INVESTMENT AGREEMENT
dated as of May 27, 2005
among
US AIRWAYS GROUP, INC.,
AMERICA WEST HOLDINGS, INC.
and
THE INVESTORS LISTED ON SCHEDULE 1 HERETO
TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS......................................................2
Section 1.01 Definitions..............................................2
ARTICLE II ISSUANCE AND PURCHASE OF NEW COMMON STOCK.......................7
Section 2.01 Issuance and Purchase of New Common Stock................7
Section 2.02 Closing..................................................8
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY..................8
Section 3.01 Incorporation by Reference of Representations and
Warranties in the Merger Agreement.......................8
Section 3.02 Authorization; No Contravention..........................8
Section 3.03 Consents; No Conflicts...................................9
Section 3.04 Court Orders.............................................9
Section 3.05 Capitalization; Securities...............................9
Section 3.06 Information Provided....................................10
Section 3.07 Financial Advisors and Brokers..........................10
Section 3.08 Regulatory Status.......................................10
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF WEST.........................10
Section 4.01 Incorporation by Reference of Representations and
Warranties in the Merger Agreement......................10
Section 4.02 Authorization; No Contravention.........................10
Section 4.03 Consents; No Conflicts..................................11
Section 4.04 Court Orders............................................11
Section 4.05 Information Provided....................................11
Section 4.06 Financial Advisors and Brokers..........................11
Section 4.07 Financial Plan..........................................12
ARTICLE V REPRESENTATIONS AND WARRANTIES OF INVESTOR......................12
Section 5.01 Organization............................................12
Section 5.02 Authorization; No Contravention.........................12
Section 5.03 Consents; No Conflicts..................................12
Section 5.04 Financial Advisors and Brokers..........................12
Section 5.05 Ownership of Equity Securities; Purpose of Investment...13
Section 5.06 Financing...............................................13
Section 5.07 Citizenship.............................................13
ARTICLE VI PRE-CLOSING COVENANTS..........................................13
Section 6.01 Taking of Necessary Action..............................13
Section 6.02 Notifications...........................................14
Section 6.03 Financial and Other Information.........................14
Section 6.04 Delivery of Reports.....................................15
Section 6.05 Amendments to Merger Agreement; Etc.....................15
Section 6.06 Publicity...............................................15
Section 6.07 Investor Financing......................................15
Section 6.08 Issuances of Equity Securities..........................15
Section 6.09 Transfer Taxes..........................................16
Section 6.10 Bankruptcy Covenants....................................16
ARTICLE VII CONDITIONS....................................................17
Section 7.01 Conditions to Investor's Obligations....................17
Section 7.02 Conditions to the Company's Obligations.................21
ARTICLE VIII TERMINATION..................................................23
Section 8.01 Termination of Agreement................................23
Section 8.02 Effect of Termination...................................24
ARTICLE IX MISCELLANEOUS..................................................24
Section 9.01 Fees and Expenses.......................................24
Section 9.02 Survival of Representations, Warranties and Covenants...24
Section 9.03 Specific Performance....................................24
Section 9.04 General Interpretive Principles.........................25
Section 9.05 Notices.................................................25
Section 9.06 Entire Agreement; Amendment.............................25
Section 9.07 No Other Representations or Warranties..................25
Section 9.08 Counterparts............................................25
Section 9.09 Governing Law...........................................26
Section 9.10 Successors and Assigns..................................26
Section 9.11 No Third-Party Beneficiaries............................26
Section 9.12 Confidentiality.........................................26
EXHIBIT A Merger Agreement
EXHIBIT B Stockholders Agreement
Schedule 1 Investors and New Common Stock
Schedule 3.05 Capitalization
Schedule 7.01(q) Terms of Revised Profit Sharing Plan
Schedule 9.05 Notices Information
INVESTMENT AGREEMENT
--------------------
THIS INVESTMENT AGREEMENT (together with all exhibits and schedules
hereto and as the same may be amended, supplemented or otherwise modified from
time to time in accordance with the terms hereof, the "Agreement"), dated as
of May 27, 2005, by and among the investors listed on Schedule 1 hereto (each
an "Investor" and collectively the "Investors"), US Airways Group, Inc., a
Delaware corporation, and its successors (including, as the context may
require, on or after the Effective Date, as reorganized pursuant to the
Bankruptcy Code) (the "Company"), and America West Holdings Corporation, a
Delaware corporation ("West").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, on September 12, 2004, the Company and certain of its
Subsidiaries (the "Debtor Subsidiaries" and together with the Company, the
"Debtors") filed voluntary petitions (the "Cases") for protection under
chapter 11 of the United States Bankruptcy Code (the "Bankruptcy Code") in the
United States Bankruptcy Court for the Eastern District of Virginia,
Alexandria Division (the "Bankruptcy Court") to enable the Debtors to be
restructured pursuant to one or more plans of reorganization (collectively,
the "Plan");
WHEREAS, the Debtors have continued in the possession of their assets
and in the management of their businesses pursuant to Sections 1107 and 1108
of the Bankruptcy Code;
WHEREAS, pursuant to the Plan, the Company intends to cancel all of
the existing outstanding Equity Securities of the Company upon the Effective
Date and issue the New Common Stock;
WHEREAS, pursuant to the Plan, the Company, Barbell Acquisition
Corp., a Delaware corporation ("Merger Sub"), and West have entered into an
Agreement and Plan of Merger (together with all of the schedules, exhibits and
other attachments thereto, the "Merger Agreement"), attached as Exhibit A
hereto;
WHEREAS, subject to the other terms and conditions contained herein,
each of the Investors desires to commit to provide equity financing to the
Company;
WHEREAS, the Company intends to issue and sell to each of Investors,
and each Investor severally intends to purchase from the Company, its
allocable portion of the New Common Stock (such purchase, issuance and sale,
the "Investment") in exchange for its allocable portion of the Investment
Price, all on the terms provided in this Agreement;
WHEREAS, pursuant to the Other Investment Agreements, the Company
intends to issue and sell to ACE Aviation Holdings Inc., Par Investment
Partners, L.P., Peninsula Investment Partners, L.P. and Eastshore Aviation,
LLC (the "Other Investors") shares of New Common Stock pursuant to investment
agreements entered into by the Other Investors in the forms previously
provided to each Investor and at a purchase price of not less than $15 per
share of New Common Stock;
WHEREAS, the Investors intend to enter into a Stockholders Agreement
(the "Stockholders Agreement"), substantially in the form of Exhibit B hereto,
with the Company and the Other Investors;
WHEREAS, the parties intend that the transactions contemplated hereby
will be implemented by and take effect simultaneously with the implementation
of the Plan on the Effective Date (except as to those transactions that are
expressly intended to take effect at another date);
WHEREAS, the parties intend that all of the transactions contemplated
hereby are intended to be treated as a single integrated transaction subject
to the approval of the Bankruptcy Court as soon as reasonably practicable
after the date hereof; and
WHEREAS, the Company, West and each of the Investors desire to make
certain representations, warranties, covenants and agreements in connection
with the transactions contemplated herein.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows, in the case of the Company, subject to
Bankruptcy Court approval of this Agreement:
ARTICLE I
DEFINITIONS
-----------
Section 1.01 Definitions. As used in this Agreement, the following
terms shall have the meanings set forth below:
"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 any Affiliate thereof.
"Agreement" has the meaning set forth in the preamble hereto.
"Air Wisconsin DIP Agreement" means the Junior Secured
Debtor-in-Possession Credit Facility Agreement, dated as of February 18, 2005,
by and among US Airways, Inc., as Borrower, certain affiliates thereof as
guarantors, and Eastshore Aviation, LLC, as lender, as amended, supplemented
or otherwise modified from time to time.
"Alternative Transaction" means (a) any reorganization of the Company
or (b) any sale, merger, consolidation, joint venture, recapitalization, sale
of assets or equity interests or other combination or disposition or similar
transaction or series of transactions involving at least 40%, on a fair market
value basis, of the assets of the Company and its Operating Subsidiaries,
taken as a whole, or 40% of the equity securities of the Company.
"Approvals" has the meaning set forth in Section 7.01(e) hereof.
"ATSB" means the Air Transportation Stabilization Board, created
pursuant to Section 102 of the Air Transportation Safety and System
Stabilization Act, P.L. 107-42, as the same may be amended from time to time.
"Bankruptcy Code" has the meaning set forth in the recitals hereto.
"Bankruptcy Court" has the meaning set forth in the recitals hereto.
"Board" means the board of directors of the Company (including, with
respect to periods following the Effective Date, the Company).
"Business Day" means any day other than a Saturday, Sunday or a day
on which banking institutions of the State of New York are authorized by law
or executive order to close.
"Bylaws" means the bylaws of the Company, as amended from time to
time (including, with respect to periods following the Effective Date).
"Cases" has the meaning set forth in the recitals hereto.
"Certificate of Incorporation" means the Certificate of Incorporation
of the Company, as amended from time to time, including any certificate of
designation relating to any Equity Securities of the Company (including, in
each case, with respect to periods following the Effective Date).
"Certificated Air Carrier" means a Citizen of the United States
holding an aircraft operating certificate issued pursuant to Chapter 447 of
Title 49 of the United States Code or any analogous successor provision of the
United States Code, for aircraft capable of carrying ten or more individuals
or 6,000 pounds or more of cargo or that otherwise is certified or registered
to the extent required to fall within the purview of 11 U.S.C. ss. 1110 or any
analogous successor provision of the Bankruptcy Code.
"Chapter 11" means Chapter 11 of the Bankruptcy Code.
"Citizen of the United States" has the meaning given to such term in
Section 40102(a)(15) of Title 49 of the Transportation Code, or any subsequent
legislation that amends, supplements or supersedes such provisions.
"Closing" means the closing of the issuance, sale and purchase of the
New Common Stock pursuant to Section 2.01 hereof.
"Closing Date" has the meaning set forth in Section 2.02(a) hereof.
"Company" has the meaning set forth in the preamble hereto.
"Confirmation Order" means a Final Order of the Bankruptcy Court
approving the Plan.
"Debtors" has the meaning set forth in the recitals hereto.
"Debtor Subsidiaries" has the meaning set forth in the recitals
hereto.
"Disclosure Statement" means a disclosure statement with respect to
the Plan.
"Effective Date" means the effective date of the Plan.
"Equity Securities" shall mean (i) capital stock of, or other equity
interests in, any Person, (ii) securities or other instruments convertible
into or exchangeable for shares of capital stock, voting securities or other
equity interests in such Person or (iii) options, warrants, investment
agreements or other rights to acquire the securities described in clauses (i)
and (ii), whether fixed or contingent, matured or unmatured, contractual,
legal, equitable or otherwise.
"Fair Market Value" shall mean the fair market value of the New
Common Stock, as determined by the Board. If the New Common Stock is traded on
an over-the-counter securities market or national securities exchange, "Fair
Market Value" shall mean the closing sales price of the New Common Stock
reported on such over-the-counter market or such national securities exchange
on the applicable date or, if no sales of New Common Stock have been reported
for that date, on the next preceding date for which sales were reported.
"Final Order" means an order or judgment of the Bankruptcy Court, or
other court of competent jurisdiction, as entered on the docket in the Cases
or the docket of any other court of competent jurisdiction, that has not been
reversed, stayed, modified or amended, and as to which the time to appeal or
seek reargument, reconsideration, or certiorari has expired and no appeal,
motion for reconsideration or reargument or petition for certiorari has been
timely taken, or as to which any appeal that has been taken or any petition
for certiorari, motion for reconsideration or reargument that has been or may
be filed has been resolved by the highest court to which the order or judgment
was appealed or from which reargument, reconsideration, or certiorari was
sought and the time to take any further appeal, petition for certiorari or
move for reargument shall have expired.
"Fully Diluted Basis" means the number of shares of New Common Stock,
without duplication, which are issued and outstanding or owned or held, as
applicable, at the date of determination plus the number of shares of New
Common Stock issuable pursuant to any Equity Securities then outstanding
convertible into or exchangeable or exercisable for (whether or not subject to
contingencies or passage of time, or both) shares of New Common Stock.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Hearing" means the hearing conducted in the Cases in the Bankruptcy
Court seeking approval of the Motion.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended, and the regulations promulgated thereunder.
"Investor" has the meaning set forth in the preamble hereto.
"Investment" has the meaning set forth in the recitals hereto.
"Investment Price" has the meaning set forth in Section 2.01 hereof.
"Law" means any law, treaty, statute, ordinance, code, rule or
regulation of a Governmental Authority or judgment, decree, order, writ,
award, injunction or determination of a court or other Governmental Authority.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever intended for security (including any conditional sale or
other title retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease having
substantially the same economic effect as any of the foregoing).
"Material Adverse Effect" on any Person means (x) a material adverse
effect on the financial condition, assets, liabilities, business or results of
operations of such Person and its Subsidiaries taken as a whole, excluding any
such effect resulting from (I) changes or conditions generally affecting the
U.S. economy or financial markets, (II) changes or conditions generally
affecting any of the segments of the airline industry in which such Person or
any of its Subsidiaries operates, to the extent such conditions or changes do
not disproportionately impact such Person or its Subsidiaries (III) changes or
conditions resulting from divestiture required in order to satisfy Section
5.1(b) of the Merger Agreement or (IV) the announcement or consummation of the
Merger Agreement, or (y) an effect that would prevent, materially delay or
materially impair the ability of such Person to consummate the Merger or the
ability of such Person or the Investors to consummate the transactions
contemplated by this Agreement. For purposes of this definition, any
suspension of commercial air travel in the United States for a period of 72
hours or more shall be deemed to have a Material Adverse Effect on the Company
and West.
"Merger" has the meaning assigned to such term in the Merger
Agreement.
"Merger Agreement" has the meaning set forth in the recitals hereto.
"Merger Sub" has the meaning set forth in the recitals hereto.
"Motion" means the motion and any supporting papers seeking approval
of the Transactions, in form and substance reasonably acceptable to each
Investor and providing, inter alia, not less than a ten (10) day notice period
prior to the Hearing and providing for confidential treatment of portions of
the Transaction Documents as mutually agreed by the Company and each Investor.
"New Common Stock" means the class of common stock of the Company
authorized under the Certificate of Incorporation attached as Exhibit C to the
Merger Agreement and to be issued to West shareholders pursuant to the Merger.
"Operating Companies" means, with respect to the Company, US Airways,
PSA Airlines, Inc., a Pennsylvania corporation, Piedmont Airlines, Inc., a
Maryland corporation and Material Services Company, Inc., a Delaware
corporation.
"Other Investors" has the meaning set forth in the recitals hereto.
"Other Investments" means the purchase, issuance and sale by the
Company to the Other Investors of shares of New Common Stock pursuant to the
Other Investment Agreements.
"Other Investment Agreements" means the investment agreements among
the Company, West and each of the Other Investors.
"Person" means any individual, corporation, company, association,
partnership, limited liability company, joint venture, trust, unincorporated
organization, or Governmental Authority.
"Plan" has the meaning set forth in the recitals hereto.
"Postpetition," when used with respect to any agreement, instrument
or any obligation arising thereunder, any claim or proceeding or any other
matter, means an agreement or instrument that was first entered into or first
became effective, an obligation, claim or proceeding that first arose or was
first instituted, or another matter that first occurred, after the
commencement of the Cases, or that was entered into or became effective, or
arose, was instituted or occurred, before commencement of the Cases but has
been assumed in the Cases.
"Regulatory Approvals" means, to the extent necessary in connection
with the consummation of the transactions contemplated by the Transaction
Documents, any and all certificates, permits, licenses, franchises,
concessions, grants, consents, approvals, orders, registrations,
authorizations, waivers, variances or clearances from, or filings or
registrations with, Governmental Authorities (and shall not include clearance
or approval under the HSR Act or any other Law that may require waiting
periods prior to consummation of the Transactions).
"Representatives" means, with respect to any Person, such Person's
officers, directors, employees, agents, attorneys, accountants, consultants,
equity financing partners or financial advisors or other Person associated
with, or acting on behalf of, such a Person.
"Republic" means Republic Airways Holdings Inc., a Delaware
corporation.
"SEC" means the U.S. Securities and Exchange Commission.
"Securities Act" means the U.S. Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Stockholders Agreement" has the meaning set forth in the recitals
hereto.
"Subsidiary" means as to any Person, any other Person of which more
than fifty percent (50%) of the shares of the voting stock or other ownership
interests are owned or controlled, or the ability to select or elect more than
fifty percent (50%) of the directors or similar managers is held, directly or
indirectly, by such first Person or one or more of its Subsidiaries or by such
first Person and one or more of its Subsidiaries.
"Title 49" means Title 49 of the Code of Federal Regulations, as
amended and in effect from time to time.
"Transactions" means the Merger, the execution, delivery and
performance of this Agreement and each Other Investment Agreement (including
the issuance of New Common Stock hereunder and thereunder), the Stockholders
Agreement, and the execution, delivery and performance of the documents
described in Articles II and VI hereof, in each case by the applicable party
thereto.
"Transaction Contracts" means all of the Transaction Documents other
than the Plan and the Confirmation Order.
"Transaction Documents" means this Agreement, the Plan, the
Confirmation Order, the Merger Agreement, each Other Investment Agreement, the
Stockholders Agreement, the documents described in Articles II and VI and all
other documents necessary to consummate the Transactions and other
arrangements contemplated hereby.
"Transportation Code" means Title 49 of the United States Code which,
among other things, recodified and replaced the U.S. Transportation Code of
1958 and the regulations promulgated thereunder, or any subsequent legislation
that amends, supplements or supersedes such provisions.
"US Airways" means US Airways, Inc., a Delaware corporation.
"West" has the meaning set forth in the preamble hereto.
ARTICLE II
ISSUANCE AND PURCHASE OF NEW COMMON STOCK
-----------------------------------------
Section 2.01 Issuance and Purchase of New Common Stock. Upon the
terms and subject to the conditions set forth in this Agreement, at the
Closing, the Company will issue, sell and deliver to each Investor, and each
Investor will severally purchase from the Company, that number of shares of
New Common Stock set forth opposite such Investor's name on Schedule 1 hereto,
for the aggregate purchase price set forth opposite such Investor's name on
Schedule 1 hereto (the "Investment Price").
Section 2.02 Closing. (a) Subject to the satisfaction or, if
permissible, waiver of the conditions set forth in Sections 7.01 and 7.02
hereof, the Closing shall take place at the offices of Xxxxxx & Xxxxxx LLP,
000 Xxxxxxx Xxxxxx, XX, Xxxxxxxxxx X.X. 00000, at 10:00 a.m., Washington D.C.
time, on the first Business Day following the Effective Time (as such term is
defined in the Merger Agreement) or at such other time, date and place as the
parties may agree (the date on which the Closing occurs, the "Closing Date");
provided that the parties shall use reasonable best efforts to have the
Closing take place on the first Business Day following the Effective Time.
(b) At the Closing, (i) the Company shall deliver to each
Investor certificates representing the shares of New Common Stock to be
purchased by, and sold to, such Investor pursuant to Section 2.01 hereof
(registered in the names and in the denominations designated by such Investor
at least two Business Days prior to the Closing Date), together with the other
documents, certificates and opinions to be delivered pursuant to Section 7.01
hereof, and (ii) such Investor, in full payment for the shares of New Common
Stock to be purchased by, and sold to, such Investor pursuant to Section 2.01
hereof, shall pay to the Company as provided in Section 2.01 hereof (in
immediately available funds by wire transfer to the account designated by the
Company, or by such other means as may be agreed between the parties hereto),
such Investor's Investment Price (less any amounts due as of the Closing Date
to such Investor pursuant to Section 9.01 hereof), and shall deliver the
certificate required pursuant to Section 7.02(b) hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
The Company hereby represents and warrants to each Investor as
follows:
Section 3.01 Incorporation by Reference of Representations and
Warranties in the Merger Agreement. The Company hereby incorporates by
reference, for the benefit of each Investor as though set forth herein, the
following representations and warranties (including the defined terms and
disclosure items included therein and related thereto) in the Merger
Agreement: Sections 3.2(a), (f), (g), (h), (i), (j), (k), (l), (n), (o), (p),
(q), (r), (s), (t), (u), (v), (w) and (x). Each such representation which
states that "East" (i.e., US Airways Group, Inc.) "has made available to West"
certain materials shall be deemed to read "has made available to each
Investor" for purposes of this incorporation by reference.
Section 3.02 Authorization; No Contravention. The Transactions to be
consummated by the Company and the Operating Companies and the performance of
the Transaction Contracts are within the respective corporate power and
authority of the Company and the Operating Companies (subject and after giving
effect to any required approvals of the Bankruptcy Court (including, without
limitation, to the extent applicable, the Confirmation Order) and the Plan)
and have been duly authorized by all necessary corporate and, if required,
stockholder action. This Agreement, the Merger Agreement, each Other
Investment Agreement, the Stockholders Agreement and each other Transaction
Contract entered into as of the date hereof have been duly executed and
delivered by the Company and the Operating Companies party thereto (as
applicable) and constitute (subject and after giving effect to any required
approvals of the Bankruptcy Court (including, without limitation, to the
extent applicable, the Confirmation Order) and the Plan), a legal, valid and
binding obligation of the Company and such Operating Companies, respectively,
enforceable in accordance with its terms.
Section 3.03 Consents; No Conflicts. Other than the notices, reports,
filings, consents, registrations, approvals, permits or authorizations
required under the Xxxx Xxxxx Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), with respect to the Company and the Operating
Companies, the execution and delivery of each of the Transaction Contracts and
the consummation of the Transactions (i) does not require any consent or
approval of, registration or filing with, or any other action by, any
Governmental Authority (subject and after giving effect to any required
approvals of the Bankruptcy Court (including, without limitation, to the
extent applicable, the Confirmation Order) and the Plan), except such as have
been obtained or made and are in full force and effect and except where
failure to obtain such consent, approval, registration, filing or other action
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect on the Company, (ii) will not violate, conflict with
or result in a breach, violation or default under (A) any applicable law, rule
or regulation or any order of or restriction imposed by any Governmental
Authority and except, in each case, where such violation of applicable law or
regulation would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect on the Company or (B) the Certificate of
Incorporation or Bylaws or any other organizational documents of the Company
or any of its Subsidiaries, (iii) will not violate, conflict with or result in
a breach, or default under any Postpetition agreement, contract or obligation
or Postpetition loan agreement or any other Postpetition indebtedness
agreement or instrument of indebtedness binding upon the Company, any
Operating Company or any of their respective Subsidiaries or its assets except
where such default, breach or violation would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on the
Company and (iv) will not result in the creation or acceleration of any
obligations or imposition of any Lien on any assets or properties of the
Company or any of its Subsidiaries.
Section 3.04 Court Orders. Subject and after giving effect to any
required approvals of the Bankruptcy Court (including, without limitation, to
the extent applicable, the Confirmation Order) and the Plan, the performance
of any action by the Company or the Operating Companies required or
contemplated by this Agreement or any other Transaction Document is not
restrained or enjoined by any order of the Bankruptcy Court or by any
Governmental Authority (either temporarily, preliminarily or permanently).
Section 3.05 Capitalization; Securities. Upon the Closing and after
giving effect to the Confirmation Order, the Plan, the Merger, the Investment
and the Other Investments, the issued and outstanding capital stock of the
Company shall consist solely of New Common Stock as provided on Schedule 3.05.
Except as set forth on Schedule 3.05, upon the Closing and after giving effect
to the Confirmation Order, the Plan, the Merger, the Investment and the Other
Investments, there will not be any outstanding subscriptions, options,
warrants, commitments, agreements or arrangements related to the issuance or
sale of outstanding Equity Securities or securities or other instruments
convertible into or exchangeable for any Equity Securities of the Company.
Upon the Closing Date, the New Common Stock to be issued and delivered to each
Investor pursuant to the terms hereof, shall have been duly authorized and
validly issued, fully paid, nonassessable and not subject to preemptive or
similar rights of third parties or reserved for issuance in accordance with
the terms of the Plan and Confirmation Order. The rights, preferences and
privileges of the capital stock of the Company shall be as set forth in the
Certificate of Incorporation of the Company, as amended pursuant to the Plan
and in effect upon the Closing in the form attached as Exhibit C to the Merger
Agreement.
Section 3.06 Information Provided. A true and correct copy of the
Merger Agreement, and of each Other Investment Agreement, including each
schedule, exhibit and other attachment or related agreement thereto and
including in each case any amendments, supplements and modifications through
the date hereof, has been provided to each Investor. There are no other
agreements, arrangements, understandings or commitments, written or oral, of
any nature, between any of the Other Investors or their affiliates, on the one
hand, and the Company, West or any of their affiliates on the other, relating
to the transactions contemplated by the Transaction Documents.
Section 3.07 Financial Advisors and Brokers. Except for Seabury
Aviation Advisors LLC and/or its Affiliates ("Seabury"), no Person has acted,
directly or indirectly, as a broker, finder or financial advisor of the
Company or any of the Operating Companies in connection with the Transaction
Documents or the transactions contemplated thereby, and except for fees
payable to Seabury by the Company, no Person acting for or on behalf of the
Company or any of the Operating Companies is entitled to receive any broker's,
finder's or similar fee or commission in respect thereof based in any way on
any agreement, arrangement or understanding made by or on behalf of the
Company or any of the Operating Companies.
Section 3.08 Regulatory Status. Neither the Company, nor any
Operating Company nor any of their respective Subsidiaries is (i) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (ii) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
US Airways is a Certificated Air Carrier.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF WEST
--------------------------------------
West hereby represents and warrants to each Investor as follows:
Section 4.01 Incorporation by Reference of Representations and
Warranties in the Merger Agreement. West hereby incorporates by reference, for
the benefit of each Investor as though set forth herein, the following
representations and warranties (including the defined terms and disclosure
items related thereto) in the Merger Agreement: Sections 3.1(a), (b), (e),
(f), (g), (h), (i), (j), (k), (m), (n), (o), (p), (q), (r), (s), (t), (u), (v)
and (w). Each such representation which states that "West" (i.e., America West
Holdings Corporation) "has made available to East" certain materials shall be
deemed to read "has made available to each Investor" for purposes of this
incorporation by reference.
Section 4.02 Authorization; No Contravention. The Transactions to be
consummated by West and performance of the Transaction Contracts to which West
is or will be a party are within the corporate power and authority of West and
have been duly authorized by all necessary corporate and, if required,
stockholder action. This Agreement, the Merger Agreement, each Other
Investment Agreement, and each other Transaction Contract to which West is a
party, entered into as of the date hereof, have been duly executed and
delivered by West and constitute a legal, valid and binding obligation of
West, enforceable in accordance with its terms.
Section 4.03 Consents; No Conflicts. Other than the notices, reports,
filings, consents, registrations, approvals, permits or authorizations
required under the HSR Act, with respect to West, the execution and delivery
of each of the Transaction Contracts to which West is or will be a party and
the consummation of the Transactions (i) does not require any consent or
approval of, registration or filing with, or any other action by, any
Governmental Authority (subject and after giving effect to any required
approvals of the Bankruptcy Court (including, without limitation, to the
extent applicable, the Confirmation Order) and the Plan), except such as have
been obtained or made and are in full force and effect and except where
failure to obtain such consent, approval, registration, filing or other action
would not reasonably be expected to have a Material Adverse Effect on West,
(ii) will not violate, conflict with or result in a breach, violation or
default under (A) any applicable law, rule or regulation or any order of or
restriction imposed by any Governmental Authority and except, in each case,
where such violation of applicable law or regulation would not reasonably be
expected to have a Material Adverse Effect on West or (B) the Certificate of
Incorporation or Bylaws or any other organizational documents of West or any
of its Subsidiaries, (iii) will not violate, conflict with or result in a
breach, or default under any agreement, contract or obligation or loan
agreement or any other indebtedness agreement or instrument of indebtedness
binding upon West or any of its Subsidiaries or its assets except where such
default, breach or violation would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on West and (iv) will
not result in the creation or acceleration of any obligations or imposition of
any Lien on any assets or properties of West or any of its Subsidiaries.
Section 4.04 Court Orders. Subject and after giving effect to any
required approvals of the Bankruptcy Court (including, without limitation, to
the extent applicable, the Confirmation Order) and the Plan, the performance
of any action by West required or contemplated by this Agreement or any other
Transaction Document is not restrained or enjoined by any order of the
Bankruptcy Court or by any Governmental Authority (either temporarily,
preliminarily or permanently).
Section 4.05 Information Provided. West has delivered to each
Investor a true and correct copy of the Merger Agreement, including any
amendments, supplements and modifications through the date hereof.
Section 4.06 Financial Advisors and Brokers. Except for Xxxxxxxxx &
Co., LLC and/or its Affiliates ("Xxxxxxxxx") and TPG Partners, L.P. and/or its
Affiliates ("TPG"), no Person has acted, directly or indirectly, as a broker,
finder or financial advisor of West in connection with the Transaction
Documents or the transactions contemplated thereby, and except for fees
payable to Xxxxxxxxx and TPG by West, no Person acting for or on behalf of
West is entitled to receive any broker's, finder's or similar fee or
commission in respect thereof based in any way on any agreement, arrangement
or understanding made by or on behalf of West.
Section 4.07 Financial Plan. The financial plan dated May 12, 2005
provided to each Investor (the "Financial Plan") was prepared by West in good
faith using assumptions believed by West to be reasonable, and, as of the date
hereof, the Financial Plan represents West's reasonable, good faith estimate
of the future financial performance of the Company.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF INVESTOR
------------------------------------------
Each Investor on a several and not joint basis and with respect to
itself only represents and warrants to the Company as follows:
Section 5.01 Organization. It is an entity duly organized under the
laws of the jurisdiction of its formation having all requisite power and
authority and all requisite governmental licenses, authorizations, consents
and approvals to execute, deliver and perform its obligations under this
Agreement and the Stockholders Agreement.
Section 5.02 Authorization; No Contravention. The execution, delivery
and performance by each Investor of this Agreement and the Stockholders
Agreement and the consummation of the transactions contemplated hereby and
thereby, are within such Investor's powers and have been duly authorized by
all necessary action and do not and will not contravene the terms of their
respective governing documents. This Agreement constitutes and, when executed
and delivered by such Investor at Closing the Stockholders Agreement will
constitute, a legal, valid and binding obligation of such Investor,
enforceable against such Investor in accordance with its terms.
Section 5.03 Consents; No Conflicts. Except for (i) the filing of a
notification and report form under the HSR Act and the termination or
expiration of the waiting period under the HSR Act, (ii) the filing of any
other required applications or notices with any Governmental Authority and
approval of such applications and notices, and (iii) approval by the
Bankruptcy Court, no Approval is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, each Investor
of this Agreement or the Stockholders Agreement or for the consummation of the
transactions contemplated hereby and thereby, except for such Approvals that
would not, individually or in the aggregate, reasonably be expected to have a
material adverse effect on the ability of such Investor to consummate the
Investment, and all of which have been duly obtained, taken, given or made and
are in full force and effect, except for Approvals that would not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the ability of such Investor to consummate the Investment.
Section 5.04 Financial Advisors and Brokers. Other than Affiliates of
each Investor, no Person has acted directly or indirectly as a broker, finder
or financial advisor of any Investor in connection with this Agreement, the
Stockholders Agreement or the transactions contemplated hereby or thereby,
and, other than fees that may be payable to Affiliates of each Investor by
such Investor, no Person acting for or on behalf of any Investor is entitled
to receive any broker's, finder's or similar fee or commission in respect
thereof based in any way on any agreement, arrangement or understanding made
by or on behalf of any Investor.
Section 5.05 Ownership of Equity Securities; Purpose of Investment.
Each Investor is acquiring the New Common Stock under this Agreement solely
for the purpose of investment and not with a view to, or for sale in
connection with, any distribution thereof in violation of the Securities Act
and applicable state securities or "blue sky laws". Each Investor is an
"Accredited Investor" as such term is defined in Regulation D of the
Securities Act.
Section 5.06 Financing. Each Investor (or its assignee, as permitted
by Section 9.10 who acquires the New Common Stock hereunder at the Closing)
has sufficient and adequate resources to consummate the transactions
contemplated by this Agreement.
Section 5.07 Citizenship. Each Investor (or its assignee, as
permitted by Section 9.10 who acquires the New Common Stock hereunder at the
Closing) is a Citizen of the United States.
ARTICLE VI
PRE-CLOSING COVENANTS
---------------------
Section 6.01 Taking of Necessary Action. (a) The Company, West and
each Investor (solely with respect to the Investment) shall cooperate with
each other and use (and shall cause their respective Subsidiaries to use)
their respective reasonable best efforts to take or cause to be taken all
actions, and do or cause to be done all things, necessary, proper or advisable
on its part under this Agreement and applicable Law to consummate and make
effective the Transactions as soon as practicable, including preparing and
filing as promptly as practicable all documentation to effect all necessary
notices, reports and other filings (including, without limitation, appropriate
filings pursuant to the HSR Act) and to obtain as promptly as practicable all
consents, registrations, approvals, permits and authorizations necessary or
advisable to be obtained from any third party and/or any Governmental
Authority in order to consummate the Transactions. In exercising the foregoing
rights, the Company, West and each Investor shall act reasonably and as
promptly as practicable. The Company's, West's and (solely with respect to the
Investment) each Investor's obligations under this Section 6.01 shall include,
without limitation, the obligation to use their respective reasonable best
efforts to defend any lawsuits or legal proceedings, whether judicial or
administrative, or any other actions by a Governmental Authority, challenging
the Transactions, including using reasonable best efforts to seek to have any
stay or other injunctive relief which would prevent or materially delay or
impair the consummation of the Transactions entered by any court or other
Governmental Authority reversed on appeal or vacated. For purposes of this
Section 6.01, as it relates to each Investor, "reasonable best efforts" shall
include each Investor's agreement to hold its airline assets, if any, in one
or more subsidiaries separate from the company that will hold such Investor's
equity interest in the Company. Except as provided in the immediately
preceding sentence, each Investor shall not be required (1) to divest, or
agree to divest, any of its businesses or assets or any interest therein, or
(2) to take or agree to take any other action or agree to any limitation,
restriction or condition that could reasonably be expected to materially
impair the benefits to such Investor expected, as of the date of this
Agreement, to be realized from the transactions contemplated hereby.
(b) Each of the Company, West and each Investor shall, to the
extent related to the Investment, in connection with obtaining the approvals
referenced in Section 6.01(a), use its reasonable best efforts to (i) subject
to applicable law, permit the other party or the other party's outside counsel
to review in advance any proposed written communication between it and any
Governmental Authority, (ii) promptly inform each other of any communication
(or other correspondence or memoranda) received by such party from, or given
by such party to, any other Governmental Authority and of any material
communication received or given in connection with any proceeding by a private
party, in each case regarding any of the transactions contemplated hereby,
(iii) consult with each other in advance to the extent practicable of any
meeting or conference with any Governmental Authority or, in connection with
any proceeding by a private party, with any other Person, and to the extent
permitted by the applicable Governmental Authority or other Person, give the
other party the opportunity to attend and participate in such meetings and
conferences, and (iv) furnish each other with copies of all correspondence,
filings and written communications between them or their Subsidiaries or
Affiliates on one hand, and any such Governmental Authority or its respective
staff on the other hand, with respect to this Agreement and the transactions
contemplated hereby, except that (A) any materials concerning each Investor's
valuation of the transaction may be redacted and (B) any proprietary
information of one party not previously disclosed to the other party may be
disclosed only to the other party's outside counsel, at the option of the
disclosing party.
(c) The Company shall, in coordination with each Investor (i)
file with the Bankruptcy Court a bidding procedures motion, reasonably
satisfactory to such Investor, seeking approval of the expense reimbursement
provisions set forth in Section 9.01 hereof and the provisions of Section 4.20
of the Merger Agreement, and (ii) diligently seek approval of the Transactions
(consistent with the Bidding Procedures, as hereinafter defined), and (iii) if
the Company has determined that the Merger represents a highest and best
Qualified Competing Plan Proposal (as defined in the order approving the
bidding procedures), (A) file with the Bankruptcy Court, and diligently seek
approval of, the Disclosure Statement (with the Plan attached as an exhibit
thereto) reasonably satisfactory to such Investor and (B) seek to obtain, as
expeditiously as possible, a Confirmation Order with respect to the Plan that
is reasonably satisfactory to such Investor.
Section 6.02 Notifications. At all times prior to the Closing Date,
each Investor shall promptly notify the Company and each of the Company and
West shall promptly notify each Investor in writing of any fact, change,
condition, circumstance or occurrence or nonoccurrence of any event that will
or is reasonably likely to result in such party's representations and
warranties to be untrue or inaccurate in any material respect or the failure
to satisfy the conditions to be complied with or satisfied by it hereunder;
provided, however, that the delivery of any notice pursuant to this Section
6.02 shall not be deemed to alter or amend such party's representations or
warranties or limit or otherwise affect the remedies available hereunder to
any party giving or receiving such notice.
Section 6.03 Financial and Other Information. From and after the date
hereof, each of the Company and West shall, and shall cause each of their
respective Subsidiaries and Representatives to, afford to each Investor, its
Affiliates and their respective Representatives, including qualified
prospective lenders to each Investor that sign appropriate confidentiality
agreements, complete access, upon reasonable notice and in such manner as will
not unreasonably interfere with the conduct of such companies' respective
businesses, to their and their respective Subsidiaries respective facilities,
properties, books, contracts, commitments, records (including information
regarding any material pending or threatened legal proceeding to which any of
such companies is, or reasonably expects to be, a party and negotiations
relating to any labor agreements or labor disputes involving the Company, West
or any of their respective Subsidiaries), key personnel, officers, independent
accountants and legal counsel; provided, however, that neither the Company nor
West will be required to provide access to employee personnel files if
providing such files would be unreasonable or a violation of applicable Law.
Section 6.04 Delivery of Reports. Each of the Company and West and
their respective Subsidiaries shall deliver to each Investor, promptly
following delivery to the ATSB, the reports concerning the weekly and monthly
operating and financial data of the Company or West, as applicable, and their
respective Subsidiaries that are delivered to the ATSB.
Section 6.05 Amendments to Merger Agreement; Etc. Other than pursuant
to and in accordance with Section 4.20 of the Merger Agreement, the Company
and West will not amend the Merger Agreement, the Plan, any Other Investment
Agreement or any other Transaction Document, in each case without the prior
written approval of each Investor, such approval not to be unreasonably
withheld (it being understood that in such connection each Investor is not
required to consider the interests of any other Person), and, notwithstanding
the foregoing, neither the Company nor West shall waive any condition to the
consummation of the Merger or the Plan without the prior written approval of
each Investor.
Section 6.06 Publicity. Prior to the Closing, except as required by
Law or by obligations pursuant to any listing agreement with or requirement of
any national securities exchange or national quotation system on which the
Common Stock, New Common Stock or the common stock of West is listed, admitted
to trading or quoted, neither the Company (nor any of its Subsidiaries), West
(nor any of its Subsidiaries) nor any Investor (nor any of its Affiliates)
shall, without the prior written consent of each other party hereto, which
consent shall not be unreasonably withheld or delayed, make any public
announcement or issue any press release with respect to the transactions
contemplated by this Agreement or the Transaction Documents. Prior to making
any public disclosure required by applicable Law or pursuant to any listing
agreement with or requirement of any relevant national exchange or national
quotation system, the disclosing party shall consult with the other parties
hereto, to the extent feasible, as to the content and timing of such public
announcement or press release. To the extent any party is required to file
this Agreement or any Transaction Document with the SEC or any other
Governmental Authority (including the Bankruptcy Court), the parties shall
consult with each other concerning information for which confidential
treatment will be requested.
Section 6.07 Investor Financing. Each Investor shall maintain
sufficient and adequate resources to consummate the transactions contemplated
by this Agreement at the Closing.
Section 6.08 Issuances of Equity Securities. The Company shall not
accept subscriptions for, offer, issue, sell, or agree, commit or obligate
itself to offer, issue or sell, any Equity Securities other than New Common
Stock (a) issued to each Investor pursuant to this Agreement, (b) issued to
other Persons pursuant to other investment agreements entered into at a
purchase price of not less than $15 per share of New Common Stock up to an
aggregate amount of $500,000,000 including the investments of each Investor
and the Other Investors, (c) issued to West's equityholders pursuant to the
Merger Agreement as set forth on Schedule 3.05, and (d) issued to existing
equityholders and creditors of the Company pursuant to the Plan as set forth
on Schedule 3.05, (e) issued by the Company on or prior to the Effective Date
pursuant to a rights offering by the Company to existing Company and West
stakeholders to purchase shares of New Common Stock at a price per share no
less than the purchase price per share of New Common Stock paid by each
Investor under this Agreement and in an aggregate amount not to exceed the
difference between $650,000,000 and the aggregate amount of the Investment,
the Other Investments and the investment of any other Person under clause (b)
above, and (f) issued by the Company on or prior to the Effective Date at a
purchase price per share no less than $15 per share of New Common Stock, for
proceeds in excess of $650,000,000 provided that (i) the sole use of such
proceeds is the redemption or repurchase of Equity Securities from existing
Company and West stakeholders at a repurchase or redemption price that values
the Equity Securities redeemed or repurchased (on an as-converted basis, in
the case of convertible securities, and, in the case of Equity Securities of
West, taking into account the Class B Merger Exchange Ratio (as defined in the
Merger Agreement)) at a price per share no more than the purchase price per
share of New Common Stock paid by each Investor under this Agreement, (ii) the
aggregate value of the New Common Stock (valued on the same basis as the New
Common Stock to be issued pursuant to this Agreement) issued pursuant to this
clause (f) shall not exceed $200,000,000 and (iii) the Investors are provided
the right to purchase, at their option, pro rata based on each Investor's
investment, up to $30,000,000 combined of the New Common Stock to be issued
pursuant to this clause (f) at a price per share equal to the purchase price
per share of New Common Stock paid by each Investor under this Agreement.
Notwithstanding the foregoing, in connection with the implementation of the
Plan, the Company may authorize and reserve for issuance under the Company's
equity incentive plan a number of shares of New Common Stock not to exceed
12.5% of the outstanding number of shares of New Common Stock on a Fully
Diluted Basis as of the Effective Date, provided that any awards of such
shares of New Common Stock made or committed to be made at anytime before the
second anniversary of the Effective Date, (x) may only consist of options with
an exercise price not less than the lesser of (a) Fair Market Value as of the
date of grant and (b) the Investment Price (as appropriately adjusted to
reflect stock splits, stock dividends, reverse splits and similar changes with
respect to the New Common Stock effected after the Closing Date); provided
that the exercise price for any options granted as of or immediately following
the Effective Date shall be not less than the Investment Price and (y) shall
not be effective unless such awards are approved or ratified by the Board (as
constituted from and after the Effective Date as set forth in Section 1.8(a)
of the Merger Agreement) or by a committee with appropriate authority granted
by such Board.
Section 6.09 Transfer Taxes. All transfer taxes, fees and duties
under applicable law incurred in connection with the Investment under this
Agreement will be borne and paid by the Company and it shall promptly
reimburse each Investor for any such tax, fee or duty which such Investor is
required to pay under applicable law.
Section 6.10 Bankruptcy Covenants. (a)Notwithstanding anything herein
to the contrary, the Company shall not, and shall cause each of the other
Debtors not to, offer, agree to, or seek approval from the Bankruptcy Court
for, and shall use their best efforts to object to any request by any other
party for, any break-up fee, work fee, expense reimbursement or any other
benefit or protection for any Person in connection with any proposed
acquisition of or investment in any of the Debtors, other than (i) West, (ii)
each Investor, (iii) any Other Investor, and (iv) any other Person making an
investment pursuant to Section 6.08(b); provided that (A) such other Person is
purchasing at least $50,000,000 of New Common Stock at a purchase price of not
less than $15 per share of New Common Stock and (B) without limitation of the
preceding clause (A), any break-up or similar fee payable to such other Person
shall not exceed three percent (3.0%) of the aggregate amount of financing to
be provided by such other Person.
(b) Each of the Debtors agrees that if the Merger Agreement
becomes the Approved Proposal (as defined in the Merger Agreement), it shall
use its best efforts to cause any order approving the Approved Proposal to
prohibit the Debtors (and any Person purporting to act on behalf of the estate
of any Debtor) from violating the provisions of Section 4.4(a) of the Merger
Agreement or from otherwise pursuing in any way any East Acquisition Proposal
(as defined in the Merger Agreement) other than the Merger Agreement unless
the Merger Agreement shall have previously been terminated in accordance with
its terms.
(c) In connection with any proceedings in the Bankruptcy Court
related to the Bidding Procedures (as hereinafter defined), the order
approving the Approved Proposal or the transactions contemplated by the Merger
Agreement or this Agreement (or any Qualified Competing Plan Proposal (as
defined in the Bidding Procedures)) (a) the Company shall provide to each
Investor copies of all motions, objections, pleadings, notices, proposed
orders and other documents that are filed by or on behalf of any Debtor as
soon as reasonably practicable prior to filing thereof with the Bankruptcy
Court and (b) West shall provide to each Investor copies of all motions,
objections, pleadings, notices, proposed orders and other documents that are
filed by or on behalf of West as soon as reasonably practicable prior to
filing thereof with the Bankruptcy Court.
(d) Except in accordance with the Bidding Procedures, the
Company and West shall not, and shall not authorize or permit any of their
Subsidiaries or any of the Company's or West's or such Subsidiaries'
Representatives, directly or indirectly, to, (i) solicit, initiate, or take
any action designed to induce a proposal or offer for an Alternative Proposal,
(ii) participate in any discussions or negotiations regarding any Alternative
Proposal, or (iii) enter into any letter of intent, agreement in principle,
acquisition agreement or other similar agreement related to any Alternative
Proposal. "Alternative Proposal" means (x) any Alternative Transaction, or
proposal therefor, or (y) any proposed investment that would, or is intended
to, replace all or a material portion of the investment contemplated by this
Agreement.
ARTICLE VII
CONDITIONS
----------
Section 7.01 Conditions to Investor's Obligations. The obligation of
each Investor to make its several Investment pursuant to Section 2.01 hereof
is subject to satisfaction or waiver of each of the following conditions
precedent:
(a) Definitive Documents. Definitive Transaction Documents (in
form and substance reasonably satisfactory to each Investor) shall have been
prepared, negotiated and, to the extent applicable, duly executed by the
parties (or, as applicable, their Affiliates), and approval by the Bankruptcy
Court of such documents pursuant to a Final Order, to the extent necessary,
shall have been obtained. All such Transaction Documents shall have been
executed by the parties thereto (other than each Investor and its Affiliates)
on or prior to the Effective Date, shall not have been modified, amended,
waived or supplemented without the consent of each Investor, shall be in
effect and the consummation of the transactions contemplated thereby shall not
be stayed, and all conditions to the obligations of the parties under such
Transaction Documents shall have been satisfied or waived. All corporate and
other proceedings to be taken by the Company, West or any of their respective
Subsidiaries in connection with such Transaction Documents and the
transactions contemplated thereby to be completed at the Closing and documents
incident thereto shall have been completed in form and substance reasonably
satisfactory to each Investor, and each Investor shall have received all such
counterpart originals or certified or other copies of such Transaction
Documents and such other documents as it may reasonably request. Without
limiting the generality of the foregoing, in connection with the consummation
of the Plan, the Company and the Other Investors and shall have entered into
the Stockholders Agreement.
(b) Company Representations and Warranties; Covenants. The
representations and warranties of the Company set forth in Article III hereof
(without giving effect to any material adverse effect, materiality or similar
qualifier) shall have been true and correct in all respects on and as of the
date hereof and at the Closing as if made on the Closing Date (except where
such representation and warranty speaks by its terms of a different date, in
which case it shall be true and correct as of such date), except to the extent
that such inaccuracies in any such representation or warranty have not had,
and would not, individually or in the aggregate, have a Material Adverse
Effect on the Company. The Company shall have performed in all material
respects all obligations and complied in all material respects with all
agreements, undertakings, covenants and conditions required to be performed by
it hereunder at or prior to the Closing, and the Company shall have delivered
to each Investor at the Closing a certificate dated the Closing Date and
signed by the chief executive officer and the chief financial officer of the
Company to the effect that the conditions set forth in this Section 7.01(b)
have been satisfied.
(c) West Representations and Warranties; Covenants. The
representations and warranties of West set forth in Article IV hereof (without
giving effect to any material adverse effect, materiality or similar
qualifier) shall have been true and correct in all respects on and as of the
date hereof and at the Closing as if made on the Closing Date (except where
such representation and warranty speaks by its terms of a different date, in
which case it shall be true and correct as of such date), except to the extent
that such inaccuracies in any such representation or warranty have not had,
and would not, individually or in the aggregate, have a Material Adverse
Effect on West. West shall have performed in all material respects all
obligations and complied in all material respects with all agreements,
undertakings, covenants and conditions required to be performed by it
hereunder at or prior to the Closing, and West shall have delivered to each
Investor at the Closing a certificate dated the Closing Date and signed by the
chief executive officer and the chief financial officer of West to the effect
that the conditions set forth in this Section 7.01(c) have been satisfied.
(d) Compliance with Laws, No Adverse Action or Decision. Since
the date hereof, (i) no Law shall have been promulgated, enacted or entered
that restrains, enjoins, prevents, materially delays, prohibits or otherwise
makes illegal the performance of any of the Transaction Documents; (ii) no
preliminary or permanent injunction or other order by any Governmental
Authority that restrains, enjoins, prevents, delays, prohibits or otherwise
makes illegal the performance of any of the Transaction Documents shall have
been issued and remain in effect, except for such injunctions that, if
obtained, could not, individually or in the aggregate, reasonably be expected
to have a material adverse effect on the ability of any Investor, the Company
or West or their respective Affiliates to consummate the Transactions; (iii)
no Governmental Authority shall have instituted any legal proceeding that
seeks to restrain, enjoin, prevent, delay, prohibit or otherwise make illegal
the performance of any of the Transaction Documents, except for any such legal
proceedings which have a significant possibility of being brought to a
conclusion which could not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the ability of any Investor, the
Company or West or their respective Affiliates to consummate the Transactions,
and (iv) there is no pending or threatened investigation or litigation by any
other Person relating to the Transactions which, if determined adversely to
the Company, West or any Investor, would materially impair or limit the rights
and benefits of any Investor under the Transaction Documents or the economic
benefits to any Investor of the Transactions in the aggregate and which such
Investor reasonably believes, based on the advice of counsel, has a reasonable
likelihood of success.
(e) Approvals. The Company, each Investor and West shall have
received (i) all material Regulatory Approvals, which shall have become final
(provided that, if an appeal of such Regulatory Approval is pending and such
appeal has a significant possibility of being resolved adversely to the
Company, each Investor or West in a manner that would reasonably be expected
to have a material adverse effect on the ability of the Investors, the Company
or West or their respective Affiliates to consummate the Transactions, this
clause (i) shall be deemed not to be satisfied), and (ii) all other material
approvals, permits, authorizations, exemptions, consents, licenses and
agreements from other third parties that are necessary to permit the
Transactions to be completed or performed as contemplated by the Transaction
Documents and to permit the Investors and its Affiliates and Company and its
Affiliates (including West and its Subsidiaries) to carry on its business
after such transactions in a manner not materially inconsistent with the
manner in which it was carried on prior to the Effective Date (together with
the Regulatory Approvals, the "Approvals"), which Approvals shall not contain
any condition or restriction that materially impairs the ability of the
Investors and its Affiliates or the ability of the Company (including West and
its Subsidiaries) to carry on its business. All waiting periods imposed by
applicable Law (including, without limitation, under the HSR Act) in
connection with the Transactions shall have expired or been terminated without
any action having been taken by any court of competent jurisdiction
restraining, preventing or imposing materially adverse conditions upon such
transactions or upon the conduct of the business of each Investor, East, West
or their respective Affiliates.
(f) Plan of Reorganization. The Plan shall be in a form
reasonably acceptable to each Investor, such Plan shall have been confirmed by
the Bankruptcy Court, and such Plan shall among other things (i) not conflict
with any material term of this Agreement, the Stockholders Agreement or the
other Transaction Documents, (ii) be substantially consistent in all material
respects with the terms of the Financial Plan including, without limitation,
concessions obtained and to be obtained from the Debtors' employees,
creditors, lessors and other claimants, and (iii) reflect a corporate and
capital structure (including liabilities) of the Company consistent with the
Financial Plan. All conditions to the effectiveness of the Plan, other than
the consummation of this Agreement, shall have been satisfied, and a
Confirmation Order in a form reasonably acceptable to each Investor shall have
been entered and become a Final Order no later than December 31, 2005.
(g) Additional East Equity. In connection with the emergence of
the Company and the Operating Companies from chapter 11 and the consummation
of the Plan, the Company will have received on the Effective Date cash equity
investments aggregating not less than $375,000,000 and not more than
$500,000,000 pursuant to this Agreement, the Other Investment Agreements and
cash equity investments as permitted by Section 6.08(b) hereof (and including
any loans converted into equity under the Air Wisconsin DIP Agreement), at a
purchase price of not less than $15 per share of New Common Stock, which with
all other equity capital of the Company, will be invested only in a single
class of common stock, the New Common Stock, with all such New Common Stock
having the same voting rights, and shall have no other class of capital stock
authorized in its charter other than the New Common Stock. The Company alone,
and not any Affiliate of the Company, shall have issued Equity Securities in
connection with the consummation of the Plan.
(h) Contracts. All material executory contracts and unexpired
leases, the assumption, assignment, rejection or renegotiation of which is
necessary for the successful implementation of the Plan and the operation of
the Company's business as such business is contemplated in the Financial Plan
to be conducted, shall have been assumed, assigned, rejected or renegotiated,
as applicable.
(i) Effective Date and Merger. The Effective Time (as defined
in the Merger Agreement) shall have occurred, or shall occur concurrently with
the Closing, and the Merger shall have been, or will concurrently with the
Closing be, consummated in accordance with the terms of the Merger Agreement
without amendment or waiver other than as permitted in accordance with Section
6.05 of this Agreement.
(j) Conversion of Air Wisconsin DIP. Eastshore Aviation LLC
shall have converted the existing debt owed to it pursuant to the Air
Wisconsin DIP Agreement into New Common Stock in an amount not less than
$125,000,000 and at a purchase price of not less than $15 per share of New
Common Stock.
(k) No Conversion to Chapter 7. Neither the Company's Chapter
11 Case nor US Airways Chapter 11 Case shall have been converted to a case
under Chapter 7 of the Bankruptcy Code and no trustee shall have been
appointed under any chapter of the Bankruptcy Code in respect of either such
case.
(l) Certificate of Incorporation and Bylaws. The Certificate of
Incorporation and Bylaws, substantially in the forms attached as Exhibits C
and D, respectively, to the Merger Agreement, shall have been filed with and
accepted by the Secretary of State of the State of Delaware and shall have
become effective. As of the Closing Date, the Company shall have delivered to
each Investor a complete and correct copy of the certificates of incorporation
and the bylaws or comparable governing instruments of each of the Operating
Companies, in full force and effect as of the Closing Date.
(m) Delivery. The Company shall have executed and delivered to
each Investor the shares of New Common Stock pursuant to and in accordance
with Section 2.01 hereof.
(n) Board Representation. The composition of the Board shall be
as set forth in Section 1.8(a) of the Merger Agreement and as contemplated by
the Stockholders Agreement, provided however that the Investors shall not be
entitled to designate a director to the Company's Board of Directors.
(o) Directors' and Officers' Insurance. The Company shall have
procured and maintained in full force and effect directors' and officers'
liability insurance with respect to members of the Board of Directors of the
Company, which insurance shall be at least $100 million, and shall cover such
risks, as is customary for a corporation in the Company's and its Affiliates
respective businesses or other similar businesses.
(p) Absence of Changes. From the date of this Agreement through
the Closing Date, there shall not have occurred any change, event, occurrence,
condition or development that has or could reasonably be expected to have a
material adverse effect on the financial condition, assets, liabilities,
business or results of operations of the Company or West or that would
prevent, materially delay or materially impair the ability of the Company,
West or any Investor to consummate the transactions contemplated by this
Agreement.
(q) Profit Sharing Plan. The Company's employee profit sharing
plan shall have been amended on terms no less favorable to the Investors than
those set forth on Schedule 7.01(q).
(r) Listing. The shares of New Common Stock to be issued to
each Investor under this Agreement shall have been authorized for listing or
quotation, as applicable, on the New York Stock Exchange or NASDAQ Stock
Market upon official notice of issuance.
Section 7.02 Conditions to the Company's Obligations. The obligation
of the Company to issue and sell the New Common Stock pursuant to Section 2.01
hereof at the Closing is subject to the satisfaction or waiver of each of the
following conditions precedent:
(a) Definitive Documents. Definitive Transaction Documents (in
form and substance reasonably satisfactory to the Company) necessary to
consummate the transactions contemplated herein shall have been prepared,
negotiated and, to the extent applicable, executed by the parties (or, as
applicable, their Affiliates), and approval by the Bankruptcy Court of such
documents, as necessary, shall have been obtained. All Transaction Documents
shall not have been modified, shall be in effect and the consummation of the
transactions contemplated thereby shall not be stayed, and all conditions to
the obligations of the parties under the Transaction Contracts shall have been
satisfied or effectively waived. All corporate and other proceedings to be
taken by each Investor or its Affiliates in connection with the Transaction
Documents and the transactions contemplated thereby to be completed at the
Closing and documents incident thereto shall have been completed in form and
substance reasonably satisfactory to the Company, and the Company shall have
received all such counterpart originals or certified or other copies of the
Transaction Documents and such other documents as it may reasonably request.
(b) Investor Representations and Warranties; Covenants. The
representations and warranties of each Investor set forth in Article V hereof
(without giving effect to any material adverse effect, materiality or similar
qualifier) shall have been true and correct in all respects, on and as of the
date hereof and at the Closing as if made on the Closing Date (except where
such representation and warranty speaks by its terms as of a different date,
in which case it shall be true and correct as of such date), except to the
extent that such inaccuracies have not had, and would not, individually or in
the aggregate, reasonably be expected to have a material adverse effect on the
ability of any Investor or its Affiliates to consummate the Transactions. Each
Investor shall have performed in all material respects all obligations and
complied in all material respects with all agreements, undertakings, covenants
and conditions required to be performed by it at or prior to the Closing, and
each Investor shall have delivered to the Company and West at the Closing a
certificate dated the Closing Date and signed on behalf of a member of such
Investor to the effect that the conditions set forth in this Section 7.02(b)
have been satisfied.
(c) Compliance with Laws; No Adverse Action or Decision. Since
the date hereof, (i) no Law shall have been promulgated, enacted or entered
that restrains, enjoins, prevents, materially delays, prohibits or otherwise
makes illegal the performance of any of the Transaction Documents with respect
to the transactions contemplated thereby to be completed at the Closing; (ii)
no preliminary or permanent injunction or other order by any Governmental
Authority or other Person that restrains, enjoins, prevents, delays, prohibits
or otherwise makes illegal the performance of any of the Transaction Documents
shall have been issued and remain in effect, except for such injunctions that,
if obtained, could not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the ability of any Investor, the
Company or West or their respective Affiliates to consummate the Transactions;
and (iii) no Governmental Authority shall have instituted any legal proceeding
that seeks to restrain, enjoin, prevent, delay, prohibit or otherwise make
illegal the performance of any of the Transaction Documents, except for any
legal proceedings which have a significant possibility of being brought to a
conclusion which could not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the ability of any Investor, the
Company or West or their respective Affiliates to consummate the Transactions.
(d) Approvals. The Company and West shall have received (i) all
material Regulatory Approvals (other than waiting periods imposed by
applicable Law as referred to later in this paragraph), which shall have
become final (provided that, if an appeal of such Regulatory Approval is
pending and such appeal has a significant possibility of being resolved
adversely to the Company or West in a manner that would reasonably be expected
to have a material adverse effect on the ability of any Investor, the Company
or West or their respective Affiliates to consummate the Transactions, this
clause (i) shall be deemed not to be satisfied), and (ii) all other Approvals,
which Approvals shall not contain any condition or restriction that, in the
Company's reasonable judgment, materially impairs the Company's ability to
carry on its business. Without limiting the generality of clause (ii), any and
all required approvals under any material financing agreements to which the
Company, West or any of their respective Subsidiaries is a party shall have
been obtained. All waiting periods imposed by applicable Law (including,
without limitation, under the HSR Act) in connection with the transactions
contemplated by the Transaction Documents shall have expired or been
terminated without any action having been taken by any court of competent
jurisdiction restraining, preventing or imposing materially adverse conditions
upon such transactions.
(e) Confirmation Order. The Confirmation Order, satisfactory in
form and substance in all respects to the Company, shall have been entered by
the Bankruptcy Court and, once entered, shall not have been modified without
the Company's and West's prior written consent in any manner materially
adverse to the Company, shall be in effect and shall not have been stayed.
(f) Effective Date and the Merger. The Effective Date and the
satisfaction or waiver of all conditions to the closing of the Merger shall
have occurred not later than the Closing.
(g) Citizenship. The Company and West shall have received
reasonably satisfactory assurances as it may request that each Investor is a
Citizen of the United States.
ARTICLE VIII
TERMINATION
-----------
Section 8.01 Termination of Agreement. Subject to Section 8.02
hereof, this Agreement may be terminated by notice in writing at any time
prior to the Closing by:
(a) each Investor or the Company, if (i) closing of the
Transactions (including the Closing) shall not have occurred on or before
December 31, 2005 or (ii) the Merger Agreement shall have been terminated in
accordance with its terms on or before December 31, 2005;
(b) each Investor, if (i) a bidding procedures order
(substantially in the form attached as Exhibit E to the Merger Agreement)
approving the expense reimbursement provisions set forth in Section 9.01 and
the provisions of Section 4.20 of the Merger Agreement (in the form attached
as Exhibit A to this Agreement) (the "Bidding Procedures") hereof shall not
have been entered by the Bankruptcy Court within thirty (30) days following
the date hereof, but in no event later than June 30, 2005, (ii) the Merger and
the transactions contemplated by the Merger Agreement and this Agreement shall
not have been determined by the Bankruptcy Court to be the Approved Proposal
within sixty-five (65) days after the entry by the Bankruptcy Court of the
order approving the Bidding Procedures contemplated by the preceding clause
(i), (iii) there shall have been a breach by the Company or West of any
material representation, warranty, covenant or agreement contained in this
Agreement, which breach would result in the failure to satisfy any condition
set forth in Section 7.01 hereof to each Investor's obligations and that has
not been cured within thirty (30) days following receipt by the Company or
West of written notice from each Investor of such breach, (iv) any condition
set forth in Section 7.01 hereof to each Investor's obligations is not capable
of being satisfied, (v) the Company shall enter into a written agreement or
letter of intent or agreement in principle providing for an Alternative
Proposal, or (vi) the Bankruptcy Court shall have ordered the Company to
terminate this Agreement in order to accept an Alternative Proposal;
(c) the Company, if (i) there shall have been a breach by any
Investor of any material representation, warranty, covenant or agreement
contained in this Agreement which breach would result in the failure to
satisfy any condition set forth in Section 7.02 hereof to the Company's
obligations and that has not been cured within thirty (30) days following
receipt by such Investor of written notice from the Company of such breach, or
(ii) any condition set forth in Section 7.02 hereof to the Company's
obligations is not capable of being satisfied; or
(d) mutual agreement in writing by the Company and each
Investor.
Section 8.02 Effect of Termination. If this Agreement is terminated
in accordance with Section 8.01 hereof and the transactions contemplated
hereby are not consummated, this Agreement shall become null and void and of
no further force and effect except that (i) the terms and provisions of this
Section 8.02 and Article IX hereof shall survive the termination of this
Agreement, and (ii) any termination of this Agreement shall not relieve any
party hereto from any liability for any willful breach of its obligations
hereunder. A termination shall not void or affect any of the constituent
transactions consummated prior to such termination or any sections hereof
which by their terms survive termination.
ARTICLE IX
MISCELLANEOUS
-------------
Section 9.01 Fees and Expenses. (a) Except as expressly provided
herein or in any Transaction Document, each party shall bear its own costs and
expenses incurred in connection with this Agreement or any of the
Transactions. Notwithstanding the foregoing, at the Closing, the Company shall
reimburse each Investor for the reasonable out-of-pocket expenses of each
Investor relating to: (i) each Investor's due diligence investigation of the
Debtors and West; (ii) the negotiation of this Agreement, the Stockholders
Agreement and the Plan; (iii) participation in the Bankruptcy Court
proceedings; (iv) the consummation of the transactions contemplated by this
Agreement, the Stockholders Agreement, the Plan and the Merger; and (v) the
enforcement of each Investor's rights under this Agreement and/or the
Stockholders Agreement; provided, however, that reimbursement pursuant to
clause (i) through (iv) above shall not exceed the sum of (x) $150,000 plus
(y) filing fees, incurred in connection with any required filings under the
HSR Act.
(b) All amounts payable under this Agreement shall be paid in
immediately available funds to an account or accounts designated by the
recipient of such amounts, except as otherwise provided herein.
Section 9.02 Survival of Representations, Warranties and Covenants.
None of the representations, warranties or covenants contained in this
Agreement shall survive the Closing Date.
Section 9.03 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.
Section 9.04 General Interpretive Principles. Whenever used in this
Agreement, except as otherwise expressly provided or unless the context
otherwise requires, any noun or pronoun shall be deemed to include the plural
as well as the singular and to cover all genders. The name assigned this
Agreement and the Section captions used herein are for convenience of
reference only and shall not be construed to affect the meaning, construction
or effect hereof. Unless otherwise specified, any references to a party's
"judgment", "satisfaction" or words of a similar import shall mean in such
party's sole judgment. Unless otherwise specified, the terms "hereof,"
"herein" and similar terms refer to this Agreement as a whole (including the
Exhibits and Schedules hereto), and references herein to Articles or Sections
refer to Articles or Sections of this Agreement.
Section 9.05 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given, if delivered
personally, by telecopier or sent by first class mail, postage prepaid, to the
addresses set forth on Schedule 9.05.
Section 9.06 Entire Agreement; Amendment. This Agreement and the
documents described herein (including the Plan) or attached or delivered
pursuant hereto (including, without limitation, the other Transaction
Documents) set forth the entire agreement between the parties hereto with
respect to the transactions contemplated by this Agreement. Any provision of
this Agreement may only be amended, modified or supplemented in whole or in
part at any time by an agreement in writing among the parties hereto executed
in the same manner as this Agreement. No failure on the part of any party to
exercise, and no delay in exercising, any right shall operate as waiver
thereof, nor shall any single or partial exercise by either party of any right
preclude any other or future exercise thereof or the exercise of any other
right.
Section 9.07 No Other Representations or Warranties. Except for the
representations and warranties contained in this Agreement, neither East nor
West, nor any agent, Affiliate, officer, director, employee or representative
of either or them, nor any other Person, makes, or shall be deemed to make,
any representation or warranty to any Investor, express or implied, at law or
in equity, on behalf of East or West, and East and West hereby exclude and
disclaim any such representation or warranty whether by either East or West or
any or their respective agents, Affiliates, officers, directors, employees or
representatives or any other Person, notwithstanding the delivery or
disclosure to each Investor or any of their respective officers, directors,
partners, employees or representatives or any other Person of any
documentation or other information by East or West or any of their respective
agents, Affiliates, officers, directors, employees or representatives or any
other Person with respect to any one or more of the foregoing.
Section 9.08 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to constitute an original,
but all of which together shall constitute one and the same document.
Section 9.09 Governing Law. To the extent not governed by the
Bankruptcy Code, this Agreement shall be governed by, and interpreted in
accordance with, the Laws of the State of New York applicable to contracts
made and to be performed in that State without reference to its conflict of
laws rules. The parties hereto agree that the appropriate and exclusive forum
for any disputes arising out of this Agreement solely between the Company and
the Investors shall be the Bankruptcy Court, or if such court will not hear
any such suit, the U.S. District Court for the Southern District of New York,
and, the parties hereto irrevocably consent to the exclusive jurisdiction of
such courts, and agree to comply with all requirements necessary to give such
courts jurisdiction. The parties hereto further agree that the parties will
not bring suit with respect to any disputes arising out of this Agreement
except as expressly set forth below for the execution or enforcement of
judgment, in any jurisdiction other than the above specified courts. Each of
the parties hereto irrevocably consents to the service of process in any
action or proceeding hereunder by the mailing of copies thereof by registered
or certified airmail, postage prepaid, to the address specified in Section
9.05 hereof. The foregoing shall not limit the rights of any party hereto to
serve process in any other manner permitted by the Law or to obtain execution
of judgment in any other jurisdiction. The parties further agree, to the
extent permitted by Law, that final and non-appealable judgment against any of
them in any action or proceeding contemplated above shall be conclusive and
may be enforced in any other jurisdiction within or outside the United States
by suit on the judgment, a certified or exemplified copy of which shall be
conclusive evidence of the fact and the amount of indebtedness. THE PARTIES
AGREE TO WAIVE ANY AND ALL RIGHTS THAT THEY MAY HAVE TO A JURY TRIAL WITH
RESPECT TO DISPUTES ARISING OUT OF THIS AGREEMENT.
Section 9.10 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, West's and each Investor's successors and
permitted assigns. Neither this Agreement nor any rights or obligations
hereunder shall be assignable by any party hereto without the prior written
consent of the other parties hereto.
Section 9.11 No Third-Party Beneficiaries. This Agreement is for the
sole benefit of the parties hereto and their respective successors and
permitted assigns and nothing herein, express or implied, is intended or shall
confer upon any other Person any legal or equitable right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement.
Section 9.12 Confidentiality. A version of this Agreement with
certain competitively sensitive information redacted will be filed by the
Company with the Motion. Each party hereto agrees not to disclose the
unredacted version of this Agreement to any third parties (other than
disclosure required by the SEC or any other Governmental Authority (including
the Bankruptcy Court) or pursuant to any listing agreement with or requirement
of any relevant national exchange or national quotation system) without
appropriate confidentiality agreements with such third parties being in place
that are reasonably acceptable to the other parties hereto.
IN WITNESS WHEREOF, this Agreement has been executed on behalf of the
parties hereto by their respective duly authorized officers, all as of the
date first above written.
WELLINGTON MANAGEMENT
COMPANY, LLP, as investment adviser
to each Investor listed on Schedule 1
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Counsel
US AIRWAYS GROUP, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Sr. Vice President - Finance &
Controller
AMERICA WEST HOLDINGS CORPORATION
By: /s/ Xxxxx X. Xxxxx III
---------------------------------
Name: Xxxxx X. Xxxxx III
Title: Senior Vice President and
General Counsel
EXHIBIT A
MERGER AGREEMENT
EXHIBIT B
STOCKHOLDERS AGREEMENT
SCHEDULE 1
NEW COMMON STOCK
| AGGREGATE | NUMBER OF | PER SHARE |
| PURCHASE | NEW COMMON | PURCHASE | STATE OF
Client ID INVESTOR NAME | PRICE | SHARES | PRICE | INCORPORATION PM
----------------------------------------------------|--------------|--------------|------------|---------------
0022 Vanguard Windsor Fund | $30,718,050 | 1,861,700 | $16.50 | Pennsylvania DRF
| | | |
0024 Vanguard Explorer Fund | $11,604,450 | 703,300 | $16.50 | Pennsylvania KLA
| | | |
0108 American Bar Association Members/State Street | $415,800 | 25,200 | $16.50 | Illinois WW
Collective Trust, Small-Cap Equity Fund | | | |
| | | |
1352 Hartford Capital Appreciation Fund, Inc. | $41,886,900 | 2,538,600 | $16.50 | Maryland SJP
| | | |
1939 Bay Pond Partners, L.P. | $1,229,250 | 74,500 | $16.50 | Delaware NCA
| | | |
3396 Hartford Capital Appreciation Fund | $38,397,150 | 2,327,100 | $16.50 | Maryland SJP
| | | |
3626 WTC-CTF Small Cap 2000 Portfolio | $686,400 | 41,600 | $16.50 | Massachusetts WW
| | | |
3680 McKesson HBOC, Inc. Profit-Sharing Investment Plan | $132,000 | 8,000 | $16.50 | California WW
| | | |
3699 WTC-CIF Small Cap 2000 Portfolio | $1,485,000 | 90,000 | $16.50 | Massachusetts WW
| | | |
3802 Trustees of the Building Trades United Pension | $217,800 | 13,200 | $16.50 | Wisconsin WW
Trust Fund, Milwaukee and Vicinity | | | |
| | | |
5824 WTC-CIF II Active Small Cap Stock Portfolio | $2,422,200 | 146,800 | $16.50 | Massachusetts KLA
| | | |
5934 WTC-CIF II Small Cap Opportunities Portfolio | $1,984,950 | 120,300 | $16.50 | Massachusetts KLA
| | | |
6277 Hartford-Fortis Series Fund, Inc., The Hartford | $1,089,000 | 66,000 | $16.50 | Maryland DRF
Value Opportunities Fund | | | |
| | | |
6278 Hartford HLS Series Fund II, Inc., Hartford Value | $2,960,100 | 179,400 | $16.50 | Maryland DRF
Opportunities HLS Fund | | | |
| | | |
6567 Vanguard Capital Value Fund | $3,699,300 | 224,200 | $16.50 | Pennsylvania DRF
| | | |
6587 MassMutual Institutional Funds, MassMutual Small | $1,542,750 | 93,500 | $16.50 | Massachusetts KLA
Cap Growth Equity Fund | | | |
| | | |
6588 MML Series Investment Fund, MML Small Cap Growth | $173,250 | 10,500 | $16.50 | Massachusetts KLA
Equity Fund | | | |
| | | |
0000 Xxxxxxxxx xx xxx Xxxxx xx Xxxxx Xxxxxxxx | $2,725,800 | 165,200 | $16.50 | North Carolina WW
| | | |
6790 WTC-CTF Small Cap Opportunities Portfolio | $2,343,000 | 142,000 | $16.50 | Massachusetts KLA
| | | |
6857 LICR Fund, Inc. | $429,000 | 26,000 | $16.50 | New York KLA
| | | |
6865 Board of Trustees of the Public Employees' | $2,237,400 | 135,600 | $16.50 | Mississippi KLA
Retirement System of Mississippi | | | |
| | | |
9729 Commonfund Institutional Funds, CIF All Cap | $1,620,300 | 98,200 | $16.50 | Connecticut DRF
Equity Fund | | | |
----------------------------------------------------|--------------|------------------------------------------
Total | $149,999,850 | 9,090,900
