       Representations and Warrantiesby Company.  The Companyrepresents and warrants to the Purchasers that:

 

5.1                                 Organization, Standing, etc.  The Company is a corporation duly organized,validly existing and in good standing under the laws of the State of Minnesota,and has the requisite corporate power and authority to own its properties andto carry on its business in all material respects as it is now beingconducted.  The Company has the requisitecorporate power and authority to issue the Stock, and to otherwise perform itsobligations under this Agreement.  Thecopies of the Articles of Incorporation and Bylaws of the Company delivered tothe Purchasers or their agents prior to the execution of this Agreement aretrue and complete copies of the duly and legally adopted Articles ofIncorporation and Bylaws of the Company in effect as of the date of thisAgreement.  The Company has onesubsidiary, Mesaba Aviation, Inc., a Minnesota corporation (“Mesaba”), which iswholly owned by the Company.

 

5.2                                 Financial Statements.  Attached hereto as Exhibit 1 is an unauditedconsolidated balance sheet at September 30, 1993, together with the relatedconsolidated statements of operations, stockholders’ equity and cash flow forthe three months then ended, prepared by the Company.  The Company has furnished to the Purchasers acopy of its Form 10-K Annual Report for the fiscal year ended March 31, 1993and the Company’s Form 10-Q Quarterly Report for the three months ended June30, 1993, both as filed with the Securities and Exchange Commission(collectively the “Periodic Reports”). The financial statements contained in Exhibit 1 and in those PeriodicReports (i) are in accordance with the books and records of the Company, (ii)present fairly the financial condition of the Company at the balance sheetdates and the results of its operations for the periods therein specified, and(iii) have, in all material respects, been prepared in accordance withgenerally accepted accounting principles applied on a basis consistent withprior accounting periods.

 

5.3                                 Tax Returns and Audits.  All required federal, state and local taxreturns or appropriate extension requests of the Company have been filed, and,to the knowledge of the Company, all federal, state and local taxes required tobe

 

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paid with respect to such returns have been paid or due provision forthe payment thereof has been made.  TheCompany is not delinquent in the payment of any such tax or in the payment ofany assessment or governmental charge. The Company has not received notice of any tax deficiency proposed orassessed against it, and has not executed any waiver of any statute oflimitations on the assessment or collection of any tax.  To the knowledge of the Company, the Companydoes not have any tax liabilities except those reflected in its PeriodicReports hereto and those incurred in the ordinary course of business since June30, 1993.

 

5.4                                 Changes, Dividends, etc.  Except for the transactions contemplated bythis Agreement, since September 30, 1993 the Company has not: (a) incurred anydebts, obligations or liabilities, absolute, accrued or contingent and whetherdue or to become due, except current liabilities incurred in the ordinarycourse of business, which (individually or in the aggregate) will notmaterially and adversely affect the business, properties or prospects of theCompany; (b) paid any obligation or liability other than, or discharged orsatisfied any liens or encumbrances other than those securing, currentliabilities, in each case in the ordinary course of business; (c) except for aquarterly dividend to shareholders, which is in the normal course of business,declared or made any payment or distribution to its stockholders as such, orpurchased or redeemed any of its shares of capital stock or other securities,or obligated itself to do so; (d) canceled or compromised any debt or claim, orwaived or released any right of material value; (e) suffered any physicaldamage, destruction or loss (whether or not covered by insurance) materiallyand adversely affecting the properties, business or prospects of the Company;(f) entered into any transaction other than in the ordinary course of business;(g) issued or sold any shares of capital stock or other securities or grantedany options, warrants or other purchase rights with respect thereto other thanas contemplated by this Agreement; or (h) made any acquisition or dispositionof any material assets or become involved in any other material transaction,other than for fair value in the ordinary course of business.

 

5.5                                 Title to Properties and Encumbrances.  The Company has good and marketable title toall its owned properties and assets, including without limitation theproperties and assets used in the conduct of its business, except for propertydisposed of in the ordinary course of business since September 30, 1993, whichproperties and assets are not subject to any mortgage, pledge, lease, lien,charge, security interest, encumbrance or restriction, except (a) thoseincurred in the ordinary course of business and (b) those which are shown anddescribed in the Periodic Reports, or in Exhibit 1 hereto, or the notesthereto. The plant, offices and equipment owned and leased by the Company havebeen kept in good condition and repair in the ordinary course of business,ordinary wear and tear excepted.

 

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5.6                                 Litigation; GovernmentalProceedings.  There are nomaterial legal actions, suits, arbitrations or other legal, administrative orgovernmental proceedings or investigations pending or, to the knowledge of theCompany, threatened against the Company or Mesaba, its properties, assets orbusiness, and the Company is not aware of any facts which are likely to resultin or form the basis for any such action, suit or other proceeding.  Neither Mesaba nor the Company is known bythe Company to be in default with respect to any judgment, order or decree ofany court or any governmental agency or instrumentality.

 

5.7                                 Compliance with Applicable Lawsand Other Instruments.  To theknowledge of the Company, the business and operations of the Company and Mesabahave been and are being conducted in accordance with all applicable laws, rulesand regulations of all governmental authorities.  Neither the execution nor delivery of, northe performance of or compliance with, this Agreement nor the consummation ofthe transactions contemplated hereby will, to the knowledge of the Company,conflict with, or, with or without the giving of notice or passage of time,result in any breach of, or constitute a default under, or result in theimposition of any lien or encumbrance upon any asset or property of the Companypursuant to, any applicable law, administrative regulation or judgment, orderor decree of any court or governmental body, any agreement or other instrumentto which the Company is a party or by which it or any of its properties, assetsor rights is bound or affected, and will not violate the Articles ofIncorporation or Bylaws of the Company.

 

5.8                                 Securities Laws.  Based in part upon the representations andwarranties contained in Section 6 hereof, and except as required by the AirCarrier Fitness Rules adopted by the Department of Transportation, no consent,authorization, approval, permit or order of or filing with any governmental orregulatory authority is required under current laws and regulations inconnection with the execution and delivery of this Agreement or the offer,issuance, sale or delivery of the Stock. Under the circumstances contemplatedhereby, the offer, issuance, sale and delivery of the Stock will not undercurrent laws and regulations require compliance with the prospectus delivery orregistration requirements of the Securities Act.

 

5.9                                 Air Carrier Certification.  Mesaba holds an Air Carrier OperatingCertificate issued by the Federal Aviation Administration, a Certificate ofPublic Convenience and Necessity issued by the U.S. Department ofTransportation and all other operating and airworthiness certificates necessaryfor its operation.

 

5.10                           Capital Stock.  The authorized capital stock of the Companyconsists of 15,000,000 shares, of which 7,052,679 common shares are issued andoutstanding. All of the outstanding shares of capital stock of the Company wereduly authorized and validly issued and are fully paid and nonassessable.  There are no outstanding subscriptions,options, warrants, calls, contracts, demands, commitments, convertible securitiesor other

 

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agreements or arrangements of any character or nature whatever, exceptas otherwise disclosed in the Periodic Reports, in the Balance Sheet datedSeptember 30, 1993, or as contemplated by this Agreement, under which theCompany is or may be obligated to issue capital stock or other securities ofany kind representing an ownership interest or contingent ownership interest inthe Company.  Except with respect to theWarrants held by Northwest Aircraft Inc., copies of which are attached heretoas Exhibit 2, neither the offer nor the issuance or sale of the Stock,constitutes an event, under any anti-dilution provisions of anysecurities issued or issuable by the Company or any agreements with respect tothe issuance of securities by the Company, which will either increase thenumber of shares issuable pursuant to such provisions or decrease theconsideration per share to be received by the Company pursuant to suchprovisions.  No holder of any security ofthe Company is entitled to any preemptive or similar rights to purchasesecurities from the Company except as otherwise contemplated by this Agreement.

 

5.11                           Airline Services Agreement.  A copy of the Airline Services Agreement,dated September 15, 1988, and all amendments thereto, between Mesaba andNorthwest Airlines, Inc., and all material correspondence (not includingbillings, scheduling and other routine correspondence pertaining to operations)between Mesaba and Northwest Airlines, Inc. covering the period of March 31,1993 through September 30, 1993 in which the subject of the Airline ServicesAgreement is mentioned, have previously been made available to the Purchasersfor their examination.  Mesaba has in allmaterial respects substantially performed all obligations required to beperformed by it under the Airline Services Agreement and is not in default inany material respect thereunder.

 

5.12                           Corporate Acts and Proceedings.  This Agreement has been duly authorized byall necessary corporate action on behalf of the Company, and has been dulyexecuted and delivered by authorized officers of the Company.  All corporate action necessary to theauthorization, creation, issuance and delivery of the Stock, has been taken onthe part of the Company, or will be taken by the Company on or prior to theClosing Date.  This Agreement is a validand binding agreement of the Company enforceable in accordance with its terms,except as the enforceability thereof may be limited by bankruptcy, insolvency,moratorium, reorganization or other similar laws affecting the enforcement ofcreditors’ rights generally, and except for judicial limitations on theenforcement of the remedy of specific enforcement and other equitable remedies.

 

5.13                           No Brokers or Finders.  Except with respect to any “fairness opinion”engagement, for which the Company is responsible to pay all fees and expenses,no person, firm or corporation has or will have, as a result of any act oromission of the Company, any right, interest or valid claim against or upon theCompany or any Purchaser for any commission, fee or other compensation as afinder or broker, or in any similar capacity, in

 

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connection with the transactions contemplated by this Agreement.  The Company will defend and indemnify andhold each Purchaser harmless against any and all liability with respect to anysuch commission, fee or other compensation which may be payable or determinedto be payable in connection with the transactions contemplated by thisAgreement.

 

5.14                           Licenses. To the knowledge of the Company, Mesaba possesses from the appropriateagency, commission, board and government body and authority, whether state,local or federal, all licenses, permits, authorizations, approvals, franchisesand rights which (a) are necessary for it to engage in the business currentlyconducted by it, and (b) if not possessed by Mesaba would have an adverseimpact on Mesaba’s business.

 

5.15                           Registration Rights.  Other than under this Agreement and under theNorthwest Warrants, the Company has not agreed to register any of itsauthorized or outstanding securities under the Securities Act.

 

5.16                           Retirement Plans.  The Company does not have any retirement planin which any employees of the Company participate that is subject to anyprovisions of the Employee Retirement Income Security Act of 1974 and of theregulations adopted pursuant thereto (“ERISA”), other than the Mesaba Aviation,Inc. 401(K) Retirement Savings Plan.

 

6.                                       Representations andWarranties of Purchasers. Each of the Purchasers severally represents and warrants for itselfthat:

 

6.1                                 Investment Intent.  The Stock being acquired by such Purchaserhereunder is being purchased for such Purchaser’s own account and not with theview to, or for resale in connection with, any distribution or public offeringthereof within the meaning of the Securities Act.  Such Purchaser understands that the Stock hasnot been registered under the Securities Act or any applicable state laws by reasonof its issuance or contemplated issuance in a transaction exempt from theregistration and prospectus delivery requirements of the Securities Act andsuch laws, and that the reliance of the Company and others upon this exemptionis predicated in part upon this representation and warranty.  Such Purchaser further understands that theStock may not be transferred or resold without (a) registration under theSecurities Act and any applicable state securities laws, or (b) an exceptionfrom the requirements of the Securities Act and applicable state securitieslaws.

 

SuchPurchaser understands that an exemption from such registration is not presentlyavailable pursuant to Rule 144 promulgated under the Securities Act by theSecurities and Exchange Commission and that in any event such Purchaser may notsell any securities pursuant to Rule 144 prior to the expiration of a two-yearperiod after such Purchaser has acquired the securities.  Such Purchaser understands that any salespursuant to Rule 144 may only be made in full compliance with the provisions ofRule 144.

 

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6.2                                 Location of Principal Office andQualification as Accredited Investor.  The state in which such Purchaser’s principaloffice (or domicile, if such Purchaser is an individual) is located is setforth in such Purchaser’s address in Schedule A hereto.  Unless otherwise indicated on such Purchaser’sCertification attached as Exhibit 3 to this Agreement, such Purchaser qualifiesas an accredited investor within the meaning of Rule 501 under the SecuritiesAct for the reasons specified on such Certification.  Such Purchaser has such knowledge andexperience in financial and business matters that such Purchaser is capable ofevaluating the merits and risks of the investment to be made hereunder by suchPurchaser.  Such Purchaser has and hashad access to all of the Company’s material books and records and access to theCompany’s executive officers has been provided to such Purchaser or to suchPurchaser’s qualified agents.

 

6.3                                 Acts and Proceedings.  This Agreement has been duly authorized byall necessary action on the part of such Purchaser, has been duly executed anddelivered by such Purchaser, and is a valid and binding agreement upon the partof such Purchaser.

 

6.4                                 No Brokers or Finders.  No person, firm or corporation has or willhave, as a result of any act or omission by such Purchaser, any right, interestor valid claim against the Company for any commission, fee or othercompensation as a finder or broker, or in any similar capacity, in connectionwith the transactions contemplated by this Agreement. Such Purchaser willdefend and indemnify and hold the Company harmless against any and allliability with respect to any such commission, fee or other compensation whichmay be payable or determined to be payable as a result of the actions of suchPurchaser in connection with the transactions contemplated by this Agreement.

 

6.5                                 Purchaser Certification.  Purchasers have furnished the informationcontained in Exhibit 5 with the understanding that the Company may use the samein filings with governmental authorities, including but not limited to, theDepartment of Transportation.

 

7.                                       Conditions of Each Purchaser’s Obligation.  The obligation to purchase and pay for theStock which each Purchaser has agreed to purchase on the Closing Date issubject to the fulfillment prior to or on the Closing Date of the followingconditions.  In the event that any suchcondition is not satisfied to the satisfaction of each Purchaser, then noPurchaser shall be obligated to proceed with the purchase of such Stock.

 

7.1                                 Compliance with Agreement.  The Company shall have performed and compliedwith all agreements or conditions required by this Agreement to be performedand complied with by it prior to or as of the Closing Date.

 

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7.2                                 Opinion of Company’s Counsel.  The Company shall have delivered to each ofthe Purchasers an opinion or opinions of Briggs and Morgan, ProfessionalAssociation, counsel for the Company, dated the Closing Date, to the effectthat:

 

a.                                       TheCompany is a duly and validly organized and existing corporation in goodstanding under the laws of the State of Minnesota and has the corporate powerand authority to enter into this Agreement, to issue and sell the Stock ascontemplated by this Agreement, and to carry out the provisions of thisAgreement.

 

b.                                      ThisAgreement has been duly authorized, executed and delivered by the Company, andis a legal, valid and binding agreement of the Company enforceable inaccordance with its terms, except as the enforceability thereof may be limitedby bankruptcy, insolvency, moratorium, reorganization or similar laws affectingthe enforcement of creditors’ rights generally, and except for judiciallimitations on the enforcement of the remedy of specific performance and otherequitable remedies.

 

c.                                       TheStock has been duly authorized and when issued and paid for in accordance withthe terms of this Agreement, will be duly issued, fully paid and nonassessable.

 

d.                                      Assumingthe accuracy of the representations of the Purchasers set forth in Section 6hereof, the offer, sale, issuance and delivery of the Stock to the Purchasersunder the circumstances contemplated by this Agreement are exempt from theregistration and prospectus delivery requirements of the Securities Act.

 

7.3                                 Proceedings and Documents.  All corporate and other proceedings andactions taken in connection with the transactions contemplated hereby and allcertificates, opinions, agreements, instruments and documents mentioned hereinor incident to any such transaction shall be satisfactory in form and substanceto the Purchasers and their special counsel.

 

7.4                                 Purchaser Conditions Precedent.  The obligation of Purchasers to acquire theStock shall be contingent upon Carl R. Pohlad’s approval of the final form ofthis Agreement.

 

8.                                       Consents; Waivers and Amendments.  Except as otherwise specifically providedherein, in each case in which approval of the Purchasers is required by theterms of this Agreement, such requirement shall be satisfied by a vote or thewritten consent of Purchasers owning at least a majority of the purchased Stockthen owned by the Purchasers.  With thewritten consent of Purchasers owning at least a majority of the purchased Stockthen owned by the Purchasers, the obligations of the Company under thisAgreement may be waived (either generally or in a particular instance andeither retroactively or prospectively), and with the same approval the Companymay enter into a supplementary agreement for the purpose of adding anyprovisions to or changing in any manner or eliminating any of the provisions ofthis Agreement

 

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or of any supplementalagreement or modifying in any manner the rights and obligations of the holdersof the purchased Stock and of the Company. Written notice of any such waiver, consent or agreement of amendment,modification or supplement shall be given to the record holders of thepurchased Stock who have not previously consented thereto in writing.

 

9.                                       Changes, Waivers, etc.  Neither this Agreement nor any provisionhereof may be changed, waived, discharged or terminated orally, but only by astatement in writing signed by the party against which enforcement of the change,waiver, discharge or termination is sought, except to the extent provided inSection 8 hereof.

 

10.                                 Payment of Fees and Expenses ofPurchasers.  The Purchasers shall beresponsible for and pay all of their expenses in connection with thetransactions contemplated by this Agreement.

 

11.                                 Understanding Among Purchasers.  The determination by each of the Purchasersto purchase Stock pursuant to this Agreement has been made by such Purchaserindependent of the other Purchasers, and independent of any statements oropinions as to the advisability of such purchase or as to the properties,business, prospects or condition (financial or otherwise) of the Company whichmay have been made or given by the other Purchasers or by any agent or employeeof the other Purchasers.  In addition, itis acknowledged by each of the Purchasers that the other Purchasers have notacted as such Purchaser’s agent in connection with making its investmenthereunder and that the other Purchasers will not be acting as such Purchaser’sagent in connection with monitoring such Purchaser’s investment hereunder.

 

12.                                 Sale of Purchased Stock by Purchasers.  Beginning December 1, 1993, each of thePurchasers shall, at least ten business days prior to any sale or othertransfer for value of Stock owned by it, discuss with the Company thepossibility of the Company purchasing such Stock.  This provision shall not, however, beinterpreted to require such Purchasers to accept any offer by the Company to purchasesuch Stock, or to refrain for any period beyond such ten business days fromselling or transferring such Stock to a third party.

 

13.                                 Notices. All notices, requests, consents and other communications required orpermitted hereunder shall be in writing and shall be delivered, or mailed first-classpostage prepaid, registered or certified mail,

 

a.                                       ifto any holder of any Stock, addressed to such holder at its address as shown onthe books of the Company, or at such other address as such holder may specifyby written notice to the Company, or

 

b.                                      ifto the Company, addressed to the Company, 7501 26th Avenue South, Minneapolis,Minnesota 55450, attention President, or to such other address as the Companymay specify by written notice to the Purchasers,

 

and such noticesand other communications shall for all purposes of this Agreement be treated asbeing effective or having been given if delivered personally, or, if sent bymail, when received.

 

14.                                 Survival of Representations and Warranties,etc.  All representations andwarranties contained herein shall survive the execution and delivery of thisAgreement, any investigation at any time made by the Purchasers or on theirbehalf, and the sale and purchase of

 

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the Stock and paymenttherefor, but shall terminate on the fifth anniversary of the date of thisAgreement.  All statements contained inany certificate, instrument or other writing delivered by or on behalf of theCompany pursuant hereto or in connection with or contemplation of the transactionsherein contemplated (other than legal opinions) shall constituterepresentations and warranties by the Company hereunder.

 

15.                                 Parties in Interest.  All the terms and provisions of thisAgreement shall be binding upon and inure to the benefit of and be enforceableby the respective successors and assigns of the parties hereto, whether soexpressed or not, and, in particular, shall inure to the benefit of and beenforceable by the holder or holders at the time of any of the Stock.

 

16.                                 Headings. The headings of the Sections and paragraphs of this Agreement have beeninserted for convenience of reference only and do not constitute a part of thisAgreement.

 

17.                                 Choice of Law.  It is the intention of the parties that thelaws of Minnesota shall govern the validity of this Agreement, the constructionof its terms and the interpretation of the rights and duties of the parties.

 

18.                                 Counterparts.  This Agreement may be executed concurrentlyin two or more counterparts, each of which shall be deemed an original, but allof which together shall constitute one and the same instrument.

 

19.                                 Additional Company Conditions Precedent.  The Company’s obligation to issue and sellthe Stock shall be contingent upon:

 

19.1                           Valuation Opinion.  Receipt by the Company, prior to closing, ofan opinion of an investment banking firm selected by the Company, obtained atthe Company’s expense, to the effect that the purchase price of the Stock, *i.e.*, $7.25 per share, is equivalent to atleast the fair market value thereof, considering the private placement natureof the transaction, the number of shares purchased, the market price of theCompany Common Stock as of September 28, 1993, the current valuation of otherregional airlines’ equity securities, and other matters deemed relevant bythem.

 

19.2                           Regulatory and ContractualMatters.  Receipt by the Companyof an opinion or opinions of counsel to the effect that the sale of the Stockto the Purchasers is not “a prohibited act” as that term is used in 49 U.S.C. §1378, that any necessary approval or consent of the Department ofTransportation and other state and federal regulatory bodies, or any otherparty, has been obtained, and that the sale of the Stock does not cause theCompany to be in default of any material agreement to which it is a party.

 

19.3                           Final Agreement.  Approval by the Company’s board of directorsof this Agreement, including the Company’s approval of the identity of eachPurchaser, or any person who has an interest, directly or indirectly, in aPurchaser.

 

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If youare in agreement with the foregoing, please sign the form of acceptance on theenclosed counterpart of this letter and return the same to the undersigned,whereupon this letter shall become a binding contract among you and theundersigned.

 
|                        | Very truly  yours,   |
|-----------------------------|----------------------|
|                        |                 |
|                        | AIRTRAN  CORPORATION |
|                        |                 |
|                        |                 |
|                        | By                   | /s/ Robert D. Swenson |   |
|                        |                 | Robert D.  Swenson |
|                        |                 | Its President  and Chief Executive Officer |
|                        |                 |
|                        |                 |
| The foregoing  Agreement is |                 |
| hereby accepted  as of the  |                 |
| date first above  written.  |                 |
| /s/ Carl R. Pohlad          |                 |   |
| Carl R. Pohlad              |                 |
|                             |                      |  |  |  |  |

** **

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