Exhibit 1
UNDERWRITING AGREEMENT
May 21, 1997
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
This Underwriting Agreement will confirm the terms pursuant to
which (i) BritAir Acquisition Corp. Inc., a Delaware corporation (the "Seller"),
will sell to you (the "Underwriter"), and the Underwriter will purchase from the
Seller, 14,458,851 shares of Common Stock, par value $1.00 per share (the
"Common Shares"), of US Airways Group, Inc. (the "Issuer"), and (ii) the
Underwriter will make a public offering of the Common Shares.
1. Representations, Warranties and Agreements of the Seller.
The Seller represents and warrants to, and agrees with, the Underwriter that:
(a) Pursuant to the Investment Agreement, dated as of January
21, 1993, as amended as of June 9, 1995 (the "Investment Agreement"),
between British Airways Plc ("BA") and the Issuer, (i) on January 21,
1993, the Seller purchased 30,000 shares of the Issuer's Series F
Cumulative Convertible Senior Preferred Stock (the "Series F Preferred
Stock"), (ii) on June 10, 1993, the Seller purchased 152.1 shares of
the Issuer's Series T-1 Cumulative Convertible Exchangeable Senior
Preferred Stock (the "Series T-1 Preferred Stock") and (iii) on June
10, 1993, the Seller purchased 9,919.8 shares of the Issuer's Series T-
2 Cumulative Convertible Exchangeable Senior Preferred Stock (the
"Series T-2 Preferred Stock"). The Issuer has obligated itself to
repurchase all of the Series T-1 Preferred Stock and the Series T-2
Preferred Stock and 1,940.636 shares of the Series F Preferred Stock.
The Seller has exercised its rights to convert the remaining 28,059.364
shares of Series F Preferred Stock into the Common Shares.
(b) The Seller has all requisite corporate power and authority
and has taken all corporate action necessary in order to enter into
this Agreement and to sell, assign, transfer and deliver the Common
Shares in accordance herewith. This Agreement constitutes a valid and
legally binding obligation of the Company enforceable in accordance
with its terms.
(c) Immediately prior to the Closing (as defined below), the
Seller will have good and valid title to the Common 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 Common Shares and payment therefor pursuant hereto,
good and valid title to the Common Shares, free and clear of all liens,
encumbrances, equities or claims, will pass to the Underwriter.
(d) The sale of the Common Shares by the Seller pursuant to
this Agreement will not (assuming compliance with this Agreement by the
Underwriter) conflict with, or result in a breach or violation of, any
of the terms or provisions of the Investment Agreement or the Stock
Purchase Agreement made and entered into the 19th day of May, 1997, by
and among the Issuer, BA and the Seller.
(e) On or prior to the Closing Date, the Common Shares shall
have been listed, subject to notice of issuance, on the New York Stock
Exchange.
2. Purchase and Sale of Common Shares.
(a) Subject to the terms and conditions set forth in this
Agreement, the Seller agrees to sell to the Underwriter, and the Underwriter
agrees to purchase from the Seller, the Common Shares at a purchase price per
share of $34.50.
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(b) The certificate evidencing the Common Shares will be made
available for inspection by the Underwriter at 2:00 p.m., New York time, on the
business day prior to the Closing Date, at the offices of Xxxxxxxx & Xxxxxxxx
referred to in Section 2(c) hereof.
(c) The certificate evidencing the Common Shares, together
with appropriate instruments for the transfer thereof to the Underwriter, shall
be delivered by the Seller to the Underwriter against payment by the Underwriter
of the aggregate purchase price therefor by wire transfer of immediately
available funds to the account of the Seller at _________. 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 Underwriter may
agree in writing. The time and date of payment and delivery shall be 9:30 a.m.,
New York time, on May 27, 1997, or such other time and date as the Seller and
the Underwriter may agree in writing. The exchange of Common Shares for the
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".
3. Public Offering of Common Shares. 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 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
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offers and sales shall be made only to foreign investors set forth on
Annex 3(c) hereto.
In offering or selling the Common Shares, the Underwriter
shall not refer to the Issuer's Registration Statement on Form S-1 (Registration
No. 333-25967) or the prospectus therein, and shall not furnish or refer to any
information, or make any statement, regarding the Common Shares or the Issuer
which purports to be on behalf of BA or the Seller. Neither BA nor the Seller
has authorized the Underwriter to make any statement with respect to, or to
furnish or refer to any information with respect to, the Issuer or the Common
Shares (including, without limitation, any filing by the Issuer pursuant to the
Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as
amended, or any rules or regulations thereunder), and no such statement or
information shall be made, furnished or referred to by the Underwriter on behalf
of BA or the Seller.
4. Conditions to Closing. The obligation of the Underwriter to
accept and pay for the Common 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 at 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.
(c) Xxxxxxxx & Xxxxxxxx, counsel to the Seller, shall have
delivered to the Underwriter a copy of its opinion to the Issuer in the
form attached, together with a letter addressed to the Underwriter to
the effect that the Underwriter is entitled to rely thereon as if such
opinion had been addressed to the Underwriter.
5. Expenses. The Seller agrees with the Underwriter 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 expenses and taxes incident to the sale and delivery of
the Common Shares. The Underwriter will
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pay all of its own costs and expenses, including the fees of its counsel, stock
transfer and other taxes on sale of the Common Shares by it, and any advertising
expenses connected with any offers it makes.
6. 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 purchase and sale of the Common Shares by the
Underwriter.
7. Non-Assignability and Successors. This Agreement and the
rights and obligations hereunder may not be assigned or otherwise transferred by
any party without the prior written consent of the others. This Agreement shall
be binding upon, and inure solely to the benefit of, the Underwriter, 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. No
purchaser of Common Shares from the Underwriter, by virtue of such purchase,
shall be deemed a successor or assign of the Underwriter.
8. Headings. The headings in this Agreement are for purposes
of reference only and shall not limit or otherwise affect the meaning hereof.
9. Amendments. This Agreement cannot be modified, amended or
terminated except by an instrument in writing signed by the Seller and the
Underwriter; provided, however, that any provision of this Agreement may be
waived only by the party to be charged with the waiver and only by a duly
executed writing.
10. Time of Essence. Time shall be of the essence in this
Agreement.
11. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
12. Notices. All notices and other communications hereunder
shall be in writing and shall be sent as follows:
(i) If to the Seller:
BritAir Acquisition Corp. Inc.
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0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
X.X. Xxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
with copies to
British Airways Plc
Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx (Xxxxxx)
Xxxxxxxx XX0 0XX
England
Attention: Legal Director
and
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx
(ii) If to the Underwriter:
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
13. Entire Agreement. This Agreement embodies the entire
agreement and understanding between the Underwriter and the Seller and
supersedes all prior agreements and understandings relating to the subject
matter hereof.
14. 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.
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IN WITNESS WHEREOF, the Seller has executed this Agreement as
of the day and year first above written.
BRITAIR ACQUISITION CORP. INC.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Secretary
Accepted and agreed as of
the date first above written:
XXXXXXX, SACHS & CO.
/s/ Xxxxxxx, Xxxxx & Co.
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