Exhibit 99.2
FORM OF
STOCKHOLDERS' AGREEMENT
THIS STOCKHOLDERS' AGREEMENT (this "Agreement") is made and entered
into as of this ___ day of _______, 2005, by and among 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 purchasers of
the Company's Common Stock listed on Exhibit A hereto (the "Investors").
RECITALS
WHEREAS, the 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
Eastshore Aviation, LLC, pursuant to that certain DIP Credit Facility, as
amended, (the "Credit Facility") (collectively, the "Financing");
WHEREAS, the obligations in the Investment Agreements and Credit
Facility are conditioned upon the execution and delivery of this Agreement; and
WHEREAS, in connection with the consummation of the Financing, the
Company and the Investors 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.
"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 the Investors pursuant to the Investment Agreements and, in the case of
Eastshore Aviation, LLC, the Credit Facility, (ii) Common Stock of the Company
held by an Investor 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 the Investors pursuant to the Investment Agreements 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 registered
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.
"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. Each 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, each 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, such Investor may
transfer any of its Common Stock (i) to any of its Affiliates or (ii) 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, such 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.
THE SHARES REPRESENTED BY THE CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFER CONTAINED IN THE
STOCKHOLDERS' 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.
Each 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.
(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 any 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 the Investors
hereunder may be assigned to any transferee of any shares of Common Stock,
including any constituent partner or member of an Investor 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 the transferring Investor pursuant to the
applicable 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 the Investors no longer hold 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 any 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 the Investors.
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 held by the holders of
Registrable Securities requested to be included exceeds the amount which can be
sold 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 Registrable Securities 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.
(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, shall be borne by
the Investors pro rata on the basis of the number of shares so registered or
proposed to be so registered.
(c) Registration Procedures. The Company will keep each
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 use all reasonable best efforts to 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 the Investors 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 they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
(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 the Investors; 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.
(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. Each Investor
participating in such underwriting 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
Investors, 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 Investors
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. Immediately notify each Investor
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 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.
(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 each
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 any such Investor or
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 each such Investor and Inspector has
entered into a customary confidentiality agreement with respect to such Records.
(xii) NASD Matters. Cooperate with each 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 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 Investor,
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 Investors 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.
(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 an Investor hereunder exceed the proceeds
from the offering received by such Investor.
(v) Survival. The obligations of the Company and
the Investors 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. The Investor or
Investors holding Registrable Securities included in any registration shall
furnish to the Company such information regarding such Investor or Investors,
the Registrable Securities held by them and the distribution proposed by such
Investor or Investors as the Company may request in writing and as shall be
required in connection with any registration referred to in this Agreement.
(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 an Investor
owns any Restricted Securities, to furnish to such 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 such Investor may reasonably request in availing
itself of any rule or regulation of the Commission allowing such Investor to
sell any such securities without registration.
7. Election of Directors.
(i) At or prior to the effective time of the
Merger (as such term is defined in the Investment Agreement), the Board of
Directors of the Company (as such term is defined in the Investment Agreement)
shall take such actions as are necessary to cause the persons indicated on
Exhibit B (each an "Investor Director") 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 director nominated by Par Investment
Partners, L.P. 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) In the event that ACE Aviation Holdings,
Inc. ("ACE") is entitled to designate an Investor Director pursuant to terms of
its Investment Agreement, for so long as ACE, together with its Affiliates,
holds not less than 66.67% 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 it pursuant to its Investment Agreement (the "ACE
Director Threshold"), the Company agrees to nominate, at the expiration of the
term of ACE's Investor Director, a director nominee designated by ACE for a
successive three year term and, in the event ACE's Investor Director resigns,
dies or become incapacitated, the Company shall cause the vacancy so created to
be filled by a designee of ACE to serve the unexpired term of the director being
replaced, provided that, in either such case, the director designated or
nominated by ACE meets the basic qualifications for directors, if any, contained
in the Company's bylaws applicable to all directors of the Company. If ACE,
together with its Affiliates, falls below the ACE Director Threshold, it shall
cause its Investor Director (as indicated on Exhibit B) to resign from the Board
of Directors of the Company.
(iii) With respect to any Investors other than ACE
who are entitled to designate directors to the Company's Board of Directors as
of the Closing Date (each a "Designating Investor"), for so long as the
Designating 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 it pursuant
to its Investment Agreement (the "Designating Investor Threshold"), the Company
agrees to nominate, at the expiration of the term of the Designating Investor's
designee, a director nominee designated by the Designating Investor for a
successive three year term and, in the event the Designating Investor's designee
resigns, dies or become incapacitated, the Company shall cause the vacancy so
created to be filled by a designee of the Designating Investor to serve the
unexpired term of the director being replaced, provided that, in either such
case, the director designated or nominated by the Designating Investor meets the
basic qualifications for directors, if any, contained in the Company's bylaws
applicable to all directors of the Company. If the Designating 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 such Designating 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 each Investor. Any amendment or waiver
effected in accordance with this Section 8 shall be binding upon each Investor,
any transferee thereof and the Company.
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.
11. 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 each 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 any 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.
12. 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 an Investor, at such Investor's
address as set forth in either Exhibit A, or at such other address as such
Investor shall have furnished to the Company.
(b) Company. If to the Company, to:
US Airways Group, Inc.
2345 Crystal Drive
Arlington, Virginia 22227
Attention: General Counsel
Telecopy No. 703-872-5936
With a copy to:
Arnold & Porter LLP
555 Twelfth Street, NW
Washington, D.C. 20004
Attention: Brian Leitch, Esq.
Telecopier No. 202-942-5999
and with a copy to:
America West Holdings Corporation
111 W. Rio Salado Blvd.
Tempe, Arizona 85281
Attention: General Counsel
Telecopy No. [___]
or at such other address as the Company
shall have furnished to the Stockholders,
with a copy to:
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. 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.
14. Ownership. Each Investor represents and warrants to the other
Investors and the Company that (a) such 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) such 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, such Investor
enforceable in accordance with its terms.
15. 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.
16. 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.
17. 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.
18. 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]
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement as of the date first set forth above.
US AIRWAYS GROUP, INC.
By:
--------------------------------
Name: Bruce R. Lakefield
Title: Chief Executive Officer
ACE AVIATION HOLDINGS, INC.
By:
--------------------------------
Name:
Title:
EASTSHORE AVIATION, LLC
By:
--------------------------------
Name:
Title:
PAR INVESTMENT PARTNERS, L.P.
By: PAR GROUP, L.P.
its general partner
By: PAR CAPITAL MANAGEMENT, INC.
its general partner
By:
--------------------------------
Name:
Title:
PENINSULA INVESTMENT PARTNERS, L.P.
By:
--------------------------------
Name:
Title:
EXHIBIT A
INVESTORS
NAME AND ADDRESS SHARES PURCHASED
ACE Aviation Holdings, Inc.
___________________________________
Eastshore Aviation, LLC
___________________________________
Par Investment Partners, L.P.
___________________________________
Peninsula Investment Partners, L.P.
___________________________________
EXHIBIT B
BOARD OF DIRECTORS