EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement") made
and entered into this 19th day of May, 1997, by and among US
Airways Group, Inc., a corporation organized and existing
under the laws of the State of Delaware (the "Company"),
British Airways Plc, a public limited company organized and
existing under the laws of England and Wales ("BA"), and
BritAir Acquisition Corp. Inc., a corporation organized and
existing under the laws of the State of Delaware and a
wholly owned subsidiary of BA (the "Seller").
W I T N E S S E T H :
WHEREAS, the Seller owns 30,000 shares of Series F
Cumulative Convertible Senior Preferred Stock ("Series F
Preferred Stock"), 152.1 shares of Series T-1 Cumulative
Convertible Exchangeable Senior Preferred Stock ("Series T-1
Preferred Stock", and together with Series F Preferred
Stock, the "Preferred Stock") of the Company; and
WHEREAS, the Company desires to purchase from
Seller, and the Seller is willing to sell to the Company
1940.636 shares of Series F Preferred Stock and all 152.1
shares of the Series T-1 Preferred Stock owned by the Seller
(collectively, the "Preferred Shares");
WHEREAS, in view of Seller s agreement to sell the
Preferred Shares to the Company, the Company agrees to waive
certain of its rights under the Investment Agreement made
and entered into January 21, 1993, by and between the
Company and BA, as amended (the Investment Agreement );
WHEREAS, pursuant to Section 7.2 of the Investment
Agreement, BA has delivered a notice to the Company stating
BA s intention to sell Series T-2 Cumulative Convertible
Exchangeable Senior Preferred Stock (the Series T-2
Preferred Stock ), and on the date hereof the Company is
delivering a notice to BA, a copy of which is attached
hereto as Annex A, stating that the Company intends to
exercise its right of first offer with respect to such
Series T-2 Preferred Stock, such purchase to be consummated
on May 29, 1997 or such earlier date as the parties hereto
shall mutually agree;
NOW, THEREFORE, in consideration of the premises
and mutual agreements hereinafter contained, the parties
hereto do hereby agree as follows:
1. Representations, Warranties and Agreements of
the Seller. The Seller represents and warrants to the
Company that:
(a) Seller is a corporation duly organized.
validly existing and in good standing under the laws of
the State of Delaware, and BA is a public limited
company duly organized and validly existing under the
laws of England and Wales. The Seller has the
corporate power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the
Preferred Shares in accordance herewith.
(b) Neither the execution nor the delivery of
this Agreement nor the sale of the Preferred Shares nor
the Seller s or BA s performance of any of their
respective covenants and agreements hereunder will,
directly or indirectly,(i) contravene, conflict with,
or result in a violation of the certificate of
incorporation or bylaws of the Seller or the Memorandum
and Articles of Association of BA or any resolution
adopted by the Board of Directors of the Seller or BA;
(ii) contravene, conflict with, or result in a
violation of any federal, state, local, foreign,
international, or administrative rule, law, ordinance,
regulation, statute, (iii) contravene, conflict with,
or result in a violation or breach of, or give any
person the right to exercise any remedy under, or
accelerate the maturity or performance of, or cancel,
terminate or modify any contract to which the Seller or
BA is a party or by which the Seller or BA may be bound
or (iv) give any person the right to prevent, delay, or
otherwise interfere with any of the transactions
contemplated hereby.
(c) Immediately prior to the Closing (as defined
below), the Seller will have good and valid title to
the Preferred Shares, free and clear of all liens,
encumbrances, equities or claims (other than pursuant
to the Investment Agreement and this Agreement); and,
upon delivery of the Preferred Shares and payment
therefor pursuant hereto, good and valid title to the
Preferred Shares, free and clear of all liens,
encumbrances, equities or claims will pass to the
Company.
(d) All sales by Seller or BA of the shares of
common stock, par value $1.00 per share, of the Company
(the Common Stock ) into which the shares of the
Series F Preferred Stock that are not being sold and
purchased hereunder (the Remaining Series F Shares )
are convertible (the Common Shares ), shall be made
pursuant to an exemption from the registration
requirements of the Securities Act of 1933 or pursuant
to an effective registration statement under such act.
2. Representations and Warranties of the
Company. The Company represents and warrants to the Seller
and BA that:
(a) The Company is a corporation duly organized,
validly existing and in good standing under the laws of
the State of Delaware. The Company has the corporate
power and authority to enter into this Agreement and to
purchase the Preferred Shares in accordance herewith.
(b) Neither the execution nor the delivery of
this Agreement nor the purchase of the Preferred Shares
nor the Company s performance of its covenants and
agreements hereunder will, directly or
indirectly,(i)contravene, conflict with, or result in a
violation of the certificate of incorporation or bylaws
of the Company or any resolution adopted by the Board
of Directors of the Company; (ii) contravene, conflict
with, or result in a violation of any federal, state,
local, foreign, international, or administrative rule,
law, ordinance, regulation, statute, or treaty,
including, without limitation, the provisions of the
General Corporation Law of the State of Delaware
relating to the repurchase or redemption of stock,
(iii) contravene, conflict with, or result in a
violation or breach of, or give any person the right to
exercise any remedy under, or accelerate the maturity
or performance of, or cancel, terminate or modify any
contract to which the Company is a party or by which
the Company may be bound or (iv) give any person the
right to prevent, delay, or otherwise interfere with
any of the transactions contemplated hereby.
(c) (i) The issued and outstanding capital stock
of the Company consisted of, as of April 30, 1997,
65,274,768 shares of Common Stock, 358,000 shares of
Series A Cumulative Convertible Preferred Stock,
42,625.5 shares of the Series B Cumulative Convertible
Preferred Stock, and consists of, as of the date
hereof, 30,000 shares of the Series F Preferred Stock,
152.1 shares of the Series T-1 Preferred Stock, and
9,919.8 shares of the Series T-2 Preferred Stock; (ii)
as of the date hereof, 1940.636 shares of the Series F
Preferred Stock, 152.1 shares of the Series T-1
Preferred Stock and 9,919.8 shares of the Series T-2
Preferred Stock represent, upon conversion, 1,000,000,
74,195 and 3,757,500 shares of Common Stock,
respectively; (iii) as of the date hereof, each
Conversion Price (as such term is defined in each of
the Certificates of Designation of the Preferred Stock)
used to calculate the conversions in (ii) above fully
and accurately reflects any adjustments to such
Conversion Price required pursuant to Section 8 of the
respective Certificates of Designation of the Preferred
Stock.
3. Purchase and Sale of Preferred Shares.
(a) Subject to the terms and conditions set forth
in this Agreement, the Seller agrees to sell to the
Company, and the Company agrees to purchase from the
Seller, the Preferred Shares for the aggregate of the
respective purchase prices (the Aggregate Purchase
Price ) set forth by series below:
Total
Number Price Purchase
Series of Shares per Share Price
-------------------------- --------- -------------- --------------
Series F Preferred Stock 1940.636 $12,693.708145 $24,633,867.00
Series T-1 Preferred Stock 152.1 12,926.80802 1,966,168.50
Aggregate Purchase Price $26,600,035.50
==============
(b) Certificates evidencing the Preferred Shares
will be made available for inspection by the Company at
3:00 p.m., New York time, on the business day prior to,
or two business days prior to, the Closing Date (as
defined below), at a meeting at the offices of Xxxxxxxx
& Xxxxxxxx referred to in Section 3(c) hereof (such
meeting, the Pre-Closing ). A representative of the
Company or of such office or agency maintained for the
purpose of effecting conversions of the Series F
Preferred Stock (the Company or such office or agency,
the Transfer Agent ) shall attend the Pre-Closing for
the purpose of preparing, and exchanging Seller s
certificate for the Series F Preferred Stock for, two
certificates, the first representing the shares of the
Series F Preferred Stock to be sold to the Company
pursuant to this Agreement and the second representing
the Remaining Series F Shares.
(c) Certificates evidencing the Preferred Shares,
together with appropriate instruments for the transfer
thereof to the Company, shall be delivered by the
Seller to the Company against payment by the Company of
the Aggregate Purchase Price therefor by wire transfer
of immediately available funds to the account of the
Seller at a bank to be identified to the Company at
least one day prior to the Closing. Such delivery
shall take place at the offices of Xxxxxxxx & Xxxxxxxx,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such
other location as the Seller and the Company may agree
to in writing. The time and date of payment and
delivery shall be 9:30 a.m., New York time, on May 22,
1997, or such other time and date as the Seller and the
Company may agree to in writing. The parties hereby
agree that the consummation of the Company s purchase
of the Series T-2 Preferred Stock pursuant to the
Company s right of first offer pursuant to Section 7.2
of the Investment Agreement shall occur on the Closing
Date at the same time and place set for the Closing.
The exchange of the Preferred Shares for the Aggregate
Purchase Price therefor is herein referred to as the
"Closing". The date on which such Closing occurs is
herein referred to as the "Closing Date".
4. Covenants of the Company. The Company
covenants to, and agrees with, BA and the Seller that:
(a) Following delivery to the Company by
Xxxxxxxx & Xxxxxxxx, counsel to BA and the Seller, of
their opinion (the Legal Opinion ), dated the date of
such delivery, in substantially the form attached as
Annex 4(a) hereto, upon request in writing from the
Seller that the Remaining Series F Shares be converted
into shares of the Common Stock, the Company shall, or
shall cause the Transfer Agent to, ensure (i) that such
conversion is effected within one Business Day (as used
in this Agreement the term Business Day shall mean
any day on which the New York Stock Exchange is open
for business) after the surrender to the Company of the
certificate representing the Remaining Series F Shares
and (ii) that, subject to paragraph (b) below, the
certificate in Seller s name representing the Common
Shares be prepared bearing only a legend (the
Contractual Restrictions Legend ) to the effect that
the securities represented by such certificate are
subject to restrictions on transfer pursuant to the
terms of the Investment Agreement, and any sale or
disposition thereof must be made in compliance with
applicable provisions of such Investment Agreement,
including without limitation those described in
Article VII and Article VIII thereof. Such certificate
shall be delivered to the Seller at the offices of
Xxxxxxxx & Xxxxxxxx referred to in Section 3(c) not
later than 3:00 p.m. New York time on such first
Business Day following request therefor. The
certificate representing the Remaining Series F Shares
described in Section 3(b) hereof shall bear only the
Contractual Restrictions Legend if the Legal Opinion
shall have been delivered to the Company at least one
Business Day prior to the Pre-Closing and the Seller
shall request that the certificate be so prepared.
(b) At such time as the Seller and, if
applicable, BA shall enter into an underwriting
agreement (an Underwriting Agreement ) with one or
more underwriters (the "Underwriters") containing a
covenant from the Underwriter in substantially the form
attached as Annex 4(c) hereto, within one Business Day
of a request by the Seller therefor, the Company shall,
or shall cause the Transfer Agent to, remove the
Contractual Restrictions Legend from the certificate
representing the Common Shares or issue a new
certificate that does not bear the Contractual
Restrictions Legend, in either case, with the effect
that the resulting certificate for the Common Shares
shall no longer be legended.
(c) The sale of the Common Shares pursuant to an
Underwriting Agreement shall be an "underwritten public
offering" constituting a Permitted Offering as such
terms are, respectively, used and defined in Section
7.1(b)(i) of the Investment Agreement. If Seller sells
the Common Shares in an underwritten public offering
pursuant to an Underwriting Agreement, entered into by
Seller and one or more of the underwriters set forth on
Annex 7(a)(i) hereto containing covenants from the
Underwriters in the form attached as Annex 4(c) hereto,
then with respect to such sale to such Underwriters and
with respect to the initial resale of the Common Shares
by such Underwriters the Company hereby waives BA s and
Seller s obligation under Section 7.1(b)(i) of the
Investment Agreement to sell the Common Shares in the
United States and to use best efforts to prevent sales
to any person that would become, as the result of such
offering, the beneficial owner of more than 5% of the
outstanding Common Stock.
(d) The Company shall, prior to the Closing Date,
supplementally list, subject to notice of issuance, the
Common Shares on the New York Stock Exchange. The
Company shall, or shall cause its Transfer Agent, to
immediately file notice of issuance to effect such
listing upon the surrender to the Company of the
certificate representing the Remaining Series F Shares
for exchange into the Common Shares.
(e) Except as set forth in this subparagraph (e),
the Seller s registration rights set forth in Article
VIII of the Investment Agreement shall not be affected
by the parties entry into this Agreement and shall
remain in effect. The Company shall not withdraw the
Registration Statement on Form S-1 (the "Form S-1")
relating to the Preferred Stock prior to the
"Termination Date": provided, however, that the Company
shall take such actions as it deems necessary to cause
the Securities and Exchange Commission not to declare
the Form S-1 effective prior to June 16, 1997. Upon
written notice from the Seller to the Company delivered
on or after June 16, 1997 stating that, while
registration is not necessary under the Securities Act
of 1933, an effective registration statement relating
to the Common Shares would facilitate the marketing of
such shares, the Company shall use reasonable efforts
to (a) amend as promptly as practicable the Form S-1 to
provide for the sale by the Seller of the Common Shares
and (b) cause such amended Form S-1 to be declared
effective under the Securities Act of 1933 as promptly
as practicable. As used in this subparagraph (e), the
"Termination Date" shall be the earlier of (i) the
first date following the issuance of the Common Shares
on which BA and the Seller hold in the aggregate not
more than 1,000,000 Common Shares and (ii) the date on
which the Company is no longer required to keep the
Form S-1, whether or not amended, effective under
Section 8.1(b)(ix) of the Investment Agreement.
(f) The record date for the May 30, 1997 dividend
on the Preferred Shares, the Remaining Series F Shares
and the 9,919.8 shares of Series T-2 Preferred Stock
owned as of the date hereof by the Seller shall be May
20, 1997. The Seller shall be entitled to receive the
dividend on all such shares, in respect of the dividend
payment period ending May 30, 1997.
(g) Prior to consummation of the sale by the
Seller of the Common Shares, the Company shall not
redeem any shares of the Remaining Series F Shares or
any of the Common Shares into which such shares are
converted.
5. Covenants of BA and the Seller. BA and the
Seller covenant to, and agree with, the Company that:
(a) On or prior to June 3, 1997, the Seller shall
surrender to the Company a certificate evidencing the
Remaining Series F Shares and deliver a written request
to the Company to convert the Remaining Series F Shares
into Common Shares, as described in Sections 4(a) and
4(b) hereof.
(b) The Seller and BA hereby acknowledge that
none of (x) the execution and delivery by the Company
of this Agreement with the form of Legal Opinion
attached hereto, (y) the acceptance by the Company of
the final, executed Legal Opinion or (z) the removal of
the restrictive legend from the certificate
representing the Remaining Series F Shares or the
Common Shares, shall be deemed to evidence the
Company s agreement or acknowledgment that the matters
set forth in the Legal Opinion are accurate or
complete.
(d) BA shall cause the Seller to comply with the
Seller s covenants and other agreements under this
Agreement.
6. Waivers of the Company. The Company hereby
waives the right of first offer set forth in Section 7.2 of
the Investment Agreement with respect to the Common Shares.
7. Conditions to Closing of the Company. The
obligation of the Company to accept and pay for the
Preferred Shares is subject to the following conditions:
(a) The representations and warranties of the
Seller contained herein shall be true and correct when
made and as of the Closing Date.
(b) The Seller shall have performed and complied
with all agreements on its part to be performed or
complied with prior to or on the Closing Date pursuant
hereto.
8. Conditions to Closing of the Seller. The
obligation of the Seller to deliver the Shares is subject to
the following conditions:
(a) The representations and warranties of the
Company contained herein shall be true and correct when
made and as of the Closing Date.
(b) The Company shall have performed and complied
with all agreements on its part to be performed or
complied with prior to or on the Closing Date pursuant
hereto.
(c) The Company shall have supplementally listed
the Common Shares, subject to notice of issuance, on
the New York Stock Exchange.
9. Expenses. The Seller agrees with the Company
that the Seller will pay or cause to be paid (i) the fees,
disbursements and expenses of counsel to the Seller in
connection with the transactions contemplated by this
Agreement and (ii) all other expenses (including taxes)
incurred by or imposed on the Seller incident to the sale
and delivery of the Preferred Shares and the Common Shares.
The Company will pay (i) all fees and expenses in connection
with supplementally listing the Common Shares on the NYSE
(ii) all of its own costs and expenses, including the fees,
disbursements and expenses of its counsel and (iii) all
other expenses (including taxes) incurred by or imposed on
the Company incident to the purchase of the Preferred Shares
by it.
10. Specific Performance. The parties hereto
each acknowledge that in view of the uniqueness of the
subject matter hereof, they would not have an adequate
remedy at law for money damages in the event that this
Agreement were not performed in accordance with its terms,
and therefore agree that the parties shall be entitled to
specific enforcement of the terms hereof in addition to any
other remedy to which the parties hereto may be entitled at
law or in equity.
11. Survival of Agreements, Etc. All
representations, warranties, covenants and agreements made
herein or in connection with the transactions contemplated
hereby shall survive the execution and delivery of this
Agreement and the Closing of the purchase and sale of the
Preferred Shares.
12. Non-Assignability and Successors. This
Agreement and the rights and obligations hereunder may not
be assigned or otherwise transferred by either party. This
Agreement shall be binding upon, and inure solely to the
benefit of, the Company, BA and the Seller, and their
respective successors and permitted assigns, and no other
person shall acquire or have any right under or by virtue of
this Agreement.
13. Headings. The headings in this Agreement are
for purposes of reference only and shall not limit or
otherwise affect the meaning hereof.
14. Amendments. This Agreement cannot be
modified, amended or terminated except by an instrument in
writing signed by the Company, BA and the Seller; provided,
however, that any provision of this Agreement may be waived
only by the party to be charged with the waiver but only by
a duly executed writing.
15. Time of Essence. Time shall be of the
essence in this Agreement.
16. Applicable Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of New York without regard to conflicts of laws
principles.
17. Notices. All notices and other
communications hereunder shall be in writing and shall be
sent by facsimile with a hard copy to follow by overnight
courier as follows:
If to the Seller:
BritAir Acquisition Corp. Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
with copies to
British Airways Plc
Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx (Xxxxxx)
Xxxxxxxx XX0 0XX
England
Attention: Legal Director
Telephone: 000-00-000-000-0000
Fax: 000-00-000-000-0000
and
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to the Company:
US Airways Group, Inc.
Crystal Park Four
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
18. Entire Agreement. This Agreement embodies
the entire agreement and understanding between the Company,
on the one hand, and BA and the Seller, on the other hand,
provides the waiver by the Company of certain of its rights
under the Investment Agreement to the extent provided herein
and supersedes all prior agreements and understandings
relating to the subject matter hereof, except the Investment
Agreement.
19. Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be an
original, but such counterparts shall together constitute
one and the same instrument.
20. Consent to Jurisdiction; Service of Process.
(a) The parties to this Agreement hereby irrevocably submit
to the exclusive jurisdiction of any Federal or State court
located in New York, New York over any suit, action or
proceeding arising out of or relating to this Agreement.
The parties hereby irrevocably waive, to the fullest extent
permitted by applicable law, any objection which they may
now or hereafter have to the laying of venue of any such
suit, action or proceeding brought in such court. The
parties agree that, to the fullest extent permitted by
applicable law, a final and non-appealable judgment in any
such suit, action, or proceeding brought in such court shall
be conclusive and binding upon the parties.
(b) Each party hereby consents to process being
served in any suit, action or proceeding of the nature
referred to in subsection (a) above by the sending of a copy
thereof in accordance with the provisions of Section 17 of
this Agreement. Nothing in this Section 20 shall affect the
right of any party to serve process in any manner permitted
by law.
IN WITNESS WHEREOF, the Company, BA and the Seller
have executed this Agreement as of the day and year first
above written.
US AIRWAYS GROUP, INC.
By: ______________________________
Name:
Title:
BRITISH AIRWAYS PLC
By: ______________________________
Name:
Title:
BRITAIR ACQUISITION CORP. INC.
By: ______________________________
Name:
Title:
Annex 4(c))
The Underwriter has been informed by the Seller
that compliance with Section 7.1(b)(i) of the Investment
Agreement requires that the Common Shares shall be sold in
an underwritten public offering, primarily in the United
States, and that in order to satisfy that requirement BA and
the Seller are relying on the Underwriter to comply, and the
Underwriter agrees that it will comply, in connection with
the resale by the Underwriter of the Common Shares, with the
following requirements:
(a) The Common Shares shall be offered to the public
in a manner consistent with the procedures that have
been employed by the Underwriter in an underwritten
public offering of common stock;
(b) The Underwriter shall not sell more than 4,000,000
Common Shares to any person; and
(c) Not more than an aggregate of 3,000,000 Common
Shares shall be offered or sold by the Underwriter
outside the United States and such offers and sales are
made only to foreign institutional investors set forth
on Annex 3(c) hereto (which Annex 3(c) will be agreed
prior to execution of the Underwriting Agreement by
Lazard Freres & Co. LLC & Gleacher NatWest, Inc.)
Annex 7(a)(i)
List of Underwriters
Credit Suisse First Boston Corporation
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Brothers Inc.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
