REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
US AIRWAYS GROUP, INC.,
AS THE ISSUER, AND THE
WARRANT HOLDER REFERRED TO HEREIN
DATED AS OF MARCH 31, 2003
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made and entered into as of
March 31, 2003 by and between US Airways Group, Inc., a Delaware corporation,
and any successor entity thereto (the "Company"), and the Warrant Holder (as
hereinafter defined).
WHEREAS, the Company is issuing to the Warrant Holder that certain
Warrant to purchase an aggregate of two million sixteen thousand eight hundred
nineteen (2,016,819) shares of Class A Common Stock, together with two million
sixteen thousand eight hundred nineteen (2,016,819) shares of Class A
Preferred Stock; and
WHEREAS, the Company is issuing to the Warrant Holder five million
(5,000,000) shares of Class B Common Stock on the date hereof; and
WHEREAS, the parties hereto desire to set forth certain agreements
and understandings with respect to the registration of the Common Stock, the
Warrant and the Class A Preferred Stock.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the following
terms shall have the following meanings:
"Affiliate" shall mean, as to any person, any other person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control," when used with respect to any person, means the power to direct the
management and policies of such person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise and the
terms "affiliated," "controlling" and "controlled" have meanings correlative
to the foregoing.
"Agreement" shall mean this Registration Rights Agreement, as the
same may be amended, supplemented or modified from time to time in accordance
with the terms hereof.
"Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in New York, New
York are authorized or obligated by law or executive order to close.
"Class A Common Stock" shall mean the Class A common stock, par value
$1.00 per share, of the Company.
"Class A Preferred Stock" shall mean the two million sixteen thousand
eight hundred nineteen (2,016,819) shares of Class A preferred stock, nominal
value $0.0001 per share, of the Company issued to the Warrant Holder on the
date hereof.
"Class B Common Stock" shall mean the Class B common stock, par value
$1.00 per share, of the Company.
"Common Stock" shall mean the Class A Common Stock and the Class B
Common Stock or shares of any class or classes resulting from any
reclassification or reclassifications thereof; provided that if at any time
there shall be more than one such resulting class, the shares of each such
class then so issuable shall be substantially in the proportion which the
total number of shares of such class resulting from all such reclassifications
bears to the total number of shares of all such classes resulting from all
such reclassifications.
"Company" shall have the meaning set forth in the preamble hereto.
"Effectiveness Period" shall have the meaning set forth in Section
2(c) hereof.
"Effectiveness Target Date" shall mean the 180th day after the date
of this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Filing Date" shall mean the 90th day after the date of this
Agreement.
"Holder" shall mean each owner of any Registrable Securities.
"Indemnified Holder" shall have the meaning set forth in Section 5(a)
hereof.
"Loan Agreement" means that certain Loan Agreement, dated as of March
31, 2003, (as amended, restated, extended, supplemented or otherwise modified
in writing from time to time) among US Airways, Inc., a Delaware corporation,
the Company, the subsidiary guarantors party thereto, the several lenders from
time to time party thereto, Phoenix American Financial Services, Inc., as Loan
Administrator, the Collateral Agent, Bank of America, N.A., as Administrative
Agent, Bank of America, N.A., as KHFC Administrative Agent, and Air
Transportation Stabilization Board.
"Notice and Questionnaire" shall mean the Form of Selling
Securityholder Notice and Questionnaire attached hereto as Exhibit A, as
reasonably amended, supplemented, or otherwise modified from time to time by
the Company upon reasonable notice to the Holders.
"Plan of Reorganization" shall mean the plan or plans of
reorganization filed by the Company and certain of its subsidiaries on January
17, 2003 in connection with the voluntary petitions for protection under
Chapter 11 of the United States Bankruptcy Code and confirmed by the
Bankruptcy Court on March 18, 2003, as such plan or plans may be amended,
supplemented or otherwise modified from time to time.
"Prospectus" shall mean the prospectus included in the Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed in reliance upon Rule
430A), as amended or supplemented by any prospectus supplement, with respect
to the resale of any of the Registrable Securities covered by such
Registration Statement, and all other amendments and supplements to any such
prospectus, including post-effective amendments, and all materials
incorporated by reference or deemed to be incorporated by reference, if any,
in such prospectus.
"Registrable Securities" shall mean (a) the Common Stock and the
Class A Preferred Stock issued in connection with the Plan of Reorganization,
(b) the Warrants, and (c) the shares of Class A Common Stock issued or
issuable upon exercise of the Warrants (including any shares of Class A Common
Stock issued or issuable thereon upon any stock split, stock combination,
stock dividend or the like or as a result of any anti-dilution adjustments
under the Warrants) or upon the conversion of the Class B Common Stock, upon
original issuance thereof and at all times subsequent thereto, and associated
related rights, if any, until the earliest of (i) the date on which the resale
thereof has been effectively registered under the Securities Act and such
securities have been disposed of in accordance with the Registration Statement
relating thereto, (ii) the date on which such securities have been distributed
to the public pursuant to Rule 144 or, in the case of Registrable Securities
other than the Warrants, the Class A Preferred Stock and the Class A Common
Stock underlying the Warrants, are saleable pursuant to paragraph (k) of Rule
144 in a single transaction, (iii) the date that is three (3) Business Days
after the delivery to the Company of an opinion of counsel for a Holder
reasonably satisfactory to the Company that such securities are transferable
without registration under the Securities Act, and (iv) the date on which such
securities cease to be outstanding.
"Registration Statement" shall mean any registration statement of the
Company filed with the SEC pursuant to the Securities Act that covers the
resale of any Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement or Prospectus (including pre- and post-effective
amendments), all exhibits thereto, and all material incorporated by reference
or deemed to be incorporated by reference, if any, in such registration
statement.
"Required Holders" shall mean Holders of more than 50% of the shares
of Class A Common Stock issued or issuable upon exercise of the Warrants
(including any shares of Class A Common Stock issued or issuable thereon upon
any stock split, stock combination, stock dividend or the like or as a result
of any anti-dilution adjustments under the Warrants) constituting Registrable
Securities from time to time outstanding.
"Required Warrant Holders" shall mean Holders of more than 50% of the
Warrants from time to time outstanding.
"Requisite Information" shall have the meaning set forth in Section
2(d) hereof.
"Rule 144" shall mean Rule 144 promulgated by the SEC pursuant to the
Securities Act, as such rule may be amended from time to time, or any
successor rule or regulation.
"Rule 144A" shall mean Rule 144A promulgated by the SEC pursuant to
the Securities Act, as such rule may be amended from time to time, or any
successor rule or regulation.
"Rule 415" shall mean Rule 415 promulgated by the SEC pursuant to the
Securities Act, as such rule may be amended from time to time, or any
successor rule or regulation.
"Rule 424" shall mean Rule 424 promulgated by the SEC pursuant to the
Securities Act, as such rule may be amended from time to time, or any
successor rule or regulation.
"Rule 430A" shall mean Rule 430A promulgated by the SEC pursuant to
the Securities Act, as such rule may be amended from time to time, or any
successor rule or regulation.
"SEC" shall mean the Securities and Exchange Commission, or any
successor governmental agency or authority thereto.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Transfer Agent" shall mean the registrar and transfer agent for the
Company's Common Stock.
"Warrants" shall mean the Class A-1 warrants (No. 3) issued to the
Warrant Holder to purchase 1,380,570 shares of Class A Common Stock and the
Class A-1 warrants (No. 4) issued to the Warrant Holder to purchase 636,249
shares of Class A Common Stock, in the aggregate, in connection with the Plan
of Reorganization, and any warrants obtained by the Warrant Holder or any
permitted transferee in exchange for all or any portion of the Warrants
initially issued to the Warrant Holder.
"Warrant Holder" shall mean the initial holder of the Warrants as set
forth on Schedule I hereto.
SECTION 2. REGISTRATION STATEMENT.
(a) Registration Under The Securities Act. The Company, at its
own expense, agrees to use commercially reasonable efforts to prepare and file
with the SEC, by the Filing Date, a Registration Statement for an offering to
be made on a continuous basis pursuant to Rule 415 covering all of the shares
of Class A Common Stock issued or issuable upon exercise of the Warrants or
upon the conversion of the Class B Common Stock, constituting Registrable
Securities. The Registration Statement shall be on Form S-1 or Form S-3 under
the Securities Act or another appropriate form selected by the Company
permitting registration of such Class A Common Stock issued or issuable upon
exercise of the Warrants or upon the conversion of the Class B Common Stock
for resale by the Holders in the manner or manners reasonably designated by
such Holders. The Company shall use commercially reasonable efforts to cause
the Registration Statement to be declared effective pursuant to the Securities
Act by the Effectiveness Target Date.
(b) Piggyback Registration Rights. Except as otherwise provided
in Section 2.2(h), the Company shall afford each Holder of Registrable
Securities the opportunity to include any of such Registrable Securities in
any registration statement filed for purposes of an underwritten public
offering of securities of the Company (including, without limitation, a public
offering made on a continuous basis pursuant to Rule 415) (other than
registration statements on Form S-4 or S-8, or any successor or similar forms,
or registration statements for which the Company has contractually agreed not
to grant such rights). The Company shall deliver written notice to each Holder
of the Company's intention to effect such a registration at least thirty (30)
days prior to the filing of such registration statement. Each Holder desiring
to include the Registrable Securities held by it in any such registration
statement shall notify the Company in writing within fifteen (15) days after
receipt of notice from the Company of its intent to file such a registration
statement. If a Holder decides not to include any or all of the Registrable
Securities held by it in any registration statement thereafter filed by the
Company, such Holder shall nevertheless continue to have the right to include
any Registrable Securities in any subsequent underwritten registration
statement or registration statements (other than registration statements on
Form S-4 or S-8, or any successor or similar forms, or registration statements
for which the Company has contractually agreed not to grant such rights) as
may be filed by the Company with respect to underwritten public offerings of
its securities, all upon the terms and conditions set forth herein.
(c) Supplements And Amendments. Subject to Section 2(e), the
Company shall use commercially reasonable efforts to keep any Registration
Statement continuously effective by supplementing and amending such
Registration Statement (including to register additional Registrable
Securities resulting from any anti-dilution adjustments) if so required by the
rules, regulations or instructions applicable to the registration form used
for such Registration Statement, if required by the Securities Act or if
reasonably requested by the holders of a majority in interest of the
securities being registered or by any underwriter until the earlier of such
time as (i) all of such securities covered by such Registration Statement have
been disposed of in accordance with the intended methods of distribution as
set forth in the Registration Statement, and (ii) (x) in the case of a
Registration Statement pursuant to Section 2(a), the earlier of (A) 8 years
after such Registration Statement becomes effective, and (B) the time that all
of the Registrable Securities of the Holders become saleable in a single
transaction under Rule 144 without restriction or limitation; provided, that
in the event such Registration Statement ceases to be effective pursuant to
this Section 2(c)(ii)(x)(B) and such previously Registrable Securities cease
to be saleable in a single transaction under Rule 144 without restriction or
limitation, the Company shall be required to file, as promptly as reasonably
practicable, a new Registration Statement with respect to all of the Holders'
previously Registrable Securities and comply with the terms of this Agreement
with respect to such Registration Statement, and (y) in the case of a
Registration Statement pursuant to Section 2(g), 6 months after the earlier of
(A) the expiration of the Warrants and (B) the date that the Warrants have
been exercised in full (the "Effectiveness Period"). If the Registration
Statement under Section 2(a) or Section 2(g)ceases to be available for use by
the Holders because the Company no longer qualifies to use such form of
registration statement, the Company shall be required to file, as promptly as
reasonably practicable, a new Registration Statement on an appropriate form
and its obligations hereunder shall continue to apply in all respects.
(d) Selling Securityholder Information. Each Holder wishing to
sell Registrable Securities pursuant to a Registration Statement and related
Prospectus agrees to deliver a Notice and Questionnaire, in a timely manner,
that confirms such Holder's agreement to be bound by the terms of this
Agreement and includes such information regarding it and the distribution of
its Registrable Securities as is required by law to be disclosed by the Holder
in the Registration Statement (the "Requisite Information") to the Company
prior to any intended distribution of Registrable Securities under the
Registration Statement. The Company shall not be required to include in the
Registration Statement and related Prospectus the Registrable Securities of
any Holder that does not provide the Company with a Notice and Questionnaire
in accordance with this Section 2(d). If such completed Notice and
Questionnaire is received by the Company at least ten (10) days prior to the
effective date of a Registration Statement, such Holder shall be entitled to
have its Registrable Securities included in such Registration Statement at the
effective date thereof. If such completed Notice and Questionnaire is received
thereafter, the Company will use commercially reasonable efforts to include
such Holder's Registrable Securities as promptly as reasonably practicable
thereafter, subject to the last two sentences of the next paragraph.
Subject to the last two sentences of this paragraph, the Company
shall use commercially reasonable efforts to prepare and file, as soon as
practicable after the receipt of a Notice and Questionnaire from any Holder
that includes the Requisite Information or any changes in the Requisite
Information with respect to such Holder (including, without limitation, any
changes in the plan of distribution), a Prospectus supplement pursuant to Rule
424 or otherwise amend or supplement such Registration Statement to include in
the Prospectus the Requisite Information as to such Holder (and the
Registrable Securities held by such Holder), and the Company shall provide
such Holder a copy of such Prospectus as so amended or supplemented containing
the Requisite Information in order to permit such Holder to comply with the
Prospectus delivery requirements of the Securities Act in a timely manner with
respect to any proposed disposition of such Holder's Registrable Securities.
Each Holder requesting registration hereunder shall promptly notify the
Company of any material changes to the Requisite Information contained in the
Notice and Questionnaire provided to the Company by such Holder.
Notwithstanding the foregoing, following the effective date of any
Registration Statement, the Company shall not be required to file more than
one such supplement or post-effective amendment for each particular Holder to
reflect changes in the amount of Common Stock, including the Class A Common
Stock issued or issuable upon exercise of the Warrants or upon the conversion
of the Class B Common Stock constituting Registrable Securities held by any
such Holder at the request of such Holder in any 30-day period. The Company
may take reasonable steps to aggregate the addition of Registrable Securities
of more than one Holder for purposes of filing amendments to any Registration
Statement or supplements to the Prospectus so as to reduce the need for
multiple amendments or supplements; provided that the Company shall not use
this sentence to delay the filing of any amendment or supplement beyond any
such 30-day period.
(e) Material Events; Suspension Of Sales. Notwithstanding the
provisions contained in this Section 2, with respect to any Registration
Statement, the Company may, from time to time, for a period not to exceed
sixty (60) consecutive days, and, in any event, not to exceed one hundred
twenty (120) days in the aggregate, during any twelve (12) month period,
suspend the filing or use of such Registration Statement at any time if, and
for so long as, the filing or use thereof would materially and adversely
interfere with a material financing, acquisition or other transaction or
require the Company to disclose such material financing, acquisition, other
transaction or other material non-public information, which interference or
disclosure the Board of Directors of the Company shall have determined in good
faith is not in the best interests of the Company and the Company's
stockholders. The Company shall deliver a written notice to each registered
Holder, the Transfer Agent and the managing underwriters, if any, that the
filing or use of the Registration Statement and/or Prospectus is to be
suspended until the Company shall deliver a written notice that the filing or
use of the Registration Statement and/or Prospectus may be resumed. During
such suspension, the filing or use of the Registration Statement and/or
Prospectus shall be suspended and the Company shall not be required to amend
or update the Registration Statement, or amend or supplement the Prospectus.
Following the termination of any such suspension, the parties hereto shall
continue to be bound by the provisions of this Section 2.
(f) Additional Agreements Of Holders. Each Holder agrees not to
dispose of Registrable Securities pursuant to any Registration Statement
without complying with the prospectus delivery requirements under the
Securities Act and the provisions of Section 2(e) above. Each Holder further
agrees that it will comply fully with applicable federal and state securities
laws in connection with the distribution of any Registrable Securities
pursuant to the Registration Statement. Each Holder further acknowledges
having been advised by the Company that applicable federal securities laws
prohibit Holders from trading in securities of the Company at any time while
in possession of material non-public information about the Company. Subject to
Section 7 hereof, each Holder which holds more than five percent (5%) of the
Company's outstanding capital stock on a fully diluted basis whose Registrable
Securities are covered by a Registration Statement filed pursuant to this
Agreement agrees that, in the case of an underwritten offering by the Company
and if reasonably requested by the underwriter, it will not effect any public
or private sale or distribution of any Registrable Securities (except as part
of such underwritten offering), including, but not limited to, a sale pursuant
to Rule 144, the 7 days before or such period not to exceed 30 days as the
underwriting agreement may require (or such lesser period as the managing
underwriters may permit) after, the effective date of such registration
(except as part of such registration), and the Company hereby also so agrees
and agrees to use its commercially reasonable efforts to cause each (i)
officer of the Company, (ii) director, and (iii) other holder of five percent
(5%) or more of the Company's outstanding capital stock on a fully diluted
basis to so agree.
(g) Registration of Warrants and Class A Preferred Stock Under
The Securities Act. Upon the request of the Holder(s) of a majority of the
Warrants, the Company, at its own expense, agrees to use commercially
reasonable efforts to prepare and file with the SEC, a Registration Statement
covering all of the Warrants, all of the Class A Preferred Stock and all of
the shares of Class A Common Stock issuable upon exercise of the Warrants, in
each case constituting Registrable Securities, on an appropriate form selected
by the Company permitting registration of such Registrable Securities for
resale by the Holders in the manner or manners reasonably designated by such
Holders and providing for the registration of the issuance of the shares of
Class A Common Stock upon exercise of the Warrants by Holders other than the
initial Holders; provided, however, that the Company shall have no obligation
to file such Registration Statement until 90 days after receipt of a request
by the Holders. The Company shall use commercially reasonable efforts to cause
the Registration Statement to be declared effective pursuant to the Securities
Act within 180 days after receipt of the request by the Holders to effect such
registration. The Company shall be required to file no more than one
Registration Statement in the aggregate pursuant to this Section 2(g). A
registration shall not count as a registration pursuant to this Section 2(g)
until it has become effective, and any registration shall not count as a
registration pursuant to this Section 2(g) unless the initiating Holder or
Holders of Warrants constituting Registrable Securities are able to register
and sell at least 70% of its Registrable Securities requested to be included
in such registration. Upon the request of the requesting Holder(s), the
Company shall use its commercially reasonable efforts to effect the
registration pursuant to this Section 2(g) pursuant to an underwritten
offering in accordance with the terms and conditions of this Agreement,
including without limitation, Section 3 and Section 7 of this Agreement. In
connection with the Company's registration obligations under this Section
2(g), the Company shall use commercially reasonable efforts to, (i) subject to
applicable listing standards, list all Warrants (which shall only trade
together with the associated Class A Preferred Stock) covered by any
Registration Statements on any securities exchange on which the Class A Common
Stock is then listed; or (ii) authorize for quotation on the National Market
of the National Association of Securities Dealers Automated Quotation System
all Warrants (which shall only trade together with the associated Class A
Preferred Stock) covered by all such Registration Statements if the Class A
Common Stock is then so authorized for quotation.
(h) Exercise of Rights by Holders of Warrants and Class A
Preferred Stock. Notwithstanding anything to the contrary contained in this
Agreement, no rights may be exercised by a Holder with respect to the
registration of the Warrants and the Class A Preferred Stock under this
Section 2 until 24 months after the date hereof.
SECTION 3. REGISTRATION PROCEDURES. In connection with the Company's
registration obligations hereunder, the Company shall use commercially
reasonable efforts to effect such registrations on the appropriate form
selected by the Company to permit the resale of Registrable Securities in
accordance with the Holders' intended method or methods of disposition
thereof, and pursuant thereto, the Company shall as expeditiously as
reasonably possible:
(a) furnish to the Holders and the managing underwriters, if
any, copies of all such documents proposed to be filed (excluding, unless
requested, those documents incorporated or deemed to be incorporated by
reference and then only to the Holder who so requested at the expense of such
Holder) and use its commercially reasonable efforts to reflect in each such
document, when so filed with the SEC, such comments as the Holders may
reasonably propose. The Company shall not file any Registration Statement or
related Prospectus or any amendments or supplements thereto under Section 2(a)
or Section 2(g) (excluding any document that would be incorporated or deemed
incorporated by reference) to which the representative of the Required Holders
or the Required Warrant Holders, respectively, or the managing underwriters,
if any, shall reasonably object in writing (by hand delivery, courier
guaranteeing overnight delivery or telecopy) within five Business Days after
the receipt of such documents. Notwithstanding the foregoing, the Company
shall not be required to furnish to the Holders or the managing underwriters,
if any, any amendments or supplements to the Registration Statement or
Prospectus filed solely to reflect changes to the amount of Common Stock,
including the Class A Common Stock issued or issuable upon exercise of the
Warrants or upon the conversion of the Class B Common Stock, constituting
Registrable Securities held by any particular Holder or immaterial revisions
to the information contained therein;
(b) (i) prepare and file with the SEC such amendments, including
post-effective amendments, to the Registration Statement as may be necessary
to keep such Registration Statement continuously effective for the applicable
time period set forth in Section 2(c) hereof; (ii) cause the related
Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions then
in force); and (iii) comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement and Prospectus during such period in accordance with the intended
method or methods of disposition by the Holder set forth in such Registration
Statement as so amended or in such Prospectus as so supplemented including,
without limitation, the filing of any Prospectus supplement pursuant to Rule
424 in order to add or change any selling security holder information
(including any such supplements or amendments pursuant to Section 2(d) hereof;
provided such Holder to which such change applies complies with the Requisite
Information requirements of Section 2(d) hereof in a timely manner);
(c) notify the Holders and the managing underwriters, if any,
promptly and, if requested by any such person, confirm such notice in writing:
(i) (A) when a Prospectus or any Prospectus supplement or
post-effective amendment is proposed to be filed, and (B) with respect to a
Registration Statement or any post-effective amendment, when the same has
become effective;
(ii) of any written comments from the SEC with respect to
any filing and of any request by the SEC or any other federal or state
governmental authority for amendments or supplements to such Registration
Statement or related Prospectus or for additional information related thereto;
(iii) of the issuance by the SEC, any state securities
commission, any other governmental agency or any court of any stop order,
order or injunction suspending or enjoining the use or effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of qualification or exemption from qualification of
any of the Registrable Securities for sale in any jurisdiction, or the
initiation or threatening of any proceeding for such purpose;
(v) of the existence of, any fact or the happening of any
event that makes any statement of material fact made in such Registration
Statement or related Prospectus untrue in any material respect, or that
requires the making of any changes in such Registration Statement or
Prospectus so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading and that, in the case of the Prospectus, such Prospectus will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; and
(vi) of the determination by the Company that a
post-effective amendment to the Registration Statement will be filed with the
SEC;
(d) use commercially reasonable efforts to obtain the withdrawal
of any stop order or order enjoining or suspending the use or effectiveness of
a Registration Statement or the lifting of any suspension of the qualification
(or exemption from qualification) of any of the Registrable Securities for
sale in any jurisdiction, at the earliest practicable moment;
(e) if reasonably requested by the holders of a majority in
interest of the securities being registered or managing underwriters, if any,
to:
(i) promptly include in a Prospectus supplement or
post-effective amendment such information as the holders of a majority in
interest of the securities being registered or managing underwriters, if any,
may reasonably request to be included therein; and
(ii) make all required filings of such Prospectus
supplement or such post-effective amendment as soon as reasonably practicable
after the Company has received notification of the matters to be included in
such Prospectus supplement or post-effective amendment;
(f) furnish to each Holder participating in such registration
and who so requests, and each managing underwriter, if any, without charge, at
least one copy of the Registration Statement and each amendment thereto (but
excluding schedules, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits, unless requested in writing by such
Holder or any managing underwriter and then only to the person who so
requested at such Holder's or managing underwriter's expense);
(g) deliver to each Holder and the underwriters, if any, without
charge, as many copies of the Prospectus (including each form of Prospectus)
and each amendment or supplement thereto as such persons may reasonably
request, and, unless the Company shall have given notice to such Holder or
underwriter pursuant to Section 2(e), the Company hereby consents to the use
of such Prospectus, and each amendment or supplement thereto, by each of the
selling Holders of Registrable Securities and the underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered by
such Prospectus and any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, use
commercially reasonable efforts to (i) register or qualify, or cooperate with
the Holders of Registrable Securities to be sold or tendered or the
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions within the United States as
any Holder or underwriter reasonably requests in writing, (ii) keep each such
registration or qualification (or exemption therefrom) effective during the
period the Registration Statement is required to be kept effective pursuant to
Section 2(c) hereof, and (iii) do any and all other acts or things legally
necessary to enable the disposition in such jurisdictions of the Registrable
Securities covered by the Registration Statement; provided, however, that the
Company shall not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified, take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject or subject the Company to any tax in any such jurisdiction
where it is not then so subject;
(i) in connection with any sale or transfer of Registrable
Securities that will result in such securities no longer being Registrable
Securities, cooperate with the Holders and the managing underwriters, if any,
to (i) facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold, which certificates shall not
bear any restrictive legends, unless required by applicable securities laws,
and (ii) enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters, if any, or Holders may
reasonably request at least two (2) Business Days prior to any sale of
Registrable Securities;
(j) use commercially reasonable efforts to cause the offering of
the Registrable Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or authorities
within the United States as may be necessary to enable the Holder or managing
underwriter, if any, to consummate the disposition of such Registrable
Securities; provided, however, that the Company shall not be required to
register the Registrable Securities in any jurisdiction that would require the
Company to qualify to do business in any jurisdiction where it is not then so
qualified, subject it to general service of process in any such jurisdiction
where it is not then so subject or subject the Company to any tax in any such
jurisdiction where it is not then so subject;
(k) upon the occurrence of any event contemplated by Section
3(c)(v) hereof, as promptly as reasonably practicable (subject to any
suspension of sales pursuant to Section 2(e) hereof), prepare a supplement or
amendment, including, if appropriate, a post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, and
file any other required document so that, as thereafter delivered, such
Prospectus will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading (except, upon occurrence of an event contemplated by Section
3(c)(v) above, to the extent that the Board of Directors of the Company
determines in good faith that the disclosure of such event at such time would
not be in the best interests of the Company and the Company's stockholders;
provided, that any such delay in disclosure pursuant to this Section 3(k)
shall be considered a suspension of the Registration Statement subject to the
limitation in Section 2(e));
(l) in connection with Registration Statements under Section
2(b) or Section 2(g), enter into such customary agreements (including any
underwriting agreements in form, scope and substance as may be reasonably
requested and as are customary in underwritten offerings) and take all such
other customary and appropriate actions in connection therewith (including
those reasonably requested by the managing underwriters, if any, or the
holders of a majority in interest of the securities being registered) in order
to expedite or facilitate the sale of such Registrable Securities and the
Company will:
(i) make such representations and warranties to the Holders
of such Registrable Securities and the underwriters, if any, with respect to
the business of the Company and its subsidiaries (including with respect to
businesses or assets acquired or to be acquired by any of them), and the
Registration Statement, Prospectus and documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case, in form,
substance and scope as are customarily made by issuers to underwriters in
underwritten offerings, and confirm the same if and when requested;
(ii) obtain, as may reasonably be required, opinions of
counsel to the Company (which may include in-house counsel) and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any), addressed to
each selling Holder of Registrable Securities and each of the underwriters, if
any, covering the matters customarily covered in opinions requested in
underwritten offerings (including any such matters as may be reasonably
requested by such underwriters);
(iii) obtain, as may reasonably be required, customary
"cold comfort" letters and updates thereof from the independent certified
public accountants of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and financial
data are, or are required to be, included in the Registration Statement),
addressed to each selling Holder of Registrable Securities and each of the
underwriters, if any, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings; and
(iv) deliver such documents and certificates as may be
reasonably requested by the Holders of a majority in interest of the
Registrable Securities being registered or the managing underwriters, if any,
to evidence the continued validity of the representations and warranties made
pursuant to subsection (i) of this Section 3(l) and to evidence compliance
with any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company;
(m) for a thirty (30) day period prior to the filing of such
Registration Statement and throughout the Effectiveness Period, make available
for inspection by any Holder of Registrable Securities being sold, any
underwriter participating in any such disposition of Registrable Securities,
if any, and any attorney, consultant or accountant retained by such selling
Holders or underwriter, at the offices where normally kept, and during
reasonable business hours, all financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries (other
than records and documents that the Company and its subsidiaries agreed
contractually not to disclose and the disclosure of which would violate such
contractual arrangement, for which a waiver of such contractual arrangement
cannot be secured without significant or unreasonable cost or expense) as they
may reasonably request, and cause the officers, directors, agents and
employees of the Company and its subsidiaries to supply all information (other
than information that the Company and its subsidiaries agreed contractually
not to disclose and the disclosure of which would violate such contractual
arrangement, for which a waiver of such contractual arrangement cannot be
secured without significant or unreasonable cost or expense), in each case
reasonably requested by any such representative, underwriter, attorney,
consultant or accountant in connection with such Registration Statement and as
shall be reasonably necessary to enable such persons to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act;
provided, however, that the foregoing inspection and information gathering
shall be coordinated on behalf of the Holders and the other parties thereto by
one counsel designated by and on behalf of such Holders and other parties; and
provided, further, that such persons shall first agree in writing with the
Company that any information that is reasonably and in good faith designated
by the Company as confidential at the time of delivery or inspection (as the
case may be) of such information shall be kept confidential by such persons,
unless (i) disclosure of such information is required by court or
administrative order or is necessary to respond to inquiries of regulatory
authorities; (ii) disclosure of such information is required by law (including
any disclosure requirements pursuant to federal securities laws in connection
with the filing of any Registration Statement or the use of any Prospectus);
(iii) such information becomes generally available to the public other than as
a result of a disclosure or failure to safeguard by any such person; or (iv)
such information becomes available to any such person from a source other than
the Company and such source is not known by such person to be bound by a
confidentiality agreement;
(n) (i) subject to applicable listing standards, list all shares
of Class A Common Stock covered by any Registration Statements on any
securities exchange on which the Class A Common Stock is then listed; or (ii)
authorize for quotation on the National Market of the National Association of
Securities Dealers Automated Quotation System all Class A Common Stock covered
by all such Registration Statements if the Class A Common Stock is then so
authorized for quotation;
(o) use commercially reasonable efforts to provide such
information as is required for any filings required to be made with the
National Association of Securities Dealers, Inc.; and
(p) provide a transfer agent, registrar and CUSIP number for all
Registrable Securities not later than the effective date of any Registration
Statement.
SECTION 4. REGISTRATION EXPENSES. All fees and expenses incident to
the performance of or compliance with this Agreement by the Company shall be
borne by the Company whether or not any Registration Statement is filed or
becomes effective. The fees and expenses referred to in the foregoing sentence
shall include:
(a) all registration, filing, securities exchange listing,
rating agency and New York Stock Exchange or Nasdaq (or other securities
exchange or markets on which the Class A Common Stock is then listed or
quoted) fees and expenses;
(b) printing expenses (including, without limitation, printing
Prospectuses if the printing of Prospectuses is required by the managing
underwriters, if any, or by the holders of a majority in interest of the
securities being registered);
(c) messenger, copying, telephone and delivery expenses;
(d) reasonable fees and disbursements of counsel for the
Company;
(e) reasonable fees and disbursements of all independent
certified public accountants referred to in Section 3(l)(iii) including,
without limitation, the expenses of any special audits or "cold comfort"
letters required by Section 3(l)(iii);
(f) reasonable fees and expenses of all other persons retained
by the Company;
(g) all registration, filing, qualification and other fees and
expenses of complying with securities or blue sky laws of all jurisdictions in
which the Registrable Securities are to be registered and any reasonable legal
fees and expenses incurred in connection with the blue sky qualifications of
the Registrable Securities and the determination of their eligibility for
investment under the laws of all such jurisdictions; and
(h) the reasonable fees and disbursements incurred by the
Holders of the Registrable Securities being registered (including, without
limitation, the reasonable fees and disbursements for one counsel or firm of
counsel selected by the Holders of a majority in interest of the Registrable
Securities being registered to represent the Holders of the Registrable
Securities being registered).
Notwithstanding anything in this Agreement to the contrary, the
Holders shall be responsible for all expenses customarily borne by selling
securityholders (including underwriting discounts, commissions and fees and
expenses of counsel to the selling Holders to the extent not required to be
paid pursuant to subsection (h) above).
SECTION 5. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Holder and former Holder (an "Indemnified Holder") of Registrable Securities,
such Indemnified Holder's affiliates, and their respective officers,
directors, employees, representatives and agents, and each person, if any, who
controls any Indemnified Holder of Registrable Securities within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act,
or is under common control with, or is controlled by, any Indemnified Holder,
against any and all loss, liability, claim or damage arising out of any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission to state therein any material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that this Section 5 shall not apply to any
loss, liability, claim or damage arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information set forth in a Notice and Questionnaire
furnished to the Company by or on behalf of an Indemnified Holder of
Registrable Securities or any person, if any, who controls any such
Indemnified Holder of Registrable Securities expressly for use in the
Registration Statement (or any amendment thereto), or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto);
provided, further, that this Section 5 shall not apply to any loss, liability,
claim or damage (i) arising from an offer or sale of Registrable Securities
occurring during any suspension of sales pursuant to Section 2(e) (provided
that the Company has given to the Indemnified Holder timely notice of such
suspension prior to such offer or sale), or (ii) if the Indemnified Holder
fails to deliver at or prior to the written confirmation of sale, the most
recent Prospectus, as amended or supplemented, and such Prospectus, as amended
or supplemented, would have corrected such untrue statement or omission or
alleged untrue statement or omission of a material fact (provided that the
Company has delivered to such Indemnified Holder, or otherwise given notice to
such Indemnified Holder of the existence of, such most recent Prospectus, as
supplemented or amended). Any amounts advanced by the Company to an
indemnified party pursuant to this Agreement shall be returned to the Company
if it shall be finally determined in a judgment by a court of competent
jurisdiction not subject to appeal, that such indemnified party was not
entitled to indemnification.
(b) In connection with the preparation of the Registration
Statement in which a Holder of Registrable Securities is participating in
furnishing information relating to such Holder of Registrable Securities to
the Company for use in such Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto, each such
Holder agrees, severally and not jointly, to indemnify and hold harmless any
other Holders of Registrable Securities, the Company, its affiliates and their
respective officers, directors, employees, representatives and agents, and
each person, if any, who controls such other Holders or the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, against any and all loss, liability, claim or damage described
in the indemnity contained in subsection (a) of this Section 5, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto), or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information set forth
in a Notice and Questionnaire furnished to the Company by or on behalf of such
Holder of Registrable Securities or any person, if any, who controls any such
Holder of Registrable Securities expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability hereunder to the extent it is not materially prejudiced as
a result thereof and in any event shall not relieve it from any liability
which it may otherwise have on account of this Section 5. The indemnifying
party, upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and
any others the indemnifying party may designate in such proceeding and shall
pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
borne by such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel
or (ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them. It is understood that
the indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for (a) the fees and expenses of more than
one separate firm (in addition to any local counsel), for the Indemnified
Holders, and all persons, if any, who control the Indemnified Holders within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, collectively (unless representation of all Indemnified Holders
and such parties by the same counsel would be inappropriate due to actual or
potential differing interests between or among them), and (b) the fees and
expenses of more than one separate firm (in addition to any local counsel),
for the Company and each person, if any, who controls the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, and that all reasonable and documented fees and expenses payable
under Sections 5(a) and 5(b) above shall be reimbursed as they are incurred.
In the case of any such separate firm for the Indemnified Holders, and control
persons of the Indemnified Holders, such firm shall be designated by the
Indemnified Holders holding a majority in interest of the Registrable
Securities registered in the applicable Registration Statement and shall be
reasonably acceptable to the Company. In the case of any such separate firm
for the Company and control persons of the Company, such firm shall be
designated by the Board of Directors of the Company and shall be reasonably
acceptable to the Indemnified Holders holding a majority in interest of the
Registrable Securities registered in the applicable Registration Statement.
The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent (which consent shall not be
unreasonably withheld or delayed), but if settled with such consent or if
there be a final non-appealable judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld or delayed), settle or compromise
or consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 5 (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim, and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act by or on behalf
of any indemnified party. No indemnified party shall, without the prior
written consent of the indemnifying party (which consent shall not be
unreasonably withheld or delayed), settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 5 (whether or not the indemnified parties are actual
or potential parties thereto).
(d) If the indemnification to which an indemnified party is
entitled under this Section 5 is for any reason unavailable to, or
insufficient although applicable in accordance with its terms, to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or parties on the one hand and of the indemnified party on the other
hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative fault of the Company on the one hand and the Indemnified
Holders on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Indemnified Holder and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 5(d). The
aggregate amount of losses, liabilities, claims, damages, and expenses
incurred by an indemnified party and referred to above in this Section 5(d)
shall be deemed to include any out-of-pocket legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 5, no Holder shall be
required to indemnify or contribute any amount in excess of the amount by
which the net proceeds of such sale of Registrable Securities received by such
Holder exceeds the amount of any damages that such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission to alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
The remedies provided in this Section 5 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
For purposes of this Section 5(d), each person, if any, who controls
any Holder of Registrable Securities within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Holder, and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the Company. No
party shall be liable for contribution with respect to any action, suit,
proceeding or claim settled, compromised, or with respect to which the party
requesting contribution consented to the entry of a judgment, without such
party's written consent, which consent shall not be unreasonably withheld or
delayed.
(e) The Company may require as a condition to including the
Registrable Securities in the Registration Statement, and to entering into any
underwriting agreement with respect thereto, that the Company shall have
received an undertaking from the Holder and such underwriter to comply with
the provisions of this Section 5.
(f) The agreements contained in this Section 5 shall survive the
transfer or sale of the Registrable Securities and shall remain in full force
and effect, regardless of any termination or cancellation of this Agreement or
any investigation made by or on behalf of any indemnified party.
SECTION 6. INFORMATION REQUIREMENTS.
(a) The Company agrees that, if at any time until the
Registrable Securities cease to be Registrable Securities, the Company is not
subject to the reporting requirements of the Exchange Act, it will cooperate
with any Holder of Registrable Securities and use reasonable best efforts to
take such further reasonable action as any Holder of Registrable Securities
may reasonably request in writing to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144 and Rule 144A (or any similar rule or
regulation hereafter adopted by the SEC) and customarily taken in connection
with sales pursuant to such exemptions, including, without limitation, making
available adequate current public information within the meaning of paragraph
(c)(2) of Rule 144 and delivering the information required by paragraph (d) of
Rule 144A. Notwithstanding the foregoing, nothing in this Section 6 shall be
deemed to require the Company to register any of its securities under any
section of the Exchange Act.
(b) The Company shall file reports required to be filed by it
under the Exchange Act and by the New York Stock Exchange, Nasdaq or any other
securities exchanges or markets on which the Class A Common Stock is listed or
quoted.
SECTION 7. UNDERWRITTEN REGISTRATION. If any of the Registrable
Securities covered by a Registration Statement are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be investment bankers and
managers of recognized national standing (i) in the case of a Registration
Statement filed pursuant to Section 2(g), selected by the requesting Holder
and reasonably satisfactory to the Company and (ii) in the case of all other
Registration Statements, selected by the Company. No person may participate in
any underwritten registration hereunder unless such person (i) agrees to sell
such person's Registrable Securities on the basis reasonably provided in any
underwriting arrangements approved by the Company; and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up agreements and other documents reasonably required under
the terms of such underwriting arrangements. Notwithstanding any other
provision of this Agreement, if the underwriter, in the case of an
underwritten offering, determines in good faith that marketing factors require
a limitation of the number of shares to be offered in such underwritten
offering, the Company will include in such registration, to the extent of the
number of shares which the Company is so advised can be sold in such offering,
(i) in the case of a registration requested by a party or parties other than a
Holder, (x) first, securities of the Company requested to be included by such
requesting party or parties, (y) second, securities the Company proposes to
sell, and (z) other securities of the Company proposed to be included by
Holders or other holders thereof, pro rata according to the number of
securities proposed to be included by each such other party, (ii) in the case
of a registration by the Company for its own account, (x) first, the
securities proposed to be included by the Company, and (y) second, securities
of the Company requested to be included by Holders or other holders thereof,
pro rata according to the number of securities proposed to be included by each
such other party, and (iii) in the case of a registration requested pursuant
to Section 2(g), (x) first, securities of the Holders requested to be included
by such Holders, (y) second, securities proposed to be included by the Company
and other holders thereof, pro rata according to the number of securities
proposed to be included by each such other party.
SECTION 8. MISCELLANEOUS.
(a) Other Registration Rights. Notwithstanding anything to the
contrary contained herein, the Company may grant registration rights in
connection with the Plan of Reorganization or any securities issued in
connection with the Plan of Reorganization (including securities issued
pursuant to the terms and conditions of such securities). With the consent of
the Required Holders, which consent shall not be unreasonably withheld, the
Company may also in the future grant registration rights that would permit any
person that is a third party the right to piggy-back on the Registration
Statements pursuant to Section 2(a); provided, however, that in no event shall
such third party be granted the right to piggy-back on such Registration
Statement if the granting of such right would result in the filing of a
post-effective amendment to such Registration Statement.
(b) No Inconsistent Agreements. The Company has not entered and
shall not enter into any agreement that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any
way conflict with and are not inconsistent with the rights granted to the
holders of the Company's other issued and outstanding securities under any
such agreements. From and after the date of this Agreement, the Company shall
not enter into any agreement, unless consented to by the Required Holders and
the Required Warrant Holders, in each case to the extent applicable, with any
holder or prospective holder of any securities of the Company which would
grant such holder or prospective holder more favorable rights than those
granted to the Holder(s) hereunder, unless substantially similar or equivalent
rights are granted to the Holder(s).
(c) No Adverse Action Affecting the Registrable Securities. The
Company will not take any action with respect to the Registrable Securities
with an intent to adversely affect the ability of any of the Holders to
include such Registrable Securities in a registration undertaken pursuant to
this Agreement.
(d) Amendments And Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, without the written consent of the Company, the Required
Holders and the Required Warrant Holders; provided, however, that any
amendment, modification, supplement, waiver or consent that would
disproportionately affect the rights of any Holder (as compared to the other
Holders) shall not be effective against such Holder without such Holder's
written consent. Notwithstanding the foregoing, a waiver or consent to depart
from the provisions hereof with respect to a matter that relates exclusively
to the rights of Holders whose Registrable Securities are being registered
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other Holders may be given by Holders of a majority in
interest of the Registrable Securities being registered by such Holders
pursuant to such Registration Statement; provided, however, that the
provisions of this sentence may not be amended, modified, or supplemented
except in accordance with the provisions of the immediately preceding
sentence. Each Holder of Registrable Securities outstanding at the time of any
such amendment, modification, supplement, waiver or consent thereafter shall
be bound by any such amendment, modification, supplement, waiver or consent
effected pursuant to this Section 8(d), whether or not any notice, writing or
marking indicating such amendment, modification, supplement, waiver or consent
appears on the Registrable Securities or is delivered to such Holder.
(e) Notices. All notices and other communications provided for
herein or permitted hereunder shall be made in writing by hand-delivery,
courier guaranteeing overnight delivery, certified first-class mail, return
receipt requested, or telecopy and shall be deemed given (i) when made, if
made by hand delivery, (ii) upon confirmation, if made by telecopier, (iii)
one (1) Business Day after being deposited with such courier, if made by
overnight courier, or (iv) on the date indicated on the notice of receipt, if
made by first-class mail, to the parties as follows:
(i) if to a Holder other than the Warrant Holder, to the
address of such Holder as it appears in the Notice and Questionnaire, or, if
not so specified, in the Common Stock, Warrants or Class A Preferred Stock
register of the Company, as applicable. Failure to mail a notice or
communication to a Holder or any defect in such notice or communication shall
not affect its sufficiency with respect to other Holders.
(ii) if to the Company to:
US Airways Group, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Xxxxxxxxx X. Xxxxxx
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Xxxx X. Xxxxxxx
(iii) If to the Warrant Holder, to the address of such
Warrant Holder set forth on Schedule I.
(f) Successors And Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties and shall inure to the benefit of and be binding on each existing
and future Holder. The Company may not assign its rights or obligations
hereunder without the prior written consent of the Required Holders and the
Required Warrant Holders, other than by operation of law pursuant to a merger
or consolidation or reorganization to which the Company is a party.
(g) Counterparts. This Agreement may be executed in any number
of counterparts by the parties hereto, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same instrument.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their best efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction, it being
intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(j) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
All references made in this Agreement to "Section" and "paragraph" refer to
such Section or paragraph of this Agreement, unless expressly stated
otherwise.
(k) Entire Agreement. This Agreement, together with Section 6 of
the Warrant, is intended by the parties as a final expression of their
agreement and is intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and the registration rights granted by the Company
with respect to the Registrable Securities. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred
to herein, with respect to the registration rights granted by the Company with
respect to the Registrable Securities. This Agreement supersedes all prior
agreements and undertakings among the parties solely with respect to such
registration rights.
(l) Termination. This Agreement and the obligations of the
parties hereunder shall terminate when all of the Registrable Securities
issued to the Warrant Holder in connection with the Plan of Reorganization (as
may be adjusted in accordance with the terms of the Warrants) cease to be
Registrable Securities, except for any liabilities or obligations under
Section 4 or 5 hereof.
(m) Specific Performance. The parties agree that, to the extent
permitted by law, (i) the obligations imposed on them in this Agreement are
special, unique and of an extraordinary character, and that in the event of a
breach by any such party, damages would not be an adequate remedy; and (ii)
each of the other parties shall be entitled to specific performance and
injunctive and other equitable relief in addition to any other remedy to which
it may be entitled at law or in equity.
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
US AIRWAYS GROUP, INC.
By: /s/ Xxxx X. Xxxxx
-----------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President - Finance
and Chief Financial Officer
WARRANT HOLDER
RETIREMENT SYSTEMS OF ALABAMA HOLDINGS LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Secretary
SCHEDULE I
Schedule of Warrant Holder
--------------------------
Retirement Systems of Alabama Holdings LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Chief Investment Officer
With a copy to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx, Esq.
EXHIBIT A
US AIRWAYS GROUP, INC.
FORM OF SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial holder of (check all that apply):
|_| Class A common stock, par value $1.00 per share (the "Class A Common
Stock") of US Airways Group, Inc. ("Airways") issued or issuable upon
exercise of a warrant to purchase Class A Common Stock (the
"Warrant");
|_| Class A Common Stock of Airways issued or issuable upon the
conversion of Class B common stock, par value $1.00 per share (the
"Class B Common Stock");
|_| Class B Common Stock; or
|_| Warrants and Class A Preferred Stock;
of Airways (the "Registrable Securities"), understands that Airways has filed
or intends to file with the Securities and Exchange Commission (the
"Commission") a registration statement (the "Registration Statement") under
the Securities Act of 1933, as amended (the "Securities Act"), with respect to
certain Registrable Securities in accordance with the terms of the
Registration Rights Agreement (the "Registration Rights Agreement") by and
between Airways and Retirement Systems of Alabama Holdings LLC.
A copy of the Registration Rights Agreement is available from Airways
upon request at the address set forth below. All capitalized terms not
otherwise defined herein shall have the meaning ascribed thereto in the
Registration Rights Agreement. Each beneficial owner of Registrable Securities
is entitled to the benefits of the Registration Rights Agreement. In order to
sell or otherwise dispose of any Registrable Securities pursuant to the
Registration Statement, a beneficial owner of Registrable Securities generally
will be required to be named as a selling securityholder in the related
prospectus, deliver a prospectus to purchasers of Registrable Securities and
be bound by those provisions of the Registration Rights Agreement applicable
to such beneficial owner (including certain indemnification provisions, as
described below).
Beneficial owners are encouraged to complete and deliver this Notice
and Questionnaire prior to the effectiveness of the Registration Statement so
that such beneficial owners may be named as selling securityholders in the
related prospectus at the time of effectiveness. Subject to the provisions of
the Registration Rights Agreement, upon receipt of a completed Notice and
Questionnaire from a beneficial owner following the effectiveness of the
Registration Statement, Airways will file such amendments to the Registration
Statement or supplements to the related prospectus as are necessary to permit
such holder to deliver such prospectus to purchasers of Registrable
Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are
advised to consult their own securities law counsel regarding the consequences
of being named or not being named as a selling securityholder in the
Registration Statement and the related prospectus.
NOTICE
The undersigned beneficial owner (the "Selling Securityholder") of
Registrable Securities hereby gives notice to Airways of its intention to sell
or otherwise dispose of Registrable Securities beneficially owned by it and
listed below in Item 3 (unless otherwise specified under Item 3) pursuant to
the Registration Statement. The undersigned, by signing and returning this
Notice and Questionnaire, understands that it will be bound by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement.
The undersigned hereby provides the following information to Airways
and represents and warrants that such information is accurate and complete:
QUESTIONNAIRE
1. (a) Full Legal Name of Selling Securityholder:
--------------------------------------------------------------
(b) Full Legal Name of Registered Holder (if not the same as (a) above)
through which Registrable Securities listed in Item 3 below are held:
--------------------------------------------------------------
(c) Full Legal Name of DTC Participant (if applicable and if not
the same as (b) above) through which Registrable Securities
listed in Item 3 below are held:
--------------------------------------------------------------
2. Address for Notices to Selling Securityholder:
--------------------------------------------------------------------------------
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Telephone:
-------------------------------------------------------
Fax:
-------------------------------------------------------
Contact Person:
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3. Beneficial Ownership of Registrable Securities:
(a) Type and amount of Registrable Securities beneficially owned:
--------------------------------------------------------------
(b) CUSIP No(s). of such Registrable Securities beneficially owned:
-------------------------------------------------------------
4. Beneficial Ownership of Airways' securities owned by the Selling
Securityholder:
Except as set forth below in this Item 4, the undersigned is not the
beneficial or registered owner of any securities of Airways other than the
Registrable Securities listed above in Item 3.
(a) Type and amount of other securities beneficially owned by the Selling
Securityholder:
--------------------------------------------------------------
(b) CUSIP No(s). of such other securities beneficially owned:
--------------------------------------------------------------
5. Relationship with Airways:
Except as set forth below, neither the undersigned nor any of its
affiliates, directors or principal equity holders (5% or more) has held any
position or office or has had any other material relationship with Airways (or
their predecessors or affiliates) during the past three years.
State any exceptions here:
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--------------------------------------------------------------------------------
6. Plan of Distribution:
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Registrable Securities listed above in
Item 3 pursuant to the Registration Statement only as follows (if at all):
such Registrable Securities may be sold from time to time directly by the
undersigned or, alternatively, through underwriters, broker-dealers or agents.
If the Registrable Securities are sold through underwriters or broker-dealers,
the Selling Securityholder will be responsible for underwriting discounts or
commissions or agent's commissions. Such Registrable Securities may be sold in
one or more transactions at fixed prices, at prevailing market prices at the
time of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which may
involve block transactions) (i) on any national securities exchange or
quotation service on which the Registrable Securities may be listed or quoted
at the time of sale, (ii) in the over-the-counter market, (iii) in
transactions otherwise than on such exchanges or services or in the
over-the-counter market, or (iv) through the writing of options.
In connection with sales of the Registrable Securities or otherwise,
the undersigned may enter into hedging transactions with broker-dealers, which
may in turn engage in short sales of the Registrable Securities, short and
deliver Registrable Securities to close out such short positions, or loan or
pledge Registrable Securities to broker-dealers that in turn may sell such
securities.
State any exceptions here:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
The undersigned acknowledges that it understands its obligation to
comply with the provisions of the Securities Exchange Act of 1934, as amended,
and the rules thereunder relating to stock manipulation, particularly
Regulation M thereunder (or any successor rules or regulations), in connection
with any offering of Registrable Securities pursuant to the Registration
Statement. The undersigned agrees that neither it nor any person acting on its
behalf will engage in any transaction in violation of such provisions.
The Selling Securityholder hereby acknowledges its obligations under
the Registration Rights Agreement to indemnify and hold harmless certain
persons as set forth therein. Pursuant to the Registration Rights Agreement,
Airways has agreed under certain circumstances to indemnify and hold harmless
the Selling Securityholders as set forth therein.
The undersigned hereby agrees that, in connection with any sale of
Registrable Securities pursuant to the Registration Statement, it will comply
with the prospectus delivery requirements, if any, of the Securities Act of
1933, as amended (the "Securities Act") and the rules promulgated thereunder,
and, at the time of any such sale, represents, warrants and agrees that the
information regarding the undersigned included in this Notice and
Questionnaire, as it may be supplemented, shall be accurate and complete in
all material respects.
In accordance with the undersigned's obligation under the
Registration Rights Agreement to provide such information as may be required
by law for inclusion in the Registration Statement regarding the undersigned,
the undersigned agrees to promptly notify Airways of any inaccuracies or
changes in the information provided herein that may occur subsequent to the
date hereof at any time while the Registration Statement remains effective.
All notices hereunder shall be made in writing pursuant to the Registration
Rights Agreement.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to Items 1 through 6 above and the
inclusion of such information in the Registration Statement and the related
prospectus. The undersigned understands that such information will be relied
upon by Airways in connection with the preparation or amendment of the
Registration Statement and the related prospectus.
By signing below, the undersigned agrees that the terms of this
Notice and Questionnaire, and the representations and warranties contained
herein, shall be binding on, shall inure to the benefit of and shall be
enforceable by Airways' respective successors and assigns. This Notice and
Questionnaire shall be governed in all respects by the laws of the State of
New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
Beneficial Owner
By:____________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO
US AIRWAYS GROUP, INC. AS SET FORTH BELOW:
US Airways Group, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Xxxxxxxxx X. Xxxxxx
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Xxxx X. Xxxxxxx
