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Exhibit 10.5
STOCKHOLDERS' AGREEMENT
THIS
STOCKHOLDERS' AGREEMENT (this "AGREEMENT") is made and entered into
as
of this 27th day of September, 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 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 Eastshore Aviation, LLC,
pursuant to that certain DIP Credit
Facility, as amended, (collectively, the
"FINANCING");
WHEREAS, the
obligations in the Investors' Investment Agreement 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 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.
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"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 the Investors in the letter agreement
dated September 16, 2005 and any such
options issued to any Other Investor and
subsequently acquired by any of the
Investors.
"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 Investors'
Investment Agreement, including Common
Stock purchased pursuant to the Options,
(ii) Common Stock of the Company, if
any, 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 Investors'
Investment Agreement, 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. 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 the
Company or (ii) to any of its
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, 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
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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
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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 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 transfer is effected in accordance
with applicable securities laws and the
terms of this Agreement; (ii) written
notice is promptly given to the Company;
and (iii) such transferee or assignee
agrees in writing to be bound by the
provisions of this Agreement.
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 of Registrable
Securities requested to be included in such
offering by the Investors, 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 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.
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(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 the Investors 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 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 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 the
