US AIRWAYS GROUP, INC. 2008 EQUITY INCENTIVE PLAN STOCK APPRECIATION RIGHT AWARD AGREEMENT
Exhibit 10.9
Pursuant to the Stock Appreciation Right Award Grant Notice (“Grant Notice”) and this Stock
Appreciation Right Award Agreement (“Award Agreement”), US Airways Group, Inc. (the “Company”) has
awarded you a Stock Appreciation Right Award under its 2008 Equity Incentive Plan (the “Plan”) for
the number of stock appreciation rights (“Stock Appreciation Rights”) as indicated in the Grant
Notice (collectively, the “Award”). Terms not defined in this Award Agreement but defined in the
Plan have the same definitions as in the Plan.
The details of your Award are as follows:
1. NUMBER OF STOCK APPRECIATION RIGHTS. The number of Stock Appreciation Rights subject to
your Award is stated in the Grant Notice. The number may be adjusted for capitalization
adjustments as described in Section 19 of the Plan.
2. CALCULATION OF APPRECIATION. The amount payable upon exercise of each vested Stock
Appreciation Right shall be equal to the excess of (A) the Fair Market Value per share of Company
Stock on the date of exercise, over (B) the Fair Market Value per share of Company Stock on the
date of grant of the Stock Appreciation Right (as indicated in the Grant Notice).
3. VESTING. The Stock Appreciation Rights shall vest, if at all, as provided in the vesting
schedule in your Grant Notice, provided, however, that:
(a) except as provided in Section 3(b) below, vesting shall cease upon your separation from
service with the Company and all Related Companies; and
(b) vesting of all Stock Appreciation Rights shall be fully accelerated (i) if you experience
a separation from service with the Company or a Related Company because of your death, Disability,
or Retirement; or (ii) in the event of a Change of Control that occurs after the Date of Grant
while you are employed by the Company or a Related Company.
4. EXERCISE.
(a) Subject to Section 4(b), you may exercise the vested portion of your Award during its term
by delivering a Notice of Exercise (in a form and manner designated by the Company) to the Company,
together with any additional documents as the Company may require. The exercise date will be the
business day that your Notice of Exercise is received by the Company or its designate. If the
Notice of Exercise is received after normal business hours for a given day, then the exercise date
will be considered to be the following business day.
(b) If you are subject to the Company’s policy regarding trading of Company Stock, you may
exercise the vested portion of your Award only during a “window period” under that trading policy
applicable to you.
5. TERM. You may not exercise your Award before the commencement or after the expiration of
its term. The term of your Award commences on the Date of Grant and expires upon the earliest of
the following:
(a) immediately upon your separation from service for Cause (as defined in Section (i) below);
(b) three (3) months after your separation from service for any reason other than for Cause or
Change of Control or your death, Disability, or Retirement, provided that if during any part of the
three (3) month period you may not exercise your Award solely because of the condition set forth in
Section 7 relating to “Securities Law Compliance,” your Award shall not expire until the earlier of
the Expiration Date or until it has been exercisable for an aggregate period of three (3) months
after your separation from service;
(c) eighteen (18) months after your separation from service if, within twenty-four (24) months
following the date of a Change in Control, (i) you involuntarily separate from service with the
Company or a Related Company for any reason other than Cause or Disability, or (ii) you separate
from service with the Company or a Related Company for Good Reason (as defined in your Executive
Change of Control and Severance Benefits Agreement or Employment Agreement, as applicable);
(d) three (3) years after your death if you die either before your separation from service or
within three (3) months after your separation from service for any reason other than Cause;
(e) three (3) years after your separation from service due to your Disability;
(f) three (3) years after your separation from service due to your Retirement;
(g) the Expiration Date indicated in your Grant Notice; or
(h) the day before the seventh (7th) anniversary of the Date of Xxxxx.
(i) For purposes of this Agreement, “Cause” means, as determined by the Company, in its sole
discretion, (i) the engagement in fraud, misappropriation of property of the Company, or gross
misconduct damaging to such property or the business of the Company by you, (ii) your conviction of
a felony, or (iii) your violation of any material policy of the Company. The determination that a
separation from service is either for Cause or without Cause shall be made by the Company, in its
sole discretion. Any determination by the Company that your separation from service was by reason
of dismissal without Cause for purposes of your Award or other awards held by you shall have no
effect upon any determination of the rights or obligations of the Company or you for any other
purpose.
6. PAYMENT. Subject to Section 10, the amount payable upon exercise of the Award shall be
settled in shares of Company Stock based on the Fair Market Value of the shares at the time of
exercise with any fractional share paid in cash. The Company will deliver to a broker designated
by the Company (the “Designated Broker”), on your behalf, the shares of Company Stock resulting
from the exercise. The Company shall determine the form of delivery of the shares of Company Stock
subject to your Award.
7. SECURITIES LAW COMPLIANCE. You may not exercise your Award unless either (a) the shares
of Company Stock issuable upon the exercise are registered under the Securities Act or (b) the
Company has determined that the exercise and issuance would be exempt from the registration
requirements of the Securities Act. The exercise of your Award also is subject to the provisions
of Section 17 of the Plan on continuing securities law compliance.
8. TRANSFER RESTRICTIONS. Your Award is not transferable, except by will or by the laws of
descent and distribution, and is exercisable during your life only by you.
9. AWARD NOT A SERVICE CONTRACT. Your Award is not an employment or service contract, and
nothing in your Award shall be deemed to create in any way whatsoever any obligation on your part
to continue in the service of the Company or any Related Company, or on the part of the Company or
any Related Company to continue your service. In addition, nothing in your Award shall obligate
the Company or any Related Company, their respective stockholders, boards of directors, or
employees to continue any relationship that you might have as an Employee or other Service Provider
of the Company or any Related Company.
10. WITHHOLDING OBLIGATIONS.
(a) At the time you exercise your Award, in whole or in part, or at any time thereafter as
requested by the Company, you authorize the delivery of shares of Company Stock to the Designated
Broker (as defined in Section 6) with instructions to (i) sell shares sufficient to satisfy the
Applicable Withholding Taxes, which arise in connection with the exercise, and (ii) remit the
proceeds of the sale to the Company. In the event the sale proceeds are insufficient to fully
satisfy the Applicable Withholding Taxes, you authorize withholding from payroll and any other
amounts payable to you, in the same calendar year, and otherwise agree to make adequate provision
for any sums required to satisfy the Applicable Withholding Taxes.
(b) Upon your request and subject to approval by the Company, in its sole discretion, you may
submit cash, check or its equivalent to the Company sufficient to satisfy the Applicable
Withholding Taxes.
(c) Upon your request and subject to approval by the Company, in its sole discretion, and
compliance with any applicable legal conditions or restrictions, the Company may withhold from
fully vested shares of Company Stock otherwise issuable to you upon the exercise of your Award a
number of whole shares of Company Stock having a Fair Market Value, determined by the Company as of
the date of exercise, equal to the Applicable
Withholding Taxes arising from the exercise.
(d) You may not exercise your Award unless the tax withholding obligations of the Company
and/or any Related Company are satisfied. Accordingly, you may not be able to exercise your Award
when desired even though your Award is vested, and the Company shall have no obligation to issue a
certificate for the shares of Company Stock unless these obligations are satisfied.
11. NOTICES. Any notices provided for in your Award or the Plan shall be given in the manner
designated by the Company and shall be deemed effectively given upon receipt or, in the case of
notices delivered by the Company to you via United States mail, postage prepaid, addressed to you
at the last address you provided to the Company, five (5) days after such notice is deposited.
12. MISCELLANEOUS.
(a) The Company’s rights and obligations with respect to your Award shall be transferable by
the Company to any one or more persons or entities, and all of your covenants and agreements shall
inure to the benefit of, and be enforceable by the Company’s successors and assigns.
(b) You agree upon request to execute any further documents or instruments necessary or
desirable in the Company’s sole determination to carry out the purposes or intent of your Award.
(c) You acknowledge and agree that you have reviewed your Award in its entirety, have had an
opportunity to obtain the advice of counsel before executing and accepting your Award, and fully
understand all provisions of your Award.
(d) This Agreement will be subject to all applicable laws, rules, and regulations, and to any
required governmental agency or national securities exchange approvals.
(e) The Company’s obligations under the Plan and this Agreement will be binding on any
successor to the Company, whether the existence of the successor is the result of a direct or
indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the
Company’s business and/or assets.
13. HEADINGS. This Agreement’s Section headings are for convenience only and shall not
constitute a part of this Agreement or affect this Agreement’s meaning.
14. SEVERABILITY. If all or any part of this Agreement or the Plan is declared by any court
or governmental authority to be unlawful or invalid, then that shall not invalidate any portion of
this Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Agreement
(or part of a Section) declared to be unlawful or invalid shall, if possible, be construed in a
manner that will give effect to the terms of the Section or part of a Section to the fullest extent
possible while remaining lawful and valid.
15. GOVERNING PLAN DOCUMENT. Your Award is subject to all the provisions of the Plan, the
provisions of which are made a part of your Award, and is further subject to all interpretations,
amendments, rules, and regulations which may be promulgated and adopted under the Plan. If there
is a conflict between the provisions of your Award and those of the Plan, then the provisions of
the Plan shall control.
