Exhibit F to the Merger Agreement
FORM OF
AFFILIATE AGREEMENT
This Affiliate Agreement (this "Agreement") is made and entered into
as of [________], 2005, by and between [East], 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 the Bankruptcy Code) ("East") and
the undersigned stockholder (the "Affiliate"), who may be deemed an affiliate
of [West], a Delaware corporation (the "West"), under applicable Law.
Capitalized1 terms used herein and not otherwise defined shall have the
meanings ascribed thereto in the Merger Agreement (as defined below).
Recitals:
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of [
], 2005 (the "Merger Agreement"), by and among East, West and [Merger Sub], a
Delaware corporation and a direct wholly owned subsidiary of East ("Merger
Sub"), Merger Sub is merging with and into West (the "Merger") and whereby
West will be the surviving corporation and a direct wholly owned subsidiary of
East;
WHEREAS, the Affiliate has been advised that the Affiliate may be
deemed to be an "affiliate" of West, as the term "affiliate" is used for
purposes of Rule 144 and Rule 145 of the rules and regulations of the
Securities and Exchange Commission (the "SEC"); and
WHEREAS, the execution and delivery of this Agreement by the
Affiliate is a material inducement to, and in consideration of, the
willingness of East to enter into the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements contained in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally
bound hereby, the parties hereto agree as follows:
1. Certain Acknowledgments by Affiliate. The Affiliate hereby
represents and warrants to East that the Affiliate has carefully read this
Agreement and the Merger Agreement and, to the extent the Affiliate felt
necessary, has discussed the requirements of this Agreement with the
Affiliate's professional advisors who are qualified to advise the Affiliate
with regard to such matters. Execution of this Agreement shall not be
considered an admission by the Affiliate that he or it is an "affiliate", or
as a waiver of any rights the Affiliate may have to object to any claim that
the Affiliate is such an "affiliate" on or after the date of this Agreement.
2. Compliance with Rule 145 and the Securities Act.
(a) The Affiliate understands and hereby acknowledges that the
Affiliate has been advised that (A) the issuance of East Common Stock in
connection with the Merger is expected to be effected pursuant to a
registration statement on Form S-4 promulgated under the Securities Act of
1933, as amended (the "Securities Act") and the resale of such shares of East
Common Stock will be subject to restrictions set forth in Rule 145 under the
Securities Act; and (B) Affiliate may be deemed to be an "affiliate" of West
as the term "affiliate" is used for purposes of Rule 144 and Rule 145 under
the Securities Act. Accordingly, the Affiliate hereby agrees not to sell,
transfer or otherwise dispose of any East Common Stock issued to the Affiliate
in the Merger, or otherwise acquired by the Affiliate subsequent to the date
hereof, unless (i) such sale, transfer or other disposition is made in
conformity with the requirements of Rule 145 promulgated under the Securities
Act; (ii) such sale, transfer or other disposition is made pursuant to a
registration statement declared or ordered effective under the Securities Act,
or an appropriate exemption from the registration and prospectus delivery
requirements of the Securities Act; (iii) the Affiliate delivers to East a
written opinion of legal counsel, reasonably acceptable to East in form and
substance, that such sale, transfer or other disposition is otherwise exempt
from the registration and prospectus delivery requirements of the Securities
Act; or (iv) an authorized representative of the SEC shall have rendered
written advice to the Affiliate to the effect that the SEC would take no
action, or that the staff of the SEC would not recommend that the SEC take any
action, with respect to the proposed disposition if consummated.
(b) The Affiliate understands and hereby acknowledges that
East will give stop transfer instructions to its transfer agent with respect
to any East Common Stock issued to the Affiliate pursuant to the Merger, and
there shall be placed on the certificates representing such East Common Stock,
or any substitutions therefor, a legend stating in substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), APPLIES AND MAY ONLY BE
TRANSFERRED IN CONFORMITY WITH SUCH RULE 145 OR PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR IN
ACCORDANCE WITH A WRITTEN OPINION OF COUNSEL, REASONABLY
ACCEPTABLE TO THE ISSUER IN FORM AND SUBSTANCE, THAT SUCH
TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE ACT OR PURSUANT
TO WRITTEN ADVICE FROM AN AUTHORIZED REPRESENTATIVE OF THE SEC
TO THE EFFECT THAT THE SEC WOULD TAKE NO ACTION, OR THAT THE
STAFF OF THE SEC WOULD NOT RECOMMEND THAT THE SEC TAKE ANY
ACTION, WITH RESPECT TO THE PROPOSED TRANSFER IF CONSUMMATED."
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(c) The Affiliate also understands that unless a sale or
transfer is made in conformity with the provisions of Rule 145, or pursuant to
an effective registration statement, East reserves the right to place, as
applicable, on the certificates issued to the Affiliate's transferee with
respect to East Common Stock a legend stating in substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND WERE ACQUIRED FROM A PERSON WHO RECEIVED SUCH
SHARES IN A TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER
THE ACT APPLIES. THE SHARES HAVE BEEN ACQUIRED BY THE HOLDER
NOT WITH A VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY
DISTRIBUTION THEREOF WITHIN THE MEANING OF THE ACT AND MAY
NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN
ACCORDANCE WITH AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE ACT."
(d) The legends set forth in paragraphs 2(b) and 2(c) above
shall be removed (by delivery of a substitute certificate without such
legend), if (i) one year shall have elapsed from the date the undersigned
acquired East Common Stock received in the Merger and the provisions of Rule
145(d)(2) are then available to the Affiliate, (ii) two years shall have
elapsed from the date the Affiliate acquired the East Common Stock received in
the Merger and the provisions of Rule 145(d)(3) are then applicable to the
Affiliate or (iii) the Affiliate delivers to East (A) satisfactory written
evidence that the Shares have been sold in compliance with Rule 145 (in which
case, the substitute certificate shall be issued in the name of the
transferee); or (B) an opinion of counsel, in form and substance reasonably
satisfactory to East, or written advice from an authorized representative of
the SEC to the effect that the restrictions imposed by Rule 144 and Rule 145
under the Securities Act no longer apply to the Affiliate.
3. Miscellaneous.
(a) Waiver. No waiver by any party hereto of any condition or any
breach of any term or provision set forth in this Agreement shall be effective
unless in writing and signed by each party hereto. The waiver of a condition
or any breach of any term or provision of this Agreement shall not operate as
or be construed to be a waiver of any other previous or subsequent breach of
any term or provision of this Agreement.
(b) Severability. In the event that any term, provision, covenant or
restriction set forth in this Agreement, or the application of any such term,
provision, covenant or restriction to any Person, entity or set of
circumstances, shall be determined by a court of competent jurisdiction to be
invalid, unlawful, void or unenforceable to any extent, the remainder of the
terms, provisions, covenants and restrictions set forth in this Agreement, and
the application of such terms, provisions, covenants and restrictions to
persons, entities or circumstances other than those as to which it is
determined to be invalid,
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unlawful, void or unenforceable, shall remain in full force and effect, shall
not be impaired, invalidated or otherwise affected and shall continue to be
valid and enforceable to the fullest extent permitted by applicable Law.
(c) Binding Effect and Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
(d) Amendment and Modification. This Agreement may not be modified,
amended, altered or supplemented except by the execution and delivery of a
written agreement executed by the parties hereto.
(e) Governing Law. This Agreement shall be governed by and construed,
interpreted and enforced in accordance with the laws of the State of New York
without giving effect to any conflict of law provision.
(f) Jurisdiction. The parties hereby irrevocably submit to the
jurisdiction of the Bankruptcy Court, or if such court will not hear any such
suit, the courts of the State of New York and the federal courts of the United
States of America located in the State of New York, solely in respect of the
interpretation and enforcement of the provisions of this Agreement and of the
documents referred to in this Agreement, and in respect of the transactions
contemplated hereby, and hereby waive, and agree not to assert, as a defense
in any action, suit or proceeding for the interpretation or enforcement hereof
or of any such document, that it is not subject thereto or that such action,
suit or proceeding may not be brought or is not maintainable in said courts or
that the venue thereof may not be appropriate or that this Agreement or any
such document may not be enforced in or by such courts, and the parties hereto
irrevocably agree that all claims with respect to such action or proceeding
shall be heard and determined in such courts. The parties hereby consent to
and grant any such court jurisdiction over the person of such parties and
consent to the jurisdiction of any such court over the subject matter of such
dispute and agree that mailing of process or other papers in connection with
any such action or proceeding in the manner provided in Section 4(h) below or
in such other manner as may be permitted by applicable Law shall be valid and
sufficient service thereof.
(g) Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to the subject matter hereof.
(h) Notices. All notices and other communications pursuant to this
Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally,
telecopied, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to
the parties at the following address (or at such other address for a party as
shall be specified by like notice):
If to East: US Airways Group, Inc.
2345 Crystal Drive
Arlington, Virginia 22227
Attention: Elizabeth K. Lanier
Fax: 703-872-5208
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with a copy to: Arnold & Porter LLP
370 Seventeenth Street
Suite 4500
Denver, Colorado 80202
Attention: Brian Leitch, Esq.
Fax: 303-832-0428
If to the Affiliate: To the address for notice set forth
on the signature page hereof.
(i) Waiver of Jury Trial. EACH PARTY HERETO IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(j) Counterparts. This Agreement may be executed in any number of
counterparts and delivered by facsimile, each of which when so executed and
delivered shall be deemed an original, but all of which together shall
constitute but one and the same instrument and the delivering party covenants
and agrees that an original will be sent immediately thereafter by registered
or certified mail.
(k) Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of
this Agreement.
(l) Third Party Reliance. Legal counsel to East and West shall be
entitled to rely upon this Agreement.
(m) Survival. The representations, warranties, covenants and other
terms and provisions set forth in this Agreement shall survive the
consummation of the Merger.
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In Witness Whereof, the undersigned have caused this Affiliate
Agreement to be duly executed as of the date first written above.
EAST:
By:______________________________
Name:____________________________
Title:___________________________
AFFILIATE:
By:______________________________
Name:____________________________
Title:___________________________
Affiliate's Address for Notice:
_____________________________________________________
_____________________________________________________
_____________________________________________________
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