SECURITIES PURCHASE AGREEMENT
EXHIBIT
99.3
THIS
SECURITIES PURCHASE AGREEMENT (this "Agreement") is entered into on March 15,
2006, between EASTSHORE AVIATION, LLC, a Delaware limited liability company
(the
"Seller"), and PAR INVESTMENT PARTNERS, L.P., a Delaware limited partnership
(the "Purchaser").
RECITALS
WHEREAS,
the
Seller is the legal and beneficial owner of 8,333,333 shares (the "Seller
Shares") of the common stock, par value $0.01 per share, of US Airways Group,
Inc., a Delaware corporation ("US Air"); and
WHEREAS,
the
Seller desires to sell to the Purchaser, and the Purchaser desires to purchase
from the Seller, upon the terms and conditions set forth in this Agreement,
One
Million (1,000,000) of the Seller Shares (the "Subject Shares").
AGREEMENTS
In
consideration of the premises and mutual agreements herein contained, the
parties agree as follows:
1.
Sale
and Purchase of the Subject Shares.
(a) Subject
to the satisfaction or waiver of the conditions contained in Section 5 of this
Agreement, at the Closing (as defined below), the Seller will sell, assign
and
transfer to the Purchaser, and the Purchaser will purchase from the Seller,
the
Subject Shares and all of the Seller’s right, title and interest in and to the
Subject Shares.
(b) The
purchase price per share for the Subject Shares is $34.84, for an aggregate
purchase price of $34,840,000 (the "Purchase Price"), payable at the Closing
by
wire transfer of immediately available funds to the bank account designated
by
the Seller on Exhibit A hereto. Upon execution of this Agreement, the
Purchaser shall pay to the Seller a deposit (the "Deposit") in the amount of
$1,742,000. The Deposit (together with all interest thereon) shall be credited
against payment of the Purchase Price. The Deposit shall be held by the Seller
in a segregated interest-bearing account.
(c) At
the
Closing, the Seller shall deliver to the Purchaser an original share certificate
representing the Subject Shares, together with such other instruments or
documents as the Purchaser may request in order to effect a valid transfer
to
the Purchaser of all right, title and interest in and to the Subject Shares,
free and clear of all security interests, liens, encumbrances, options, calls,
pledges, trusts, and other agreements, assessments, covenants, restrictions,
reservations, commitments, obligations, liabilities and other burdens
(collectively, "Liens"), except for the transfer restrictions applicable to
the
Subject Shares contained in the Stockholder’s Agreement dated as of September
27, 2005 by and between US Air and the Seller (the "Eastshore Stockholder’s
Agreement") and imposed by Federal and State securities laws.
(d) At
the
Closing, the Seller and the Purchaser shall each execute and deliver to US
Air a
Release and Indemnification Agreement in the form attached as Exhibit B hereto.
(e) From
and
after the Closing, the Purchaser agrees to be bound by the provisions of the
Eastshore Stockholder’s Agreement with respect to the Subject
Shares.
(f) The
closing of the purchase and sale of the Subject Shares (the "Closing") shall
take place at the offices of Xxxxxxx Procter LLP, Exchange Place, Boston,
Massachusetts at 10:00 a.m., Eastern Time, on April 3, 2006 (the "Closing
Date"), subject to the satisfaction or waiver of each of the conditions set
forth in Section 5 of this Agreement.
2.
Representations
and Warranties of the Seller.
The
Seller represents and warrants to the Purchaser that:
(a) The
Seller is the sole legal and beneficial owner of the Subject Shares and the
Seller's title thereto is good, valid and indefeasible and is free and clear
of
all Liens, except for the transfer restrictions applicable to the Subject Shares
contained in the Eastshore Stockholder’s Agreement and imposed by Federal and
State securities laws.
(b) The
Seller has full power and authority to execute, deliver and perform its
obligations under this Agreement and to sell the Subject Shares to the
Purchaser. This Agreement has been duly and validly executed and delivered
by
the Seller and is legally binding on and enforceable against the Seller in
accordance with its terms, except that the Seller makes no representation as
to
the enforceability of the agreements of the Seller contained in Sections 2(e)(i)
through (iii) and 2(f)(ii) below. The execution, delivery and performance by
the
Seller of this Agreement (i) do not and will not violate any laws applicable
to
the Seller
or
require the Seller to obtain any approval, consent or waiver of, or make any
filing with, any person or entity (including any governmental authority) other
than those previously obtained or made or contemplated by Section 5(c) and
(ii)
do not and will not result in a breach of or constitute a default under any
agreement
(including, without limitation, the Eastshore Stockholder’s Agreement),
contract, instrument, order, judgment, injunction, decree, determination or
arbitration award to which the Seller is a party or by which the property of
the
Seller is bound or affected, or result in the creation or imposition of any
Lien
on the Subject Shares.
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(c) The
Seller has no obligation, current, contingent or otherwise, to transfer any
or
all of the Subject Shares to any other person or entity.
(d) The
Seller is a sophisticated investor with respect to the Subject Shares, has
adequate information concerning the business and financial condition of US
Air
to make an informed decision regarding the sale of the Subject Shares, and
has
independently made its own analysis and decision to sell the Subject Shares
without reliance upon any express or implied representation or warranty of
any
nature, whether written, oral or otherwise, made by or on behalf of or imputed
to the Purchaser, except for the representations expressly set forth in Section
3 of this Agreement.
(e) The
Seller acknowledges that the Purchaser may possess and may hereafter possess
nonpublic information concerning US Air not known to the Seller and which the
Seller may deem material to its decision to sell the Subject Shares if the
Seller were provided with the information ("Purchaser Excluded Information")
including, without limitation, information as to US Air’s future financial
performance, potential debt refinancing activities and other potentially
significant matters. The Purchaser Excluded Information may or may not be
material, may or may not have been publicly disclosed by or on behalf of US
Air,
and may or may not be available to the Seller from sources other than US Air
or
the Purchaser. The Seller, on behalf of itself and its affiliates and their
respective current and former directors, officers, managers, trustees,
shareholders, members, employees, beneficiaries, attorneys, agents,
representatives, partners, limited partners, investors, successors and assigns
(collectively, "Seller Parties"), hereby:
(i) agrees
that neither the Purchaser, its affiliates nor their respective current or
former directors, officers, managers, trustees, shareholders, members,
employees, beneficiaries, attorneys, agents, representatives, partners, limited
partners, investors, successors or assigns (collectively, "Purchaser Parties")
shall have any liability to any Seller Party with respect to, based upon,
arising from, resulting from, or relating to directly or indirectly the
existence, substance, possession, disclosure, or nondisclosure of any Purchaser
Excluded Information whatsoever, whether arising directly or indirectly,
primarily or secondarily, by contract or operation of law or otherwise,
including, without limitation, as a matter of contribution, indemnification,
set-off, rescission, or reimbursement;
3
(ii) waives
any
right, claim or cause of action at law or in equity with respect to, arising
from, based upon, resulting from or relating to directly or indirectly the
existence, substance, possession, disclosure or nondisclosure of any Purchaser
Excluded Information, including, without limitation, pursuant to Sections 10(b)
and 20A of the Securities Exchange Act of 1934, as amended (the "Act"), or
the
rules and regulations promulgated by the Securities and Exchange Commission
under the Act, or of any state statute or regulation, and relinquishes all
rights and remedies accorded by applicable law to a seller of securities with
respect to the Subject Shares to the maximum extent permitted by law, as well
as
all rights to participate in any claim, action or remedy others may now or
hereafter have with respect to the foregoing; and
(iii) hereby
and forever releases and discharges each of the Purchaser Parties of and from
any and all suits, demands, obligations, liabilities, claims and causes of
action, contingent or otherwise, of every kind and nature, at law and in equity,
whether asserted, unasserted, absolute, contingent, known or unknown, which
any
Seller Party may have against the Purchaser Parties, or any of them, to the
extent arising from, relating to, based upon, resulting from, relating to
directly or indirectly, or in connection with the existence, substance,
possession, disclosure or nondisclosure of any Purchaser Excluded
Information.
(f) The
Seller (i) has not assigned any claim or possible claim arising from, relating
to, based upon, resulting from, relating to directly or indirectly, or in
connection with the existence, substance, possession, disclosure or
nondisclosure of any Purchaser Excluded Information against the Purchaser
Parties, (ii) fully intends to release all claims against the Purchaser Parties
as set forth in Section 2(e)(i) through (iii) above, and (iii) has been advised
by, and has consulted with counsel with respect to the execution and delivery
of
this Agreement.
3.
Representations
and Warranties of the Purchaser.
The
Purchaser represents and warrants to the Seller that:
(a) The
Purchaser has full power and authority to execute, deliver and perform its
obligations under this Agreement and to purchase the Subject Shares from the
Seller. This Agreement has been duly and validly executed and delivered by
the
Purchaser and is legally binding on and enforceable against the Purchaser in
accordance with its terms, except that the Purchaser makes no representation
as
to the enforceability of the agreements of the Purchaser contained in Sections
3(d)(i) through (iii) and 3(e)(ii) below. The execution, delivery and
performance by the Purchaser of this Agreement (i) do not and will not
violate any laws applicable to the Purchaser or require the Purchaser to obtain
any approval, consent or waiver of, or make any filing with, any person or
entity (including any governmental authority) other than those previously
obtained or made or contemplated by Section 5(c) and (ii) do not and will not
result in a breach of or constitute a default under any agreement, contract,
instrument, order, judgment, injunction, decree, determination or arbitration
award to which the Purchaser is a party or by which the property of the
Purchaser is bound or affected, or result in the creation or imposition of
any
Lien on the Subject Shares.
4
(b) The
Purchaser is acquiring the Subject Shares for Purchaser's own account as
principal, not as a nominee or agent, for investment purposes only, and not
with
a view towards, or for resale in connection with, the public distribution
thereof, except pursuant to sales registered or exempt from registration under
the Securities Act of 1933, as amended. The Purchaser does not have any
contract, undertaking, agreement or arrangement with any person or entity to
sell, transfer or grant participations to such person or entity or to any third
person or entity with respect to any of the Subject Shares.
(c) The
Purchaser is a sophisticated investor with respect to the Subject Shares, has
adequate information concerning the business and financial condition of US
Air
to make an informed decision regarding the purchase of the Subject Shares,
and
has independently made its own analysis and decision to purchase the Subject
Shares without reliance upon any express or implied representation or warranty
of any nature, whether written, oral or otherwise, made by or on behalf of
or
imputed to the Seller, except for the representations expressly set forth in
Section 2 of this Agreement.
(d) The
Purchaser acknowledges that the Seller may possess and may hereafter possess
nonpublic information concerning US Air not known to the Purchaser and which
the
Purchaser may deem material to its decision to purchase the Subject Shares
if
the Purchaser were provided with the information ("Seller Excluded Information")
including, without limitation, information as to US Air’s future financial
performance, potential debt refinancing activities and other potentially
significant matters. The Seller Excluded Information may or may not be material,
may or may not have been publicly disclosed by or on behalf of US Air, and
may
or may not be available to the Purchaser from sources other than US Air or
the
Seller. The Purchaser, on behalf of each Purchaser Party, hereby:
(i) agrees
that the Seller Parties shall have no liability to any Purchaser Party with
respect to, based upon, arising from, resulting from, or relating to directly
or
indirectly the existence, substance, possession, disclosure, or nondisclosure
of
any Seller Excluded Information whatsoever, whether arising directly or
indirectly, primarily or secondarily, by contract or operation of law or
otherwise, including, without limitation, as a matter of contribution,
indemnification, set-off, rescission, or reimbursement;
5
(ii) waives
any right, claim or cause of action at law or in equity with respect to, arising
from, based upon, resulting from or relating to directly or indirectly the
existence, substance, possession, disclosure or nondisclosure of any Seller
Excluded Information, including, without limitation, pursuant to Sections 10(b)
and 20A of the Act, or the rules and regulations promulgated by the Securities
and Exchange Commission under the Act, or of any state statute or regulation,
and relinquishes all rights and remedies accorded by applicable law to a seller
of securities with respect to the Subject Shares to the maximum extent permitted
by law, as well as all rights to participate in any claim, action or remedy
others may now or hereafter have with respect to the foregoing; and
(iii) hereby
and forever releases and discharges each of the Seller Parties of and from
any
and all suits, demands, obligations, liabilities, claims and causes of action,
contingent or otherwise, of every kind and nature, at law and in equity, whether
asserted, unasserted, absolute, contingent, known or unknown, which any
Purchaser Party may have against the Seller Parties, or any of them, to the
extent arising from, relating to, based upon, resulting from, relating to
directly or indirectly, or in connection with the existence, substance,
possession, disclosure or nondisclosure of any Seller Excluded
Information.
(e) The
Purchaser (i) has not assigned any claim or possible claim arising from,
relating to, based upon, resulting from, relating to directly or indirectly,
or
in connection with the existence, substance, possession, disclosure or
nondisclosure of any Seller Excluded Information against the Seller Parties,
(ii) fully intends to release all claims against the Seller Parties as set
forth
in Section 3(d)(i) through (iii) above, and (iii) has been advised by, and
has
consulted with counsel with respect to the execution and delivery of this
Agreement.
4.
Covenants.
The
Seller shall comply with Section 4 of the Eastshore Stockholder’s Agreement with
respect to the sale of the Subject Shares contemplated by this Agreement,
including providing written notice to US Air of the proposed sale promptly
following execution of this Agreement.
5.
Conditions.
(a) The
obligations of the Purchaser to consummate the transactions contemplated by
this
Agreement shall be subject to the satisfaction (or waiver) on the Closing Date
of the following condition: Each of the representations and warranties of the
Seller contained in Section 2 shall be true and correct as of the date of this
Agreement and true and correct at and as of the Closing, as if made at and
as of
the Closing.
6
(b) The
obligations of the Seller to consummate the transactions contemplated by this
Agreement shall be subject to the satisfaction (or waiver) on the Closing Date
of the following condition: Each of the representations and warranties of the
Purchaser contained in Section 3 shall be true and correct as of the date of
this Agreement and true and correct at and as of the Closing, as if made at
and
as of the Closing.
(c) The
obligations of each of the Seller and the Purchaser to consummate the
transactions contemplated by this Agreement shall be subject to the satisfaction
(or waiver) on the Closing Date of the following condition: Each of the Seller
and the Purchaser shall have received from US Air a written waiver to permit
the
sale of the Subject Shares pursuant to this Agreement under US Air’s Xxxxxxx
Xxxxxxx Policy.
6. Termination.
This
Agreement may be terminated prior to the Closing (a) at any time, by the mutual
written consent of the Seller and the Purchaser and (b) by either of the Seller
or the Purchaser by written notice to the other at any time on or after April
4,
2006 if the Closing has not occurred by such date due to a breach by the other
party; provided,
however,
that
the right to terminate this Agreement under clause (b) of this Section 6 shall
not be available to any party that is in breach of its obligations under this
Agreement. In the event of any termination of this Agreement pursuant to this
Section 6, there shall be no liability or obligations hereunder on the part
of
any party hereto or their respective affiliates; provided, however, that nothing
herein shall relieve either party from liability for any breach of this
Agreement existing at the time of such termination. Notwithstanding the
foregoing, (x) in the event that this Agreement is terminated pursuant to
Section 6(a) or by the Purchaser pursuant to Section 6(b), then the Seller
shall
return the Deposit (together with all interest thereon) to the Purchaser within
five days following the effective date of such termination, and (y) in the
event
that this Agreement is terminated by the Seller pursuant to Section 6(b), then
the Seller shall be entitled to retain the Deposit (together with all interest
thereon) and the Deposit shall not constitute liquidated damages or the Seller’s
sole remedy.
7. General
Provisions.
(a) This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter contained herein and supersedes all prior oral
or
written agreements, if any, between the parties hereto with respect to such
subject matter and, except as otherwise expressly provided herein, is not
intended to confer upon any other person any rights or remedies hereunder.
7
(b) All
notices, requests, demands and other communications given or made hereunder
shall be in writing and shall be deemed to have been duly given when delivered
personally or by facsimile transmission, in either case with receipt
acknowledged, or one day after being sent by overnight courier to the Seller
or
the Purchaser at the applicable address set forth on Exhibit C hereto, and,
in
each case, to such other address as any party shall have given to the other
party by similar notice.
(c) This
Agreement shall be governed by, and interpreted in accordance with, the laws
of
the State of New York.
(d) This
Agreement and the various rights and obligations arising hereunder shall inure
to the benefit of and be binding upon the Seller and the Purchaser and their
respective successors and assigns. Each Seller Party and Purchaser Party is
a
third party beneficiary of this Agreement. Neither this Agreement nor any of
the
rights, interests or obligations hereunder shall be transferred or assigned
(by
operation of law or otherwise) by the Seller or the Purchaser without the prior
written consent of the other party.
(e) If
any
term or other provision of this Agreement is invalid, illegal or incapable
of
being enforced by virtue of any rule of law, or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner adverse to any party. Upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the Seller and the Purchaser shall negotiate in
good faith to modify this Agreement so as to effect the original intent of
the
parties as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the maximum extent
possible.
(f) All
representations and warranties made by the parties to this Agreement shall
survive the execution and delivery of this Agreement and the
Closing.
(g) This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which taken together shall constitute one and
the
same instrument. Delivery of an executed counterpart of a signature page to
this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart to this Agreement.
[Remainder
of page intentionally left blank. Signature pages to
follow.]
8
IN
WITNESS WHEREOF, the Purchaser and the Seller have caused this Agreement to
be
executed as of the date first written above.
By:
/s/ Xxxxxxx
Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title:
Executive Vice President
PAR
INVESTMENT PARTNERS, L.P.
By:
PAR
GROUP, L.P.
Its:
General Partner
By:
PAR
CAPITAL MANAGEMENT, INC.
Its:
General Partner
By:
/s/ Xxxx
XxXxxxx
Name:
Xxxx XxXxxxx
Title:
Vice President
9
Exhibit
B
Form
of
Release and Indemnification Agreement
This
Release and Indemnification Agreement is executed as of April 3, 2006 by
EASTSHORE AVIATION, LLC, a Delaware limited liability company (the "Seller"),
and PAR INVESTMENT PARTNERS, L.P., a Delaware limited partnership (the
"Purchaser"), in favor of US Airways Group, Inc., a Delaware corporation ("US
Air").
Reference
is hereby made to the Securities Purchase Agreement dated March 15, 2006 between
the Seller and the Purchaser pursuant to which the Seller is selling to the
Purchaser and the Purchaser is purchasing from the Seller, One Million
(1,000,000) shares of the common stock, par value $0.01 per share, of US Air
(the "Sale Transaction").
1. Seller
Release and Indemnification.
The
Seller, on behalf of itself and its affiliates and their respective current
and
former directors, officers, managers, trustees, shareholders, members,
employees, beneficiaries, attorneys, agents, representatives, partners, limited
partners, investors, successors and assigns (collectively, "Seller Parties"),
hereby:
(i) hereby
agrees that neither US Air, its affiliates nor their respective current or
former directors, officers, managers, trustees, shareholders, members,
employees, beneficiaries, attorneys, agents, representatives, partners, limited
partners, investors, successors or assigns (collectively, "US Air Parties")
shall have any liability to any Seller Party with respect to, based upon,
arising from, resulting from or relating to the Sale Transaction, whether
arising directly or indirectly, primarily or secondarily, by contract or
operation of law or otherwise, including, without limitation, as a matter of
contribution, indemnification, set-off, rescission, or reimbursement;
and
(ii) hereby
and forever releases and discharges each of the US Air Parties of and from
any
and all suits, demands, obligations, liabilities, claims and causes of action,
contingent or otherwise, of every kind and nature, at law and in equity, whether
asserted, unasserted, absolute, contingent, known or unknown, which any Seller
Party may have against the US Air Parties, or any of them, to the extent arising
from, relating to, based upon, resulting from, relating to or in connection
with
the Sale Transaction.
The
Seller hereby represents to US Air that it (i) has not assigned any claim or
possible claim arising from, relating to, based upon, resulting from, relating
to directly or indirectly, or in connection with the Sale Transaction against
the US Air Parties, (ii) fully intends to release all claims against the US
Air
Parties as set forth in this Release and Indemnification Agreement, and (iii)
has been advised by, and has consulted with counsel with respect to the
execution and delivery of this Release and Indemnification
Agreement.
The
Seller shall indemnify the US Air Parties against and hold them harmless from
any and all liabilities, demands, assessments, judgments, monetary damages,
fines, fees, penalties, costs and expenses (including without limitation
reasonable attorneys’ fees and expenses) (collectively, "Losses") incurred by
the US Air Parties as a result of any third party claim arising from or based
upon the Sale Transaction. The liability of the Seller for Losses under this
paragraph shall be limited to Fifty Thousand Dollars ($50,000) in the
aggregate.
2. Purchaser
Release and Indemnification.
The
Purchaser, on behalf of itself and its affiliates and their respective current
and former directors, officers, managers, trustees, shareholders, members,
employees, beneficiaries, attorneys, agents, representatives, partners, limited
partners, investors, successors and assigns (collectively, "Purchaser Parties"),
hereby:
(i) hereby
agrees that none of the US Air Parties shall have any liability to any Purchaser
Party with respect to, based upon, arising from, resulting from or relating
to
the Sale Transaction, whether arising directly or indirectly, primarily or
secondarily, by contract or operation of law or otherwise, including, without
limitation, as a matter of contribution, indemnification, set-off, rescission,
or reimbursement; and
(ii) hereby
and forever releases and discharges each of the US Air Parties of and from
any
and all suits, demands, obligations, liabilities, claims and causes of action,
contingent or otherwise, of every kind and nature, at law and in equity, whether
asserted, unasserted, absolute, contingent, known or unknown, which any
Purchaser Party may have against the US Air Parties, or any of them, to the
extent arising from, relating to, based upon, resulting from, relating to or
in
connection with the Sale Transaction.
The
Purchaser hereby represents to US Air that it (i) has not assigned any claim
or
possible claim arising from, relating to, based upon, resulting from, relating
to directly or indirectly, or in connection with the Sale Transaction against
the US Air Parties, (ii) fully intends to release all claims against the US
Air
Parties as set forth in this Release and Indemnification Agreement, and (iii)
has been advised by, and has consulted with counsel with respect to the
execution and delivery of this Release and Indemnification
Agreement.
2
The
Purchaser shall indemnify the US Air Parties against and hold them harmless
from
any and all Losses incurred by the US Air Parties as a result of any third
party
claim arising from or based upon the Sale Transaction. The liability of the
Purchaser for Losses under this paragraph shall be limited to Fifty Thousand
Dollars ($50,000) in the aggregate.
IN
WITNESS WHEREOF, the Purchaser and the Seller have caused this Release and
Indemnification Agreement to be executed as of the date first written
above.
By:
_________________________________
Name:
Title:
PAR
INVESTMENT PARTNERS, L.P.
By:
PAR
GROUP, L.P.
Its:
General Partner
By:
PAR
CAPITAL MANAGEMENT, INC.
Its:
General Partner
By:
_________________________________
Name:
Title:
3
Exhibit
C
Notices
If
to the
Purchaser:
PAR
Investment Partners, L.P.
Xxx
Xxxxxxxxxxxxx Xxxxx
Xxxxx
0000
Xxxxxx,
XX 00000
Attention:
Xxxx XxXxxxx
Telecopier
No. 000-000-0000
With
a
copy to:
Xxxxxxx
Procter LLP
Exchange
Place
Boston,
MA 02109
Attention:
Xxxxxx X. Xxxxxx, Xx.
Telecopier
No. 000-000-0000
If
to the
Seller:
X0000
Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
Attention:
Xxxxxxxxx Xxxxxxx
Telecopier
No. 000-000-0000
With
a
copy to:
Xxxxxxxxx
& Xxxxxxx
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxx X. Xxxxxxx
Telecopier
No. 000-000-0000
