Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
DATED AS OF SEPTEMBER 30, 2005
AMONG
US AIRWAYS GROUP, INC.
AND ITS SUBSIDIARIES LISTED ON THE SIGNATURE
PAGES HEREOF
AND
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED,
AS THE INITIAL PURCHASER
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into this 30th day of September, 2005, among US Airways Group, Inc., a
Delaware corporation (the "Company"), US Airways, Inc., a Delaware corporation,
and America West Airlines, Inc., a Delaware corporation (collectively, the
"Guarantors" and, together with the Company, the "Issuers"), and Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated as the Initial Purchaser (the "Initial
Purchaser"), pursuant to the Purchase Agreement dated September 27, 2005 (the
"Purchase Agreement") between the Issuers and the Initial Purchaser.
This Agreement is made pursuant to the Purchase Agreement, which
relates to the sale by the Company to the Initial Purchaser of an aggregate of
$143,750,000 principal amount at maturity of the Company's 7% Senior Convertible
Notes due 2020 (the "Securities"). In order to induce the Initial Purchaser to
enter into the Purchase Agreement, the Issuers have agreed to provide to the
Initial Purchaser and its direct and indirect transferees the registration
rights set forth in this Agreement. The execution of this Agreement is a
condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
to time.
"1934 Act" shall mean the Securities Exchange Act of l934, as amended
from time to time.
"1939 Act" shall mean the Trust Indenture Act of 1939, as amended from
time to time.
"Closing Date" shall mean the Closing Time as defined in the Purchase
Agreement.
"Common Stock" shall mean any shares of common stock, $0.01 par value,
of the Company and any other shares of common stock as may constitute
"Common Stock" for purposes of the Indenture.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company, provided, however, that such
depositary must have an address in the Borough of Manhattan, in the City of
New York.
"Guarantors" shall have the meaning set forth in the preamble.
"Holder" shall mean the Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture.
"Indenture" shall mean the Indenture relating to the Securities, dated
as of September 30, 2005, by and among the Company, the Guarantors and U.S.
Bank National Association, as trustee, as the same may be amended,
supplemented, waived or otherwise modified from time to time in accordance
with the terms thereof.
"Initial Purchaser" shall have the meaning set forth in the preamble.
"Issuers" shall have the meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the
outstanding Registrable Securities (assuming conversion of all Securities
into Common Stock); provided that whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or any Affiliate (as
defined in the Indenture) of the Company shall be disregarded in
determining whether such consent or approval was given by the Holders of
such required percentage amount.
"Person" shall mean an individual, partnership (general or limited),
corporation, limited liability company, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Shelf
Registration Statement, including any preliminary prospectus, and any such
prospectus as amended or supplemented by any prospectus supplement,
including any such prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Securities covered by a Shelf
Registration Statement, and by all other amendments and supplements to a
prospectus, including post-effective amendments, and in each case including
all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean all or any of the Securities
issued from time to time under the Indenture in registered form, and the
shares of Common Stock issuable upon conversion of such Securities;
provided, however, that any such Securities shall cease to be Registrable
Securities when (i) a Shelf Registration Statement with respect to such
Securities shall have been declared effective under the 1933 Act and such
Securities shall have been disposed of pursuant to such Shelf Registration
Statement, (ii) such Securities have been sold to the public pursuant to
Rule l44 under the 1933 Act, (iii) such Securities shall have ceased to be
outstanding or (iv) such Securities may be sold or transferred, other than
by the Company's Affiliates, pursuant to Rule 144(k) (or any similar
provision then in force) under the 1933 Act.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. (the "NASD") registration and filing fees,
including, if applicable, the fees and expenses of any "qualified
independent underwriter" (and its counsel) that is required to be retained
by any holder of Registrable Securities in accordance with the rules and
regulations of the NASD, (ii) all fees and expenses incurred in connection
with compliance with state securities or blue sky laws and compliance with
the rules of the NASD (including reasonable fees and disbursements of
counsel for any underwriters or Holders in connection with blue sky
qualification of any of the Registrable Securities and any filings with the
NASD), (iii) all expenses of the Company in preparing or assisting in
preparing, word processing, printing and distributing any Shelf
Registration Statement, any Prospectus, any amendments or supplements
thereto, any securities sales agreements and other documents relating to
the
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performance of and compliance with this Agreement, (iv) all fees and
expenses incurred in connection with the listing, if any, of any of the
Registrable Securities on any securities exchange or exchanges, (v) all
rating agency fees, (vi) the fees and disbursements of counsel for the
Company and of the independent public accountants of the Company, including
the expenses of any special audits or "comfort" letters required by or
incident to such performance and compliance, (vii) the reasonable fees and
expenses of the Trustee, and any escrow agent or custodian, (viii) the
reasonable fees and expenses of a single counsel to the Holders in
connection with the Shelf Registration, which counsel shall be selected by
the Majority Holders, and (ix) any fees and expenses of any special experts
retained by the Company in connection with any Shelf Registration
Statement, but excluding any underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.
"SEC" shall mean the Securities and Exchange Commission or any
successor agency or government body performing the functions currently
performed by the United States Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2.1 hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Issuers pursuant to the provisions of Section 2.1 of this
Agreement which covers all of the Registrable Securities on an appropriate
form under Rule 415 under the 1933 Act, or any similar rule that may be
adopted by the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
2. Registration Under the 0000 Xxx.
2.1 Shelf Registration.
(a) The Issuers shall, at their cost, no later than 90 days after the
Closing Date, file with the SEC, and thereafter shall use reasonable
efforts to cause to be declared effective as promptly as practicable but no
later than 180 days after the Closing Date, a Shelf Registration Statement
relating to the offer and sale of the Registrable Securities by the Holders
that have provided the information pursuant to Section 2.1(d).
(b) The Issuers shall, at their cost, use reasonable efforts, subject
to Section 2.5, to keep the Shelf Registration Statement continuously
effective in order to permit the Prospectus forming part thereof to be
usable by Holders for a period of two years from the date the Shelf
Registration Statement is declared effective by the SEC, or for such
shorter period that will terminate when all Registrable Securities covered
by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be outstanding or otherwise to be
Registrable Securities (the "Effectiveness Period").
(c) Notwithstanding any other provisions hereof, the Issuers shall use
reasonable efforts to ensure that (i) any Shelf Registration Statement and
any amendment thereto and any Prospectus forming part thereof and any
supplement thereto complies in all material respects with the 1933 Act and
the rules and regulations thereunder, (ii) any Shelf Registration Statement
and any amendment thereto does not, when it becomes effective, 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
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therein not misleading and (iii) any Prospectus forming part of any Shelf
Registration Statement, and any supplement to such Prospectus (as amended
or supplemented from time to time), does not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(d) Notwithstanding any other provision hereof, no Holder of
Registrable Securities may include any of its Registrable Securities in the
Shelf Registration Statement pursuant to this Agreement unless the Holder
furnishes to the Company a fully completed notice and questionnaire in the
form attached as Annex A to the Offering Memorandum (the "Questionnaire")
and such other information in writing as the Company may reasonably request
in writing for use in connection with the Shelf Registration Statement or
Prospectus included therein and in any application to be filed with or
under state securities laws. In order to be named as a selling
securityholder in the Prospectus at the time of effectiveness of the Shelf
Registration Statement, each Holder must, before the effectiveness of the
Shelf Registration Statement and no later than the 20th day after the
issuance of a press release by the Company announcing the initial filing of
the Registration Statement (or the filing of the first amendment to the
Shelf Registration Statement in the event the Issuers promptly file the
Shelf Registration Statement following the date of this Agreement), furnish
the completed Questionnaire and such other information that the Company may
reasonably request in writing, if any, to the Company in writing and the
Company will include the information from the completed Questionnaire and
such other information, if any, in the Shelf Registration Statement and the
Prospectus in a manner so that upon effectiveness of the Shelf Registration
Statement the Holder will be permitted to deliver the Prospectus to
purchasers of the Holder's Registrable Securities. From and after the date
that the Registration Statement is first declared effective by the SEC,
upon receipt of a completed Questionnaire and such other information that
the Company may reasonably request in writing, if any, the Issuers will use
reasonable efforts to file within 20 business days any amendments or
supplements to the Shelf Registration Statement necessary for such Holder
to be named as a selling securityholder in the Prospectus contained therein
to permit such Holder to deliver the Prospectus to purchasers of the
Holder's Securities (subject to the Issuers' right to suspend the Shelf
Registration Statement as described in Section 2.5 below); provided that
the Issuers shall not be required to file more than one such amendment to
the Shelf Registration Statement in any calendar quarter for all such
Holders. Holders that do not deliver a completed written Questionnaire and
such other information, as provided for in this Section 2.1(d), will not be
named as selling securityholders in the Prospectus. Each Holder named as a
selling securityholder in the Prospectus agrees to promptly furnish to the
Company all information required to be disclosed in order to make
information previously furnished to the Company by the Holder not
materially misleading and any other information regarding such Holder and
the distribution of such Holder's Registrable Securities as the Company may
from time to time reasonably request in writing.
(e) Each Holder agrees not to sell any Registrable Securities pursuant
to the Shelf Registration Statement without delivering, or causing to be
delivered, a Prospectus to the purchaser thereof and, following termination
of the Effectiveness Period, to notify the Company, within ten days of a
written request by the Company, of the amount of Registrable Securities
sold pursuant to the Shelf Registration Statement and, in the absence of a
response, the Company may assume that all of such Holder's Registrable
Securities have been so sold; provided that the Company shall use
reasonable efforts to confirm that all of such Holder's Registrable
Securities have been so sold prior to making such assumption.
The Issuers shall not permit any securities other than Registrable
Securities to be included in the Shelf Registration Statement. The Issuers
further agree, if necessary, to supplement or amend the Shelf
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Registration Statement, as required by Section 2.3(b) below, and to furnish to
the Holders of Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
2.2 Expenses. The Issuers shall pay all Registration Expenses in
connection with the registration pursuant to Section 2.1. Each Holder shall pay
all underwriting discounts and commissions and transfer taxes, if any, relating
to the sale or disposition of such Holder's Registrable Securities pursuant to
the Shelf Registration Statement.
2.3 Effectiveness.
(a) The Issuers will be deemed not have used their reasonable efforts
to cause the Shelf Registration Statement to become, or to remain, effective
during the requisite period if the Issuers voluntarily take any action that
would, or fail to take any action which failure would, result in any such Shelf
Registration Statement not being declared effective or the Holders of
Registrable Securities covered thereby not being able to offer and sell such
Registrable Securities during that period as and to the extent contemplated
hereby, unless such action is required by applicable law or permitted by this
agreement.
(b) A Shelf Registration Statement pursuant to Section 2.1 hereof will
not be deemed to have become effective unless it has been declared effective by
the SEC; provided, however, that if, after it has been declared effective, the
offering of Registrable Securities pursuant to a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Shelf Registration
Statement will be deemed not to have been effective during the period of such
interference, until the offering of Registrable Securities pursuant to such
Shelf Registration Statement may legally resume.
2.4 Interest. In the event that (a) a Shelf Registration Statement is
not filed with the SEC on or before the 90th calendar day following the Closing
Date, (b) a Shelf Registration Statement is not declared effective on or prior
to the 180th calendar day following the Closing Date, (c) after effectiveness,
subject to Section 2.5, the Shelf Registration Statement fails to be effective
or usable by the Holders without being succeeded within five business days by a
post-effective amendment or a report filed with the SEC pursuant to the 1934 Act
that cures the failure to be effective or usable, or (d) the Shelf Registration
Statement is unusable by the Holders for any reason, and the aggregate number of
days in any consecutive twelve-month period for which the Shelf Registration
Statement shall not be usable exceeds the Suspension Period (as defined in
Section 2.5 hereof) (each such event being a "Registration Default"), additional
interest, as liquidated damages ("Liquidated Damages"), will accrue at a rate
per annum of one-quarter of one percent (0.25%) of the principal amount of the
Securities for the first 90-day period from day following the Registration
Default, and thereafter at a rate per annum of one-half of one percent (0.50%)
of the principal amount of the Securities, provided that in no event shall
Liquidated Damages accrue at a rate per annum exceeding one-half of one percent
(0.50%), provided further that no Liquidated Damages shall accrue after the
second anniversary of the date of this Agreement. Upon the cure of all
Registration Defaults then continuing, the accrual of Liquidated Damages will
automatically cease and the interest rate borne by the Securities will revert to
the original interest rate at such time. Liquidated Damages shall be computed
based on the actual number of days elapsed in each 90-day period in which the
Shelf Registration Statement is not effective or is unusable. Holders who have
converted Securities into Common Stock will not be entitled to receive any
Liquidated Damages with respect to such Common Stock or the issue price of the
Securities converted.
The Company shall notify the Trustee within ten business days after
each and every date on which an event occurs in respect of which Liquidated
Damages are required to be paid by press release or other reasonable method.
Liquidated Damages shall be paid by depositing with the Trustee, in trust,
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for the benefit of the Holders of Registrable Securities, on or before the
applicable semiannual interest payment date, immediately available funds in sums
sufficient to pay the Liquidated Damages then due. The Liquidated Damages due
shall be payable on each interest payment date to the record Holder of
Registrable Securities entitled to receive the interest payment to be paid on
such date as set forth in the Indenture. Each obligation to pay Liquidated
Damages shall be deemed to accrue from and including the day following the
Registration Default to but excluding the day on which the Registration Default
is cured.
A Registration Default under clause (a) above shall be cured on the
date that the Registration Statement is filed with the SEC. A Registration
Default under clause (b) above shall be cured on the date that the Registration
Statement is declared effective by the SEC. A Registration Default under clauses
(c) or (d) above shall be cured on the date an amended Registration Statement is
declared effective by the SEC or the Company otherwise declares the Registration
Statement and the Prospectus useable, as applicable. The Company will have no
liabilities for monetary damages with respect to any Registration Default other
than for Liquidated Damages as expressly provided for herein.
2.5 Suspension. The Company may suspend the use of any Prospectus,
without incurring or accruing any obligation to pay Liquidated Damages pursuant
to Section 2.4 hereof, for a period not to exceed 30 calendar days in any 90-day
period, or an aggregate of 90 calendar days in any twelve-month period (each, a
"Suspension Period") if the Company shall have determined in its reasonable
judgment that it may possess material non-public information the disclosure of
which would have a material adverse effect on the Company and its subsidiaries
taken as a whole, and prior to suspending such use the Company provides the
Holders with written notice of such suspension, which notice need not specify
the nature of the event giving rise to such suspension. Each Holder shall keep
confidential any communications received by it from the Company regarding the
suspension of the use of the Prospectus, except as required by applicable law.
3. Registration Procedures. In connection with the obligations of the
Issuers with respect to the Shelf Registration, the Issuers shall:
(a) prepare and file with the SEC a Shelf Registration Statement,
within the relevant time period specified in Section 2, on the appropriate
form under the 1933 Act, which form (i) shall be selected by the Company,
(ii) shall be available for the sale of the Registrable Securities by the
selling Holders thereof, (iii) shall comply as to form in all material
respects with the requirements of the applicable form and include or
incorporate by reference all financial statements required by the SEC to be
filed therewith or incorporated by reference therein, and (iv) shall comply
in all material respects with the applicable requirements of Regulation S-T
under the 1933 Act, if any, and use reasonable efforts to cause such Shelf
Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to the Shelf Registration Statement as may be necessary under
applicable law to keep the Shelf Registration Statement effective for the
Effectiveness Period, subject to Section 2.5; and cause each Prospectus to
be supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provision
then in force) under the 1933 Act and comply during the Effectiveness
Period with the provisions of the 1933 Act, the 1934 Act and the rules and
regulations thereunder required to enable the disposition of all
Registrable Securities covered by the Shelf Registration Statement in
accordance with the intended method or methods of distribution by the
selling Holders thereof;
(c) (i) notify each Holder of Registrable Securities of the filing, by
issuing a press release, of a Shelf Registration Statement with respect to
the Registrable Securities; (ii) furnish to
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each Holder of Registrable Securities that has provided the information
required by Section 2.1(d) and to each underwriter of an underwritten
offering of Registrable Securities, if any, without charge, as many copies
of each Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereto and such other documents as such Holder or
underwriter may reasonably request, including financial statements and
schedules and, if the Holder so requests, all exhibits in order to
facilitate the unrestricted sale or other disposition of the Registrable
Securities; and (iii) subject to Section 2.5 hereof and to any notice by
the Company in accordance with Section 3(e) hereof of the existence of any
fact of the kind described in Sections 3(e)(ii), (iii), (iv), (v) and (vi)
hereof, hereby consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Registrable Securities
that has provided the information required by Section 2.1(d) in connection
with the offering and sale of the Registrable Securities;
(d) use reasonable efforts to register or qualify the Registrable
Securities under all applicable state securities or "blue sky" laws of such
jurisdictions as any Holder of Registrable Securities covered by a Shelf
Registration Statement and each underwriter of an underwritten offering of
Registrable Securities shall reasonably request, and do any and all other
acts and things which may be reasonably necessary or advisable to enable
each such Holder and underwriter to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder; provided,
however, that the Company shall not be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would
not otherwise be required to qualify but for this Section 3(d), or (ii)
take any action which would subject it to general service of process or
taxation in any such jurisdiction where it is not then so subject;
(e) notify promptly each Holder of Registrable Securities under a
Shelf Registration that has provided the information required by Section
2.1(d) (i) when a Shelf Registration Statement has become effective and
when any post-effective amendments thereto become effective, (ii) of any
request by the SEC or any state securities authority for post-effective
amendments and supplements to a Shelf Registration Statement and Prospectus
or for additional information after the Shelf Registration Statement has
become effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Shelf
Registration Statement or the initiation of any proceedings for that
purpose, (iv) of the happening of any event or the discovery of any facts
during the period a Shelf Registration Statement is effective which makes
any statement of a material fact made in such Shelf Registration Statement
or the related Prospectus untrue or which requires the making of any
changes in such Shelf Registration Statement or Prospectus in order to make
the statements therein not misleading, (v) of the receipt by the Company of
any notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (vi) of any
determination by the Company that a post-effective amendment to such Shelf
Registration Statement would be appropriate;
(f) furnish special counsel for the Holders of Registrable Securities
(designated in writing) copies of any comment letters received from the SEC
or any other request by the SEC or any state securities authority for
amendments or supplements to a Shelf Registration Statement and Prospectus
or for additional information;
(g) use reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Shelf Registration Statement at the
earliest possible moment;
(h) furnish (upon written request) to each Holder of Registrable
Securities that has provided the information required by Section 2.1(d),
and each underwriter, if any, without charge,
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at least one conformed copy of each Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules (without documents incorporated therein by reference and all
exhibits thereto, unless requested);
(i) cooperate with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends
(other than as required by the Company's certificate of incorporation or
bylaws or applicable law); and enable such Registrable Securities to be in
such denominations (consistent with the provisions of the Indenture) and
registered in such names as the selling Holders or the underwriters, if
any, may reasonably request at least three business days prior to the
closing of any sale of Registrable Securities;
(j) upon the occurrence of any event or the discovery of any facts,
each as contemplated by Sections 3(e)(ii), (iii), (iv), (v) and (vi)
hereof, as promptly as practicable after the occurrence of such event or
discovery of facts, use reasonable efforts to prepare a supplement or
post-effective amendment to the Shelf Registration Statement or the related
Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers
of the Registrable Securities, such Prospectus will not contain at the time
of such delivery any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or will remain so
qualified. At such time as such public disclosure is otherwise made or the
Company determines that such disclosure is not necessary, in each case to
correct any misstatement of a material fact or to include any omitted
material fact, the Company agrees promptly to notify each Holder that has
provided the information required by Section 2.1(d) of such determination
and to furnish each Holder such number of copies of the Prospectus as
amended or supplemented, as such Holder may reasonably request;
(k) no less than two business days prior to the filing of any Shelf
Registration Statement, any Prospectus, any amendment to a Shelf
Registration Statement or amendment or supplement to a Prospectus (other
than amendments and supplements that do nothing more than name Holders and
provide information with respect thereto), provide, upon request, copies of
such document to the Initial Purchaser on behalf of such Holders;
(l) provide the Trustee with printed certificates for the Registrable
Securities in a form eligible for deposit with the Depositary;
(m) (i) cause the Indenture to be qualified under the 1939 Act in
connection with the registration of the Registrable Securities, (ii)
cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the 1939 Act, and (iii) execute, and use
reasonable efforts to cause the Trustee to execute, all documents as may be
required to effect such changes, and all other forms and documents required
to be filed with the SEC to enable the Indenture to be so qualified in a
timely manner;
(n) enter into such customary agreements and take all other customary
and appropriate actions in order to expedite or facilitate the disposition
of such Registrable Securities including but not limited to:
(i) obtain opinions of counsel to the Company and updates thereof
addressed to each selling Holder and the underwriters, if any, covering the
matters set forth in the opinion of such counsel delivered on the Closing
Date;
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(ii) obtain "comfort" letters and updates thereof from the Company's
independent registered public accountants (and, if necessary, any other
independent registered public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements
are, or are required to be, included in the Shelf Registration Statement)
addressed to the underwriters, if any, and use reasonable efforts to have
such letter addressed to the selling Holders of Registrable Securities (to
the extent consistent with Statement on Auditing Standards No. 72 of the
American Institute of Certified Public Accounts), such letters
substantially in the form and covering the matters covered in the comfort
letter delivered on the Closing Date, to the extent applicable; and
(iii) if an underwriting agreement is entered into, cause the same to
set forth indemnification provisions and procedures substantially
equivalent to the indemnification provisions and procedures set forth in
Section 4 hereof with respect to the underwriters and all other parties to
be indemnified pursuant to said Section or, at the request of any
underwriters, in the form customarily provided to such underwriters in
similar types of transactions.
The above shall be done solely in connection with the underwritten offering
of Registrable Securities off of such Shelf Registration Statement pursuant
to an underwriting or similar agreement as and to the extent required
thereunder, and reasonably requested by any of the parties thereto;
(o) if reasonably requested in connection with a disposition of
Registrable Securities, make available for inspection during business hours
by representatives of the Holders of the Registrable Securities, any
underwriters participating in any disposition pursuant to a Shelf
Registration Statement, and any counsel or accountant retained by any of
the foregoing, all financial and other records, pertinent corporate
documents and properties of the Company reasonably requested by any such
persons, and cause the respective officers, directors, employees, and any
other agents of the Company to supply all information reasonably requested
by any such representative, underwriter, special counsel or accountant in
connection with a Shelf Registration Statement, and make such
representatives of the Company available for discussion of such documents
as shall be reasonably requested by the representatives of the Holders, in
each case as is customary for "due diligence" investigations; provided
that, to the extent the Company, in its reasonable discretion, agrees to
disclose non-public information, such persons shall first agree in writing
with the Company that any such non-public information shall be kept
confidential by such persons and shall be used solely for the purposes of
exercising rights under this Agreement and such person shall not engage in
trading any securities of the Company until such material non-public
information becomes properly publicly available, 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 referred
to in this Agreement upon a customary opinion of counsel for such persons
delivered and reasonably satisfactory to the Company), (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 bound by a confidentiality
agreement, and provided further, that the foregoing inspection and
information gathering shall, to the greatest extent possible, be
coordinated on behalf of all the Holders and the other parties entitled
thereto by special counsel to the Holders;
(p) a reasonable time prior to filing the Shelf Registration
Statement, any Prospectus forming a part thereof, any amendment to the
Shelf Registration Statement or amendment or supplement to such Prospectus
(other than amendments and supplements that name Holders and provide
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information with respect thereto), provide (upon written request) copies of
such document to the Holders of Registrable Securities that have provided
the information required by Section 2.1(d), to the Initial Purchaser, to
special counsel for the Holders and to the underwriter or underwriters of
an underwritten offering of Registrable Securities, if any, make such
changes in any such document prior to the filing thereof as the Initial
Purchaser, the counsel to the Holders or the underwriter or underwriters
reasonably request and not file any such document in a form to which the
Majority Holders, the Initial Purchaser on behalf of the Holders of
Registrable Securities or any underwriter shall not have previously been
advised and furnished a copy of or to which the Majority Holders, the
Initial Purchaser of behalf of the Holders of Registrable Securities,
counsel to the Holders of Registrable Securities or any underwriter shall
reasonably object within three business days of delivery of such copies,
and make the representatives of the Company available for discussion of
such document as shall be reasonably requested by the Holders of
Registrable Securities, the Initial Purchaser on behalf of such Holders,
counsel for the Holders of Registrable Securities or any underwriter;
(q) use reasonable efforts to cause all Registrable Securities to be
listed on any securities exchange or inter-dealer quotation system on which
similar debt securities issued by the Company are then listed if requested
by the Majority Holders, or if requested by the underwriter or underwriters
of an underwritten offering of Registrable Securities, if any;
(r) if the Securities are rated, use reasonable efforts to cause the
Registrable Securities to be rated by the appropriate rating agencies;
(s) otherwise comply with all applicable rules and regulations of the
SEC and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158
thereunder; and
(t) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter and its counsel (including any "qualified independent
underwriter" that is required to be retained in accordance with the rules
and regulations of the NASD, at the Holder's expense).
Without limiting Section 2.1(d), the Company may (as a condition to
such Holder's participation in the Shelf Registration) require each Holder of
Registrable Securities to furnish to the Company such information regarding the
Holder and the proposed distribution by such Holder of such Registrable
Securities as the Company may from time to time reasonably request in writing.
Each Holder agrees that, upon receipt of any notice from the Company
of the happening of any event or the discovery of any facts, each of the kind
described in Section 3(e)(ii), (iii), (iv), (v) and (vi) hereof, such Holder
will forthwith discontinue disposition of Registrable Securities pursuant to the
Prospectus included in the Shelf Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(j) hereof or written notice from the Company that the Shelf
Registration Statement is again effective and no amendment or supplement is
needed, and, if so directed by the Company, such Holder will deliver to the
Company (at its expense) all copies in such Holder's possession, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice.
If any of the Registrable Securities covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the underwriter or
underwriters and manager or managers that will manage such offering will be
selected by the Majority Holders of such Registrable Securities included in such
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offering and shall be acceptable to the Company. No Holder of Registrable
Securities may participate in any underwritten registration hereunder unless
such Holder (a) agrees to sell such Holder's Registrable Securities on the basis
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
4. Indemnification; Contribution.
(a) The Issuers agree, jointly and severally, to indemnify and hold
harmless the Initial Purchaser, each Holder, each Person who participates as an
underwriter (any such Person being an "Underwriter") and each Person, if any,
who controls any Holder or Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Shelf Registration
Statement (or any amendment or supplement thereto) pursuant to which
Registrable Securities were registered under the 1933 Act, including all
documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arising out of
any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that any such settlement is
effected with the prior written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the reasonable fees and disbursements of counsel chosen by any indemnified
party), reasonably incurred 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 statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by, and
with respect to, any Holder or Underwriter expressly for use in a Shelf
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto).
(b) Each Holder, severally, but not jointly, agrees to indemnify and
hold harmless the Issuers, the Initial Purchaser, each Underwriter and the other
selling Holders, and each of their respective directors and officers, and each
Person, if any, who controls the Issuers, the Initial Purchaser, any Underwriter
or any other selling Holder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, against any and all loss, liability, claim, damage
and expense described in the indemnity contained in Section 4(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or
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alleged untrue statements or omissions, made in the Shelf Registration Statement
(or any amendment thereto) or any Prospectus included therein (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information with respect to such Holder furnished to the Company by such Holder
expressly for use in the Shelf Registration Statement (or any amendment thereto)
or such Prospectus (or any amendment or supplement thereto); provided, however,
that no such Holder shall be liable for any claims hereunder in excess of the
amount of net proceeds received by such Holder from the sale of Registrable
Securities pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action or proceeding commenced
against it in respect of which indemnity may be sought hereunder, but failure so
to 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 have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party, which shall not be unreasonably withheld)
also be counsel to the indemnified party. In no event shall the indemnifying
party or parties be liable for the fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, 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 4 (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.
(d) If the indemnification provided for in this Section 4 is for any
reason unavailable to or insufficient 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 one hand and the
indemnified party or 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 Issuers on the one hand and the Holders and the
Initial Purchaser 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, the Holder or the Initial Purchaser and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Issuers, the Holders and the Initial Purchaser agree that it would not
be just and equitable if contribution pursuant to this Section 4 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 4. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 4 shall be deemed
to include any 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
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any claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 4, the Initial Purchaser
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Securities sold by it were offered exceeds the
amount of any damages which the Initial Purchaser has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission.
No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each Person, if any, who controls the
Initial Purchaser or Holder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Initial Purchaser or Holder, and each director of the Issuers, and each Person,
if any, who controls the Issuers within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company.
5. Miscellaneous.
5.1 Rule 144 and Rule 144A. If the Issuers cease to be required to
file the reports required to be filed by them under Section 13(a) or 15(d) of
the 1934 Act and the rules and regulations adopted by the SEC thereunder, the
Issuers covenant that they will upon the request of any Holder of Registrable
Securities (a) make publicly available such information as is necessary to
permit sales pursuant to Rule 144 under the 1933 Act, (b) deliver such
information to a prospective purchaser as is necessary to permit sales pursuant
to Rule 144A under the 1933 Act and take such further action as any Holder of
Registrable Securities may reasonably request for such purpose, and (c) take
such further action that is reasonable in the circumstances, in each case, to
the extent required from time to time to enable such Holder to sell its
Registrable Securities without registration under the 1933 Act within the
limitation of the exemptions provided by (i) Rule 144 under the 1933 Act, as
such Rule may be amended from time to time, (ii) Rule 144A under the 1933 Act,
as such Rule may be amended from time to time, or (iii) any similar rules or
regulations hereafter adopted by the SEC. Upon the written request of any Holder
of Registrable Securities, the Issuers will deliver to such Holder a written
statement as to whether they have complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 5.1 shall be deemed to
require the Company to register any of its securities (other than the Common
Stock) under the 1934 Act.
5.2 No Inconsistent Agreements. The Issuers have not entered into and
the Issuers will not after the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not and will not for the term of
this Agreement in any way conflict with the rights granted to the holders of any
of the Issuers' other issued and outstanding securities under any such
agreements.
5.3 Amendments and Waivers. The provisions of this Agreement,
including he 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 unless the Company has obtained the written consent of Holders
of at least a majority of the outstanding Registrable Securities (with Holders
of Securities deemed to be the Holders, for purposes of this Section 5.3, of the
number of outstanding shares of Common Stock into which such Registrable
Securities are or could be convertible on the date that consent would be
required) affected by such amendment, modification, supplement, waiver or
departure. Notwithstanding
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the foregoing, this Agreement may be amended by a written agreement between the
Company and the Initial Purchaser, without the consent of the Holders of the
Registrable Securities, in order to cure any ambiguity or to correct or
supplement any provision contained herein, provided that no such amendment shall
adversely affect the interest of the Holders of Registrable Securities. Each
Holder of Registrable Securities outstanding at the time of any amendment,
modification, waiver or consent pursuant to this Section 5.3, shall be bound by
such amendment, modification, waiver or consent, whether or not any notice or
writing indicating such amendment, modification, waiver or consent is delivered
to such Holder.
5.4 Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, facsimile, or any courier guaranteeing overnight delivery (a)
if to a Holder, at the most current address given by such Holder to the Company
in a Questionnaire or by means of a notice given in accordance with the
provisions of this Section 5.4, which address initially is the address set forth
in the Purchase Agreement with respect to the Initial Purchaser; and (b) if to
the Issuers, initially at the Company's address set forth in the Purchase
Agreement, and thereafter at such other address of which notice is given in
accordance with the provisions of this Section 5.4.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; two business days
after being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged, if sent by facsimile; and on the next business day if timely
delivered to an overnight courier.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the person giving the same to the Trustee under the
Indenture, at the address specified in such Indenture.
5.5 Successor and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement, including the restrictions on resale set forth in this Agreement and,
if applicable, the Purchase Agreement, and such person shall be entitled to
receive the benefits hereof.
5.6 Third Party Beneficiaries. The Initial Purchaser (even if the
Initial Purchaser is not a Holder of Registrable Securities) shall be a third
party beneficiary to the agreements made hereunder between the Company, on the
one hand, and the Holders, on the other hand, and shall have the right to
enforce such agreements directly to the extent they deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder. Each Holder of Registrable Securities shall be a third party
beneficiary to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchaser, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights hereunder.
5.7 Specific Enforcement. Without limiting the remedies available to
the Initial Purchaser and the Holders, the Issuers acknowledge that any failure
by the Issuers to comply with their obligations under Section 2.1 hereof may
result in material irreparable injury to the Initial Purchaser or the
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Holders for which there is no adequate remedy at law, that it may not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Initial Purchaser or any Holder may seek such relief as
may be required to specifically enforce the Issuers' obligations under Section
2.1 hereof.
5.8 Restriction on Resales. Until the expiration of two years after
the original issuance of the Securities, the Company will not, and will cause
its Affiliates not to, resell any Securities which are "restricted securities"
(as such term is defined under Rule 144(a)(3) under the 0000 Xxx) that have been
reacquired by any of them and shall immediately upon any purchase of any such
Securities submit such Securities to the Trustee for cancellation.
5.9 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, 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 agreement.
5.10 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.12 Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
5.13 Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and 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. 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 Issuer with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
US AIRWAYS GROUP, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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GUARANTORS:
US AIRWAYS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
AMERICA WEST AIRLINES, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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Confirmed and accepted as
of the date first above
written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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