STOCKHOLDER’S AGREEMENT
STOCKHOLDER’S
AGREEMENT
This
Stockholder’s Agreement (this
“Agreement”)
is
made and entered into as of this 27th day of September, 2005, by and between
US
Airways Group, Inc., a Delaware corporation, and its successors (including,
as
the context may require, on or after the effective date of the Plan, as
reorganized pursuant to chapter 11 of the United States Bankruptcy Code) (the
“Company”)
and
the purchaser of the Company’s Common Stock listed on Exhibit
A
hereto
(the “Investor”).
Recitals
Whereas,
the
Investor and certain other investors (the “Other
Investors”)
are
purchasing shares of the Company’s common stock, par value $0.01 per share (the
“Common
Stock”),
pursuant to those certain Investment Agreements (the “Investment
Agreements”),
as
well as, in the case of Investor, pursuant to that certain DIP Credit Facility,
as amended, (the “Credit
Facility”)
(collectively, the “Financing”);
Whereas,
the
obligations in Investor’s Investment Agreement and Credit Facility are
conditioned upon the execution and delivery of this Agreement;
Whereas,
the
Company and each Other Investor is entering into a separate Stockholder’s
Agreement in connection with the consummation of the Financing (collectively,
the “Other
Stockholder Agreements”);
and
Whereas,
in
connection with the consummation of the Financing, the Company and Investor
have
agreed to the provisions as set forth below.
Now,
Therefore,
in
consideration of these premises and intending to be legally bound, the parties
hereto agree as follows:
1. Certain
Definitions.
As used
in this Agreement, the following terms shall have the following respective
meanings:
“Affiliate”
means,
with respect to any specified Person, a Person that directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, the specified Person, where "control" (including the terms
"controlling," "controlled by" and "under common control with") means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract, or otherwise; provided, however,
that when used with respect to the Company, “Affiliate” shall not include any
Investor or Affiliate thereof.
“Cases”
shall
mean the voluntary petitions for protection under chapter 11 of the United
States Bankruptcy Code filed by the Company and certain of its subsidiaries
in
the United States Bankruptcy Court for the Eastern District of Virginia,
Alexandria Division to enable such debtors to be restructured pursuant to one
or
more plans of reorganization.
“Closing
Date”
means
the date of the closing of the purchase and sale of Common Stock under the
Investment Agreements.
“Commission”
means
the Securities and Exchange Commission or any other federal agency at the time
administering the Securities Act.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, or any similar federal rule
or
statute and the rules and regulations of the Commission thereunder, all as
the
same shall be in effect at the time.
“Options”
mean
the options to purchase shares of Common Stock issued to Investor in the letter
agreement dated September 16, 2005 and any such options issued to any
Other
Investor and subsequently acquired by Investor.
“Plan”
shall
mean the plan of reorganization to be filed in connection with the Cases upon
the Company’s emergence from bankruptcy.
“Preferred
Stock”
shall
mean any series of preferred stock of the Company issued in the future by the
Company.
“Registrable
Securities”
means
any (i) Common Stock purchased by Investor pursuant to the Investor's Investment
Agreement and Credit Facility, including Common Stock purchased pursuant to
the
Options, (ii) Common Stock of the Company held by Investor, if any, as of the
date of this Agreement and (iii) Common Stock issued or issuable in respect
of
any of the foregoing upon any stock split, stock dividend, recapitalization
or
similar event; provided, however, that securities shall only be treated as
Registrable Securities if and so long as they have not been sold pursuant to
a
registration or in accordance with Rule 144.
The
terms
“register,”“registered”
and
“registration”
refer
to a registration effected by preparing and filing a registration statement
in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
“Registration
Expenses”
shall
mean all expenses, except as otherwise stated below, incurred by the Company
in
complying with Section 6(a) and 6(c) hereof, including without limitation,
all
registration, qualification and filing fees, printing expenses, escrow fees,
fees and disbursements of counsel for the Company, blue sky fees and expenses,
the expense of any special audits incident to or required by any such
registration (but excluding the compensation of regular employees of the Company
which shall be paid in any event by the Company and excluding any underwriters
discounts or commissions which may be applicable). Registration Expenses shall
also include the reasonable fees and disbursements for one special counsel
to
the selling stockholders reasonably acceptable to the Company.
“Restricted
Securities”
shall
mean the Common Stock purchased by Investor pursuant to Investor’s Investment
Agreement and the Credit Facility, including the Common Stock purchased pursuant
to the Options, or any other securities issued in respect of such stock upon
any
stock split, stock dividend, recapitalization, merger or similar event until
such Common Stock is sold pursuant to a registration or until such Common Stock
is sold or is eligible to be sold pursuant to Rule 144, including pursuant
to
subsection (k) of Rule 144.
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“Rule
144”
and
“Rule
145”
shall
mean Rules 144 and 145, respectively, promulgated under the Securities Act,
or
any similar federal rules thereunder, all as the same shall be in effect at
the
time.
“Securities
Act”
shall
mean the Securities Act of 1933, as amended, or any similar federal rule or
statute and the rules and regulations of the Commission thereunder, all as
the
same shall be in effect at the time.
2. Restrictions
on Transferability.
The
Common Stock and any other securities issued in respect of such stock upon
any
stock split, stock dividend, recapitalization, merger or similar event, shall
not be sold, assigned, transferred or pledged except upon the conditions
specified in this Section 2 and in Section 4 of this Agreement, which conditions
are intended to ensure compliance with the provisions of the Securities Act.
Investor or its transferee will cause any proposed purchaser, assignee,
transferee or pledgee of any Restricted Securities held by the Investor or
transferee to agree, if such Securities would be Restricted Securities in the
hands of such purchaser, assignee, transferee or pledgee, to take and hold
such
securities subject to the restrictions and upon the conditions specified in
this
Agreement.
Without limiting the generality of the foregoing, Investor agrees not to sell
any Common Stock prior to the date that is six (6) months after the Closing
Date; provided, that notwithstanding the foregoing, Investor may transfer any
of
its Common Stock (i) to the Company or (ii) to any of Investor's Affiliates
or
(iii) in a transaction involving a distribution without consideration to its
constituent partners or members in proportion to their ownership interests
in
Investor, in each case so long as such Affiliate or constituent partners or
members agree in writing to be bound by the terms of this Agreement and, if
requested by the Company, Investor’s counsel provides the Company with an
opinion that such transfer is exempt from the registration requirements of
the
Securities Act.
3. Restrictive
Legend.
Each
certificate representing Restricted Securities shall (unless otherwise permitted
by the provisions of Section 4 below) be stamped or otherwise imprinted with
legends in substantially the following form (in addition to any legends required
by applicable state securities laws):
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED (THE “ACT”).
SUCH
SECURITIES MAY NOT BE TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER THE
ACT
IS IN EFFECT AS TO SUCH TRANSFER OR SUCH TRANSFER MAY BE MADE PURSUANT TO RULE
144 OR ANOTHER EXEMPTION FROM THE ACT.
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THE
SHARES REPRESENTED BY THE CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFER CONTAINED IN THE STOCKHOLDER’S AGREEMENT BY AND BETWEEN THE ISSUER AND
THE ORIGINAL HOLDER HEREOF, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL
OFFICE OF THE ISSUER. SUCH RESTRICTIONS ARE BINDING ON TRANSFEREES OF THESE
SHARES.
Investor
consents to the Company making a notation on its records and giving stop
transfer instructions to any transfer agent of its capital stock in order to
implement the restrictions on transfer established in this
Agreement.
4. Transfer
of Restricted Securities.
(a) Notice
of Proposed Transfers.
The
holder of each certificate representing Restricted Securities by acceptance
thereof agrees to comply in all respects with the provisions of this Section
4.
Prior to any proposed sale, assignment, transfer or pledge of any Restricted
Securities, unless there is in effect a registration statement under the
Securities Act covering the proposed transfer, the holder thereof shall give
written notice to the Company of such holder’s intention to effect such
transfer, sale, assignment or pledge. Each such notice shall describe the manner
and circumstances of the proposed transfer, sale, assignment or pledge in
sufficient detail, and, if requested by the Company, the holder shall also
provide, at such holder’s election and expense, either (i) a written opinion of
legal counsel who shall be, and whose legal opinion shall be reasonably
satisfactory to the Company, addressed to the Company, to the effect that the
proposed transfer of the Restricted Securities may be effected without
registration under the Securities Act, or (ii) a “no action” letter from the
Commission to the effect that the transfer of such securities without
registration will not result in a recommendation by the staff of the Commission
that action be taken with respect thereto, whereupon the holder of such
Restricted Securities shall be entitled to transfer such Restricted Securities
in accordance with the terms of the notice delivered by the holder to the
Company; provided, however, that no opinion of counsel or “no action” letter
shall be required with respect to (i) a transfer not involving a change in
beneficial ownership, (ii) a transaction involving the distribution without
consideration of Restricted Securities by the holder to its constituent partners
or members in proportion to their ownership interests in the holder, or (iii)
a
transaction involving the transfer without consideration of Restricted
Securities by an individual holder during such holder’s lifetime by way of gift
or on death by will or intestacy. Each certificate evidencing the Restricted
Securities transferred as above provided shall bear, except if such transfer
is
made pursuant to Rule 144, the appropriate restrictive legend set forth in
Section 3 above, except that such certificate shall not bear such restrictive
legend if in the opinion of counsel for such holder and counsel for the Company
such legend is not required in order to establish compliance with any provision
of the Securities Act.
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(b) Removal
of Legends.
If any
shares of Common Stock that were Restricted Securities become eligible for
sale
pursuant to Rule 144(k) or otherwise cease to be Restricted Securities, the
Company shall, upon the request of the holder of such Common Stock, promptly
remove the first legend set forth in Section 3 from the certificates for
such
Common Stock. At any time following the date that is six months after the
Closing Date, the Company shall, upon the request of Investor, promptly remove
the second legend set forth in Section 3 from any certificates representing
shares of Common Stock.
5. Transfer
Of Rights.
The
rights granted to Investor or a permitted transferee hereunder may be assigned
to any transferee of any shares of Common Stock, including any constituent
partner or member of a holder which is a partnership or limited liability
company, or to an Affiliate of a holder which is a corporation, partnership
or
limited liability company, provided that: (i) such transferee or assignee has
acquired at least twenty percent (20%) of the Common Stock previously purchased
by Investor pursuant to Investor’s Investment Agreement; (ii) such transfer is
effected in accordance with applicable securities laws and the terms of this
Agreement; (iii) written notice is promptly given to the Company; and (iv)
such
transferee or assignee agrees in writing to be bound by the provisions of this
Agreement; provided,
further,
that
clause (i) in the foregoing proviso shall not apply with respect to the
provisions of Section 6 hereof.
6. Registration
Rights.
(a) Company
Registration.
The
Company shall (i) cause a shelf registration statement on Form S-3 (or other
appropriate form) covering the resale of all of the Registrable Securities
to be
filed with the Commission within forty-five (45) days after the Closing Date,
(ii) cause such registration statement to be declared effective by the
Commission no later than six (6) months after the Closing Date and (iii) keep
such registration statement continuously effective until Investor no longer
holds any Registrable Securities that may not be sold either pursuant to (x)
Rule 144(k) or (y) in their entirety in a single transaction pursuant to Rule
144. The Company will include in such registration (and any related
qualifications including compliance with blue sky laws), and in any underwriting
involved therein, all Registrable Securities specified by Investor in a written
request or requests to the Company, made within ten days after the date of
written notice of such registration from the Company to Investor.
If
the
Company proposes to register any of its shares of Common Stock (other than
any
registration for the account of the Company of securities issued pursuant to
any
employee benefit plan or in any acquisition by the Company), the Company will
include in such registration all shares of Common Stock held by the holders
of
Registrable Securities requested to be so included; provided,
however,
that
if, in the case of an underwritten offering, the managing underwriter informs
the Company that the number of shares of Registrable Securities requested
to be included in such offering by Investor,
together with all Registrable Securities (as defined in the Other Stockholder
Agreements) requested to be included in such offering by the Other Investors
pursuant to the Other Stockholder Agreements (collectively, the “Requested
Investor Shares”)
exceeds the amount which can be sold
5
in
such
offering without adversely affecting the distribution of the shares being
offered, the Company shall include, first, all of the shares the Company has
proposed to register; second, as many of the Requested Investor Shares, chosen
pro rata based on the number of Requested Investor Shares, as can be included
without adversely affecting such distribution; and, third, any other shares
of
Common Stock proposed to be included in such offering. With respect to terms
and
conditions not provided for in this paragraph or in this Section 6, the
“piggyback” rights provided for in this paragraph are intended to be on
customary terms.
Notwithstanding the foregoing, this Section 6(a) shall not be applicable to
(i)
any registration statements filed in connection with the registration of
warrants to purchase Common Stock issued by the Company on the date hereof,
(ii)
the Company's Registration Statement on Form S-1 (File No. 333-126226) or (iii)
any registration statements filed in connection with the registration of
Convertible Notes being offered by the Company as contemplated by the
preliminary offering memorandum, dated September 20, 2005.
(b) Expenses
of Registration.
All
Registration Expenses incurred in connection with the registration described
in
Section 6(a) shall be borne by the Company. All other registration expenses,
if
any, (i) that are not directly attributable to a single Investor shall be borne
by Investor and the Other Investors pro rata on the basis of the number of
shares so registered or proposed to be so registered and (ii) that are directly
attributable to a single Investor shall be borne by such Investor.
(c) Registration
Procedures.
The
Company will keep Investor advised in writing as to the initiation of the
registration described in Section 6(a) and as to the completion thereof. The
Company will:
(i) Registration
Statement.
Prepare
and file with the Commission a registration statement with respect to such
Registrable Securities and cause such registration statement to become effective
and remain effective, in each case in accordance with the timeframes provided
in
Section 6(a).
(ii) Amendments
and Supplements.
Prepare
and file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of
the
Securities Act with respect to the disposition of all securities covered by
such
registration statement for the period set forth in Section 6(a)
above.
(iii) Prospectus.
Furnish
to Investor such number of copies of the registration statement, any amendments
thereto, any documents incorporated by reference therein, a prospectus,
including a preliminary prospectus, in conformity with the requirements of
the
Securities Act, and such other documents as Investor may reasonably request
in
order to facilitate the disposition of Registrable Securities owned by
Investor.
(iv) Qualification.
Use its
reasonable best efforts to register and qualify the securities covered by such
registration statement under such other securities or blue sky laws of such
jurisdictions as shall be reasonably requested by Investor; provided that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process
in
any such states or jurisdictions, unless the Company is already subject to
service in such jurisdiction and except as may be required by the Securities
Act.
6
(v) Underwriting
Obligations.
In the
event of any underwritten public offering of Registrable Securities, enter
into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter(s) of such offering. If Investor
participates in such underwriting, Investor shall also enter into and perform
its obligations under such an underwriting agreement. The Company shall, if
requested by the managing underwriter or underwriters, if any, counsel to
Investor, or any holder of Registrable Securities included in such offering,
promptly incorporate in a prospectus supplement or post-effective amendment
such
information as such managing underwriter or underwriters, counsel to Investor
or
any holder of Registrable Securities reasonably requests to be included therein,
and which is reasonably related to the offering of such Registrable Securities,
including, without limitation, with respect to the Registrable Securities being
sold by such holder to such underwriter or underwriters, the purchase price
being paid therefor by such underwriter or underwriters and any other terms
of
an underwritten offering of the Registrable Securities to be sold in such
offering, and the Company shall promptly make all required filings of such
prospectus supplement or post-effective amendment.
(vi) Notice.
If
Investor is holding Registrable Securities covered by such registration
statement at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, immediately notify Investor of the happening
of any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact
or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing (a “Suspension
Notice”);
provided, however, that (i) the Company shall not give more than two Suspension
Notices during any period of twelve consecutive months, (ii) any such Suspension
Notice shall not be given within 120 days of the end of the Suspension Notice
period under the prior Suspension Notice and (iii) in no event shall the period
from the date on which any holder of Registrable Securities receives a
Suspension Notice until the date on which such holder receives copies of the
supplemented or amended prospectus or is advised in writing by the Company
that
the use of the prospectus may be resumed exceed for all Suspension Notices
in
the aggregate, 60 days in any 365 day period. The Company will use reasonable
best efforts to promptly amend or supplement such prospectus in order to cause
such prospectus not to include any 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 not misleading in the light of the circumstances then
existing.
(vii) Listing.
Cause
all such Registrable Securities registered pursuant hereto to be listed on
each
securities exchange or automated quotation system on which similar securities
issued by the Company are then listed or, if no securities are then listed,
on
the NASDAQ Stock Market Inc.’s National Market or on the New York Stock
Exchange.
(viii) Transfer
Agent; CUSIP Number.
Provide
a transfer agent and registrar for all Registrable Securities registered
pursuant hereunder and a CUSIP number for all such Registrable Securities not
later than the effective date of such registration.
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(ix) Opinion,
Comfort Letter.
Cause
to be furnished, on the date that such Registrable Securities are delivered
to
the underwriters for sale, if such securities are being sold through
underwriters, (i) an opinion, dated as of such date, of the counsel representing
the Company for the purposes of such registration, in form and substance as
is
customarily given to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and (ii) a letter dated as of such date, from
the
independent registered public accountants of the Company, in form and substance
as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering addressed to the
underwriters.
(x) Stop
Orders.
Use its
reasonable best efforts to prevent the issuance of any order suspending the
effectiveness of a registration statement relating to Registrable Securities,
and if one is issued, use its best efforts to obtain the withdrawal of any
order
suspending the effectiveness of such registration statement at the earliest
possible moment.
(xi) Company
Records.
Make
available to Investor, any underwriter participating in any disposition pursuant
to a registration statement relating to Registrable Securities, and any
attorney, accountant or other agent or representative retained by Investor
or
any such underwriter (collectively, the “Inspectors”),
all
financial and other records, pertinent corporate documents and properties of
the
Company (collectively, the “Records”) reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the Company’s officers,
directors and employees to supply all information requested by any such
Inspector in connection with such registration statement, provided that Investor
and each such Inspector has entered into a customary confidentiality agreement
with respect to such Records.
(xii) NASD
Matters.
Cooperate with Investor and each underwriter participating in the disposition
of
Registrable Securities and their respective counsel in connection with any
filings required to be made with the National Association of Securities Dealers,
Inc. (“NASD”),
including, if appropriate, the pre-filing of a prospectus as part of a
registration statement in advance of an underwritten offering.
(d) Indemnification.
(i) Company
Indemnification.
The
Company will indemnify each holder (if Registrable Securities held by such
holder are included in the securities as to which such registration is being
effected), each of its officers and directors and partners, and each person
controlling such holder within the meaning of Section 15 of the Securities
Act,
with respect to which registration has been effected pursuant to this Agreement,
against all expenses, claims, losses, damages or liabilities (or actions in
respect thereof), including any of the foregoing incurred in settlement of
any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or
any
amendment or supplement thereto, incident to any such registration, or based
on
any omission (or alleged omission) to state therein a material fact required
to
be stated therein or necessary to make the statements therein, in light of
the
circumstances in which they were
8
made,
not
misleading, or any violation by the Company of the Securities Act, the Exchange
Act, state securities laws or any rule or regulation promulgated under such
laws
applicable to the Company in connection with any such registration, and the
Company will reimburse each such holder, each of its officers and directors,
and
each person controlling such holder, for any legal and any other expenses
reasonably incurred, as such expenses are incurred, in connection with
investigating, preparing or defending any such claim, loss, damage, liability
or
action, provided
that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by
an
instrument duly executed by such holder or controlling person, and stated to
be
specifically for use therein; provided,
further,
that the
indemnity agreement contained in this subsection 6(d)(i) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld).
(ii) Investor
Indemnification.
Each
holder will, if Registrable Securities held by such holder are included in
the
securities as to which such registration is being effected, indemnify the
Company, each of its directors and officers, other holders of the Company’s
securities covered by such registration statement, each person who controls
the
Company within the meaning of Section 15 of the Securities Act, and each such
holder, each of its officers and directors and each person controlling such
holder within the meaning of Section 15 of the Securities Act, against all
claims, losses, damages and liabilities (or actions in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any such registration statement, prospectus, offering
circular or other document, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make
the
statements therein not misleading, or any violation by such holder of the
Securities Act, the Exchange Act, state securities laws or any rule or
regulation promulgated under such laws applicable to such holder, and will
reimburse the Company, each such other holder, such directors, officers,
persons, underwriters or control persons for any legal or any other expenses
reasonably incurred, as such expenses are incurred, in connection with
investigating or defending any such claim, loss, damage, liability or action,
but in the case of the Company or such other holder or their officers, directors
or controlling persons, only to the extent that such untrue statement (or
alleged untrue statement) or omission (or alleged omission) is made in such
registration statement, prospectus, offering circular or other document in
reliance upon and in conformity with written information furnished to the
Company by an instrument duly executed by such holder and stated to be
specifically for use therein; provided, further, that the indemnity agreement
contained in this Subsection 6(d)(ii) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of such indemnifying holder (which
consent shall not be unreasonably withheld or delayed). The liability of any
holder for indemnification under this Section 6(d) in its capacity as
a
seller of Registrable Securities shall not exceed the lesser of (i) that
proportion of the total of such losses, claims, damages, expenses or liabilities
indemnified against equal to the proportion of the total securities sold under
such registration statement by such holder, and (ii) the amount equal to the
net
proceeds to such holder of the securities sold in any such
registration.
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(iii) Notice.
Each
party entitled to indemnification under this Section 6(d) (the “Indemnified
Party”)
shall
give notice to the party required to provide indemnification (the “Indemnifying
Party”)
promptly after such Indemnified Party has actual knowledge of any claim as
to
which indemnity may be sought, and shall permit the Indemnifying Party to assume
the defense of any such claim or any litigation resulting therefrom, provided
that counsel for the Indemnifying Party, who shall conduct the defense of such
claim or litigation, shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld), and the Indemnified Party may participate
in such defense at such party’s expense, and provided further that the failure
of any Indemnified Party to give notice as provided herein shall not relieve
the
Indemnifying Party of its obligations under this Agreement unless the failure
to
give such notice is materially prejudicial to an Indemnifying Party’s ability to
defend such action and provided further, that the Indemnifying Party shall
not
assume the defense for matters as to which there is a conflict of interest
or
there are separate and different defenses. No Indemnifying Party, in the defense
of any such claim or litigation, shall, except with the consent of each
Indemnified Party (whose consent shall not be unreasonably withheld), consent
to
entry of any judgment or enter into any settlement which does not include as
an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim
or
litigation.
(iv) Contribution.
If the
indemnification provided for in this Section 6(d) is held by a court of
competent jurisdiction to be unavailable to an Indemnified Party with respect
to
any losses, claims, damages or liabilities referred to herein, the Indemnifying
Party, in lieu of indemnifying such Indemnified Party thereunder, shall to
the
extent permitted by applicable law contribute to the amount paid or payable
by
such Indemnified Party as a result of such loss, claim, damage or liability
in
such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and of the Indemnified Party on the other
in
connection with the untrue statement or omission that resulted in such loss,
claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by a court of law by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact
or the omission to state a material fact relates to information supplied by
the
Indemnifying Party or by the Indemnified Party and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided,
that in
no event shall any contribution by Investor hereunder exceed the proceeds from
the offering received by Investor.
(v) Survival.
The
obligations of the Company and Investor under this Section 6(d) shall survive
completion of any offering of Registrable Securities in a registration statement
and the termination of this agreement. The provisions of this Section 6(d)
shall
survive any termination of this Agreement.
(e) Information
by Investor.
If
Investor holds Registrable Securities included in any registration, Investor
shall furnish to the Company such information regarding Investor, the
Registrable Securities held by Investor and the distribution proposed by
Investor as the Company may request in writing and as shall be required in
connection with any registration referred to in this Agreement.
10
(f) Rule
144 Reporting.
With a
view to making available the benefits of certain rules and regulations of the
Commission which may at any time permit the sale of the Restricted Securities
to
the public without registration, the Company agrees to use reasonable best
efforts to:
(i) Public
Information.
Make
and keep public information available, as those terms are understood and defined
in Rule 144 under the Securities Act;
(ii) Filing.
File
with the Commission in a timely manner all reports and other documents required
of the Company under the Securities Act and the Exchange Act; and
(iii)
Rule
144 Statement.
So long
as Investor owns any Restricted Securities, furnish Investor forthwith upon
request a written statement by the Company as to its compliance with the
reporting requirements of said Rule 144 (at any time after 90 days after the
effective date of the first registration statement filed by the Company for
an
offering of its securities to the general public), a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
of the Company and other information in the possession of or reasonably
obtainable by the Company as Investor may reasonably request in availing itself
of any rule or regulation of the Commission allowing Investor to sell any such
securities without registration.
(g) Delay
Fee.
If:
(i) any registration statement required to be filed pursuant to Section
6(a) is not filed within the time period specified therein, (ii) a
registration statement filed hereunder is not declared effective by the SEC
within the time period specified in Section 6(a) or (iii) a registration
statement ceases to be effective and available for resales of Registrable
Securities by Investor when the Company is required to keep such registration
statement effective under this Agreement, (any such failure or breach being
referred to as a “Registration
Default”
and,
for purposes of clause (i), (ii) or (iii), the date on which such Registration
Default occurs, being referred to as an “Event
Date”),
then,
in addition to, and not in lieu or limitation of, any other remedies the
Investors may have in law (including damages) or equity, the Company shall
pay
to Investor an amount, in cash (“RD
Fees”)
(x) upon the occurrence of a Registration Default, an amount equal to
$0.165 for each Registrable Security then held by Investor, and (y) if
the
Registration Default has not been cured by the first month anniversary following
the date of the Registration Default, an amount equal to $0.165 for each
Registrable Security then held by Investor, and (z) on each monthly
anniversary thereafter until the Registration Default has been cured, an amount
equal to $0.165 for each Registrable Security then held by Investor; provided,
however, that all periods referred to in clauses (y) and (z) above shall be
tolled during delays caused by the action or inaction of Investor, and the
Company shall have no liability to Investor in respect of any such delay. The
RD
Fees payable pursuant hereto shall be payable within five (5) business days
following the date of the Registration Default or the monthly anniversary
thereof, as the case may be. Notwithstanding anything to the contrary contained
herein, RD Fees shall not be payable under this Section 6(g) for more than
one
Registration Default occurring or existing at any one time.
11
7. Election
of Director.
(i) At
or
prior to the effective time of the Merger (as such term is defined in Investor’s
Investment Agreement), the Board of Directors of the Company (as such term
is
defined in Investor’s Investment Agreement) shall take such actions as are
necessary to cause the persons indicated on Exhibit B to be elected to the
Board
of Directors of the Company, for an initial three-year term, at the effective
time of the Merger; provided, however, that the directors nominated by each
of
PAR Investment Partners, L.P., ACE Aviation Holdings Inc. and Eastshore
Aviation, LLC shall be appointed to the Board of Directors of the Company on
the
date which is two business days after the effective time of the Merger.
(ii) For
so
long as Investor, together with its Affiliates and any of their respective
shareholders, partners or members, collectively, holds not less than 35% of
the
number of shares of Common Stock (after accounting for any reverse stock split,
pro rata repurchases or similar actions by the Company) acquired by Investor
pursuant to Investor’s Investment Agreement (the “Designating
Investor Threshold”),
the
Company agrees to nominate, at the expiration of the term of the Investor’s
designee, a director nominee designated by the Investor for a successive three
year term and, in the event the Investor’s designee resigns, dies or become
incapacitated, the Company shall cause the vacancy so created to be filled
by a
designee of the Investor to serve the unexpired term of the director being
replaced, provided
that, in
either such case, the director designated or nominated by the Investor meets
the
basic qualifications for directors, if any, contained in the Company’s bylaws
applicable to all directors of the Company. If the Investor, together with
its
Affiliates and any of their respective shareholders, partners or members,
collectively, falls below the Designating Investor Threshold, its designee
shall
serve out his or her term, but Investor shall no longer have a right to
designate a director to the Company’s Board of Directors.
8. Amendment.
Except as otherwise provided herein, additional parties may be added to this
Agreement and any provision of this Agreement may be amended or the observance
thereof may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and Investor. Any amendment or waiver effected in accordance with this Section
8
shall be binding upon Investor, any transferee thereof and the Company. So
long
as the Investor and/or its permitted transferees who become parties to and
bound
by this Agreement collectively hold not less than 10% of the number of shares
of
Common Stock acquired by the Investor pursuant to the Investor’s Investment
Agreement and Credit Facility, the Company shall not amend or waive any
provision of any Other Stockholder Agreement except with the prior written
consent of Investor.
9. Governing
Law.
This Agreement shall be governed in all respects by the internal laws of the
State of Delaware without regard to conflict of laws provisions.
10. Entire
Agreement.
This Agreement constitutes the full and entire understanding and Agreement
among
the parties regarding the matters set forth herein. Except as otherwise
expressly provided herein, the provisions hereof shall inure to the benefit
of,
and be binding upon the successors, assigns, heirs, executors and administrators
of the parties hereto.
12
11. Severability.
The provisions of this Agreement are severable and the invalidity or
unenforceability of any provision will not affect the validity or enforceability
of the other provisions of this Agreement. If any provision of this Agreement,
or the application of that provision to any Person or any circumstance, is
invalid or unenforceable, (a) a suitable and equitable provision will be
substituted for that provision in order to carry out, so far as may be valid
and
enforceable, the intent and purpose of the invalid or unenforceable provision
and (b) the remainder of this Agreement and the application of that
provision to other Persons or circumstances will not be affected by such
invalidity or unenforceability, nor will such invalidity or unenforceability
affect the validity or enforceability of that provision, or the application
of
that provision, in any other jurisdiction.
12. Successors
and Assigns.
Except as otherwise expressly provided herein, the provisions hereof
shall
inure to the benefit of, and be binding upon, the Company’s and Investor’s
successors, assigns and transferees, including, without limitation and without
the need for an express assignment, subsequent holders of Registrable
Securities; provided that such assignee or transferee is not a “major airline”
or “low cost carrier”, as such terms are commonly understood in the airline
industry, or an Affiliate thereof. If any assignee or transferee of Investor
shall acquire Registrable Securities in any manner, whether by operation of
law
or otherwise, such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities
such person shall be deemed to have agreed to be bound by and to perform all
of
the terms and provisions of this Agreement and such person shall be entitled
to
receive the benefits hereof.
13. Notices,
etc.
All notices and other communications required or permitted hereunder shall
be in
writing and shall be mailed by registered or certified mail, postage prepaid,
or
otherwise delivered by facsimile transmission, by hand or by messenger,
addressed:
(a) Stockholder.
If to Investor, at Investor’s address as set forth in either Exhibit
A,
or at
such other address as Investor shall have furnished to the Company.
(b) Company.
If to the Company, to:
US
Airways Group, Inc.
000
Xxxx
Xxx Xxxxxx Xxxxxxx
Xxxxx,
XX
00000
Attention:
General Counsel
Telecopy
No. 000-000-0000
or
at
such other address as the Company shall have furnished to Investor.
Each
such
notice or other communication shall for all purposes of this Agreement be
treated as effective or having been given when delivered if delivered
personally, if sent by facsimile, the first business day after the date of
confirmation that the facsimile has been successfully transmitted to the
facsimile number for the party notified, or, if sent by mail, at the earlier
of
its receipt or 72 hours after the same has been deposited in a regularly
maintained receptacle for the deposit of the United States mail, addressed
and
mailed as aforesaid.
13
14. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
an original and all of which together shall constitute one
instrument.
15. Ownership.
Investor
represents and warrants to the Company that (a) Investor now owns the
Common Stock, free and clear of liens or encumbrances, and has not, prior to
or
on the date of this Agreement, executed or delivered any proxy or entered into
any other voting agreement or similar arrangement other than one which has
expired or terminated prior to the date hereof, and (b) Investor has
full
power and capacity to execute, deliver and perform this Agreement, which has
been duly executed and delivered by, and evidences the valid and binding
obligation of, Investor enforceable in accordance with its terms.
16. Specific
Performance. The
parties hereto specifically acknowledge that monetary damages are not an
adequate remedy for violations of this Agreement, and that any party hereto
may,
in its sole discretion, apply to a court of competent jurisdiction for specific
performance or injunctive or such other relief as such court may deem just
and
proper in order to enforce this Agreement or prevent any violation hereof and,
to the extent permitted by applicable law and to the extent the party seeking
such relief would be entitled to the merits to obtain such relief, each party
waives any objection to the imposition of such relief.
17. Designation
of Forum and Consent to Jurisdiction.
The
parties hereto (i) designate the courts of the State of Delaware
as the
forum where all matters pertaining to this Agreement may be adjudicated, and
(ii) by the foregoing designation, consent to the exclusive jurisdiction and
venue of such courts for the purpose of adjudicating all matters pertaining
to
this Agreement.
18. Waiver
of Jury Trial.
EACH OF
THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO HAVE A JURY PARTICIPATE
IN
RESOLVING ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT. INSTEAD,
ANY
SUCH DISPUTES RESOLVED IN COURT SHALL BE RESOLVED IN A BENCH TRIAL WITHOUT
A
JURY.
19. Stock
Split.
All
references to numbers of shares in this Agreement shall be appropriately
adjusted to reflect any stock dividend, split, combination or other
recapitalization of shares by the Company occurring after the date of this
Agreement.
[Signatures
Next Page]
14
IN
WITNESS WHEREOF, the parties hereto have executed this Stockholder’s Agreement
as of the date first set forth above.
US
AIRWAYS GROUP, INC.
By:
/s/
Xxxxx X.
Xxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxx
Title:
President and CEO
By:
/s/
Xxxxxxxx X.
Xxxxxxx
Name:
Xxxxxxxx X. Xxxxxxx
Title:
President
15
Exhibit
A
INVESTOR
|
Name
and Address
|
Shares
Purchased On The
Closing
Date1
|
|
X0000
Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
Fax:
(000) 000-0000
Attention:
Xxxxxxxxx Xxxxxxx
With
a copy to:
Xxxxxxxx
Xxxxxxx Van Deuren s.c.
0000
Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx,
XX 00000
Fax:
(000) 000-0000
Attention:
Xxxxx X. Xxxxx, Esq.
|
8,333,333
|
________________
1
Pursuant
to Investor’s Credit Facility, as amended by those certain letter agreements
dated as of July 7, 2005 and September 16, 2005, Investor has the option
to
purchase additional shares of Common Stock (and Investor may acquire similar
options from Other Investors), which will not be exercised until after the
Closing Date. Therefore, any shares of Common Stock that Investor may receive
pursuant to these options are not reflected in this Exhibit A
Exhibit
B
Board
of Directors
Directors
nominated by the Company
Xxxxx
X.
Xxxxxxxxx
Xxxxxx
X.
Xxxxxxxx
Xxxx
Xxxxx
Xxxxxx
X.
Xxxxxx
Directors
nominated by America West Holdings Corporation
W.
Xxxxxxx Xxxxxx
Xxxxxxx
X. Xxxx
Xxxxxxx
X. Xxxxxxx
Xxxxxx
X.
X'Xxxxx
Xxxxxxx
X. Xxxxxxxx
J.
Xxxxxx
Xxxxxxx
Director
nominated by PAR Investment Partners, L.P.
Xxxxxx
Xxxxxxx
Director
nominated by ACE Aviation Holdings Inc.
Xxxxxx
Xxxxxx
Director
nominated by Eastshore Aviation, LLC
Xxxxxxx
Xxxxxxxx
