EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
US AIRWAYS GROUP, INC.,
AS THE ISSUER, AND THE
WARRANT HOLDER REFERRED TO HEREIN
DATED AS OF MARCH 31, 2003
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made and entered into as of March
31, 2003 by and between US Airways Group, Inc., a Delaware corporation, and any
successor entity thereto (the "Company"), and the Warrant Holder (as hereinafter
defined).
WHEREAS, the Company is issuing to the Warrant Holder that certain
Warrant to purchase an aggregate of three million eight hundred and seventeen
thousand and five hundred (3,817,500) shares of Class A Common Stock, together
with three million eight hundred and seventeen thousand and five hundred
(3,817,500) shares of Class A Preferred Stock; and
WHEREAS, the parties hereto desire to set forth certain agreements and
understandings with respect to the registration of the Class A Common Stock, the
Warrant and the Class A Preferred Stock.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the following terms
shall have the following meanings:
"Affiliate" shall mean, as to any person, any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control," when used with respect to any person, means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise and the terms
"affiliated," "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agreement" shall mean this Registration Rights Agreement, as the same
may be amended, supplemented or modified from time to time in accordance with
the terms hereof.
"Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in New York, New York are
authorized or obligated by law or executive order to close.
"Class A Common Stock" shall mean the Class A common stock, par value
$1.00 per share, of the Company or shares of any class or classes resulting from
any reclassification or reclassifications thereof; provided that if at any time
there shall be more than one such resulting class, the shares of each such class
then so issuable shall be substantially in the proportion which the total number
of shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such
reclassifications.
"Class A Preferred Stock" shall mean the three million eight hundred
and seventeen thousand and five hundred (3,817,500) shares of Class A preferred
stock, nominal value $0.0001 per share, of the Company issued to the Warrant
Holder on the date hereof.
"Company" shall have the meaning set forth in the preamble hereto.
"Effectiveness Period" shall have the meaning set forth in Section 2(c)
hereof.
"Effectiveness Target Date" shall mean the 180th day after the date of
this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Filing Date" shall mean the 90th day after the date of this Agreement.
"Holder" shall mean each owner of any Registrable Securities.
"Indemnified Holder" shall have the meaning set forth in Section 5(a)
hereof.
"Notice and Questionnaire" shall mean the Form of Selling
Securityholder Notice and Questionnaire attached hereto as Exhibit A, as
reasonably amended, supplemented, or otherwise modified from time to time by the
Company upon reasonable notice to the Holders.
"Plan of Reorganization" shall mean the plan or plans of reorganization
filed by the Company and certain of its subsidiaries on January 17, 2003 in
connection with the voluntary petitions for protection under Chapter 11 of the
United States Bankruptcy Code and confirmed by the Bankruptcy Court on March 18,
2003, as such plan or plans may be amended, supplemented or otherwise modified
from time to time.
"Prospectus" shall mean the prospectus included in the Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed in reliance upon Rule
430A), as amended or supplemented by any prospectus supplement, with respect to
the resale of any of the Registrable Securities covered by such Registration
Statement, and all other amendments and supplements to any such prospectus,
including post-effective amendments, and all materials incorporated by reference
or deemed to be incorporated by reference, if any, in such prospectus.
"Registrable Securities" shall mean (a) the Warrants and the Class A
Preferred Stock and (b) the shares of Class A Common Stock issued or issuable
upon exercise of the Warrants (including any shares of Class A Common Stock
issued or issuable thereon upon any stock split, stock combination, stock
dividend or the like or as a result of any anti-dilution adjustments under the
Warrants), upon original issuance thereof and at all times subsequent thereto,
and associated related rights, if any, until the earliest of (i) the date on
which the resale thereof has been effectively registered under the Securities
Act and such securities have been disposed of in accordance with the
Registration Statement relating thereto, (ii) the date on which such securities
have been distributed to the public pursuant to Rule 144 or, in the case of
Registrable Securities other than the Warrants, the Class A Preferred Stock and
the Class A Common Stock underlying the Warrants, are saleable pursuant to
paragraph (k) of Rule 144 in a single transaction, (iii) the date that is three
(3) Business Days after the delivery to the Company of an opinion of counsel for
a Holder reasonably satisfactory to the Company that such securities are
transferable without registration under the Securities Act, and (iv) the date on
which such securities cease to be outstanding.
"Registration Statement" shall mean any registration statement of the
Company filed with the SEC pursuant to the Securities Act that covers the resale
of any Registrable Securities pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement or Prospectus (including pre- and post-effective amendments), all
exhibits thereto, and all material incorporated by reference or deemed to be
incorporated by reference, if any, in such registration statement.
"Required Holders" shall mean Holders of more than 50% of the shares of
Class A Common Stock issued or issuable upon exercise of the Warrants (including
any shares of Class A Common Stock issued or issuable thereon upon any stock
split, stock combination, stock dividend or the like or as a result of any
anti-dilution adjustments under the Warrants) constituting Registrable
Securities from time to time outstanding.
"Required Warrant Holders" shall mean Holders of more than 50% of the
Warrants from time to time outstanding.
"Requisite Information" shall have the meaning set forth in Section
2(d) hereof.
"Rule 144" shall mean Rule 144 promulgated by the SEC pursuant to the
Securities Act, as such rule may be amended from time to time, or any successor
rule or regulation.
"Rule 144A" shall mean Rule 144A promulgated by the SEC pursuant to the
Securities Act, as such rule may be amended from time to time, or any successor
rule or regulation.
"Rule 415" shall mean Rule 415 promulgated by the SEC pursuant to the
Securities Act, as such rule may be amended from time to time, or any successor
rule or regulation.
"Rule 424" shall mean Rule 424 promulgated by the SEC pursuant to the
Securities Act, as such rule may be amended from time to time, or any successor
rule or regulation.
"Rule 430A" shall mean Rule 430A promulgated by the SEC pursuant to the
Securities Act, as such rule may be amended from time to time, or any successor
rule or regulation.
"SEC" shall mean the Securities and Exchange Commission, or any
successor governmental agency or authority thereto.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC thereunder.
"Transfer Agent" shall mean the registrar and transfer agent for the
Company's Class A Common Stock.
"Warrants" shall mean the Class A-1 warrants (No. 1) issued to the
Warrant Holder to purchase 3,817,500 shares of Class A Common Stock in
connection with the Plan of Reorganization, and any warrants obtained by the
Warrant Holder or any permitted transferee in exchange for all or any portion of
the Warrants initially issued to the Warrant Holder.
"Warrant Holder" shall mean the initial holder of the Warrants as set
forth on Schedule I hereto.
SECTION 2. REGISTRATION STATEMENT.
(a) Registration Under The Securities Act. The Company, at its
own expense, agrees to use commercially reasonable efforts to prepare and file
with the SEC, by the Filing Date, a Registration Statement for an offering to be
made on a continuous basis pursuant to Rule 415 covering all of the Class A
Common Stock issued or issuable upon exercise of the Warrants constituting
Registrable Securities. The Registration Statement shall be on Form S-1 or Form
S-3 under the Securities Act or another appropriate form selected by the Company
permitting registration of such Class A Common Stock issued or issuable upon
exercise of the Warrants for resale by the Holders in the manner or manners
reasonably designated by such Holders. The Company shall use commercially
reasonable efforts to cause the Registration Statement to be declared effective
pursuant to the Securities Act by the Effectiveness Target Date.
(b) Piggyback Registration Rights. Except as otherwise
provided in Section 2.2(h), the Company shall afford each Holder of Registrable
Securities the opportunity to include any of such Registrable Securities in any
registration statement filed for purposes of an underwritten public offering of
securities of the Company (including, without limitation, a public offering made
on a continuous basis pursuant to Rule 415) (other than registration statements
on Form S-4 or S-8, or any successor or similar forms, or registration
statements for which the Company has contractually agreed not to grant such
rights). The Company shall deliver written notice to each Holder of the
Company's intention to effect such a registration at least thirty (30) days
prior to the filing of such registration statement. Each Holder desiring to
include the Registrable Securities held by it in any such registration statement
shall notify the Company in writing within fifteen (15) days after receipt of
notice from the Company of its intent to file such a registration statement. If
a Holder decides not to include any or all of the Registrable Securities held by
it in any registration statement thereafter filed by the Company, such Holder
shall nevertheless continue to have the right to include any Registrable
Securities in any subsequent underwritten registration statement or registration
statements (other than registration statements on Form S-4 or S-8, or any
successor or similar forms, or registration statements for which the Company has
contractually agreed not to grant such rights) as may be filed by the Company
with respect to underwritten public offerings of its securities, all upon the
terms and conditions set forth herein.
(c) Supplements And Amendments. Subject to Section 2(e), the
Company shall use commercially reasonable efforts to keep any Registration
Statement continuously effective by supplementing and amending such Registration
Statement (including to register additional Registrable Securities resulting
from any anti-dilution adjustments) if so required by the rules, regulations or
instructions applicable to the registration form used for such Registration
Statement, if required by the Securities Act or if reasonably requested by the
holders of a majority in interest of the securities being registered or by any
underwriter until the earlier of such time as (i) all of such securities covered
by such Registration Statement have been disposed of in accordance with the
intended methods of distribution as set forth in the Registration Statement, and
(ii) (x) in the case of a Registration Statement pursuant to Section 2(a), the
earlier of (A) 8 years after such Registration Statement becomes effective, and
(B) the time that all of the Registrable Securities of the Holders become
saleable in a single transaction under Rule 144 without restriction or
limitation; provided, that in the event such Registration Statement ceases to be
effective pursuant to this Section 2(c)(ii)(x)(B) and such previously
Registrable Securities cease to be saleable in a single transaction under Rule
144 without restriction or limitation, the Company shall be required to file, as
promptly as reasonably practicable, a new Registration Statement with respect to
all of the Holders' previously Registrable Securities and comply with the terms
of this Agreement with respect to such Registration Statement, and (y) in the
case of a Registration Statement pursuant to Section 2(g), 6 months after the
earlier of (A) the expiration of the Warrants and (B) the date that the Warrants
have been exercised in full (the "Effectiveness Period"). If the Registration
Statement under Section 2(a) or Section 2(g) ceases to be available for use by
the Holders because the Company no longer qualifies to use such form of
registration statement, the Company shall be required to file, as promptly as
reasonably practicable, a new Registration Statement on an appropriate form and
its obligations hereunder shall continue to apply in all respects.
(d) Selling Securityholder Information. Each Holder wishing to
sell Registrable Securities pursuant to a Registration Statement and related
Prospectus agrees to deliver a Notice and Questionnaire, in a timely manner,
that confirms such Holder's agreement to be bound by the terms of this Agreement
and includes such information regarding it and the distribution of its
Registrable Securities as is required by law to be disclosed by the Holder in
the Registration Statement (the "Requisite Information") to the Company prior to
any intended distribution of Registrable Securities under the Registration
Statement. The Company shall not be required to include in the Registration
Statement and related Prospectus the Registrable Securities of any Holder that
does not provide the Company with a Notice and Questionnaire in accordance with
this Section 2(d). If such completed Notice and Questionnaire is received by the
Company at least ten (10) days prior to the effective date of a Registration
Statement, such Holder shall be entitled to have its Registrable Securities
included in such Registration Statement at the effective date thereof. If such
completed Notice and Questionnaire is received thereafter, the Company will use
commercially reasonable efforts to include such Holder's Registrable Securities
as promptly as reasonably practicable thereafter, subject to the last two
sentences of the next paragraph.
Subject to the last two sentences of this paragraph, the Company shall
use commercially reasonable efforts to prepare and file, as soon as practicable
after the receipt of a Notice and Questionnaire from any Holder that includes
the Requisite Information or any changes in the Requisite Information with
respect to such Holder (including, without limitation, any changes in the plan
of distribution), a Prospectus supplement pursuant to Rule 424 or otherwise
amend or supplement such Registration Statement to include in the Prospectus the
Requisite Information as to such Holder (and the Registrable Securities held by
such Holder), and the Company shall provide such Holder a copy of such
Prospectus as so amended or supplemented containing the Requisite Information in
order to permit such Holder to comply with the Prospectus delivery requirements
of the Securities Act in a timely manner with respect to any proposed
disposition of such Holder's Registrable Securities. Each Holder requesting
registration hereunder shall promptly notify the Company of any material changes
to the Requisite Information contained in the Notice and Questionnaire provided
to the Company by such Holder. Notwithstanding the foregoing, following the
effective date of any Registration Statement, the Company shall not be required
to file more than one such supplement or post-effective amendment for each
particular Holder to reflect changes in the amount of Class A Common Stock
issued or issuable upon exercise of the Warrants constituting Registrable
Securities held by any such Holder at the request of such Holder in any 30-day
period. The Company may take reasonable steps to aggregate the addition of
Registrable Securities of more than one Holder for purposes of filing amendments
to any Registration Statement or supplements to the Prospectus so as to reduce
the need for multiple amendments or supplements; provided that the Company shall
not use this sentence to delay the filing of any amendment or supplement beyond
any such 30-day period.
(e) Material Events; Suspension Of Sales. Notwithstanding the
provisions contained in this Section 2, with respect to any Registration
Statement, the Company may, from time to time, for a period not to exceed sixty
(60) consecutive days, and, in any event, not to exceed one hundred twenty (120)
days in the aggregate, during any twelve (12) month period, suspend the filing
or use of such Registration Statement at any time if, and for so long as, the
filing or use thereof would materially and adversely interfere with a material
financing, acquisition or other transaction or require the Company to disclose
such material financing, acquisition, other transaction or other material
non-public information, which interference or disclosure the Board of Directors
of the Company shall have determined in good faith is not in the best interests
of the Company and the Company's stockholders. The Company shall deliver a
written notice to each registered Holder, the Transfer Agent and the managing
underwriters, if any, that the filing or use of the Registration Statement
and/or Prospectus is to be suspended until the Company shall deliver a written
notice that the filing or use of the Registration Statement and/or Prospectus
may be resumed. During such suspension, the filing or use of the Registration
Statement and/or Prospectus shall be suspended and the Company shall not be
required to amend or update the Registration Statement, or amend or supplement
the Prospectus. Following the termination of any such suspension, the parties
hereto shall continue to be bound by the provisions of this Section 2.
(f) Additional Agreements Of Holders. Each Holder agrees not
to dispose of Registrable Securities pursuant to any Registration Statement
without complying with the prospectus delivery requirements under the Securities
Act and the provisions of Section 2(e) above. Each Holder further agrees that it
will comply fully with applicable federal and state securities laws in
connection with the distribution of any Registrable Securities pursuant to the
Registration Statement. Each Holder further acknowledges having been advised by
the Company that applicable federal securities laws prohibit Holders from
trading in securities of the Company at any time while in possession of material
non-public information about the Company. Subject to Section 7 hereof, each
Holder which holds more than five percent (5%) of the Company's outstanding
capital stock on a fully diluted basis whose Registrable Securities are covered
by a Registration Statement filed pursuant to this Agreement agrees that, in the
case of an underwritten offering by the Company and if reasonably requested by
the underwriter, it will not effect any public or private sale or distribution
of any Registrable Securities (except as part of such underwritten offering),
including, but not limited to, a sale pursuant to Rule 144, the 7 days before or
such period not to exceed 30 days as the underwriting agreement may require (or
such lesser period as the managing underwriters may permit) after, the effective
date of such registration (except as part of such registration), and the Company
hereby also so agrees and agrees to use its commercially reasonable efforts to
cause each (i) officer of the Company, (ii) director, and (iii) other holder of
five percent (5%) or more of the Company's outstanding capital stock on a fully
diluted basis to so agree.
(g) Registration of Warrants and Class A Preferred Stock Under
The Securities Act. Upon the request of the Holder(s) of a majority of the
Warrants, the Company, at its own expense, agrees to use commercially reasonable
efforts to prepare and file with the SEC, a Registration Statement covering all
of the Warrants, all of the Class A Preferred Stock and all of the shares of
Class A Common Stock issuable upon exercise of the Warrants, in each case
constituting Registrable Securities, on an appropriate form selected by the
Company permitting registration of such Registrable Securities for resale by the
Holders in the manner or manners reasonably designated by such Holders providing
for the registration of the issuance of the shares of Class A Common Stock upon
exercise of the Warrants by Holders other than the initial Holders; provided,
however, that the Company shall have no obligation to file such Registration
Statement until 90 days after receipt of a request by the Holders. The Company
shall use commercially reasonable efforts to cause the Registration Statement to
be declared effective pursuant to the Securities Act within 180 days after
receipt of the request by the Holders to effect such registration. The Company
shall be required to file no more than one Registration Statement in the
aggregate pursuant to this Section 2(g). A registration shall not count as a
registration pursuant to this Section 2(g) until it has become effective, and
any registration shall not count as a registration pursuant to this Section 2(g)
unless the initiating Holder or Holders of Warrants constituting Registrable
Securities are able to register and sell at least 70% of its Registrable
Securities requested to be included in such registration. Upon the request of
the requesting Holder(s), the Company shall use its commercially reasonable
efforts to effect the registration pursuant to this Section 2(g) pursuant to an
underwritten offering in accordance with the terms and conditions of this
Agreement, including without limitation, Section 3 and Section 7 of this
Agreement. In connection with the Company's registration obligations under this
Section 2(g), the Company shall use commercially reasonable efforts to, (i)
subject to applicable listing standards, list all Warrants (which shall only
trade together with the associated Class A Preferred Stock) covered by any
Registration Statements on any securities exchange on which the Class A Common
Stock is then listed; or (ii) authorize for quotation on the National Market of
the National Association of Securities Dealers Automated Quotation System all
Warrants (which shall only trade together with the associated Class A Preferred
Stock) covered by all such Registration Statements if the Class A Common Stock
is then so authorized for quotation.
(h) Exercise of Rights by Holders of Warrants and Class A
Preferred Stock. Notwithstanding anything to the contrary contained in this
Agreement, no rights may be exercised by a Holder with respect to the
registration of the Warrants and the Class A Preferred Stock under this Section
2 until 24 months after the date hereof.
SECTION 3. REGISTRATION PROCEDURES. In connection with the Company's
registration obligations hereunder, the Company shall use commercially
reasonable efforts to effect such registrations on the appropriate form selected
by the Company to permit the resale of Registrable Securities in accordance with
the Holders' intended method or methods of disposition thereof, and pursuant
thereto, the Company shall as expeditiously as reasonably possible:
(a) furnish to the Holders and the managing underwriters, if
any, copies of all such documents proposed to be filed (excluding, unless
requested, those documents incorporated or deemed to be incorporated by
reference and then only to the Holder who so requested at the expense of such
Holder) and use its commercially reasonable efforts to reflect in each such
document, when so filed with the SEC, such comments as the Holders may
reasonably propose. The Company shall not file any Registration Statement or
related Prospectus or any amendments or supplements thereto under Section 2(a)
or Section 2(g) (excluding any document that would be incorporated or deemed
incorporated by reference) to which the representative of the Required Holders
or the Required Warrant Holders, respectively, or the managing underwriters, if
any, shall reasonably object in writing (by hand delivery, courier guaranteeing
overnight delivery or telecopy) within five Business Days after the receipt of
such documents. Notwithstanding the foregoing, the Company shall not be required
to furnish to the Holders or the managing underwriters, if any, any amendments
or supplements to the Registration Statement or Prospectus filed solely to
reflect changes to the amount of Class A Common Stock issued or issuable upon
exercise of the Warrants constituting Registrable Securities held by any
particular Holder or immaterial revisions to the information contained therein;
(b) (i) prepare and file with the SEC such amendments,
including post-effective amendments, to the Registration Statement as may be
necessary to keep such Registration Statement continuously effective for the
applicable time period set forth in Section 2(c) hereof; (ii) cause the related
Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions then in
force); and (iii) comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by such Registration Statement and
Prospectus during such period in accordance with the intended method or methods
of disposition by the Holder set forth in such Registration Statement as so
amended or in such Prospectus as so supplemented including, without limitation,
the filing of any Prospectus supplement pursuant to Rule 424 in order to add or
change any selling security holder information (including any such supplements
or amendments pursuant to Section 2(d) hereof; provided such Holder to which
such change applies complies with the Requisite Information requirements of
Section 2(d) hereof in a timely manner);
(c) notify the Holders and the managing underwriters, if any,
promptly and, if requested by any such person, confirm such notice in writing:
(i) (A) when a Prospectus or any Prospectus
supplement or post-effective amendment is proposed to be filed, and (B) with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective;
(ii) of any written comments from the SEC with
respect to any filing and of any request by the SEC or any other federal or
state governmental authority for amendments or supplements to such Registration
Statement or related Prospectus or for additional information related thereto;
(iii) of the issuance by the SEC, any state
securities commission, any other governmental agency or any court of any stop
order, order or injunction suspending or enjoining the use or effectiveness of
the Registration Statement or the initiation of any proceedings for that
purpose;
(iv) of the receipt by the Company of any
notification with respect to the suspension of qualification or exemption from
qualification of any of the Registrable Securities for sale in any jurisdiction,
or the initiation or threatening of any proceeding for such purpose;
(v) of the existence of, any fact or the happening of
any event that makes any statement of material fact made in such Registration
Statement or related Prospectus untrue in any material respect, or that requires
the making of any changes in such Registration Statement or Prospectus so that,
in the case of the Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and
that, in the case of the Prospectus, such Prospectus will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
(vi) of the determination by the Company that a
post-effective amendment to the Registration Statement will be filed with the
SEC;
(d) use commercially reasonable efforts to obtain the
withdrawal of any stop order or order enjoining or suspending the use or
effectiveness of a Registration Statement or the lifting of any suspension of
the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, at the earliest practicable moment;
(e) if reasonably requested by the holders of a majority in
interest of the securities being registered or managing underwriters, if any,
to:
(i) promptly include in a Prospectus supplement or
post-effective amendment such information as the holders of a majority in
interest of the securities being registered or managing underwriters, if any,
may reasonably request to be included therein; and
(ii) make all required filings of such Prospectus
supplement or such post-effective amendment as soon as reasonably practicable
after the Company has received notification of the matters to be included in
such Prospectus supplement or post-effective amendment;
(f) furnish to each Holder participating in such registration
and who so requests, and each managing underwriter, if any, without charge, at
least one copy of the Registration Statement and each amendment thereto (but
excluding schedules, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits, unless requested in writing by such
Holder or any managing underwriter and then only to the person who so requested
at such Holder's or managing underwriter's expense);
(g) deliver to each Holder and the underwriters, if any,
without charge, as many copies of the Prospectus (including each form of
Prospectus) and each amendment or supplement thereto as such persons may
reasonably request, and, unless the Company shall have given notice to such
Holder or underwriter pursuant to Section 2(e), the Company hereby consents to
the use of such Prospectus, and each amendment or supplement thereto, by each of
the selling Holders of Registrable Securities and the underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered by
such Prospectus and any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities,
use commercially reasonable efforts to (i) register or qualify, or cooperate
with the Holders of Registrable Securities to be sold or tendered or the
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions within the United States as
any Holder or underwriter reasonably requests in writing, (ii) keep each such
registration or qualification (or exemption therefrom) effective during the
period the Registration Statement is required to be kept effective pursuant to
Section 2(c) hereof, and (iii) do any and all other acts or things legally
necessary to enable the disposition in such jurisdictions of the Registrable
Securities covered by the Registration Statement; provided, however, that the
Company shall not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified, take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject or subject the Company to any tax in any such jurisdiction
where it is not then so subject;
(i) in connection with any sale or transfer of Registrable
Securities that will result in such securities no longer being Registrable
Securities, cooperate with the Holders and the managing underwriters, if any, to
(i) facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates shall not bear any
restrictive legends, unless required by applicable securities laws, and (ii)
enable such Registrable Securities to be in such denominations and registered in
such names as the managing underwriters, if any, or Holders may reasonably
request at least two (2) Business Days prior to any sale of Registrable
Securities;
(j) use commercially reasonable efforts to cause the offering
of the Registrable Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or authorities
within the United States as may be necessary to enable the Holder or managing
underwriter, if any, to consummate the disposition of such Registrable
Securities; provided, however, that the Company shall not be required to
register the Registrable Securities in any jurisdiction that would require the
Company to qualify to do business in any jurisdiction where it is not then so
qualified, subject it to general service of process in any such jurisdiction
where it is not then so subject or subject the Company to any tax in any such
jurisdiction where it is not then so subject;
(k) upon the occurrence of any event contemplated by Section
3(c)(v) hereof, as promptly as reasonably practicable (subject to any suspension
of sales pursuant to Section 2(e) hereof), prepare a supplement or amendment,
including, if appropriate, a post-effective amendment to the Registration
Statement or a supplement to the related Prospectus or any document incorporated
or deemed to be incorporated therein by reference, and file any other required
document so that, as thereafter delivered, such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (except, upon
occurrence of an event contemplated by Section 3(c)(v) above, to the extent that
the Board of Directors of the Company determines in good faith that the
disclosure of such event at such time would not be in the best interests of the
Company and the Company's stockholders; provided, that any such delay in
disclosure pursuant to this Section 3(k) shall be considered a suspension of the
Registration Statement subject to the limitation in Section 2(e));
(l) in connection with Registration Statements under Section
2(b) or Section 2(g), enter into such customary agreements (including any
underwriting agreements in form, scope and substance as may be reasonably
requested and as are customary in underwritten offerings) and take all such
other customary and appropriate actions in connection therewith (including those
reasonably requested by the managing underwriters, if any, or the holders of a
majority in interest of the securities being registered) in order to expedite or
facilitate the sale of such Registrable Securities and the Company will:
(i) make such representations and warranties to the
Holders of such Registrable Securities and the underwriters, if any, with
respect to the business of the Company and its subsidiaries (including with
respect to businesses or assets acquired or to be acquired by any of them), and
the Registration Statement, Prospectus and documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case, in form, substance
and scope as are customarily made by issuers to underwriters in underwritten
offerings, and confirm the same if and when requested;
(ii) obtain, as may reasonably be required, opinions
of counsel to the Company (which may include in-house counsel) and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any), addressed to each
selling Holder of Registrable Securities and each of the underwriters, if any,
covering the matters customarily covered in opinions requested in underwritten
offerings (including any such matters as may be reasonably requested by such
underwriters);
(iii) obtain, as may reasonably be required,
customary "cold comfort" letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or of
any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to each selling Holder of Registrable Securities and each
of the underwriters, if any, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in connection
with underwritten offerings; and
(iv) deliver such documents and certificates as may
be reasonably requested by the Holders of a majority in interest of the
Registrable Securities being registered or the managing underwriters, if any, to
evidence the continued validity of the representations and warranties made
pursuant to subsection (i) of this Section 3(l) and to evidence compliance with
any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company;
(m) for a thirty (30) day period prior to the filing of such
Registration Statement and throughout the Effectiveness Period, make available
for inspection by any Holder of Registrable Securities being sold, any
underwriter participating in any such disposition of Registrable Securities, if
any, and any attorney, consultant or accountant retained by such selling Holders
or underwriter, at the offices where normally kept, and during reasonable
business hours, all financial and other records, pertinent corporate documents
and properties of the Company and its subsidiaries (other than records and
documents that the Company and its subsidiaries agreed contractually not to
disclose and the disclosure of which would violate such contractual arrangement,
for which a waiver of such contractual arrangement cannot be secured without
significant or unreasonable cost or expense) as they may reasonably request, and
cause the officers, directors, agents and employees of the Company and its
subsidiaries to supply all information (other than information that the Company
and its subsidiaries agreed contractually not to disclose and the disclosure of
which would violate such contractual arrangement, for which a waiver of such
contractual arrangement cannot be secured without significant or unreasonable
cost or expense), in each case reasonably requested by any such representative,
underwriter, attorney, consultant or accountant in connection with such
Registration Statement and as shall be reasonably necessary to enable such
persons to conduct a reasonable investigation within the meaning of Section 11
of the Securities Act; provided, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Holders and the
other parties thereto by one counsel designated by and on behalf of such Holders
and other parties; and provided, further, that such persons shall first agree in
writing with the Company that any information that is reasonably and in good
faith designated by the Company as confidential at the time of delivery or
inspection (as the case may be) of such information shall be kept confidential
by such persons, unless (i) disclosure of such information is required by court
or administrative order or is necessary to respond to inquiries of regulatory
authorities; (ii) disclosure of such information is required by law (including
any disclosure requirements pursuant to federal securities laws in connection
with the filing of any Registration Statement or the use of any Prospectus);
(iii) such information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard by any such person; or (iv) such
information becomes available to any such person from a source other than the
Company and such source is not known by such person to be bound by a
confidentiality agreement;
(n) (i) subject to applicable listing standards, list all
shares of Class A Common Stock covered by any Registration Statements on any
securities exchange on which the Class A Common Stock is then listed; or (ii)
authorize for quotation on the National Market of the National Association of
Securities Dealers Automated Quotation System all Class A Common Stock covered
by all such Registration Statements if the Class A Common Stock is then so
authorized for quotation;
(o) use commercially reasonable efforts to provide such
information as is required for any filings required to be made with the National
Association of Securities Dealers, Inc.; and
(p) provide a transfer agent, registrar and CUSIP number for
all Registrable Securities not later than the effective date of any Registration
Statement.
SECTION 4. REGISTRATION EXPENSES. All fees and expenses incident to the
performance of or compliance with this Agreement by the Company shall be borne
by the Company whether or not any Registration Statement is filed or becomes
effective. The fees and expenses referred to in the foregoing sentence shall
include:
(a) all registration, filing, securities exchange listing,
rating agency and New York Stock Exchange or Nasdaq (or other securities
exchange or markets on which the Class A Common Stock is then listed or quoted)
fees and expenses;
(b) printing expenses (including, without limitation, printing
Prospectuses if the printing of Prospectuses is required by the managing
underwriters, if any, or by the holders of a majority in interest of the
securities being registered);
(c) messenger, copying, telephone and delivery expenses;
(d) reasonable fees and disbursements of counsel for the
Company;
(e) reasonable fees and disbursements of all independent
certified public accountants referred to in Section 3(l)(iii) including, without
limitation, the expenses of any special audits or "cold comfort" letters
required by Section 3(l)(iii);
(f) reasonable fees and expenses of all other persons retained
by the Company;
(g) all registration, filing, qualification and other fees and
expenses of complying with securities or blue sky laws of all jurisdictions in
which the Registrable Securities are to be registered and any reasonable legal
fees and expenses incurred in connection with the blue sky qualifications of the
Registrable Securities and the determination of their eligibility for investment
under the laws of all such jurisdictions; and
(h) the reasonable fees and disbursements incurred by the
Holders of the Registrable Securities being registered (including, without
limitation, the reasonable fees and disbursements for one counsel or firm of
counsel selected by the Holders of a majority in interest of the Registrable
Securities being registered to represent the Holders of the Registrable
Securities being registered).
Notwithstanding anything in this Agreement to the contrary, the Holders
shall be responsible for all expenses customarily borne by selling
securityholders (including underwriting discounts, commissions and fees and
expenses of counsel to the selling Holders to the extent not required to be paid
pursuant to subsection (h) above).
SECTION 5. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Holder and former Holder (an "Indemnified Holder") of Registrable Securities,
such Indemnified Holder's affiliates, and their respective officers, directors,
employees, representatives and agents, and each person, if any, who controls any
Indemnified Holder of Registrable Securities within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, or is under
common control with, or is controlled by, any Indemnified Holder, against any
and all loss, liability, claim or damage arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission to state therein any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that this Section 5 shall not apply to any loss, liability, claim or damage
arising out of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written information set
forth in a Notice and Questionnaire furnished to the Company by or on behalf of
an Indemnified Holder of Registrable Securities or any person, if any, who
controls any such Indemnified Holder of Registrable Securities expressly for use
in the Registration Statement (or any amendment thereto), or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto); provided,
further, that this Section 5 shall not apply to any loss, liability, claim or
damage (i) arising from an offer or sale of Registrable Securities occurring
during any suspension of sales pursuant to Section 2(e) (provided that the
Company has given to the Indemnified Holder timely notice of such suspension
prior to such offer or sale), or (ii) if the Indemnified Holder fails to deliver
at or prior to the written confirmation of sale, the most recent Prospectus, as
amended or supplemented, and such Prospectus, as amended or supplemented, would
have corrected such untrue statement or omission or alleged untrue statement or
omission of a material fact (provided that the Company has delivered to such
Indemnified Holder, or otherwise given notice to such Indemnified Holder of the
existence of, such most recent Prospectus, as supplemented or amended). Any
amounts advanced by the Company to an indemnified party pursuant to this
Agreement shall be returned to the Company if it shall be finally determined in
a judgment by a court of competent jurisdiction not subject to appeal, that such
indemnified party was not entitled to indemnification.
(b) In connection with the preparation of the Registration
Statement in which a Holder of Registrable Securities is participating in
furnishing information relating to such Holder of Registrable Securities to the
Company for use in such Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto, each such Holder agrees,
severally and not jointly, to indemnify and hold harmless any other Holders of
Registrable Securities, the Company, its affiliates and their respective
officers, directors, employees, representatives and agents, and each person, if
any, who controls such other Holders or the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, against any
and all loss, liability, claim or damage described in the indemnity contained in
subsection (a) of this Section 5, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information set forth in a Notice and Questionnaire
furnished to the Company by or on behalf of such Holder of Registrable
Securities or any person, if any, who controls any such Holder of Registrable
Securities expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may otherwise have on account of this Section 5. The indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be borne by such
indemnified party unless (i) the indemnifying party and the indemnified party
shall have mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (a) the fees and expenses of more than one separate firm (in
addition to any local counsel), for the Indemnified Holders, and all persons, if
any, who control the Indemnified Holders within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act, collectively (unless
representation of all Indemnified Holders and such parties by the same counsel
would be inappropriate due to actual or potential differing interests between or
among them), and (b) the fees and expenses of more than one separate firm (in
addition to any local counsel), for the Company and each person, if any, who
controls the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, and that all reasonable and documented
fees and expenses payable under Sections 5(a) and 5(b) above shall be reimbursed
as they are incurred. In the case of any such separate firm for the Indemnified
Holders, and control persons of the Indemnified Holders, such firm shall be
designated by the Indemnified Holders holding a majority in interest of the
Registrable Securities registered in the applicable Registration Statement and
shall be reasonably acceptable to the Company. In the case of any such separate
firm for the Company and control persons of the Company, such firm shall be
designated by the Board of Directors of the Company and shall be reasonably
acceptable to the Indemnified Holders holding a majority in interest of the
Registrable Securities registered in the applicable Registration Statement. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent (which consent shall not be unreasonably
withheld or delayed), but if settled with such consent or if there be a final
non-appealable judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld or delayed), settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 5 (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim, and (ii)
does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party. No indemnified party
shall, without the prior written consent of the indemnifying party (which
consent shall not be unreasonably withheld or delayed), settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 5 (whether or not the
indemnified parties are actual or potential parties thereto).
(d) If the indemnification to which an indemnified party is
entitled under this Section 5 is for any reason unavailable to, or insufficient
although applicable in accordance with its terms, to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or parties
on the one hand and of the indemnified party on the other hand in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative fault of the Company on the one hand and the Indemnified
Holders on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Indemnified Holder and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 5(d). The
aggregate amount of losses, liabilities, claims, damages, and expenses incurred
by an indemnified party and referred to above in this Section 5(d) shall be
deemed to include any out-of-pocket legal or other expenses reasonably incurred
by such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 5, no Holder shall be
required to indemnify or contribute any amount in excess of the amount by which
the net proceeds of such sale of Registrable Securities received by such Holder
exceeds the amount of any damages that such Holder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission to
alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
The remedies provided in this Section 5 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
For purposes of this Section 5(d), each person, if any, who controls
any Holder of Registrable Securities within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Holder, and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the Company. No party
shall be liable for contribution with respect to any action, suit, proceeding or
claim settled, compromised, or with respect to which the party requesting
contribution consented to the entry of a judgment, without such party's written
consent, which consent shall not be unreasonably withheld or delayed.
(e) The Company may require as a condition to including the
Registrable Securities in the Registration Statement, and to entering into any
underwriting agreement with respect thereto, that the Company shall have
received an undertaking from the Holder and such underwriter to comply with the
provisions of this Section 5.
(f) The agreements contained in this Section 5 shall survive
the transfer or sale of the Registrable Securities and shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
SECTION 6. INFORMATION REQUIREMENTS.
(a) The Company agrees that, if at any time until the
Registrable Securities cease to be Registrable Securities, the Company is not
subject to the reporting requirements of the Exchange Act, it will cooperate
with any Holder of Registrable Securities and use reasonable best efforts to
take such further reasonable action as any Holder of Registrable Securities may
reasonably request in writing to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144 and Rule 144A (or any similar rule or
regulation hereafter adopted by the SEC) and customarily taken in connection
with sales pursuant to such exemptions, including, without limitation, making
available adequate current public information within the meaning of paragraph
(c)(2) of Rule 144 and delivering the information required by paragraph (d) of
Rule 144A. Notwithstanding the foregoing, nothing in this Section 6 shall be
deemed to require the Company to register any of its securities under any
section of the Exchange Act.
(b) The Company shall file reports required to be filed by it
under the Exchange Act and by the New York Stock Exchange, Nasdaq or any other
securities exchanges or markets on which the Class A Common Stock is listed or
quoted.
SECTION 7. UNDERWRITTEN REGISTRATION. If any of the Registrable
Securities covered by a Registration Statement are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be investment bankers and managers of
recognized national standing (i) in the case of a Registration Statement filed
pursuant to Section 2(g), selected by the requesting Holder(s) and reasonably
satisfactory to the Company and (ii) in the case of all other Registration
Statements, selected by the Company. No person may participate in any
underwritten registration hereunder unless such person (i) agrees to sell such
person's Registrable Securities on the basis reasonably provided in any
underwriting arrangements approved by the Company; and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up agreements and other documents reasonably required under the
terms of such underwriting arrangements. Notwithstanding any other provision of
this Agreement, if the underwriter, in the case of an underwritten offering,
determines in good faith that marketing factors require a limitation of the
number of shares to be offered in such underwritten offering, the Company will
include in such registration, to the extent of the number of shares which the
Company is so advised can be sold in such offering, (i) in the case of a
registration requested by a party or parties other than a Holder, (x) first,
securities of the Company requested to be included by such requesting party or
parties, (y) second, securities the Company proposes to sell, and (z) other
securities of the Company proposed to be included by Holders or other holders
thereof, pro rata according to the number of securities proposed to be included
by each such other party, (ii) in the case of a registration by the Company for
its own account, (x) first, the securities proposed to be included by the
Company, and (y) second, securities of the Company requested to be included by
Holders or other holders thereof, pro rata according to the number of securities
proposed to be included by each such other party, and (iii) in the case of a
registration requested pursuant to Section 2(g), (x) first, securities of the
Holders requested to be included by such Holders, (y) second, securities
proposed to be included by the Company and other holders thereof, pro rata
according to the number of securities proposed to be included by each such other
party.
SECTION 8. MISCELLANEOUS.
(a) Other Registration Rights. Notwithstanding anything to the
contrary contained herein, the Company may grant registration rights in
connection with the Plan of Reorganization or any securities issued in
connection with the Plan of Reorganization (including securities issued pursuant
to the terms and conditions of such securities). With the consent of the
Required Holders, which consent shall not be unreasonably withheld, the Company
may also in the future grant registration rights that would permit any person
that is a third party the right to piggy-back on the Registration Statements
pursuant to Section 2(a); provided, however, that in no event shall such third
party be granted the right to piggy-back on such Registration Statement if the
granting of such right would result in the filing of a post-effective amendment
to such Registration Statement.
(b) No Inconsistent Agreements. The Company has not entered
and shall not enter into any agreement that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Company's other issued and outstanding securities under any such agreements.
From and after the date of this Agreement, the Company shall not enter into any
agreement, unless consented to by the Required Holders and the Required Warrant
Holders, in each case to the extent applicable, with any holder or prospective
holder of any securities of the Company which would grant such holder or
prospective holder more favorable rights than those granted to the Holder(s)
hereunder, unless substantially similar or equivalent rights are granted to the
Holder(s).
(c) No Adverse Action Affecting the Registrable Securities.
The Company will not take any action with respect to the Registrable Securities
with an intent to adversely affect the ability of any of the Holders to include
such Registrable Securities in a registration undertaken pursuant to this
Agreement.
(d) Amendments And Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, without the written consent of the Company, the Required
Holders and the Required Warrant Holders; provided, however, that any amendment,
modification, supplement, waiver or consent that would disproportionately affect
the rights of any Holder (as compared to the other Holders) shall not be
effective against such Holder without such Holder's written consent.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders whose Registrable Securities are being registered pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of a majority in interest of the
Registrable Securities being registered by such Holders pursuant to such
Registration Statement; provided, however, that the provisions of this sentence
may not be amended, modified, or supplemented except in accordance with the
provisions of the immediately preceding sentence. Each Holder of Registrable
Securities outstanding at the time of any such amendment, modification,
supplement, waiver or consent thereafter shall be bound by any such amendment,
modification, supplement, waiver or consent effected pursuant to this Section
8(d), whether or not any notice, writing or marking indicating such amendment,
modification, supplement, waiver or consent appears on the Registrable
Securities or is delivered to such Holder.
(e) Notices. All notices and other communications provided for
herein or permitted hereunder shall be made in writing by hand-delivery, courier
guaranteeing overnight delivery, certified first-class mail, return receipt
requested, or telecopy and shall be deemed given (i) when made, if made by hand
delivery, (ii) upon confirmation, if made by telecopier, (iii) one (1) Business
Day after being deposited with such courier, if made by overnight courier, or
(iv) on the date indicated on the notice of receipt, if made by first-class
mail, to the parties as follows:
(i) if to a Holder other than the Warrant Holder, to
the address of such Holder as it appears in the Notice and Questionnaire, or, if
not so specified, in the Class A Common Stock, Warrants or Class A Preferred
Stock register of the Company, as applicable. Failure to mail a notice or
communication to a Holder or any defect in such notice or communication shall
not affect its sufficiency with respect to other Holders.
(ii) if to the Company to:
US Airways Group, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Xxxxxxxxx X. Xxxxxx
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Xxxx X. Xxxxxxx
(iii) If to the Warrant Holder, to the address of
such Warrant Holder set forth on Schedule I.
(f) Successors And Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties and shall inure to the benefit of and be binding on each existing
and future Holder. The Company may not assign its rights or obligations
hereunder without the prior written consent of the Required Holders and the
Required Warrant Holders, other than by operation of law pursuant to a merger or
consolidation or reorganization to which the Company is a party.
(g) Counterparts. This Agreement may be executed in any number
of counterparts by the parties hereto, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same instrument.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction, it being intended that all of the
rights and privileges of the parties shall be enforceable to the fullest extent
permitted by law.
(j) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof. All references made in this Agreement to "Section" and
"paragraph" refer to such Section or paragraph of this Agreement, unless
expressly stated otherwise.
(k) Entire Agreement. This Agreement, together with Section 6
of the Warrant, is intended by the parties as a final expression of their
agreement and is intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and the registration rights granted by the Company with
respect to the Registrable Securities. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
undertakings among the parties solely with respect to such registration rights.
(l) Termination. This Agreement and the obligations of the
parties hereunder shall terminate when all of the Registrable Securities issued
to the Warrant Holder in connection with the Plan of Reorganization (as may be
adjusted in accordance with the terms of the Warrants) cease to be Registrable
Securities, except for any liabilities or obligations under Section 4 or 5
hereof.
(m) Specific Performance. The parties agree that, to the
extent permitted by law, (i) the obligations imposed on them in this Agreement
are special, unique and of an extraordinary character, and that in the event of
a breach by any such party, damages would not be an adequate remedy; and (ii)
each of the other parties shall be entitled to specific performance and
injunctive and other equitable relief in addition to any other remedy to which
it may be entitled at law or in equity.
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
US AIRWAYS GROUP, INC.
By: /s/ Xxxx X. Xxxxx
__________________________________________
Name: Xxxx X. Xxxxx
Title: Executive Vice President - Finance
and Chief Financial Officer
WARRANT HOLDER
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
__________________________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President
SCHEDULE I
Schedule of Warrant Holder
General Electric Capital Corporation
c/o GE Capital Aviation Services, Inc.
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Contracts Leader
EXHIBIT A
US AIRWAYS GROUP, INC.
FORM OF SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial holder of (check all that apply):
[ ] Class A common stock, par value $1.00 per share (the "Class A Common
Stock") of US Airways Group, Inc. ("Airways") issued or issuable upon
exercise of a warrant to purchase Class A Common Stock (the "Warrant");
or
[ ] Warrants and Class A Preferred Stock;
of Airways (the "Registrable Securities"), understands that Airways has filed or
intends to file with the Securities and Exchange Commission (the "Commission") a
registration statement (the "Registration Statement") under the Securities Act
of 1933, as amended (the "Securities Act"), with respect to certain Registrable
Securities in accordance with the terms of the Registration Rights Agreement
(the "Registration Rights Agreement") by and between Airways and General
Electric Capital Corporation.
A copy of the Registration Rights Agreement is available from Airways
upon request at the address set forth below. All capitalized terms not otherwise
defined herein shall have the meaning ascribed thereto in the Registration
Rights Agreement. Each beneficial owner of Registrable Securities is entitled to
the benefits of the Registration Rights Agreement. In order to sell or otherwise
dispose of any Registrable Securities pursuant to the Registration Statement, a
beneficial owner of Registrable Securities generally will be required to be
named as a selling securityholder in the related prospectus, deliver a
prospectus to purchasers of Registrable Securities and be bound by those
provisions of the Registration Rights Agreement applicable to such beneficial
owner (including certain indemnification provisions, as described below).
Beneficial owners are encouraged to complete and deliver this Notice
and Questionnaire prior to the effectiveness of the Registration Statement so
that such beneficial owners may be named as selling securityholders in the
related prospectus at the time of effectiveness. Subject to the provisions of
the Registration Rights Agreement, upon receipt of a completed Notice and
Questionnaire from a beneficial owner following the effectiveness of the
Registration Statement, Airways will file such amendments to the Registration
Statement or supplements to the related prospectus as are necessary to permit
such holder to deliver such prospectus to purchasers of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Registration
Statement and the related prospectus.
NOTICE
The undersigned beneficial owner (the "Selling Securityholder") of
Registrable Securities hereby gives notice to Airways of its intention to sell
or otherwise dispose of Registrable Securities beneficially owned by it and
listed below in Item 3 (unless otherwise specified under Item 3) pursuant to the
Registration Statement. The undersigned, by signing and returning this Notice
and Questionnaire, understands that it will be bound by the terms and conditions
of this Notice and Questionnaire and the Registration Rights Agreement.
The undersigned hereby provides the following information to Airways
and represents and warrants that such information is accurate and complete:
QUESTIONNAIRE
1. (a) Full Legal Name of Selling Securityholder:
______________________________________________________________
(b) Full Legal Name of Registered Holder (if not the same as (a)
above) through which Registrable Securities listed in Item 3
below are held:
______________________________________________________________
(c) Full Legal Name of DTC Participant (if applicable and if not
the same as (b) above) through which Registrable Securities
listed in Item 3 below are held:
______________________________________________________________
2. Address for Notices to Selling Securityholder:
________________________________________________________________________________
________________________________________________________________________________
Telephone:
_______________________________________________________
Fax:
_______________________________________________________
Contact Person:
_______________________________________________________
3. Beneficial Ownership of Registrable Securities:
(a) Type and amount of Registrable Securities beneficially owned:
______________________________________________________________
(b) CUSIP No(s). of such Registrable Securities beneficially
owned:
_____________________________________________________________
4. Beneficial Ownership of Airways' securities owned by the Selling
Securityholder:
Except as set forth below in this Item 4, the undersigned is not the
beneficial or registered owner of any securities of Airways other than the
Registrable Securities listed above in Item 3.
(a) Type and amount of other securities beneficially owned by the
Selling Securityholder:
______________________________________________________________
(b) CUSIP No(s). of such other securities beneficially owned:
______________________________________________________________
5. Relationship with Airways:
Except as set forth below, neither the undersigned nor any of its
affiliates, directors or principal equity holders (5% or more) has held any
position or office or has had any other material relationship with Airways (or
their predecessors or affiliates) during the past three years.
State any exceptions here:
________________________________________________________________________________
________________________________________________________________________________
6. Plan of Distribution:
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Registrable Securities listed above in Item
3 pursuant to the Registration Statement only as follows (if at all): such
Registrable Securities may be sold from time to time directly by the undersigned
or, alternatively, through underwriters, broker-dealers or agents. If the
Registrable Securities are sold through underwriters or broker-dealers, the
Selling Securityholder will be responsible for underwriting discounts or
commissions or agent's commissions. Such Registrable Securities may be sold in
one or more transactions at fixed prices, at prevailing market prices at the
time of sale, at varying prices determined at the time of sale, or at negotiated
prices. Such sales may be effected in transactions (which may involve block
transactions) (i) on any national securities exchange or quotation service on
which the Registrable Securities may be listed or quoted at the time of sale,
(ii) in the over-the-counter market, (iii) in transactions otherwise than on
such exchanges or services or in the over-the-counter market, or (iv) through
the writing of options.
In connection with sales of the Registrable Securities or otherwise,
the undersigned may enter into hedging transactions with broker-dealers, which
may in turn engage in short sales of the Registrable Securities, short and
deliver Registrable Securities to close out such short positions, or loan or
pledge Registrable Securities to broker-dealers that in turn may sell such
securities.
State any exceptions here:
________________________________________________________________________________
________________________________________________________________________________
The undersigned acknowledges that it understands its obligation to
comply with the provisions of the Securities Exchange Act of 1934, as amended,
and the rules thereunder relating to stock manipulation, particularly Regulation
M thereunder (or any successor rules or regulations), in connection with any
offering of Registrable Securities pursuant to the Registration Statement. The
undersigned agrees that neither it nor any person acting on its behalf will
engage in any transaction in violation of such provisions.
The Selling Securityholder hereby acknowledges its obligations under
the Registration Rights Agreement to indemnify and hold harmless certain persons
as set forth therein. Pursuant to the Registration Rights Agreement, Airways has
agreed under certain circumstances to indemnify and hold harmless the Selling
Securityholders as set forth therein.
The undersigned hereby agrees that, in connection with any sale of
Registrable Securities pursuant to the Registration Statement, it will comply
with the prospectus delivery requirements, if any, of the Securities Act of
1933, as amended (the "Securities Act") and the rules promulgated thereunder,
and, at the time of any such sale, represents, warrants and agrees that the
information regarding the undersigned included in this Notice and Questionnaire,
as it may be supplemented, shall be accurate and complete in all material
respects.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Registration Statement regarding the undersigned, the
undersigned agrees to promptly notify Airways of any inaccuracies or changes in
the information provided herein that may occur subsequent to the date hereof at
any time while the Registration Statement remains effective. All notices
hereunder shall be made in writing pursuant to the Registration Rights
Agreement.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to Items 1 through 6 above and the
inclusion of such information in the Registration Statement and the related
prospectus. The undersigned understands that such information will be relied
upon by Airways in connection with the preparation or amendment of the
Registration Statement and the related prospectus.
By signing below, the undersigned agrees that the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
Airways' respective successors and assigns. This Notice and Questionnaire shall
be governed in all respects by the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
Beneficial Owner
By:____________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO US AIRWAYS
GROUP, INC. AS SET FORTH BELOW:
US Airways Group, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Xxxxxxxxx X. Xxxxxx
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Xxxx X. Xxxxxxx
