EXHIBIT 99.6
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement") is entered into
on April 7, 2006, between ACE AVIATION HOLDINGS INC., a company organized under
the laws of Canada (the "Seller"), and PAR INVESTMENT PARTNERS, L.P., a Delaware
limited partnership (the "Purchaser").
RECITALS
WHEREAS, the Seller is the legal and beneficial owner of 5,000,000
shares (the "Seller Shares") of the common stock, par value $0.01 per share, of
US Airways Group, Inc., a Delaware corporation ("US Air"); and
WHEREAS, the Seller desires to sell to the Purchaser, and the Purchaser
desires to purchase from the Seller, upon the terms and conditions set forth in
this Agreement, One Million Seven Hundred and Fifty Thousand (1,750,000) of the
Seller Shares (the "Subject Shares").
AGREEMENTS
In consideration of the premises and mutual agreements herein
contained, the parties agree as follows:
SECTION 1 SALE AND PURCHASE OF THE SUBJECT SHARES.
(a) Subject to the satisfaction or waiver of the conditions contained
in Section 5 of this Agreement, at the Closing (as defined below),
the Seller will sell, assign and transfer to the Purchaser, and
the Purchaser will purchase from the Seller, the Subject Shares
and all of the Seller's right, title and interest in and to the
Subject Shares.
(b) The purchase price per share for the Subject Shares is $38.60, for
an aggregate purchase price of $67,550,000 (the "Purchase Price"),
payable at the Closing by wire transfer of immediately available
funds to the bank account designated by the Seller to the
Purchaser in writing prior to the Closing.
(c) At the Closing, the Seller shall deliver to the Purchaser an
original share certificate representing the Subject Shares,
together with such other instruments or documents as the Purchaser
may request in order to effect a valid transfer to the Purchaser
of all right, title and interest in and to the Subject Shares,
free and clear of all security interests, liens, encumbrances,
options, calls, pledges, trusts, and other agreements,
assessments, covenants, restrictions, reservations, commitments,
obligations, liabilities and other burdens (collectively,
"Liens"), except for the restrictions applicable to the Subject
Shares contained in the Stockholder's Agreement dated as of
September 27, 2005 by and between US Air and the Seller (the "ACE
Stockholder's Agreement"), any legend placed on the certificate
relating to the Subject Shares pursuant to the ACE Stockholder's
Agreement, and restrictions imposed by Federal and State
securities laws (collectively, "Lien Exceptions").
(d) At the Closing, the Seller and the Purchaser shall each execute
and deliver to US Air a Release and Indemnification Agreement in
the form attached as Exhibit A hereto.
(e) From and after the Closing, the Purchaser agrees to be bound by
the applicable provisions of the ACE Stockholder's Agreement with
respect to the Subject Shares.
(f) The closing of the purchase and sale of the Subject Shares (the
"Closing") shall take place at the offices of Xxxxxxx Procter LLP,
Exchange Place, Boston, Massachusetts at 10:00 a.m., Eastern Time,
on April 13, 2006 (the "Closing Date"), subject to the
satisfaction or waiver of each of the conditions set forth in
Section 5 of this Agreement.
SECTION 2 REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller
represents and warrants to the Purchaser that:
(a) The Seller is the sole legal and beneficial owner of the Subject
Shares and the Seller's title thereto is good and valid and is
free and clear of all Liens, subject to the Lien Exceptions.
(b) The Seller has full power and authority to execute, deliver and
perform its obligations under this Agreement and to sell the
Subject Shares to the Purchaser. This Agreement has been duly and
validly executed and delivered by the Seller and is legally
binding on and enforceable against the Seller in accordance with
its terms, except that the Seller makes no representation as to
the enforceability of the agreements of the Seller contained in
Sections 2(e)(i) through (iii) and 2(f)(ii) below. The execution,
delivery and performance by the Seller of this Agreement (i) do
not and will not violate any laws applicable to the Seller, (ii)
do not and will not require the Seller to obtain any approval,
consent or waiver of, or make any filing (other than amendments to
existing filings on Schedule 13D and filings to reflect changes in
ownership on Form 4) with, any person or entity (including any
governmental authority) other than those previously obtained or
made or contemplated by Section 5(c) and (iii) do not and will not
result in a breach of or constitute a default under any agreement
(including, without limitation, the ACE Stockholder's Agreement),
contract, instrument, order, judgment, injunction, decree,
determination or arbitration award to which the Seller is a party
or by which the property of the Seller is bound or affected,
except, in the cases of clauses (ii) and (iii), as would not (A)
result in the creation or imposition of any Lien on the Subject
Shares, subject to the Lien Exceptions, or (B) prevent or restrict
Seller's ability to fulfill its obligations hereunder or give rise
to any claim or right of any person that could result in a
rescission of the sale or result in the surrender by Purchaser of
any of the Subject Shares.
(c) The Seller has no obligation, current, contingent or otherwise, to
transfer any or all of the Subject Shares to any other person or
entity.
(d) The Seller is a sophisticated investor with respect to the Subject
Shares, has adequate information concerning the business and
financial condition of US Air to make an informed decision
regarding the sale of the Subject Shares, and has independently
made
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its own analysis and decision to sell the Subject Shares without
reliance upon any express or implied representation or warranty of
any nature, whether written, oral or otherwise, made by or on
behalf of or imputed to the Purchaser, except for the
representations expressly set forth in Section 3 of this
Agreement.
(e) The Seller acknowledges that the Purchaser may possess and may
hereafter possess nonpublic information concerning US Air not
known to the Seller and which the Seller may deem material to its
decision to sell the Subject Shares if the Seller were provided
with the information ("Purchaser Excluded Information") including,
without limitation, information as to US Air's future financial
performance, potential debt refinancing activities and other
potentially significant matters. The Purchaser Excluded
Information may or may not be material, may or may not have been
publicly disclosed by or on behalf of US Air, and may or may not
be available to the Seller from sources other than US Air or the
Purchaser. The Seller, on behalf of itself and its affiliates and
their respective current and former directors, officers, managers,
trustees, shareholders, members, employees, beneficiaries,
attorneys, agents, representatives, partners, limited partners,
investors, successors and assigns (collectively, "Seller Parties")
hereby:
(i) agrees that neither the Purchaser, its affiliates nor
their respective current or former directors, officers,
managers, trustees, shareholders, members, employees,
beneficiaries, attorneys, agents, representatives,
partners, limited partners, investors, successors or
assigns (collectively, "Purchaser Parties") shall have any
liability to any Seller Party with respect to, based upon,
arising from, resulting from, or relating to directly or
indirectly the existence, substance, possession,
disclosure, or nondisclosure of any Purchaser Excluded
Information whatsoever, whether arising directly or
indirectly, primarily or secondarily, by contract or
operation of law or otherwise, including, without
limitation, as a matter of contribution, indemnification,
set-off, rescission, or reimbursement;
(ii) waives any right, claim or cause of action at law or in
equity with respect to, arising from, based upon,
resulting from or relating to directly or indirectly the
existence, substance, possession, disclosure or
nondisclosure of any Purchaser Excluded Information,
including, without limitation, pursuant to Sections 10(b)
and 20A of the Securities Exchange Act of 1934, as amended
(the "Act"), or the rules and regulations promulgated by
the Securities and Exchange Commission under the Act, or
of any state statute or regulation, and relinquishes all
rights and remedies accorded by applicable law to a seller
of securities with respect to the Subject Shares to the
maximum extent permitted by law, as well as all rights to
participate in any claim, action or remedy others may now
or hereafter have with respect to the foregoing; and
(iii) and forever releases and discharges each of the Purchaser
Parties of and from any and all suits, demands,
obligations, liabilities, claims and causes of action,
contingent or otherwise, of every kind and nature, at law
and in equity, whether asserted, unasserted, absolute,
contingent, known or unknown, which
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any Seller Party may have against the Purchaser Parties,
or any of them, to the extent arising from, relating to,
based upon, resulting from, relating to directly or
indirectly, or in connection with the existence,
substance, possession, disclosure or nondisclosure of any
Purchaser Excluded Information.
(f) The Seller (i) has not assigned any claim or possible claim
arising from, relating to, based upon, resulting from, relating to
directly or indirectly, or in connection with the existence,
substance, possession, disclosure or nondisclosure of any
Purchaser Excluded Information against the Purchaser Parties, (ii)
fully intends to release all claims against the Purchaser Parties
as set forth in Section 2(e)(i) through (iii) above, and (iii) has
consulted with counsel with respect to the execution and delivery
of this Agreement.
SECTION 3 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
represents and warrants to the Seller that:
(a) The Purchaser has full power and authority to execute, deliver
and perform its obligations under this Agreement and to purchase
the Subject Shares from the Seller. This Agreement has been duly
and validly executed and delivered by the Purchaser and is legally
binding on and enforceable against the Purchaser in accordance
with its terms, except that the Purchaser makes no representation
as to the enforceability of the agreements of the Purchaser
contained in Sections 3(d)(i) through (iii) and 3(e)(ii) below.
The execution, delivery and performance by the Purchaser of this
Agreement (i) do not and will not violate any laws applicable to
the Purchaser, (ii) do not and will not require the Purchaser to
obtain any approval, consent or waiver of, or make any filing
(other than amendments to existing filings on Schedule 13D and
filings to reflect changes in ownership on Form 4) with, any
person or entity (including any governmental authority) other than
those previously obtained or made or contemplated by Section 5(c)
and (iii) do not and will not result in a breach of or constitute
a default under any agreement, contract, instrument, order,
judgment, injunction, decree, determination or arbitration award
to which the Purchaser is a party or by which the property of the
Purchaser is bound or affected other than, in the cases of clauses
(ii) and (iii), as would not prevent or restrict Purchaser's
ability to fulfill its obligations hereunder or give rise to any
claim or right of any person that could result in a rescission of
the sale or result in the surrender or refund by Seller of any
portion of the Purchase Price.
(b) The Purchaser is acquiring the Subject Shares for Purchaser's own
account as principal, not as a nominee or agent, for investment
purposes only, and not with a view towards, or for resale in
connection with, the public distribution thereof. The Purchaser
does not have any contract, undertaking, agreement or arrangement
with any person or entity to sell, transfer or grant
participations to such person or entity or to any third person or
entity with respect to any of the Subject Shares.
(c) The Purchaser is a sophisticated investor with respect to the
Subject Shares, has adequate information concerning the business
and financial condition of US Air to make an informed decision
regarding the purchase of the Subject Shares, and has
independ-
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ently made its own analysis and decision to purchase the Subject
Shares without reliance upon any express or implied representation
or warranty of any nature, whether written, oral or otherwise,
made by or on behalf of or imputed to the Seller, except for the
representations expressly set forth in Section 2 of this
Agreement.
(d) The Purchaser acknowledges that the Seller may possess and may
hereafter possess nonpublic information concerning US Air not
known to the Purchaser and which the Purchaser may deem material
to its decision to purchase the Subject Shares if the Purchaser
were provided with the information ("Seller Excluded Information")
including, without limitation, information as to US Air's future
financial performance, potential debt refinancing activities and
other potentially significant matters. The Seller Excluded
Information may or may not be material, may or may not have been
publicly disclosed by or on behalf of US Air, and may or may not
be available to the Purchaser from sources other than US Air or
the Seller. The Purchaser, on behalf of each Purchaser Party,
hereby:
(i) agrees that the Seller Parties shall have no liability
to any Purchaser Party with respect to, based upon,
arising from, resulting from, or relating to directly or
indirectly the existence, substance, possession,
disclosure, or nondisclosure of any Seller Excluded
Information whatsoever, whether arising directly or
indirectly, primarily or secondarily, by contract or
operation of law or otherwise, including, without
limitation, as a matter of contribution, indemnification,
set-off, rescission, or reimbursement;
(ii) waives any right, claim or cause of action at law or in
equity with respect to, arising from, based upon,
resulting from or relating to directly or indirectly the
existence, substance, possession, disclosure or
nondisclosure of any Seller Excluded Information,
including, without limitation, pursuant to Sections 10(b)
and 20A of the Act, or the rules and regulations
promulgated by the Securities and Exchange Commission
under the Act, or of any state statute or regulation, and
relinquishes all rights and remedies accorded by
applicable law to a seller of securities with respect to
the Subject Shares to the maximum extent permitted by law,
as well as all rights to participate in any claim, action
or remedy others may now or hereafter have with respect to
the foregoing; and
(iii) and forever releases and discharges each of the Seller
Parties of and from any and all suits, demands,
obligations, liabilities, claims and causes of action,
contingent or otherwise, of every kind and nature, at law
and in equity, whether asserted, unasserted, absolute,
contingent, known or unknown, which any Purchaser Party
may have against the Seller Parties, or any of them, to
the extent arising from, relating to, based upon,
resulting from, relating to directly or indirectly, or in
connection with the existence, substance, possession,
disclosure or nondisclosure of any Seller Excluded
Information.
(e) The Purchaser (i) has not assigned any claim or possible claim
arising from, relating to, based upon, resulting from, relating to
directly or indirectly, or in connection with the existence,
substance, possession, disclosure or nondisclosure of any Seller
Ex-
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cluded Information against the Seller Parties, (ii) fully intends
to release all claims against the Seller Parties as set forth in
Section 3(d)(i) through (iii) above, and (iii) has consulted with
counsel with respect to the execution and delivery of this
Agreement.
SECTION 4 COVENANTS. The Seller shall comply with Section 4 of the ACE
Stockholder's Agreement with respect to the sale of the Subject
Shares contemplated by this Agreement, including providing written
notice to US Air of the proposed sale promptly following execution
of this Agreement.
SECTION 5 CONDITIONS.
(a) The obligations of the Purchaser to consummate the transactions
contemplated by this Agreement shall be subject to the
satisfaction (or waiver) on the Closing Date of the following
condition: Each of the representations and warranties of the
Seller contained in Section 2 shall be true and correct as of the
date of this Agreement and true and correct at and as of the
Closing, as if made at and as of the Closing.
(b) The obligations of the Seller to consummate the transactions
contemplated by this Agreement shall be subject to the
satisfaction (or waiver) on the Closing Date of the following
condition: Each of the representations and warranties of the
Purchaser contained in Section 3 shall be true and correct as of
the date of this Agreement and true and correct at and as of the
Closing, as if made at and as of the Closing.
(c) The obligations of each of the Seller and the Purchaser to
consummate the transactions contemplated by this Agreement shall
be subject to the satisfaction (or waiver) on the Closing Date of
the following condition: Each of the Seller and the Purchaser
shall have received from US Air a written waiver to permit the
sale of the Subject Shares pursuant to this Agreement under US
Air's Xxxxxxx Xxxxxxx Policy.
SECTION 6 TERMINATION. This Agreement may be terminated prior to the Closing
(a) at any time, by the mutual written consent of the Seller and
the Purchaser and (b) by either of the Seller or the Purchaser by
written notice to the other at any time on or after April 14, 2006
if the Closing has not occurred by such date due to a breach by
the other party; provided, however, that the right to terminate
this Agreement under clause (b) of this Section 6 shall not be
available to any party that is in breach of its obligations under
this Agreement. In the event of any termination of this Agreement
pursuant to this Section 6, there shall be no liability or
obligations hereunder on the part of any party hereto or their
respective affiliates; provided, however, that nothing herein
shall relieve either party from liability for any breach of this
Agreement existing at the time of such termination.
SECTION 7 GENERAL PROVISIONS.
(a) This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter contained herein
and supersedes all prior oral or written agreements, if any,
between the parties hereto with respect to such subject matter
and, except as otherwise expressly provided herein, is not
intended to confer upon any other person any rights or remedies
hereunder.
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(b) All notices, requests, demands and other communications given or
made hereunder shall be in writing and shall be deemed to have
been duly given when delivered personally or by facsimile
transmission, in either case with receipt acknowledged, or one day
after being sent by overnight courier to the Seller or the
Purchaser at the applicable address set forth on Exhibit C hereto,
and, in each case, to such other address as any party shall have
given to the other party by similar notice.
(c) This Agreement shall be governed by, and interpreted in accordance
with, the laws of the State of New York.
(d) This Agreement and the various rights and obligations arising
hereunder shall inure to the benefit of and be binding upon the
Seller and the Purchaser and their respective successors and
assigns. Each Seller Party and Purchaser Party is a third party
beneficiary of this Agreement. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be
transferred or assigned (by operation of law or otherwise) by the
Seller or the Purchaser without the prior written consent of the
other party.
(e) If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by virtue of any rule of
law, or public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so
long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner adverse to any
party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the Seller and
the Purchaser shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the maximum
extent possible.
(f) All representations and warranties made by the parties to this
Agreement shall survive the execution and delivery of this
Agreement and the Closing.
(g) This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument. Delivery of
an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed
counterpart to this Agreement.
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IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Agreement to be executed as of the date first written above.
ACE AVIATION HOLDINGS INC.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Executive Vice President and
Chief Financial Officer
PAR INVESTMENT PARTNERS, L.P.
By: PAR GROUP, L.P.
Its: General Partner
By: PAR CAPITAL MANAGEMENT, INC.
Its: General Partner
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Vice President
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EXHIBIT A
FORM OF RELEASE AND INDEMNIFICATION AGREEMENT
This Release and Indemnification Agreement is executed as of April 7,
2006 by ACE AVIATION HOLDINGS INC., a company organized under the laws of Canada
(the "Seller"), and PAR INVESTMENT PARTNERS, L.P., a Delaware limited
partnership (the "Purchaser"), in favor of US Airways Group, Inc., a Delaware
corporation ("US Air").
Reference is hereby made to the Securities Purchase Agreement dated
April 7, 2006 between the Seller and the Purchaser pursuant to which the Seller
is selling to the Purchaser and the Purchaser is purchasing from the Seller, One
Million Seven Hundred and Fifty Thousand (1,750,000) shares of the common stock,
par value $0.01 per share, of US Air (the "Sale Transaction").
SECTION 1 SELLER RELEASE AND INDEMNIFICATION. The Seller, on behalf of itself
and its affiliates and their respective current and former directors, officers,
managers, trustees, shareholders, members, employees, beneficiaries, attorneys,
agents, representatives, partners, limited partners, investors, successors and
assigns (collectively, "Seller Parties"), hereby:
(i) agrees that neither US Air, its affiliates nor their
respective current or former directors, officers,
managers, trustees, shareholders, members, employees,
beneficiaries, attorneys, agents, representatives,
partners, limited partners, investors, successors or
assigns (collectively, "US Air Parties") shall have any
liability to any Seller Party with respect to, based upon,
arising from, resulting from or relating to the Sale
Transaction, whether arising directly or indirectly,
primarily or secondarily, by contract or operation of law
or otherwise, including, without limitation, as a matter
of contribution, indemnification, set-off, rescission, or
reimbursement; and
(ii) and forever releases and discharges each of the US Air
Parties of and from any and all suits, demands,
obligations, liabilities, claims and causes of action,
contingent or otherwise, of every kind and nature, at law
and in equity, whether asserted, unasserted, absolute,
contingent, known or unknown, which any Seller Party may
have against the US Air Parties, or any of them, to the
extent arising from, relating to, based upon, resulting
from, relating to or in connection with the Sale
Transaction.
The Seller hereby represents to US Air that it (i) has not assigned any claim or
possible claim arising from, relating to, based upon, resulting from, relating
to directly or indirectly, or in connection with the Sale Transaction against
the US Air Parties, (ii) fully intends to release all claims against the US Air
Parties as set forth in this Release and Indemnification Agreement, and
(iii) has been advised by, and has consulted with counsel with respect to the
execution and delivery of this Release and Indemnification Agreement.
The Seller shall indemnify the US Air Parties against and hold them harmless
from any and all liabilities, demands, assessments, judgments, monetary damages,
fines, fees, penalties, costs and expenses (including without limitation
reasonable attorneys' fees and expenses) (collectively, "Losses") incurred by
the US Air Parties as a result of any third party claim arising from or based
upon the Sale Transaction. The liability of the Seller for Losses under this
paragraph shall be limited to Fifty Thousand Dollars ($50,000) in the aggregate.
SECTION 2 PURCHASER RELEASE AND INDEMNIFICATION. The Purchaser, on behalf of
itself and its affiliates and their respective current and former directors,
officers, managers, trustees, shareholders, members, employees, beneficiaries,
attorneys, agents, representatives, partners, limited partners, investors,
successors and assigns (collectively, "Purchaser Parties"), hereby:
(i) agrees that none of the US Air Parties shall have any
liability to any Purchaser Party with respect to, based
upon, arising from, resulting from or relating to the Sale
Transaction, whether arising directly or indirectly,
primarily or secondarily, by contract or operation of law
or otherwise, including, without limitation, as a matter
of contribution, indemnification, set-off, rescission, or
reimbursement; and
(ii) and forever releases and discharges each of the US Air
Parties of and from any and all suits, demands,
obligations, liabilities, claims and causes of action,
contingent or otherwise, of every kind and nature, at law
and in equity, whether asserted, unasserted, absolute,
contingent, known or unknown, which any Purchaser Party
may have against the US Air Parties, or any of them, to
the extent arising from, relating to, based upon,
resulting from, relating to or in connection with the Sale
Transaction.
The Purchaser hereby represents to US Air that it (i) has not assigned any claim
or possible claim arising from, relating to, based upon, resulting from,
relating to directly or indirectly, or in connection with the Sale Transaction
against the US Air Parties, (ii) fully intends to release all claims against the
US Air Parties as set forth in this Release and Indemnification Agreement, and
(iii) has been advised by, and has consulted with counsel with respect to the
execution and delivery of this Release and Indemnification Agreement.
The Purchaser shall indemnify the US Air Parties against and hold them harmless
from any and all Losses incurred by the US Air Parties as a result of any third
party claim arising from or based upon the Sale Transaction. The liability of
the Purchaser for Losses under this paragraph shall be limited to Fifty Thousand
Dollars ($50,000) in the aggregate.
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Release and Indemnification Agreement to be executed as of the date first
written above.
ACE AVIATION HOLDINGS INC.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Executive Vice President and
Chief Financial Officer
PAR INVESTMENT PARTNERS, L.P.
By: PAR GROUP, L.P.
Its: General Partner
By: PAR CAPITAL MANAGEMENT, INC.
Its: General Partner
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Vice President
EXHIBIT C
NOTICES
If to the Purchaser:
PAR Investment Partners, L.P.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxx XxXxxxx
Telecopier No. 000-000-0000
With a copy to:
Xxxxxxx Procter LLP
Exchange Place
Boston, MA 02109
Attention: Xxxxxx X. Xxxxxx, Xx.
Telecopier No. 000-000-0000
If to the Seller:
Ace Aviation Holdings Inc.
0000 xx Xxxxxxxxxxx Xxxx. Xxxx
Xxxxxxxx, Xxxxxx, X0X 0X0
Attention: Sydney X. Xxxxxx, Esq.
With a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Telecopier No. 212-403-2000
