EXHIBIT 99.1
STOCKHOLDERS' AGREEMENT
THIS STOCKHOLDERS' AGREEMENT (this "AGREEMENT") is made and entered into
as of this ___ day of September, 2005, by and among US Airways Group, Inc., a
Delaware corporation, and its successors (including, as the context may require,
on or after the effective date of the Plan, as reorganized pursuant to chapter
11 of the United States Bankruptcy Code) (the "COMPANY") and the purchasers of
the Company's Common Stock listed on Exhibit A hereto (the "INVESTORS").
RECITALS
WHEREAS, the Investors are purchasing shares of the Company's common
stock, par value $0.01 per share (the "COMMON STOCK"), pursuant to those certain
Investment Agreements (the "INVESTMENT AGREEMENTS") as well as, in the case of
Eastshore Aviation, LLC, pursuant to that certain DIP Credit Facility, as
amended, (the "CREDIT FACILITY") (collectively, the "Financing");
WHEREAS, the obligations in the Investment Agreements and Credit Facility
are conditioned upon the execution and delivery of this Agreement; and
WHEREAS, in connection with the consummation of the Financing, the Company
and the Investors have agreed to the provisions as set forth below.
NOW, THEREFORE, in consideration of these premises and intending to be
legally bound, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"Affiliate" means, with respect to any specified Person, a Person
that directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the specified Person, where
"control" (including the terms "controlling," "controlled by" and "under common
control with") means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract, or otherwise;
provided, however, that when used with respect to the Company, "Affiliate" shall
not include any Investor or Affiliate thereof.
"Cases" shall mean the voluntary petitions for protection under
chapter 11 of the United States Bankruptcy Code filed by the Company and certain
of its subsidiaries in the United States Bankruptcy Court for the Eastern
District of Virginia, Alexandria Division to enable such debtors to be
restructured pursuant to one or more plans of reorganization.
"Closing Date" means the date of the closing of the purchase and
sale of Common Stock under the Investment Agreements.
"Commission" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal rule or statute and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
"Options" mean the options to purchase shares of Common Stock issued
to the Investors in the letter agreement dated September 16, 2005.
"Plan" shall mean the plan of reorganization to be filed in
connection with the Cases upon the Company's emergence from bankruptcy.
"Preferred Stock" shall mean any series of preferred stock of the
Company issued in the future by the Company.
"Registrable Securities" means any (i) Common Stock purchased by the
Investors pursuant to the Investment Agreements and, in the case of Eastshore
Aviation, LLC, the Credit Facility, including Common Stock purchased pursuant to
the Options, (ii) Common Stock of the Company held by an Investor as of the date
of this Agreement and (iii) Common Stock issued or issuable in respect of any of
the foregoing upon any stock split, stock dividend, recapitalization or similar
event; provided, however, that securities shall only be treated as Registrable
Securities if and so long as they have not been sold pursuant to a registration
or in accordance with Rule 144.
The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses, except as otherwise
stated below, incurred by the Company in complying with Section 6(a) and 6(c)
hereof, including without limitation, all registration, qualification and filing
fees, printing expenses, escrow fees, fees and disbursements of counsel for the
Company, blue sky fees and expenses, the expense of any special audits incident
to or required by any such registration (but excluding the compensation of
regular employees of the Company which shall be paid in any event by the Company
and excluding any underwriters discounts or commissions which may be
applicable). Registration Expenses shall also include the reasonable fees and
disbursements for one special counsel to the selling stockholders reasonably
acceptable to the Company.
"Restricted Securities" shall mean the Common Stock purchased by the
Investors pursuant to the Investment Agreements, including the Common Stock
purchased pursuant to the Options, or any other securities issued in respect of
such stock upon any stock split, stock dividend, recapitalization, merger or
similar event until such Common Stock is sold pursuant to a registration
or until such Common Stock is sold or is eligible to be sold pursuant
to Rule 144, including pursuant to subsection (k) of Rule 144.
"Rule 144" and "Rule 145" shall mean Rules 144 and 145,
respectively, promulgated under the Securities Act, or any similar federal rules
thereunder, all as the same shall be in effect at the time.
"Securities Act" shall mean the Securities Act of 1933, as amended,
or any similar federal rule or statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
2. RESTRICTIONS ON TRANSFERABILITY. The Common Stock and any other
securities issued in respect of such stock upon any stock split, stock dividend,
recapitalization, merger or similar event, shall not be sold, assigned,
transferred or pledged except upon the conditions specified in this Section 2
and in Section 4 of this Agreement, which conditions are intended to ensure
compliance with the provisions of the Securities Act. Each Investor or its
transferee will cause any proposed purchaser, assignee, transferee or pledgee of
any Restricted Securities held by the Investor or transferee to agree, if such
Securities would be Restricted Securities in the hands of such purchaser,
assignee, transferee or pledgee, to take and hold such securities subject to the
restrictions and upon the conditions specified in this Agreement.
Without limiting the generality of the foregoing, each Investor agrees not
to sell any Common Stock prior to the date that is six (6) months after the
Closing Date; provided, that notwithstanding the foregoing, such Investor may
transfer any of its Common Stock (i) to the Company or (ii) to any of its
Affiliates or (iii) in a transaction involving a distribution without
consideration to its constituent partners or members in proportion to their
ownership interests in Investor, in each case so long as such Affiliate or
constituent partners or members agree in writing to be bound by the terms of
this Agreement and, if requested by the Company, such Investor's counsel
provides the Company with an opinion that such transfer is exempt from the
registration requirements of the Securities Act.
3. RESTRICTIVE LEGEND. Each certificate representing Restricted Securities
shall (unless otherwise permitted by the provisions of Section 4 below) be
stamped or otherwise imprinted with legends in substantially the following form
(in addition to any legends required by applicable state securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). SUCH SECURITIES MAY
NOT BE TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS
IN EFFECT AS TO SUCH TRANSFER OR SUCH TRANSFER MAY BE MADE PURSUANT
TO RULE 144 OR ANOTHER EXEMPTION FROM THE ACT.
THE SHARES REPRESENTED BY THE CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER CONTAINED IN THE STOCKHOLDERS' AGREEMENT BY
AND BETWEEN THE ISSUER AND THE ORIGINAL HOLDER HEREOF, A COPY OF
WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH
RESTRICTIONS ARE BINDING ON TRANSFEREES OF THESE SHARES.
Each Investor consents to the Company making a notation on its records and
giving stop transfer instructions to any transfer agent of its capital stock in
order to implement the restrictions on transfer established in this Agreement.
4. TRANSFER OF RESTRICTED SECURITIES.
(A) NOTICE OF PROPOSED TRANSFERS. The holder of each certificate
representing Restricted Securities by acceptance thereof agrees to comply
in all respects with the provisions of this Section 4. Prior to any
proposed sale, assignment, transfer or pledge of any Restricted
Securities, unless there is in effect a registration statement under the
Securities Act covering the proposed transfer, the holder thereof shall
give written notice to the Company of such holder's intention to effect
such transfer, sale, assignment or pledge. Each such notice shall describe
the manner and circumstances of the proposed transfer, sale, assignment or
pledge in sufficient detail, and, if requested by the Company, the holder
shall also provide, at such holder's election and expense, either (i) a
written opinion of legal counsel who shall be, and whose legal opinion
shall be reasonably satisfactory to the Company, addressed to the Company,
to the effect that the proposed transfer of the Restricted Securities may
be effected without registration under the Securities Act, or (ii) a "no
action" letter from the Commission to the effect that the transfer of such
securities without registration will not result in a recommendation by the
staff of the Commission that action be taken with respect thereto,
whereupon the holder of such Restricted Securities shall be entitled to
transfer such Restricted Securities in accordance with the terms of the
notice delivered by the holder to the Company; provided, however, that no
opinion of counsel or "no action" letter shall be required with respect to
(i) a transfer not involving a change in beneficial ownership, (ii) a
transaction involving the distribution without consideration of Restricted
Securities by the holder to its constituent partners or members in
proportion to their ownership interests in the holder, or (iii) a
transaction involving the transfer without consideration of Restricted
Securities by an individual holder during such holder's lifetime by way of
gift or on death by will or intestacy. Each certificate evidencing the
Restricted Securities transferred as above provided shall bear, except if
such transfer is made pursuant to Rule 144, the appropriate restrictive
legend set forth in Section 3 above, except that such certificate shall
not bear such restrictive legend if in the opinion of counsel for such
holder and counsel for the Company such legend is not required in order to
establish compliance with any provision of the Securities Act.
(B) REMOVAL OF LEGENDS. If any shares of Common Stock that were
Restricted Securities become eligible for sale pursuant to Rule 144(k) or
otherwise cease to be Restricted Securities, the Company shall, upon the
request of the holder of such Common Stock, promptly remove the first
legend set forth in Section 3 from the certificates for such Common Stock.
At any time following the date that is six months after the Closing Date,
the Company shall, upon the request of any Investor, promptly remove the
second legend set forth in Section 3 from any certificates representing
shares of Common Stock.
5. TRANSFER OF RIGHTS. The rights granted to the Investors hereunder may
be assigned to any transferee of any shares of Common Stock, including any
constituent partner or member of an Investor which is a partnership or limited
liability company, or to an Affiliate of a holder which is a corporation,
partnership or limited liability company, provided that: (i) such transferee or
assignee has acquired at least twenty percent (20%) of the Common Stock
previously purchased by the transferring Investor pursuant to the applicable
Investment Agreement; (ii) such transfer is effected in accordance with
applicable securities laws and the terms of this Agreement; (iii) written notice
is promptly given to the Company; and (iv) such transferee or assignee agrees in
writing to be bound by the provisions of this Agreement; provided, further, that
clause (i) in the foregoing proviso shall not apply with respect to the
provisions of Section 6 hereof.
6. REGISTRATION RIGHTS.
(A) COMPANY REGISTRATION. The Company shall (i) cause a shelf
registration statement on Form S-3 (or other appropriate form) covering the
resale of all of the Registrable Securities to be filed with the Commission
within forty-five (45) days after the Closing Date, (ii) cause such registration
statement to be declared effective by the Commission no later than six (6)
months after the Closing Date and (iii) keep such registration statement
continuously effective until the Investors no longer hold any Registrable
Securities that may not be sold either pursuant to (x) Rule 144(k) or (y) in
their entirety in a single transaction pursuant to Rule 144. The Company will
include in such registration (and any related qualifications including
compliance with blue sky laws), and in any underwriting involved therein, all
Registrable Securities specified by any Investor in a written request or
requests to the Company, made within ten days after the date of written notice
of such registration from the Company to the Investors.
If the Company proposes to register any of its shares of Common Stock
(other than any registration for the account of the Company of securities issued
pursuant to any employee benefit plan or in any acquisition by the Company), the
Company will include in such registration all shares of Common Stock held by the
holders of Registrable Securities requested to be so included; provided,
however, that if, in the case of an underwritten offering, the managing
underwriter informs the Company that the number of shares held by the holders of
Registrable Securities requested to be included exceeds the amount which can be
sold in such offering without adversely affecting the distribution of the shares
being offered, the Company shall include, first, all of the shares the Company
has proposed to register; second, as many of the Registrable Securities as can
be included without adversely affecting such distribution; and, third, any other
shares of Common Stock proposed to be included in such offering. With respect to
terms and conditions not provided for in this paragraph or in this Section 6,
the "piggyback" rights provided for in this paragraph are intended to be on
customary terms.
(B) EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with the registration described in Section 6(a) shall be borne by the
Company. All other registration expenses, if any, shall be borne by the
Investors pro rata on the basis of the number of shares so registered or
proposed to be so registered.
(C) REGISTRATION PROCEDURES. The Company will keep each Investor
advised in writing as to the initiation of the registration described in Section
6(a) and as to the completion thereof. The Company will:
(I) Registration Statement. Prepare and file with the Commission a
registration statement with respect to such Registrable Securities and cause
such registration statement to become effective and remain effective, in each
case in accordance with the timeframes provided in Section 6(a).
(II) Amendments and Supplements. Prepare and file with the
Commission such amendments and supplements to such registration statement and
the prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration statement for the
period set forth in Section 6(a) above.
(III) Prospectus. Furnish to the Investors such number of copies of
the registration statement, any amendments thereto, any documents incorporated
by reference therein, a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other documents
as they may reasonably request in order to facilitate the disposition of
Registrable Securities owned by them.
(IV) Qualification. Use its reasonable best efforts to register and
qualify the securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as shall be reasonably
requested by the Investors; provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions, unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities Act.
(V) Underwriting Obligations. In the event of any underwritten
public offering of Registrable Securities, enter into and perform its
obligations under an underwriting agreement, in usual and customary form, with
the managing underwriter(s) of such offering. Each Investor participating in
such underwriting shall also enter into and perform its obligations under such
an underwriting agreement. The Company shall, if requested by the managing
underwriter or underwriters, if any, counsel to Investors, or any holder of
Registrable Securities included in such offering, promptly incorporate in a
prospectus supplement or post-effective amendment such information as such
managing underwriter or underwriters, counsel to Investors or any holder of
Registrable Securities reasonably requests to be included therein, and which is
reasonably related to the offering of such Registrable Securities, including,
without limitation, with respect to the Registrable Securities being sold by
such holder to such underwriter or underwriters, the purchase price being paid
therefor by such underwriter or underwriters and any other terms of an
underwritten offering of the Registrable Securities to be sold in such offering,
and the Company shall promptly make all required filings of such prospectus
supplement or post-effective amendment.
(VI) Notice. Immediately notify each Investor holding Registrable
Securities covered by such registration statement at any time when a prospectus
relating thereto
is required to be delivered under the Securities Act of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing (a "SUSPENSION Notice"); provided, however, that (i) the Company shall
not give more than two Suspension Notices during any period of twelve
consecutive months, (ii) any such Suspension Notice shall not be given within
120 days of the end of the Suspension Notice period under the prior Suspension
Notice and (iii) in no event shall the period from the date on which any holder
of Registrable Securities receives a Suspension Notice until the date on which
such holder receives copies of the supplemented or amended prospectus or is
advised in writing by the Company that the use of the prospectus may be resumed
exceed for all Suspension Notices in the aggregate, 60 days in any 365 day
period. The Company will use reasonable best efforts to promptly amend or
supplement such prospectus in order to cause such prospectus not to include any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing.
(VII) Listing. Cause all such Registrable Securities registered
pursuant hereto to be listed on each securities exchange or automated quotation
system on which similar securities issued by the Company are then listed or, if
no securities are then listed, on the NASDAQ Stock Market Inc.'s National Market
or on the New York Stock Exchange.
(VIII) Transfer Agent; CUSIP Number. Provide a transfer agent and
registrar for all Registrable Securities registered pursuant hereunder and a
CUSIP number for all such Registrable Securities not later than the effective
date of such registration.
(IX) Opinion, Comfort Letter. Cause to be furnished, on the date
that such Registrable Securities are delivered to the underwriters for sale, if
such securities are being sold through underwriters, (i) an opinion, dated as of
such date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering, addressed to the underwriters, if any, and (ii)
a letter dated as of such date, from the independent registered public
accountants of the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering addressed to the underwriters.
(X) Stop Orders. Use its reasonable best efforts to prevent the
issuance of any order suspending the effectiveness of a registration statement
relating to Registrable Securities, and if one is issued, use its best efforts
to obtain the withdrawal of any order suspending the effectiveness of such
registration statement at the earliest possible moment.
(XI) Company Records. Make available to each Investor, any
underwriter participating in any disposition pursuant to a registration
statement relating to Registrable Securities, and any attorney, accountant or
other agent or representative retained by any such Investor or underwriter
(collectively, the "INSPECTORS"), all financial and other records, pertinent
corporate documents and properties of the Company (collectively, the "Records")
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information requested by any such
Inspector in connection with such registration statement, provided that each
such Investor and Inspector has entered into a customary confidentiality
agreement with respect to such Records.
(XII) NASD Matters. Cooperate with each Investor and each
underwriter participating in the disposition of Registrable Securities and their
respective counsel in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. ("NASD"), including, if
appropriate, the pre-filing of a prospectus as part of a registration statement
in advance of an underwritten offering.
(D) INDEMNIFICATION.
(I) Company Indemnification. The Company will indemnify each holder
(if Registrable Securities held by such holder are included in the securities as
to which such registration is being effected), each of its officers and
directors and partners, and each person controlling such holder within the
meaning of Section 15 of the Securities Act, with respect to which registration
has been effected pursuant to this Agreement, against all expenses, claims,
losses, damages or liabilities (or actions in respect thereof), including any of
the foregoing incurred in settlement of any litigation, commenced or threatened,
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement, prospectus, offering
circular or other document, or any amendment or supplement thereto, incident to
any such registration, or based on any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading, or any violation by the Company of the Securities Act, the Exchange
Act, state securities laws or any rule or regulation promulgated under such laws
applicable to the Company in connection with any such registration, and the
Company will reimburse each such holder, each of its officers and directors, and
each person controlling such holder, for any legal and any other expenses
reasonably incurred, as such expenses are incurred, in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action, provided that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such holder or
controlling person, and stated to be specifically for use therein; provided,
further, that the indemnity agreement contained in this subsection 6(d)(i) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld).
(II) Investor Indemnification. Each holder will, if Registrable
Securities held by such holder are included in the securities as to which such
registration is being effected, indemnify the Company, each of its directors and
officers, other holders of the Company's securities covered by such registration
statement, each person who controls the Company within the meaning of Section 15
of the Securities Act, and each such holder, each of its officers and directors
and each person controlling such holder within the meaning of Section 15 of the
Securities Act, against all claims, losses, damages and liabilities (or actions
in respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or any violation by such holder of the Securities Act, the Exchange
Act, state securities laws or any rule or regulation promulgated under such laws
applicable to such holder, and will reimburse the Company, each such Investor,
such directors, officers, persons, underwriters or control persons for any legal
or any other expenses reasonably incurred, as such expenses are incurred, in
connection with investigating or defending any such claim, loss, damage,
liability or action, but in the case of the Company or such Investors or their
officers, directors or controlling persons, only to the extent that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to the Company by an instrument duly executed by such holder and stated to be
specifically for use therein; provided, further, that the indemnity agreement
contained in this Subsection 6(d)(ii) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of such indemnifying holder (which
consent shall not be unreasonably withheld or delayed). The liability of any
holder for indemnification under this Section 6(d) in its capacity as a seller
of Registrable Securities shall not exceed the lesser of (i) that proportion of
the total of such losses, claims, damages, expenses or liabilities indemnified
against equal to the proportion of the total securities sold under such
registration statement by such holder, and (ii) the amount equal to the net
proceeds to such holder of the securities sold in any such registration.
(III) Notice. Each party entitled to indemnification under this
Section 6(d) (the "INDEMNIFIED PARTY") shall give notice to the party required
to provide indemnification (the "INDEMNIFYING PARTY") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement unless the failure to
give such notice is materially prejudicial to an Indemnifying Party's ability to
defend such action and provided further, that the Indemnifying Party shall not
assume the defense for matters as to which there is a conflict of interest or
there are separate and different defenses. No Indemnifying Party, in the defense
of any such claim or litigation, shall, except with the consent of each
Indemnified Party (whose consent shall not be unreasonably withheld), consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
(IV) Contribution. If the indemnification provided for in this
Section 6(d) is held by a court of competent jurisdiction to be unavailable to
an Indemnified Party with respect to any losses, claims, damages or liabilities
referred to herein, the Indemnifying Party, in lieu of indemnifying such
Indemnified Party thereunder, shall to the extent permitted by applicable law
contribute to the amount paid or payable by such Indemnified Party as a result
of such loss, claim, damage or liability in such proportion as is appropriate to
reflect the relative
fault of the Indemnifying Party on the one hand and of the Indemnified Party on
the other in connection with the untrue statement or omission that resulted in
such loss, claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by a court of law by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided, that in no event shall any contribution by an
Investor hereunder exceed the proceeds from the offering received by such
Investor.
(V) Survival. The obligations of the Company and the Investors under
this Section 6(d) shall survive completion of any offering of Registrable
Securities in a registration statement and the termination of this agreement.
The provisions of this Section 6(d) shall survive any termination of this
Agreement.
(E) INFORMATION BY INVESTOR. The Investor or Investors holding
Registrable Securities included in any registration shall furnish to the Company
such information regarding such Investor or Investors, the Registrable
Securities held by them and the distribution proposed by such Investor or
Investors as the Company may request in writing and as shall be required in
connection with any registration referred to in this Agreement.
(F) RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Securities to the public without registration, the
Company agrees to use reasonable best efforts to:
(I) Public Information. Make and keep public information available,
as those terms are understood and defined in Rule 144 under the Securities Act;
(II) Filing. File with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Exchange Act; and
(III) Rule 144 Statement. So long as an Investor owns any Restricted
Securities, to furnish to such Investor forthwith upon request a written
statement by the Company as to its compliance with the reporting requirements of
said Rule 144 (at any time after 90 days after the effective date of the first
registration statement filed by the Company for an offering of its securities to
the general public), a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents of the Company and other
information in the possession of or reasonably obtainable by the Company as such
Investor may reasonably request in availing itself of any rule or regulation of
the Commission allowing such Investor to sell any such securities without
registration.
(G) DELAY FEE. If: (i) any registration statement required to be filed
pursuant to Section 6(a) is not filed within the time period specified therein,
(ii) a registration statement filed hereunder is not declared effective by the
SEC within the time period specified in Section 6(a) or (iii) a registration
statement ceases to be effective and available for resales of Registrable
Securities by Investors when the Company is required to keep such registration
statement effective under this Agreement, (any such failure or breach being
referred to as a "REGISTRATION DEFAULT" and, for purposes of clause (i), (ii) or
(iii), the date on which such Registration Default occurs, being referred to as
an "EVENT DATE"), then, in addition to, and not in lieu or limitation of, any
other remedies the Investors may have in law (including damages) or equity, the
Company shall pay to each Investor an amount, in cash ("RD FEES") (x) upon the
occurrence of a Registration Default, an amount equal to $0.165 for each
Registrable Security then held by such Investor, and (y) if the Registration
Default has not been cured by the first month anniversary following the date of
the Registration Default, an amount equal to $0.165 for each Registrable
Security then held by such Investor, and (z) on each monthly anniversary
thereafter until the Registration Default has been cured, an amount equal to
$0.165 for each Registrable Security then held by such Investor; provided,
however, that all periods referred to in clauses (y) and (z) above shall be
tolled in respect of any Investor during delays caused by the action or inaction
of such Investor, and the Company shall have no liability to such Investor in
respect of any such delay. The RD Fees payable pursuant hereto shall be payable
within five (5) business days following the date of the Registration Default or
the monthly anniversary thereof, as the case may be. Notwithstanding anything to
the contrary contained herein, RD Fees shall not be payable under this Section
6(g) for more than one Registration Default occurring or existing at any one
time.
7. ELECTION OF DIRECTORS.
(I) At or prior to the effective time of the Merger (as such term is
defined in the Investment Agreement), the Board of Directors of the Company (as
such term is
defined in the Investment Agreement) shall take such actions as are necessary to
cause the persons indicated on Exhibit B (each an "INVESTOR DIRECTOR") to be
elected to the Board of Directors of the Company, for an initial three-year
term, at the effective time of the Merger; provided, however, that the directors
nominated by each of PAR Investment Partners, L.P., ACE Aviation Holdings Inc.
("ACE") and Eastshore Aviation,. LLC shall be appointed to the Board of
Directors of the Company on the date which is two business days after the
effective time of the Merger.
(II) In the event that ACE is entitled to designate an Investor
Director pursuant to terms of its Investment Agreement, for so long as ACE,
together with its Affiliates, holds not less than 66.67% of the number of shares
of Common Stock (after accounting for any reverse stock split, pro rata
repurchases or similar actions by the Company) acquired by it pursuant to its
Investment Agreement (the "ACE DIRECTOR THRESHOLD"), the Company agrees to
nominate, at the expiration of the term of ACE's Investor Director, a director
nominee designated by ACE for a successive three year term and, in the event
ACE's Investor Director resigns, dies or become incapacitated, the Company shall
cause the vacancy so created to be filled by a designee of ACE to serve the
unexpired term of the director being replaced, provided that, in either such
case, the director designated or nominated by ACE meets the basic qualifications
for directors, if any, contained in the Company's bylaws applicable to all
directors of the Company. If ACE, together with its Affiliates, falls below the
ACE Director Threshold, it shall cause its Investor Director (as indicated on
Exhibit B) to resign from the Board of Directors of the Company.
(III) With respect to any Investors other than ACE who are entitled
to designate directors to the Company's Board of Directors as of the Closing
Date (each a "DESIGNATING INVESTOR"), for so long as the Designating Investor,
together with its Affiliates and any of their respective shareholders, partners
or members, collectively, holds not less than 35% of the number of shares of
Common Stock (after accounting for any reverse stock split, pro rata repurchases
or similar actions by the Company) acquired by it pursuant to its Investment
Agreement (the "DESIGNATING INVESTOR THRESHOLD"), the Company agrees to
nominate, at the expiration of the term of the Designating Investor's designee,
a director nominee designated by the Designating Investor for a successive three
year term and, in the event the Designating Investor's designee resigns, dies or
become incapacitated, the Company shall cause the vacancy so created to be
filled by a designee of the Designating Investor to serve the unexpired term of
the director being replaced, provided that, in either such case, the director
designated or nominated by the Designating Investor meets the basic
qualifications for directors, if any, contained in the Company's bylaws
applicable to all directors of the Company. If the Designating Investor,
together with its Affiliates and any of their respective shareholders, partners
or members, collectively, falls below the Designating Investor Threshold, its
designee shall serve out his or her term, but such Designating Investor shall no
longer have a right to designate a director to the Company's Board of Directors.
8. AMENDMENT. Except as otherwise provided herein, additional parties may
be added to this Agreement and any provision of this Agreement may be amended or
the observance thereof may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company and each Investor.
Any amendment or waiver effected in accordance with this Section 8 shall be
binding upon each Investor, any transferee thereof and the Company.
9. GOVERNING LAW. This Agreement shall be governed in all respects by the
internal laws of the State of Delaware without regard to conflict of laws
provisions.
10. ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and Agreement among the parties regarding the matters set forth
herein. Except as otherwise expressly provided herein, the provisions hereof
shall inure to the benefit of, and be binding upon the successors, assigns,
heirs, executors and administrators of the parties hereto.
11. SEVERABILITY. The provisions of this Agreement are severable and the
invalidity or unenforceability of any provision will not affect the validity or
enforceability of the other provisions of this Agreement. If any provision of
this Agreement, or the application of that provision to any Person or any
circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision will be substituted for that provision in order to carry out, so far
as may be valid and enforceable, the intent and purpose of the invalid or
unenforceable provision and (b) the remainder of this Agreement and the
application of that provision to other Persons or circumstances will not be
affected by such invalidity or unenforceability, nor will such invalidity or
unenforceability affect the validity or enforceability of that provision, or the
application of that provision, in any other jurisdiction.
12. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
Company's and each Investor's successors, assigns and transferees, including,
without limitation and without the need for an express assignment, subsequent
holders of Registrable Securities; provided that such assignee or transferee is
not a "major airline" or "low cost carrier", as such terms are commonly
understood in the airline industry, or an Affiliate thereof. If any assignee or
transferee of any Investor shall acquire Registrable Securities in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such person shall be deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement and
such person shall be entitled to receive the benefits hereof.
13. NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by facsimile
transmission, by hand or by messenger, addressed:
(A) STOCKHOLDER. If to an Investor, at such Investor's address as set
forth in either Exhibit A, or at such other address as such Investor shall have
furnished to the Company.
(B) COMPANY. If to the Company, to:
US Airways Group, Inc.
000 Xxxx Xxx Xxxxxx Xxxxxxx
Xxxxx, XX 00000
Attention: General Counsel
Telecopy No. 000-000-0000
or at such other address as the Company shall have
furnished to the Stockholders.
Each such notice or other communication shall for all purposes of this Agreement
be treated as effective or having been given when delivered if delivered
personally, if sent by facsimile, the first business day after the date of
confirmation that the facsimile has been successfully transmitted to the
facsimile number for the party notified, or, if sent by mail, at the earlier of
its receipt or 72 hours after the same has been deposited in a regularly
maintained receptacle for the deposit of the United States mail, addressed and
mailed as aforesaid.
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original and all of which together shall
constitute one instrument.
15. OWNERSHIP. Each Investor represents and warrants to the other
Investors and the Company that (a) such Investor now owns the Common Stock, free
and clear of liens or encumbrances, and has not, prior to or on the date of this
Agreement, executed or delivered any proxy or entered into any other voting
agreement or similar arrangement other than one which has expired or terminated
prior to the date hereof, and (b) such Investor has full power and capacity to
execute, deliver and perform this Agreement, which has been duly executed and
delivered by, and evidences the valid and binding obligation of, such Investor
enforceable in accordance with its terms.
16. SPECIFIC PERFORMANCE. The parties hereto specifically acknowledge
that monetary damages are not an adequate remedy for violations of this
Agreement, and that any party hereto may, in its sole discretion, apply to a
court of competent jurisdiction for specific performance or injunctive or such
other relief as such court may deem just and proper in order to enforce this
Agreement or prevent any violation hereof and, to the extent permitted by
applicable law and to the extent the party seeking such relief would be entitled
to the merits to obtain such relief, each party waives any objection to the
imposition of such relief.
17. DESIGNATION OF FORUM AND CONSENT TO JURISDICTION. The parties
hereto (i) designate the courts of the State of DelawarE as the forum where all
matters pertaining to this Agreement may be adjudicated, and (ii) by the
foregoing designation, consent to the exclusive jurisdiction and venue of such
courts for the purpose of adjudicating all matters pertaining to this Agreement.
18. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT
IT MAY HAVE TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE ARISING OUT OF
OR RELATED TO THIS AGREEMENT. INSTEAD, ANY SUCH DISPUTES RESOLVED IN COURT SHALL
BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
19. STOCK SPLIT. All references to numbers of shares in this Agreement
shall be appropriately adjusted to reflect any stock dividend, split,
combination or other recapitalization of shares by the Company occurring after
the date of this Agreement.
[Signatures Next Page]
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement as of the date first set forth above.
US AIRWAYS GROUP, INC.
By:
------------------------------
Name:
Title:
ACE AVIATION HOLDINGS INC.
By:
------------------------------
Name:
Title:
EASTSHORE AVIATION, LLC
By:
------------------------------
Name:
Title:
PAR INVESTMENT PARTNERS, L.P.
By: PAR GROUP, L.P.
its general partner
By: PAR CAPITAL MANAGEMENT, INC.
its general partner
By:
------------------------------
Name:
Title:
PENINSULA INVESTMENT PARTNERS, L.P.
By:
------------------------------
Name:
Title:
WELLINGTON MANAGEMENT COMPANY, LLP, AS INVESTMENT
ADVISER TO EACH INVESTOR LISTED ON SCHEDULE 1 OF
ITS INVESTMENT AGREEMENT, DATED MAY 27, 2005
By:
------------------------------
Name:
Title:
TUDOR INVESTMENT CORP., AS INVESTMENT ADVISER
TO EACH INVESTOR LISTED ON SCHEDULE 1 OF ITS
INVESTMENT AGREEMENT, DATED JULY 7, 2005 (OTHER
THAN TUDOR PROPRIETARY TRADING, L.L.C.)
By:
------------------------------
Name:
Title:
TUDOR PROPRIETARY TRADING, L.L.C.
By:
------------------------------
Name:
Title:
EXHIBIT A
INVESTORS
SHARES PURCHASED ON THE
NAME AND ADDRESS CLOSING DATE(1)
ACE Aviation Holdings Inc. 5,000,000
0000 xx Xxxxxxxxxxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxx, Xxxxxx, X0X 0X0
Fax: (000) 000-0000
Attention: Chief Legal Officer
With a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxx
And a copy to:
Stikeman Elliot Barristers & Solicitors
0000 Xxxxxxxx Xxxxx Xxxx
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0, Xxxxxx
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxx
------------------
----------
(1) Pursuant to the Investment Agreements and Credit Facility, as amended by
those certain letter agreements dated as of July 7, 2005 and September 16,
2005, the Investors each have the option to purchase additional shares of Common
Stock, which will not be exercised until after the Closing Date. Therefore, any
shares of Common Stock that the Investors may receive pursuant to these options
are not reflected in this Exhibit A.
1
Eastshore Aviation, LLC 8,333,333
X0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxxx
With a copy to:
Xxxxxxxx Xxxxxx Van Deuren s.c.
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
--------------------
PAR Investment Partners, L.P. 6,768,485
Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
With a copy to:
Xxxxxxx Procter LLP
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxxxxx X. Xxxxxx
--------------------
Peninsula Capital Advisors, LLC 3,333,333
000X Xxxx Xxxx Xxxxxx
Xxxxxxxxxxxxxxx, XX 00000
Fax: 000-000-0000
Attention: Xxx Xxxxxxxx
With a copy to:
Xxxxxxx Procter LLP
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxxxxx X. Xxxxxx
--------------------
Wellington Management Company, LLP (as 9,090,900
investment adviser to each Investor listed on
Schedule 1 of its Investment Agreement, dated (total shares owned by all
May 27, 2005) investors listed on Schedule
00 Xxxxx Xxxxxx 1 of the Investment Agreement
Xxxxxx, XX 00000 dated May 27, 2005)
Fax: (000) 000-0000
Attention: Legal Services Department
--------------------
3,939,394
Tudor Proprietary Trading, L.L.C. and
certain investors for which Tudor
Investment Corp. acts as investment
adviser, as listed on Schedule 1 of
the Investment Agreement dated
July 7, 2005
0000 Xxxx Xxxxxx (total shares owned by all
Xxxxxxxxx, Xxxxxxxxxxx 00000 investors listed on Schedule
Fax: (000) 000-0000 1 of the Investment Agreement
Attention: Xx. Xxxxxxx X. Xxxxxxx dated July 7, 2005)
With a copy to:
Xxxxx, Schiller & Flexner LLP
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxx, Esq.
--------------------
EXHIBIT B
BOARD OF DIRECTORS
Directors nominated by the Company
Xxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxx Xxxxx
Xxxxxx X. Xxxxxx
Directors nominated by America West Holdings Corporation
W. Xxxxxxx Xxxxxx
Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. X'Xxxxx
Xxxxxxx X. Xxxxxxxx
J. Xxxxxx Xxxxxxx
Director nominated by PAR Investment Partners, L.P.
Xxxxxx Xxxxxxx
Director nominated by ACE Aviation Holdings Inc.
Xxxxxx Xxxxxx
Director nominated by Eastshore Aviation, LLC
Xxxxxxx Xxxxxxxx
