Exhibit 10.5
STOCKHOLDERS' AGREEMENT
THIS STOCKHOLDERS' AGREEMENT (this "AGREEMENT") is made and entered into as
of this 27th 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 and certain other investors (the "OTHER 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, (collectively, the
"FINANCING");
WHEREAS, the obligations in the Investors' Investment Agreement are
conditioned upon the execution and delivery of this Agreement;
WHEREAS, the Company and each Other Investor is entering into a separate
Stockholder's Agreement in connection with the consummation of the Financing
(collectively, the "OTHER STOCKHOLDER AGREEMENTS"); 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 and any such
options issued to any Other Investor and subsequently acquired by any of the
Investors.
"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 Investors' Investment Agreement, including Common
Stock purchased pursuant to the Options, (ii) Common Stock of the Company, if
any, 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 Investors' Investment Agreement, 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 or a permitted
transferee hereunder may be assigned to any transferee of any shares of Common
Stock, including any constituent partner or member of a holder 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 transfer is effected in accordance with applicable securities laws and the
terms of this Agreement; (ii) written notice is promptly given to the Company;
and (iii) such transferee or assignee agrees in writing to be bound by the
provisions of this Agreement.
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 of Registrable
Securities requested to be included in such offering by the Investors, together
with all Registrable Securities (as defined in the Other Stockholder Agreements)
requested to be included in such offering by the Other Investors pursuant to the
Other Stockholder Agreements (collectively, the "REQUESTED INVESTOR SHARES")
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 Requested Investor Shares, chosen pro rata based on the number of
Requested Investor Shares, 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. Notwithstanding the
foregoing, this Section 6(a) shall not be applicable to (i) any registration
statements filed in connection with the registration of warrants to purchase
Common Stock issued by the Company on the date hereof, (ii) the Company's
Registration Statement on Form S-1 (File No. 333-126226) or (iii) any
registration statements filed in connection with the registration of Convertible
Notes being offered by the Company as contemplated by the preliminary offering
memorandum, dated September 20, 2005.
(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, (i) that are not directly
attributable to a single Investor shall be borne by the Investors and the Other
Investors pro rata on the basis of the number of shares so registered or
proposed to be so registered and (ii) that are directly attributable to a single
Investor shall be borne by such Investor.
(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 the 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 the 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 each such 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 other holder, 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 other holder 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. INTENTIONALLY OMITTED.
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. So long as the Investors and/or their
permitted transferees who become parties to and bound by this Agreement
collectively hold not less than 10% of the number of shares of Common Stock
acquired by the Investors pursuant to the Investors' Investment Agreement, the
Company shall not amend or waive any provision of any Other Stockholder
Agreement except with the prior written consent of the Investors.
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 the Investors' 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 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 Investors.
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:
---------------------------------
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:
---------------------------------
EXHIBIT A
INVESTOR
SHARES PURCHASED ON THE
NAME AND ADDRESS CLOSING DATE(1)
---------------- -----------------------
Wellington Management Company, LLP (as 9,090,900
investment adviser to each Investor listed
on Schedule 1 of its Investment Agreement,
dated May 27, 2005) (total shares owned by all
00 Xxxxx Xxxxxx investors listed on Schedule 1 of
Xxxxxx, XX 00000 the Investment Agreement dated
Fax: (000) 000-0000 May 27, 2005)
Attention: Legal Services Department
----------
(1) Pursuant to the Investors' Investment Agreement, as amended by the certain
letter agreement dated as of September 16, 2005, the Investors each have
the option to purchase additional shares of Common Stock (and Investors may
acquire similar options from Other Investors), which will not be exercised
until after the Closing Date. Therefore, any shares of Common Stock that
Investors may receive pursuant to these options are not reflected in this
Exhibit A.
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