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As filed with the Securities and Exchange Commission on January 10, 1997
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-B
For Registration of Securities of Certain Successor Issuers
Pursuant to Section 12(b) or (g) of the
Securities Exchange Act of 1934
AMERICA WEST HOLDINGS CORPORATION(1)
(Exact Name of Registrant as Specified in its Charter)
DELAWARE APPLIED FOR
(State of other jurisdiction (I.R.S. Employer Identification No.)
of incorporation)
4000 E. SKY HARBOR BOULEVARD, PHOENIX, ARIZONA 85034-3899
(Address of Principal Executive Offices, Including Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered: each class is to be registered:
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CLASS B COMMON STOCK, NEW YORK STOCK EXCHANGE, INC.
PAR VALUE $0.01 PER SHARE
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
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(1) America West Holdings Corporation, a Delaware corporation (the
"Registrant"), is the successor registrant to America West Airlines,
Inc. (the "Predecessor").
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ITEM 1. GENERAL INFORMATION
(a) America West Holdings Corporation (the "Registrant") was organized
as a corporation under the laws of the State of Delaware on December 13, 1996.
(b) The fiscal year of the Registrant ends on December 31.
ITEM 2. TRANSACTION OF SUCCESSION
(a) America West Airlines, Inc., a Delaware corporation, the only
predecessor of the Registrant (the "Predecessor"), had securities registered
pursuant to Section 12(b) of the Securities and Exchange Act of 1934, as amended
(the "Exchange Act"), and listed on the New York Stock Exchange (the "NYSE") at
the time of succession.
(b) Effective as of midnight on December 31, 1996, pursuant to Section
251(g) of the Delaware General Corporation Law and the Agreement and Plan of
Merger, dated December 19, 1996, by and among the Predecessor, the Registrant
and AWA Merger, Inc., a wholly owned Delaware subsidiary of the Registrant (the
"Merger Sub"), the Merger Sub merged (the "Merger") with and into the
Predecessor, with the Predecessor as the surviving corporation. As a result of
the Merger, Merger Sub ceased to exist, the Predecessor became a wholly owned
subsidiary of the Registrant and (i) each issued and outstanding share of Class
A Common Stock of the Predecessor was converted into and exchanged for one share
of Class A Common Stock, par value $.01 per share, of the Registrant, (ii) each
share of Class B Common Stock of the Predecessor ("Predecessor Class B Common")
issued and outstanding or held in treasury was converted into one share of Class
B Common Stock, par value $.01 per share, of the Registrant ("Registrant Class B
Common"), (iii) each issued and outstanding share of common stock of Merger Sub
was converted into and exchanged for one share of the common stock of the
Predecessor, and (iv) each share of common stock of the Registrant issued and
outstanding immediately prior to the Merger was canceled without any
consideration being paid therefor.
Also as a result of the Merger, each Warrant issued by the Predecessor,
which prior to the effective time of the Merger entitled the holder thereof to
purchase one share of Predecessor Class B Common, entitles the holder of such
Warrant to purchase one share of Registrant Class B Common. The Warrants remain
an obligation of the Predecessor and the Registrant has granted the Predecessor
options entitling the Predecessor to purchase Registrant Class B Common Stock to
fulfill the Predecessor's obligations under the Warrants.
ITEM 3. SECURITIES TO BE REGISTERED
The Registrant is authorized by its Certificate of Incorporation to
issue up to 100,000,000 shares of Class B Common Stock. As of December 31, 1996,
there were 43,192,056 shares of Class B Common Stock issued and outstanding, of
which 1,362,000 shares were held by or for the account of the Registrant.
ITEM 4. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
The description of the Class B Common Stock set forth in item 1 of the
Registration Statement on Form 8-A (No. 1-10140) of the Predecessor filed with
the Securities and Exchange Commission
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on August 10, 1994, including any amendment or reports filed for the purpose of
updating such description, is incorporated herein by reference. Copies of the
Form 8-A and the Certificate of Incorporation of the Registrant have been filed
with the NYSE.
ITEM 5. FINANCIAL STATEMENTS AND EXHIBITS
(a) As provided in Instruction (a) of the Instructions as to Financial
Statements for Form 8-B, no financial statements are being filed with this
Registration Statement since the capital structure and balance sheet of the
Registrant immediately after succession will be substantially the same as those
of the Predecessor.
(b) Exhibits.
*2.1 -- Agreement and Plan of Merger, dated as of December 19, 1996, by and
among the Registrant, the Predecessor and Merger Sub, with an
effective date and time as of midnight on December 31, 1996.
2.2 -- The Predecessor's Plan of Reorganization, as amended under Chapter
11 of the Bankruptcy Code, as amended -- Incorporated by reference
to Exhibit 1 of the Predecessor's Report on Form 8-K dated August
25, 1994.
*3.1 -- Certificate of Incorporation of the Registrant (filed with the
Secretary of State of the State of Delaware on December 13, 1996)
*3.2 -- Bylaws of the Registrant
3.3 -- Restated Certificate of Incorporation of the Predecessor (included
in Exhibit 2.1 above)
3.4 -- Restated Bylaws of the Predecessor -- Incorporated by reference to
the Predecessor's Report on Form 10-K dated December 31, 1994.
3.5 -- Article 4.18 of the Restated Bylaws of the Predecessor (included in
Exhibit 2.1 above)
4.1 -- Warrant Agreement dated August 25, 1994 between the Predecessor and
First Interstate, N.A., as Warrant Agent -- Incorporated by
reference to Exhibit 4.3 to the Predecessor's Report on Form 8-K
dated August 25, 1994.
4.2 -- Form of Warrant (included as Exhibit A to Exhibit 4.1 above).
*4.3 -- Supplemental Warrant Agreement dated effective as of December 31,
1996 between the Predecessor and Harris Trust Company of California,
as Warrant Agent.
*4.4 -- Form of Stockholders' Agreement for the Registrant effective as of
December 31, 1996 by and among TPG Partners, L.P., TPG Parallel I,
L.P., Air Partners II, L.P., Continental Airlines, Inc., Mesa
Air Group, Inc., Robert A. Ewert, David T. Obergfell, William A.
Franke, the Registrant and the Predecessor.
*4.5 -- Stock Option Agreement dated effective as of December 31, 1996,
between the Predecessor and the Registrant.
4.6 -- Registration Rights Agreement dated August 25, 1994 among the
Predecessor, AmWest Partners, L.P. and other holders -- Incorporated
by reference to Exhibit 4.6 to the Predecessor's Report on Form 8-K
dated August 25, 1994.
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*4.7 -- Assumption of Certain Obligations Under Registration Rights
Agreement executed by the Registrant for the benefit of TPG
Partners, L.P., TPG Parallel I, L.P., Air Partners II, L.P.,
Continental Airlines, Inc., Mesa Airlines, Inc., Lehman Brothers,
Inc., Belmont Capital Partners II, L.P. and Belmont Fund, L.P.
4.8 -- Form of Pass Through Trust Agreement, dated as of November 26,
1996, between the Predecessor and Fleet National Bank, as Trustee
-- Incorporated by reference to Predecessor's Report on Form 8-K
dated November 26, 1996.
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10.1 -- Alliance Agreements dated August 25, 1994 between the
Predecessor and Continental Airlines, Inc. including the Master
Ground Handling Agreement, the Reciprocal Frequent Flyer
Participation Agreement, the Code Sharing Agreement, the Cargo
Special Pro-Rate Agreement, the Reciprocal Club Usage Agreement
and the Memorandum of Understanding Concerning Technology
Transfers -- Incorporated by reference to Exhibit 10.12 to the
Predecessor's Report on Form 8-K dated August 25, 1994.
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10.2 -- Alliance Agreement, as amended on August 25, 1994, between the
Predecessor and Mesa Airlines Inc. -- Incorporated by reference
to Exhibit 10.12 to the Predecessor's Report on Form 8-K dated
August 25, 1994.
10.3 -- Third Revised Investment Agreement dated April 21, 1994 between
the Predecessor and AmWest Partners, L.P. -- Incorporated by
reference to Exhibit 10.A to the Predecessor's Quarterly Report
on Form 10-Q for the period ended March 31, 1994.
10.4 -- Third Revised Interim Procedures Agreement dated April 21, 1994
between the Predecessor and AmWest Partners, L.P. --
Incorporated by reference to the Predecessor's Annual Report on
Form 10-K for the year ended December 31, 1993.
10.5 -- The GPA Term Sheet between the Predecessor and GPA Group plc,
dated June 13, 1994 -- Incorporated by Reference to the
Predecessor's Registration Statement on Form S-1 (No. 33-54243),
as amended.
10.6 -- America West Airlines Management Resignation Allowance
Guidelines, as amended, dated November 18, 1993 -- Incorporated
by Reference to the Predecessor's Registration Statement on Form
S-1 (No. 33-54243), as amended.
10.7 -- Airbus A320 Purchase Agreement (including exhibits thereto),
dated as of September 28, 1990 between AVSA, S.A.R.L. and the
Predecessor, together with Letter Agreement Nos. 1-10, inclusive
-- Incorporated by reference to Exhibit 10-(D) (1) to the
Predecessor's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1990.
10.8 -- Loan Agreement, dated as of September 28, 1990, among the
Predecessor, AVSA and AVSA, as agent -- Incorporated by reference
to Exhibit 10-(D) (2) to the Predecessor's Quarterly Report on
Form 10-Q for the period ended September 30, 1990.
10.9 -- V2500 Support Contract Between the Predecessor and International
Aero Engines AG, dated September 28, 1990, together with Side
Letters Nos. 1-4, inclusive -- Incorporated by reference to
Exhibit 10-(D) (3) to the Predecessor's Quarterly Report on Form
10-Q for the quarter ended September 30, 1990.
10.10 -- Cash Management Agreement, dated September 28, 1991, among the
Predecessor, BT and First Interstate of Arizona, N.A. --
Incorporated by reference to Exhibit 10-D(21) to the
Predecessor's Annual Report on Form 10-K for the year ended
December 31, 1991.
10.11 -- First Amendment to Cash Management Agreement, dated December 1,
1991, among the Predecessor, BT and First Interstate of Arizona,
N.A. -- Incorporated by reference to Exhibit 10-D(22) to the
Predecessor's Annual Report on Form 10-K for the year ended
December 31, 1991.
10.12 -- Second Amendment to Cash Management Agreement, dated September 1,
1992, among the Predecessor, BT and First Interstate of Arizona,
N.A. -- Incorporated by reference to Exhibit 10-O(3) to the
Predecessor's Annual Report on Form 10-K for the year ended
December 31, 1992.
10.13 -- Restructuring Agreement, dated December 1, 1991 between the
Predecessor and Kawasaki -- Incorporated by reference to Exhibit
10-D (24) to the Predecessor's Annual Report on Form 10-K for the
year ended December 31, 1991.
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10.14 -- A320 Put Agreement, dated December 1, 1991 between the
Predecessor and Kawasaki -- Incorporated by reference to Exhibit
10-D(25) to the Predecessor's Annual Report on Form 10-K for the
year ended December 31, 1991.
10.15 -- First Amendment to A320 Put Agreement, dated September 1, 1992 --
Incorporated by reference to Exhibit 10-R(2) to the Predecessor's
Annual Report on Form 10-K for the year ended December 31, 1992.
10.16 -- A320 Put Agreement, dated as of June 25, 1991 between the
Predecessor and GPA Group plc -- Incorporated by reference to
Exhibit 10-D(26) to the Predecessor's Annual Report on Form 10-K
for the year ended December 31, 1991.
10.17 -- First Amendment to A320 Put Agreement, dated as of September 1,
1992 -- Incorporated by reference to Exhibit 10-S(2) to the
Predecessor's Annual Report on Form 10-K for the year ended
December 31, 1992.
10.18 -- Restructuring Agreement, dated as of June 25, 1991 among GPA
Group plc, GPA Leasing USA I, Inc. GPA Leasing USA Sub I, and the
Predecessor -- Incorporated by reference to Exhibit 10-D(27) to
the Predecessor's Annual Report on Form 10-K for the year ended
December 31, 1991.
10.19 -- Official Statement dated August 11, 1986 for the $54,000,000
Variable Rate Airport Facility Revenue Bonds -- Incorporated by
reference to Exhibit 10.e to the Predecessor's Quarterly Report
on Form 10-Q for the period ended September 30, 1986.
10.20 -- Airport Use Agreement dated July 1, 1989 (the "Airport Use
Agreement") among the City of Phoenix, The Industrial Development
Authority of the City of Phoenix, Arizona and the Predecessor --
Incorporated by reference to Exhibit 10-D(9) to the Predecessor's
Annual Report on Form 10-K for the year ended December 31, 1989.
10.21 -- First Amendment dated August 1, 1990 to Airport Use Agreement --
Incorporated by reference to Exhibit 10-(D) (9) to the
Predecessor's Quarterly Report on Form 10-Q for the period ended
September 30, 1990.
10.22 -- Revolving Loan Agreement dated April 17, 1990, by and among the
Predecessor, the Bank signatories thereto, and Bank of America
National Trust and Savings Association, as Agent for the Banks
(the "Revolving Loan Agreement") -- Incorporated by reference to
Exhibit 10-1 to the Predecessor's Quarterly Report on Form 10-Q
for the period ended March 31, 1990.
10.23 -- First Amendment dated April 17, 1990 to Revolving Loan Agreement
- Incorporated by reference to Exhibit 10-(D) (10) to the
Predecessor's Quarterly Report on Form 10-Q for the period ended
September 30, 1990.
10.24 -- Second Amendment dated September 28, 1990 to the Revolving Loan
Agreement -- Incorporated by reference to Exhibit 10-(D) (11) to
the Predecessor's Quarterly Report on Form 10-Q for the period
ended September 30, 1990.
10.25 -- Third Amendment dated as of January 14, 1991 to the Revolving
Loan Agreement -- Incorporated by reference to Exhibit 10-(D)(13)
to the Predecessor's Annual Report on Form 10-K for the year
ended December 31, 1990.
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10.26 -- Spares Credit Agreement, dated as of September 28, 1990, between
the Predecessor and IAE -- Incorporated by reference to Exhibit
10-(D) (4) to the Predecessor's Quarterly Report on Form 10-Q for
the period ended September 30, 1990.
10.27 -- Master Credit Modification Agreement dated as of October 1, 1992,
among the Predecessor, IAE International Aero Engines AG,
Intlaero (Phoenix A320) Inc., Intlaero (Phoenix B737) Inc., CAE
Electronics Ltd., and Hughes Rediffusion Simulation Limited --
Incorporated by reference to Exhibit 10-L to the Predecessor's
Annual Report on Form 10-K for the year ended December 31, 1992.
10.28 -- Credit Agreement, dated as of September 28, 1990 between the
Predecessor and IAE -- Incorporated by reference to Exhibit 10-
(D) (5) to the Predecessor's Quarterly Report on Form 10-Q for
the period ended September 30, 1990.
10.29 -- Amendment No. 1 to the Credit Agreement, dated March 1, 1991 --
Incorporated by reference to Exhibit 10-(M) (2) to the
Predecessor's Annual Report on Form 10-K for the year ended
December 31, 1992.
10.30 -- Amendment No. 2 to the Credit Agreement, dated May 15, 1991 --
Incorporated by reference to Exhibit 10-(M) (3) to the
Predecessor's Annual Report on Form 10-K for the year ended
December 31, 1992.
10.31 -- Amendment No. 3 to the Credit Agreement, dated October 1, 1992 -
Incorporated by reference to Exhibit 10-(M) (4) to the
Predecessor's Annual Report on Form 10-K for the year ended
December 31, 1992.
10.32 -- Form of Third Amended and Restated Credit Agreement dated
September 30, 1993, among the Predecessor, various lenders, and
BT Commercial Corp. as Administrative Agent (without exhibits) --
Incorporated by reference to Exhibit 10-(N) (1) to the
Predecessor's Annual Report on Form 10-K for the year ended
December 31, 1993.
10.33 -- Form of Amended and Restated Management Letter Agreement, dated
as of September 30, 1993 from the Predecessor to the Lenders --
Incorporated by reference to Exhibit 10-N (2) to the
Predecessor's Annual Report on Form 10-K for the year ended
December 31, 1993.
10.34 -- Form of Amendment to Amended and Restated Management Letter
Agreement; Consent to Amendment of By-laws dated February 8, 1994
from the Predecessor to the Lenders -- Incorporated by reference
to Exhibit 10-N (3) to the Predecessor's Annual Report on Form
10-K for the year ended December 31, 1993.
10.35 -- Fourth Amended and Restated Credit Agreement dated June 30, 1994
-- Incorporated by reference to the Predecessor's Quarterly
Report on Form 10-Q for the period ended June 30, 1994.
10.36 -- Key Employee Protection Agreement dated as of June 27, 1994
between the Predecessor and William A. Franke -- Incorporated by
reference to the Predecessor's Registration Statement on Form S-1
(No. 33-54243), as amended.
10.37 -- Management Rights Agreement dated August 25, 1994 between TPG
Partners L.P., TPG Genpar, L.P. and the Predecessor --
Incorporated by reference to the Predecessor's Registration
Statement on Form S-1 (No. 33-54243), as amended.
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10.38 -- V2500 Support Contract dated December 23, 1994 between the
Predecessor and International Aero Engineers, as amended --
Incorporated by reference to the Predecessor's Annual Report on
Form 10-K for the year ended December 31, 1994.
10.39 -- Form of the Predecessor 1994 Incentive Equity Plan --
Incorporated by reference to the Predecessor's Annual Report on
Form 10-K for the year ended December 31, 1994.
10.40 -- Employment Agreement dated as of November 9, 1995 between the
Predecessor and William A. Franke -- Incorporated by reference to
the Predecessor's Registration Statement on Form S-1 (No.
33-54243).
*10.41 -- Form of the Registrant's 1994 Incentive Equity Plan
*21.1 -- Subsidiaries of Registrant
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* Filed herewith.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereunto duly authorized.
AMERICA WEST HOLDINGS CORPORATION
By: /s/ Stephen L. Johnson
-----------------------------------
Stephen L. Johnson
Senior Vice President--Legal Affairs
Dated: January 10, 1997
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INDEX TO EXHIBITS
*2.1 -- Agreement and Plan of Merger, dated as of December 19, 1996, by
and among the Registrant, the Predecessor and Merger Sub, with an
effective date and time as of midnight on December 31, 1996.
2.2 -- The Predecessor's Plan of Reorganization, as amended under
Chapter 11 of the Bankruptcy Code, as amended -- Incorporated by
reference to Exhibit 1 of the Predecessor's Report on Form 8-K
dated August 25, 1994.
*3.1 -- Certificate of Incorporation of the Registrant (filed with the
Secretary of State of the State of Delaware on December 13, 1996)
*3.2 -- Bylaws of the Registrant
3.3 -- Restated Certificate of Incorporation of the Predecessor
(included in Exhibit 2.1 above)
3.4 -- Restated Bylaws of the Predecessor -- Incorporated by reference
to the Predecessor's Report on Form 10-K dated December 31, 1994.
3.5 -- Article 4.18 of the Restated Bylaws of the Predecessor (included
in Exhibit 2.1 above)
4.1 -- Warrant Agreement dated August 25, 1994 between the Predecessor
and First Interstate, N.A., as Warrant Agent -- Incorporated by
reference to Exhibit 4.3 to the Predecessor's Report on Form 8-K
dated August 25, 1994.
4.2 -- Form of Warrant (included as Exhibit A to Exhibit 4.1 above).
*4.3 -- Supplemental Warrant Agreement dated effective as of December 31,
1996 between the Predecessor and Harris Trust Company of
California, as Warrant Agent.
*4.4 -- Form of Stockholders' Agreement for the Registrant effective as
of December 31, 1996 by and among TPG Partners, L.P., TPG
Parallel I, L.P., Air Partners II, L.P., Continental Airlines,
Inc., Mesa Air Group, Inc., Robert A. Ewert, David T. Obergfell,
William A. Franke, the Registrant and the Predecessor.
*4.5 -- Stock Option Agreement dated effective as of December 31, 1996,
between the Predecessor and the Registrant.
4.6 -- Registration Rights Agreement dated August 25, 1994 among the
Predecessor, AmWest Partners, L.P. and other holders --
Incorporated by reference to Exhibit 4.6 to the Predecessor's
Report on Form 8-K dated August 25, 1994.
*4.7 -- Assumption of Certain Obligations Under Registration Rights
Agreement executed by the Registrant for the benefit of TPG
Partners, L.P., TPG Parallel I, L.P., Air Partners II, L.P.,
Continental Airlines, Inc., Mesa Airlines, Inc., Lehman Brothers,
Inc., Belmont Capital Partners II, L.P. and Belmont Fund, L.P.
4.8 -- Form of Pass Through Trust Agreement, dated as of November 26,
1996, between the Predecessor and Fleet National Bank, as Trustee
-- Incorporated by reference to Predecessor's Report on Form 8-K
dated November 26, 1996.
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10.1 -- Alliance Agreements dated August 25, 1994 between the Predecessor
and Continental Airlines, Inc. including the Master Ground
Handling Agreement, the Reciprocal Frequent Flyer Participation
Agreement, the Code Sharing Agreement, the Cargo Special Pro-Rate
Agreement, the Reciprocal Club Usage Agreement and the Memorandum
of Understanding Concerning Technology Transfers -- Incorporated
by reference to Exhibit 10.12 to the Predecessor's Report on Form
8-K dated August 25, 1994.
10.2 -- Alliance Agreement, as amended on August 25, 1994, between the
Predecessor and Mesa Airlines Inc. -- Incorporated by reference
to Exhibit 10.12 to the Predecessor's Report on Form 8-K dated
August 25, 1994.
10.3 -- Third Revised Investment Agreement dated April 21, 1994 between
the Predecessor and AmWest Partners, L.P. -- Incorporated by
reference to Exhibit 10.A to the Predecessor's Quarterly Report
on Form 10-Q for the period ended March 31, 1994.
10.4 -- Third Revised Interim Procedures Agreement dated April 21, 1994
between the Predecessor and AmWest Partners, L.P. --
Incorporated by reference to the Predecessor's Annual Report on
Form 10-K for the year ended December 31, 1993.
10.5 -- The GPA Term Sheet between the Predecessor and GPA Group plc,
dated June 13, 1994 -- Incorporated by Reference to the
Predecessor's Registration Statement on Form S-1 (No. 33-54243),
as amended.
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10.6 -- America West Airlines Management Resignation Allowance
Guidelines, as amended, dated November 18, 1993 -- Incorporated
by Reference to the Predecessor's Registration Statement on Form
S-1 (No. 33-54243), as amended.
10.7 -- Airbus A320 Purchase Agreement (including exhibits thereto),
dated as of September 28, 1990 between AVSA, S.A.R.L. and the
Predecessor, together with Letter Agreement Nos. 1-10, inclusive
-- Incorporated by reference to Exhibit 10-(D) (1) to the
Predecessor's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1990.
10.8 -- Loan Agreement, dated as of September 28, 1990, among the
Predecessor, AVSA and AVSA, as agent -- Incorporated by reference
to Exhibit 10-(D) (2) to the Predecessor's Quarterly Report on
Form 10-Q for the period ended September 30, 1990.
10.9 -- V2500 Support Contract Between the Predecessor and International
Aero Engines AG, dated September 28, 1990, together with Side
Letters Nos. 1-4, inclusive -- Incorporated by reference to
Exhibit 10-(D) (3) to the Predecessor's Quarterly Report on Form
10-Q for the quarter ended September 30, 1990.
10.10 -- Cash Management Agreement, dated September 28, 1991, among the
Predecessor, BT and First Interstate of Arizona, N.A. --
Incorporated by reference to Exhibit 10-D(21) to the
Predecessor's Annual Report on Form 10-K for the year ended
December 31, 1991.
10.11 -- First Amendment to Cash Management Agreement, dated December 1,
1991, among the Predecessor, BT and First Interstate of Arizona,
N.A. -- Incorporated by reference to Exhibit 10-D(22) to the
Predecessor's Annual Report on Form 10-K for the year ended
December 31, 1991.
10.12 -- Second Amendment to Cash Management Agreement, dated September 1,
1992, among the Predecessor, BT and First Interstate of Arizona,
N.A. -- Incorporated by reference to Exhibit 10-O(3) to the
Predecessor's Annual Report on Form 10-K for the year ended
December 31, 1992.
10.13 -- Restructuring Agreement, dated December 1, 1991 between the
Predecessor and Kawasaki -- Incorporated by reference to Exhibit
10-D (24) to the Predecessor's Annual Report on Form 10-K for the
year ended December 31, 1991.
10.14 -- A320 Put Agreement, dated December 1, 1991 between the
Predecessor and Kawasaki -- Incorporated by reference to Exhibit
10-D(25) to the Predecessor's Annual Report on Form 10-K for the
year ended December 31, 1991.
10.15 -- First Amendment to A320 Put Agreement, dated September 1, 1992 --
Incorporated by reference to Exhibit 10-R(2) to the Predecessor's
Annual Report on Form 10-K for the year ended December 31, 1992.
10.16 -- A320 Put Agreement, dated as of June 25, 1991 between the
Predecessor and GPA Group plc -- Incorporated by reference to
Exhibit 10-D(26) to the Predecessor's Annual Report on Form 10-K
for the year ended December 31, 1991.
10.17 -- First Amendment to A320 Put Agreement, dated as of September 1,
1992 -- Incorporated by reference to Exhibit 10-S(2) to the
Predecessor's Annual Report on Form 10-K for the year ended
December 31, 1992.
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10.18 -- Restructuring Agreement, dated as of June 25, 1991 among GPA
Group plc, GPA Leasing USA I, Inc. GPA Leasing USA Sub I, and the
Predecessor -- Incorporated by reference to Exhibit 10-D(27) to
the Predecessor's Annual Report on Form 10-K for the year ended
December 31, 1991.
10.19 -- Official Statement dated August 11, 1986 for the $54,000,000
Variable Rate Airport Facility Revenue Bonds -- Incorporated by
reference to Exhibit 10.e to the Predecessor's Quarterly Report
on Form 10-Q for the period ended September 30, 1986.
10.20 -- Airport Use Agreement dated July 1, 1989 (the "Airport Use
Agreement") among the City of Phoenix, The Industrial Development
Authority of the City of Phoenix, Arizona and the Predecessor --
Incorporated by reference to Exhibit 10-D(9) to the Predecessor's
Annual Report on Form 10-K for the year ended December 31, 1989.
10.21 -- First Amendment dated August 1, 1990 to Airport Use Agreement --
Incorporated by reference to Exhibit 10-(D) (9) to the
Predecessor's Quarterly Report on Form 10-Q for the period ended
September 30, 1990.
10.22 -- Revolving Loan Agreement dated April 17, 1990, by and among the
Predecessor, the Bank signatories thereto, and Bank of America
National Trust and Savings Association, as Agent for the Banks
(the "Revolving Loan Agreement") -- Incorporated by reference to
Exhibit 10-1 to the Predecessor's Quarterly Report on Form 10-Q
for the period ended March 31, 1990.
10.23 -- First Amendment dated April 17, 1990 to Revolving Loan Agreement
- Incorporated by reference to Exhibit 10-(D) (10) to the
Predecessor's Quarterly Report on Form 10-Q for the period ended
September 30, 1990.
10.24 -- Second Amendment dated September 28, 1990 to the Revolving Loan
Agreement -- Incorporated by reference to Exhibit 10-(D) (11) to
the Predecessor's Quarterly Report on Form 10-Q for the period
ended September 30, 1990.
10.25 -- Third Amendment dated as of January 14, 1991 to the Revolving
Loan Agreement -- Incorporated by reference to Exhibit 10-(D)(13)
to the Predecessor's Annual Report on Form 10-K for the year
ended December 31, 1990.
10.26 -- Spares Credit Agreement, dated as of September 28, 1990, between
the Predecessor and IAE -- Incorporated by reference to Exhibit
10-(D) (4) to the Predecessor's Quarterly Report on Form 10-Q for
the period ended September 30, 1990.
10.27 -- Master Credit Modification Agreement dated as of October 1, 1992,
among the Predecessor, IAE International Aero Engines AG,
Intlaero (Phoenix A320) Inc., Intlaero (Phoenix B737) Inc., CAE
Electronics Ltd., and Hughes Rediffusion Simulation Limited --
Incorporated by reference to Exhibit 10-L to the Predecessor's
Annual Report on Form 10-K for the year ended December 31, 1992.
10.28 -- Credit Agreement, dated as of September 28, 1990 between the
Predecessor and IAE -- Incorporated by reference to Exhibit 10-
(D) (5) to the Predecessor's Quarterly Report on Form 10-Q for
the period ended September 30, 1990.
10.29 -- Amendment No. 1 to the Credit Agreement, dated March 1, 1991 --
Incorporated by reference to Exhibit 10-(M) (2) to the
Predecessor's Annual Report on Form 10-K for the year ended
December 31, 1992.
<PAGE> 18
10.30 -- Amendment No. 2 to the Credit Agreement, dated May 15, 1991 --
Incorporated by reference to Exhibit 10-(M) (3) to the
Predecessor's Annual Report on Form 10-K for the year ended
December 31, 1992.
10.31 -- Amendment No. 3 to the Credit Agreement, dated October 1, 1992 -
Incorporated by reference to Exhibit 10-(M) (4) to the
Predecessor's Annual Report on Form 10-K for the year ended
December 31, 1992.
10.32 -- Form of Third Amended and Restated Credit Agreement dated
September 30, 1993, among the Predecessor, various lenders, and
BT Commercial Corp. as Administrative Agent (without exhibits) --
Incorporated by reference to Exhibit 10-(N) (1) to the
Predecessor's Annual Report on Form 10-K for the year ended
December 31, 1993.
10.33 -- Form of Amended and Restated Management Letter Agreement, dated
as of September 30, 1993 from the Predecessor to the Lenders --
Incorporated by reference to Exhibit 10-N (2) to the
Predecessor's Annual Report on Form 10-K for the year ended
December 31, 1993.
10.34 -- Form of Amendment to Amended and Restated Management Letter
Agreement; Consent to Amendment of By-laws dated February 8, 1994
from the Predecessor to the Lenders -- Incorporated by reference
to Exhibit 10-N (3) to the Predecessor's Annual Report on Form
10-K for the year ended December 31, 1993.
10.35 -- Fourth Amended and Restated Credit Agreement dated June 30, 1994
-- Incorporated by reference to the Predecessor's Quarterly
Report on Form 10-Q for the period ended June 30, 1994.
10.36 -- Key Employee Protection Agreement dated as of June 27, 1994
between the Predecessor and William A. Franke -- Incorporated by
reference to the Predecessor's Registration Statement on Form S-1
(No. 33-54243), as amended.
10.37 -- Management Rights Agreement dated August 25, 1994 between TPG
Partners L.P., TPG Genpar, L.P. and the Predecessor --
Incorporated by reference to the Predecessor's Registration
Statement on Form S-1 (No. 33-54243), as amended.
10.38 -- V2500 Support Contract dated December 23, 1994 between the
Predecessor and International Aero Engineers, as amended --
Incorporated by reference to the Predecessor's Annual Report on
Form 10-K for the year ended December 31, 1994.
10.39 -- Form of the Predecessor 1994 Incentive Equity Plan --
Incorporated by reference to the Predecessor's Annual Report on
Form 10-K for the year ended December 31, 1994.
10.40 -- Employment Agreement dated as of November 9, 1995 between the
Predecessor and William A. Franke -- Incorporated by reference to
the Predecessor's Registration Statement on Form S-1 (No.
33-54243).
*10.41 -- Form of the Registrant's 1994 Incentive Equity Plan
*21.1 -- Subsidiaries of Registrant
- -----------
* Filed herewith.
<PAGE> 1
EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of
December 19, 1996, is by and among AMERICA WEST AIRLINES, INC., a Delaware
corporation ("AWA"), AWA MERGER, INC., a Delaware corporation ("Merger Sub"),
and AMERICA WEST HOLDINGS CORPORATION, a Delaware corporation ("Holdings").
PRELIMINARY STATEMENTS
1. AWA has an authorized capitalization consisting of (i) 1,200,000
shares of Class A Common Stock, par value $0.01 per share ("AWA
Class A Common"), of which 1,200,000 shares are issued and
outstanding, (ii) 100,000,000 shares of Class B Common Stock,
par value $0.01 per share ("AWA Class B Common"), of which
43,182,056 shares were issued and outstanding as of September
30, 1996, and (iii) 48,800,000 shares of Preferred Stock, par
value $0.01 per share, of which no shares are issued and
outstanding.
2. Holdings has an authorized capitalization consisting of (i)
1,200,000 shares of Class A Common Stock, par value $0.01 per
share ("Holdings Class A Common"), of which no shares are issued
and outstanding, (ii) 100,000,000 shares of Class B Common
Stock, par value $0.01 per share ("Holdings Class B Common"), of
which one share is issued and outstanding and is owned by AWA,
and (iii) 48,800,000 shares of Preferred Stock, par value $0.01
per share, of which no shares are issued and outstanding.
3. Merger Sub has an authorized capitalization consisting of 1,000
shares of Common Stock, par value $0.01 per share ("Merger Sub
Common"), all of which are issued and outstanding and are owned
by Holdings.
4. AWA currently has issued and outstanding warrants to purchase
8,180,086 shares of AWA Class B Common, the terms of which are
governed by that certain Warrant Agreement dated as of August
25, 1994 between AWA and First Interstate Bank of California, as
Warrant Agent.
5. The Board of Directors of each of AWA, Holdings and Merger Sub
has heretofore approved the Merger (the "Merger") of Merger Sub
with and into AWA in accordance with the General Corporation Law
of the State of Delaware (the "DGCL") and upon the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, AWA, Holdings and Merger Sub hereby agree as follows:
<PAGE> 2
ARTICLE I
THE MERGER
Section 1.01. The Merger. Upon the terms and subject to the
conditions set forth in this Agreement and in accordance with the DGCL, Merger
Sub shall be merged with and into AWA at the Effective Time (as hereinafter
defined). Following the Effective Time, the separate corporate existence of
Merger Sub shall cease and AWA shall continue as the surviving corporation (in
such capacity, the "Surviving Corporation") and shall succeed to and assume all
the rights and obligations of Merger Sub in accordance with the DGCL.
Section 1.02. Effective Time. Subject to the provisions of this
Agreement, as soon as practicable on or after the date hereof, AWA shall file a
copy of this Agreement with the Secretary of State of the State of Delaware
and the Merger shall become effective at the later to occur of (i) the time of
such filing and (ii) midnight on December 31, 1996 (the "Effective Time").
Section 1.03. Effects of the Merger. The Merger shall have the
effects set forth in Section 259 of the DGCL.
Section 1.04. Certificate of Incorporation and Bylaws. (a) At the
Effective Time, the Restated Certificate of Incorporation of AWA, as in effect
on the date thereof, shall be amended to read in its entirety as set forth in
Exhibit A and, as so amended, shall be the certificate of incorporation of the
Surviving Corporation after the Effective Time until thereafter changed or
amended as provided therein or by the DGCL.
(b) At the Effective Time, the Restated Bylaws of AWA, as in effect on
the date thereof, shall be amended to add thereto a Section 4.18, to read in
its entirety as set forth in Exhibit B, and, as so amended, shall be the bylaws
of the Surviving Corporation after the Effective Time until thereafter changed
or amended as provided therein or by the DGCL.
Section 1.05. Directors. The directors of AWA immediately prior to
the Effective Time shall be the directors of the Surviving Corporation and
shall serve until the earlier of their resignation or removal or until their
respective successors are duly elected and qualified, as the case may be.
Section 1.06. Officers. The officers of AWA immediately prior to the
Effective Time shall be the officers of the Surviving Corporation and shall
serve until the earlier of their resignation or removal or until their
respective successors are duly elected and qualified, as the case may be.
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<PAGE> 3
ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE
CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES
Section 2.01. Effect on Capital Stock. (a) As of the Effective Time,
by virtue of the Merger and without any action on the part of AWA, Merger Sub
or Holdings or any holder of capital stock of AWA, Merger Sub or Holdings, the
following events shall occur:
(i) each issued and outstanding share of AWA Class A Common shall be
converted into the right to receive one share of Holdings Class A Common;
(ii) each issued and outstanding share of AWA Class B Common shall be
converted into the right to receive one share of Holdings Class B Common;
(iii) each issued and outstanding share of Merger Sub Common shall be
converted into the right to receive one share of the common stock, par
value $0.01 per share, of the Surviving Corporation; and
(iv) each issued and outstanding share of Holdings Class B Common
shall be canceled without any consideration being paid therefor.
(b) As of the Effective Time, all shares of AWA Class A Common and
AWA Class B Common issued and outstanding immediately prior to the Effective
Time shall no longer be outstanding and shall be automatically canceled and
retired and shall cease to exist, and each holder of a certificate formerly
representing shares of AWA Class A Common or AWA Class B Common, as the case
may be (in either case, an "AWA Certificate"), shall, to the extent such AWA
Certificate represents such shares, cease to have any rights with respect
thereto, except the right to receive shares of Holdings Class A Common or
Holdings Class B Common, as applicable.
Section 2.02. Exchange Procedures. (a) As soon as practicable after
the Effective Time, each holder of an outstanding AWA Certificate shall, upon
surrender of such AWA Certificate to Harris Trust Company of California, as
exchange agent (the "Exchange Agent"), be entitled to receive a certificate or
certificates representing the number of shares of Holdings Class A Common or
Holdings Class B Common, as applicable (in either case, a "Holdings
Certificate"), into which the shares of AWA Class A Common or AWA Class B
Common previously represented by such AWA Certificate have been converted
pursuant to this Agreement. The Exchange Agent shall accept such AWA
Certificates upon compliance with such reasonable terms and conditions as the
Exchange Agent may impose to effect an orderly exchange thereof in accordance
with normal exchange practices.
(b) If any Holdings Certificate is to be issued to a person or entity
other than the person or entity in whose name a surrendered AWA Certificate is
registered, it shall be a condition of such
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<PAGE> 4
issuance that the AWA Certificate so surrendered shall be properly endorsed,
with signature guaranteed or otherwise in proper form for transfer and that the
person or entity requesting such delivery shall have paid to Holdings or its
transfer agent any transfer or other taxes required by reason of such delivery
to a person or entity other than the registered holder of the AWA Certificate
surrendered or shall have established to the satisfaction of Holdings or its
transfer agent that such taxes either have been paid or are not payable.
(c) Until surrendered and exchanged in accordance with this Section
2.02, each AWA Certificate shall be deemed at any time after the Effective Time
to represent only the right to receive upon such surrender and exchange the
shares of Holdings Class A Common or Holdings Class B Common as provided for in
this Agreement, without any interest thereon.
Section 2.03. Distributions with Respect to Unexchanged Shares. No
dividends or other distributions, (i) with a record date prior to the Effective
Time shall be paid with respect to any shares of AWA Class A Common or AWA
Class B Common or (ii) with a record date after the Effective Time shall be
paid with respect to any shares of Holdings Class A Common or Holdings Class B
Common, to the holder of any unsurrendered AWA Certificate until the surrender
of such AWA Certificate in accordance with this Article II. Subject to the
effect of applicable laws, upon surrender of any such AWA Certificate, there
shall be paid to the holder of such AWA Certificate, without interest, (A) at
the time of such surrender, the proportionate amount of dividends or other
distributions with a record date prior to the Effective Time theretofore paid
with respect to the shares of AWA Class A Common or AWA Class B Common, as
applicable, previously represented by such AWA Certificate, (B) at the time of
such surrender, the proportionate amount of dividends or other distributions
with a record and payment date after the Effective Time but prior to such
surrender with respect to the shares of Holdings Class A Common or Holdings
Class B Common, as applicable, into which such shares of AWA Class A Common or
AWA Class B Common, as the case may be, have been converted, and (C) at the
appropriate payment date, the proportionate amount of dividends or other
distributions with a record date after the Effective Time but prior to such
surrender and a payment date subsequent to such surrender with respect to such
shares of Holdings Class A Common or Holdings Class B Common, as applicable.
Section 2.04. Closing of AWA's Transfer Books. After the date on which
the Effective Time occurs, there shall be no further transfer on the books of
AWA or its transfer agent of any AWA Certificate and if any such AWA
Certificate is presented to the Surviving Corporation or its transfer agent for
transfer, such AWA Certificate shall be canceled and exchanged for a Holdings
Certificate in accordance with this Agreement.
ARTICLE III
AMENDMENT AND TERMINATION
Section 3.01. Amendments and Waiver. No amendment, modification,
restatement or supplement of this Agreement shall be valid unless the same is
in writing and signed by the parties
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<PAGE> 5
hereto. No waiver of any provision of this Agreement shall be valid unless in
writing and signed by the party against whom that waiver is sought to be
enforced. No failure or delay on the part of any party hereto in exercising any
right, power or privilege hereunder and no course of dealing between or among
any of the parties shall operate as a waiver of any right, power or privilege
hereunder. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder. No notice to or demand on any
party hereto in any case shall entitle such party to any other or further
notice or demand in similar or other circumstances or constitute a waiver of
the rights of any party hereto to any other or further action in any
circumstances without notice or demand.
Section 3.02. Termination. At any time prior to Effective Time, this
Agreement may be terminated and abandoned by the parties. In the event of any
termination of this Agreement, this Agreement shall forthwith become void and
there shall be no liability on the part of any of the parties hereto or their
respective officers or directors.
ARTICLE IV
MISCELLANEOUS
Section 4.01. Tax Free Reorganization. The Merger is intended to
constitute a tax-free reorganization within the meaning of Section 368(a) of
the Internal Revenue Code of 1986, as amended, and this Agreement is intended
to constitute a plan of reorganization.
Section 4.02. Benefit and Burden. This Agreement shall inure to the
benefit of, and shall be binding upon, the parties hereto and their respective
successors and permitted assigns.
Section 4.03. No Third Party Rights. Nothing in this Agreement shall be
deemed to create any right in any creditor or other person or entity, and this
Agreement shall not be construed in any respect to be a contract in whole or in
part for the benefit of any third party.
Section 4.04. Assignments. Neither this Agreement nor any right,
interest or obligation hereunder may be assigned by any of the parties hereto
and any attempt to do so shall be null and void.
Section 4.05. Counterparts. This Agreement may be executed in
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed an original and all of which taken
together shall constitute one and the same agreement. It shall not be necessary
in making proof of this Agreement to produce or account for more than one
counterpart signed by the party to be charged thereby.
Section 4.06. Severability. Should any clause, sentence, paragraph,
subsection, Section or Article of this Agreement be judicially declared to be
invalid, unenforceable or void, such decision will not have the effect of
invalidating or voiding the remainder of this Agreement, and the
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<PAGE> 6
part or parts of this Agreement so held to be invalid, unenforceable or void
will be deemed to have been stricken herefrom by the parties hereto, and the
remainder will have the same force and effectiveness as if such stricken part
or parts had never been included herein.
Section 4.07. Applicable Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAW PRINCIPLES THEREOF.
Section 4.08. Entire Agreement. This Agreement sets forth all of the
promises, agreements, conditions, understandings, warranties and
representations among the parties hereto with respect to the transactions
contemplated hereby, and supersedes all prior agreements, arrangements and
understandings among the parties hereto, whether written, oral or otherwise.
There are no promises, agreements, conditions, understandings, warranties or
representations, oral or written, express or implied, among the parties hereto
concerning the subject matter hereof except as set forth herein.
IN WITNESS WHEREOF, each of the parties has executed this Agreement as
of the date first above written.
ATTEST: AMERICA WEST AIRLINES, INC.
/s/ Patricia A. Penwell By: /s/ William A. Franke
- -------------------------- --------------------------
Secretary William A. Franke
Chairman, Chief Executive Officer
and President
ATTEST; AMERICA WEST HOLDINGS CORPORATION
/s/ Patricia A. Penwell By: /s/ William A. Franke
- -------------------------- --------------------------
Secretary William A. Franke
Chairman, Chief Executive Officer
and President
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<PAGE> 7
ATTEST: AWA MERGER, INC.
/s/ Patricia A. Penwell By: /s/ William A. Franke
- ----------------------- ---------------------
Secretary William A. Franke
Chairman, Chief Executive Officer
and President
-7-
<PAGE> 8
CERTIFICATE OF THE SECRETARY
OF
AMERICA WEST AIRLINES, INC.
I, Patricia Penwell, the Secretary of America West Airlines, Inc.,
hereby certify that the Agreement and Plan of Merger to which this certificate
is attached was duly adopted pursuant to Section 251(g) of the DGCL and that
the conditions specified in the first sentence of Section 251(g) of the DGCL
have been satisfied.
WITNESS, my hand and the seal of America West Airlines, Inc. this 19 day
of December, 1996.
[SEAL] /s/ Patricia A. Penwell
-----------------------------
Patricia Penwell, Secretary
CERTIFICATE OF THE SECRETARY
OF
AMERICA WEST HOLDINGS CORPORATION
I, Patricia Penwell, the Secretary of America West Holdings
Corporation, hereby certify that the Agreement and Plan of Merger to which
this certificate is attached was duly adopted pursuant to Section 251(g) of
the DGCL and that the conditions specified in the first sentence of Section
251(g) of the DGCL have been satisfied.
WITNESS, my hand and the seal of America West Holdings Corporation this
19 day of December, 1996.
[SEAL] /s/ Patricia A. Penwell
-----------------------------
Patricia Penwell, Secretary
<PAGE> 9
CERTIFICATE OF THE SECRETARY
OF
AWA MERGER, INC.
I, Patricia Penwell, the Secretary of AWA Merger, Inc., hereby certify
that the Agreement and Plan of Merger to which this certificate is attached was
duly adopted pursuant to Section 251(g) of the DGCL and that the conditions
specified in the first sentence of Section 251(g) of the DGCL have been
satisfied.
WITNESS, my hand and the seal of AWA Merger, Inc. this 19 day of
December, 1996.
(SEAL)
/s/ Patricia A. Penwell
------------------------
Patricia Penwell, Secretary
<PAGE> 10
EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
OF
AMERICA WEST AIRLINES, INC.
AMERICA WEST AIRLINES, INC. (the "Corporation"), a corporation
organized and existing under and by virtue of the General Corporation Law of
the State of Delaware (the "DGCL"), DOES HEREBY CERTIFY:
FIRST
NAME
The name of the Corporation is AMERICA WEST AIRLINES, INC.
SECOND
REGISTERED OFFICE AND REGISTERED AGENT
The location of the registered office of the Corporation in the State
of Delaware is at 1209 Orange Street, Wilmington, New Castle County, Delaware,
and the name of the registered agent is the Corporation Trust Company.
THIRD
PURPOSE
The nature of the business or purposes to be conducted or promoted are
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware (the "DGCL").
FOURTH
AUTHORIZED CAPITAL
The total number of shares of all classes of stock which this
Corporation shall have authority to issue is 1000 shares of Common Stock
("Common Stock") with the par value of $0.01 per share.
4.1 Common Stock. Preemptive rights as provided for by Section
102(b)(3) of the DGCL shall not be granted and are hereby expressly denied.
A-i
<PAGE> 11
4.1.1 Voting Rights.
4.1.1.1 Except as provided in Article Thirteenth, each
registered holder of Common Stock shall be entitled to one vote for each share
of such stock held by such holder. The right to cumulate votes for election of
directors as provided in Section 214 of the DGCL shall not be granted and is
hereby expressly denied.
4.1.1.2 In addition to any other vote required by law, except
where prohibited by applicable corporate law, any amendments to the Restated
Bylaws of the Corporation (the "Bylaws") shall be made in compliance therewith.
4.1.1.3 In addition to the automatic suspension of voting
rights provided under Article Thirteenth, any holder of Common Stock may
suspend the voting rights relating to any shares of Common Stock held by it by
providing prior written notice to the Corporation, which notice shall describe
such shares in reasonable detail and state whether or not the voting suspension
is permanent or temporary and, if temporary, the period thereof.
Notwithstanding whether the suspension is permanent or temporary, any
stockholder that suspends its voting rights under this Section 4.1.1.3 may
rescind such suspension upon written notice to the Corporation; provided that
any notice reinstating voting rights under this Section 4.1.1.3 shall not be
effective with respect to any matter unless such notice is sent prior to the
record date for voting on such matter. The suspension of voting rights
hereunder shall not affect any other rights held by the holders of such
suspended Common Stock by virtue of their stock ownership.
4.1.1.4 Any act or transaction by or involving the Corporation
that requires for its adoption under the DGCL or this Restated Certificate of
Incorporation the approval of the stockholders of the Corporation shall, in
accordance with Section 251(g) of the DGCL, require, in addition, the approval
of the stockholders of America West Holdings Corporation ("Holdings") (or any
successor by merger), by the same vote as is required by the DGCL and/or by
this Restated Certificate of Incorporation.
4.1.2 Dividends. The holders of Common Stock shall be entitled to
receive, when and if declared by the Board of Directors, out of the assets of
the Corporation which are by law available therefor, dividends payable either
in cash, in stock or otherwise.
4.1.3 Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, after payment or
provision for payment of the debts and other liabilities of the Corporation,
the holders of shares of all Common Stock shall be entitled to share ratably in
the remaining net assets of the Corporation. Neither the merger or
consolidation of the Corporation, nor the sale, lease or conveyance of all or
part of its assets, shall be deemed to be a liquidation, dissolution or winding
up of the Corporation, either voluntarily or involuntarily, within the meaning
of this Section 4.1.3.
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<PAGE> 12
FIFTH
NUMBER AND TERM OF DIRECTORS
The Board of Directors of the Corporation shall consist of up to 15
members, which number may be increased or decreased from time to time by
resolution duly adopted by such Board; provided, however, that at no time shall
there be fewer than nine or more than 15 members. No decrease in the number of
Directors shall have the effect of shortening the term of any incumbent
Director. Except as otherwise provided in that certain Stockholders' Agreement
for America West Airlines, Inc., dated as of August 25, 1994 for so long as it
remains in force and effect (the "Stockholders' Agreement"), any Director may
be removed by the stockholders of the Corporation with or without cause
pursuant to the Bylaws and applicable law.
Each Director shall be elected (a) in accordance with the Bylaws and
shall serve for a term of one year or until the death, resignation or removal
of such Director, and until a successor shall have been properly elected and
shall qualify, and (b) as provided in the Stockholders' Agreement.
Beginning at the first annual meeting of the stockholders on or after
August 25, 1997 (the "Third Annual Meeting"), the number of Directors shall be
divided into three classes, as nearly equal in number as may be, to serve in the
first instance until the first, second and third annual meetings of the
stockholders to be held after the Third Annual Meeting, respectively, and until
their successors shall have been properly elected and shall qualify; and
thereafter for three-year terms. In the case of any increase in the number of
Directors of the Corporation, the additional Directors shall be so classified
that all classes of Directors shall be increased equally as nearly as may be,
and the additional Directors shall be elected as provided herein by the
Directors or by the stockholders at an annual meeting. In case of any decrease
in the number of Directors of the Corporation, all classes of Directors shall
be decreased equally, as nearly as may be. Election of Directors shall be
conducted as provided in this Restated Certificate of Incorporation, in the
Bylaws, or by applicable law.
SIXTH
MANAGEMENT
The Corporation shall be managed by the Board of Directors, which shall
exercise all powers conferred under the laws of the State of Delaware. Pursuant
to a plan of reorganization confirmed by the United States Bankruptcy Court for
the District of Arizona, the Bylaws were adopted on August 10, 1994, but,
thereafter, the power to make, alter or repeal the Bylaws has been and shall be
vested in the Board of Directors, as may be limited by the Bylaws.
A-iii
<PAGE> 13
SEVENTH
COMPROMISE OR ARRANGEMENT WITH CREDITORS
Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware, may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under
the provisions of Section 291 of the DGCL or on the application of trustees in
dissolution or of any receiver or receivers appointed for the Corporation under
the provisions of Section 279 of the DGCL order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, to be summoned in such manner as the said
court directs. If a majority in number representing three-fourths in value of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of the Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of the Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the Court to which the application has
been made, be binding on all the creditors or class of creditors, and/or on all
the stockholders of the Corporation, as the case may be and also on the
Corporation.
EIGHTH
VACANCIES ON THE BOARD OF DIRECTORS
Except as otherwise provided in the Stockholders' Agreement, in case
any vacancy shall occur on the Board of Directors because of death,
resignation, retirement, disqualification, removal, an increase in the
authorized number of Directors or any other cause, the Board of Directors
shall have the sole and exclusive authority to, in accordance with the Bylaws,
elect a Director to fill such vacancy.
NINTH
SPECIAL MEETINGS OF STOCKHOLDERS
Special meetings of the stockholders of the Corporation, for any
purpose or purposes, unless otherwise prescribed herein or by statute, may be
called by the Chairman of the Board and shall be called by the Secretary at the
written request, or by resolution adopted by the affirmative vote, of a
majority of the Board of Directors. Stockholders of the Corporation shall not
be entitled to request a special meeting of the stockholders.
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<PAGE> 14
TENTH
ACTIONS OF STOCKHOLDERS: MEETINGS AND WRITTEN CONSENT
All action by holders of the Corporation's outstanding voting
securities shall be taken at an annual or special meeting of the stockholders
following notice as provided by law or in the Bylaws (or by written consent as
provided below). Stockholders of the Corporation shall have the power to act by
means of written consent only in the removal of directors in accordance with
the Stockholders' Agreement or any other voting agreement of even date
therewith by and between GPA Group plc and AmWest Partners, L.P., for so long
as any such agreement remains in force and effect.
ELEVENTH
NOMINATIONS FOR ELECTION OF DIRECTORS
Except as may be otherwise provided in the Stockholders' Agreement, no
person shall be elected to the Board of Directors of the Corporation at an
annual meeting of the stockholders, or at a special meeting called for that
purpose, unless a written nomination of such person to the Board of Directors
(i) by a stockholder of the Corporation shall be received by the Corporation in
accordance with the Bylaws or (ii) is made by or at the direction of the Board
of Directors.
TWELFTH
LIMITATION OF DIRECTOR LIABILITY:
INDEMNIFICATION OF DIRECTORS AND OFFICERS
12.1 Limitation of Liability. A person who is or was a Director of the
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the Director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the DGCL or (iv) for any transaction from which the
Director derived an improper personal benefit. If the DGCL is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of the Directors of the Corporation
shall be eliminated or limited to the fullest extent permitted by the DGCL, as
so amended. The elimination and limitation of liability provided herein shall
continue after a Director has ceased to occupy such position as to acts or
omissions occurring during such Director's term or terms of office, and no
amendment or repeal of this Section 12.1 shall apply to or have any effect on
the liability or alleged liability of any Director of the Corporation for or
with respect to any acts or omissions of such Director occurring prior to such
amendment or repeal.
12.2 Indemnification. The Corporation shall indemnify, to the fullest
extent permitted by applicable law and pursuant to the Bylaws, each person who
is or was a Director or officer of the
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<PAGE> 15
Corporation, and may indemnify each employee and agent of the Corporation and
all other persons whom the Corporation is authorized to indemnify under the
provisions of the DGCL.
THIRTEENTH
FOREIGN OWNERSHIP OF VOTING STOCK
At no time shall more than 25% of the voting interest of the
Corporation be owned or controlled by persons who are not "Citizens of the
United States" (as such term is defined in Title 49, United States Code,
Section 40102), or as the same may be from time to time amended)
("Non-Citizens"). In the event that Non-Citizens shall own (beneficially or of
record) or have voting control over any shares of common stock of the
Corporation, the voting rights of such persons shall be subject to automatic
suspension to the extent required to ensure that the Corporation is in
compliance with applicable provisions of law and regulations relating to
ownership or control of a U.S. carrier. The Bylaws shall contain provisions to
implement this Article Thirteenth, including, without limitation, provisions
restricting or prohibiting transfer of shares of voting stock to Non-Citizens
and provisions restricting or removing voting rights as to shares of voting
stock owned or controlled by Non-Citizens. Any determination as to ownership,
control or citizenship made by the Board of Directors shall be conclusive and
binding as between the Corporation and any stockholder for purposes of this
Article Thirteenth.
FOURTEENTH
BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS
The Corporation elects not to be governed by Section 203 of the General
Corporation Law of the State of Delaware, as the same may be amended from time
to time. This election shall be effective as of the earliest date permitted by
law.
FIFTEENTH
ARIZONA CORPORATE TAKEOVERS ACT
The Corporation elects not to be subject to Article 2, Chapter 6, Title
10 of the Arizona Revised Statutes, as the same may be amended from time to
time. This election shall be effective as of the earliest date permitted by law.
The Corporation elects not to be subject to Article 3, Chapter 6, Title
10 of the Arizona Revised Statutes, as the same shall be amended from time to
time. This election shall be effective as of the earliest date permitted by law.
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<PAGE> 16
EXHIBIT B
AMENDMENT OF RESTATED BYLAWS OF AWA
4.18 Joint Meetings. Notwithstanding any provision of these Bylaws to
the contrary, so long as all of the outstanding voting capital stock of the
Corporation is owned, directly or indirectly, by Parent (as defined below), and
so long as each member of the Board of Directors of the Corporation is also a
member of the Board of Directors of Parent, (i) each meeting of the Board of
Directors of Parent (a "Parent Board Meeting") shall constitute a Joint Meeting
(as defined below) unless otherwise specified in the notice given with respect
to such Parent Board Meeting in accordance with the bylaws of Parent and (ii)
no notice of any Joint Meeting shall be required to be given to any person in
his or her capacity as a director of the Corporation. As used in this Section
4.18, (A) "Parent" means America West Holdings Corporation, a Delaware
corporation, and any entity into which America West Holdings Corporation or any
successor may be merged or converted or with which it may be considered or any
entity resulting from any merger, conversion or consolidation to which America
West Holdings Corporation or any successor shall be a party and (B) a "Joint
Meeting" means a joint meeting of the respective Boards of Directors of Parent
and the Corporation.
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<PAGE> 1
EXHIBIT 3.1
[STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 10:00 AM 12/13/1996
960366898-2694322]
CERTIFICATE OF INCORPORATION
OF
AMERICA WEST HOLDINGS CORPORATION
FIRST
NAME
----
The name of the Corporation is AMERICA WEST HOLDINGS CORPORATION.
SECOND
REGISTERED OFFICE AND REGISTERED AGENT
--------------------------------------
The location of the registered office of the Corporation in the State
of Delaware is at 1209 Orange Street, Wilmington, New Castle County, Delaware,
and the name of the registered agent is The Corporation Trust Company.
THIRD
PURPOSE
-------
The nature of the business or purposes to be conducted or promoted are
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware (the "DGCL").
FOURTH
AUTHORIZED CAPITAL
------------------
The total number of shares of all classes of stock which this
Corporation shall have authority to issue is 150,000,000 shares of which
1,200,000 shares shall be Class A Common Stock ("Class A Common") with the par
value of $0.01 per share, 100,000,000 shares shall be Class B Common Stock
("Class B Common") with the par value of $0.01 per share, and 48,800,000 shares
shall be Preferred Stock ("Preferred Stock") with the par value of $0.01 per
share.
4.1 Common Stock. All shares of Class A Common and Class B Common shall
be identical and will entitle the holders thereof to the same rights and
privileges, except as otherwise provided herein. Preemptive rights as provided
for by Section 102(b)(3) of the DGCL shall not be granted and are hereby
expressly denied.
<PAGE> 2
4.1.1 Voting Rights.
4.1.1.1 Except as provided in Article Fourteenth, each
registered holder of Class A Common shall be entitled to 50 votes for each share
of such stock held by such holder, and each registered holder of Class B Common
shall be entitled to one vote for each share of such stock held by such holder.
The right to cumulate votes for election of directors as provided in Section 214
of the DGCL shall not be granted and is hereby expressly denied.
4.1.1.2 Except as otherwise provided herein or required by
law, Class A Common and Class B Common shall vote together as a single class for
the election of directors of the Corporation, as provided for in Article Sixth,
and on all other matters submitted to a vote of stockholders of the Corporation.
4.1.1.3 In addition to any other vote required by law, except
where prohibited by applicable corporate law, any amendments to the Bylaws of
the Corporation (the "Bylaws") shall be made in compliance therewith.
4.1.1.4 In addition to the automatic suspension of voting
rights provided under Article Fourteenth, any holder of Class B Common may
suspend the voting rights relating to any shares of Class B Common held by it by
providing prior written notice to the Corporation, which notice shall describe
such shares in reasonable detail and state whether or not the voting suspension
is permanent or temporary and, if temporary, the period thereof. Notwithstanding
whether the suspension is permanent or temporary, any stockholder that suspends
its voting rights under this Section 4.1.1.4 may rescind such suspension upon
written notice to the Corporation; provided, however, that any notice
reinstating voting rights under this Section 4.1.1.4 shall not be effective with
respect to any matter unless such notice is sent prior to the record date for
voting on such matter. The suspension of voting rights hereunder shall not
affect any other rights held by the holders of such suspended Class B Common by
virtue of their stock ownership.
4.1.2 Dividends. The holders of Class A Common and Class B Common
shall be entitled to receive, when and if declared by the Board of Directors,
out of the assets of the Corporation which are by law available therefor,
dividends payable either in cash, in stock or otherwise. If any dividend or
distribution is paid on any class of common stock such dividend or distribution
shall be paid on all classes of common stock in the same amount per share and
any stock split or recapitalization of any class of common stock shall apply
equally to all classes of common stock; provided, however, that in the case of
dividends payable in shares of common stock, or options, warrants or rights to
acquire shares of common stock or securities convertible into or exchangeable
for shares of common stock, the shares, options, warrants, rights or securities
so payable shall be payable in shares of, or options, warrants or rights to
acquire, or securities convertible into or exchangeable for, Class B Common.
4.1.3 Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, after payment or
provision for payment of the debts
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<PAGE> 3
and other liabilities of the Corporation and liquidation preferences, if any, of
any series of Preferred Stock, the holders of shares of all classes of common
stock shall be entitled to share ratably in the remaining net assets of the
Corporation. Neither the merger or consolidation of the Corporation, nor the
sale, lease or conveyance of all or part of its assets, shall be deemed to be a
liquidation, dissolution or winding up of the Corporation, either voluntarily or
involuntarily, within the meaning of this Section 4.1.3.
4.1.4 Conversion of Class A Common to Class B Common.
4.1.4.1 Holders of Class A Common shall have the right, at
their individual options and at any time, to convert any or all shares of Class
A Common held by them to the same number of shares of Class B Common by
delivering to the Corporation a notice of their intent to so convert their
shares of Class A Common and surrendering the certificate or certificates
representing such shares. The Corporation shall promptly issue and deliver the
certificate or certificates evidencing the shares of Class B Common issuable
upon conversion in accordance with the holder's instructions. Such conversion,
to the extent permitted by law, shall be deemed to occur as of the close of
business on the date on which the holder's notice of intent is received and the
holder's shares of Class A Common are surrendered. Class B Common issued under
this Section 4.1.4.1 shall be deemed duly authorized, validly issued, fully paid
and nonassessable.
4.1.4.2 In the case of any reorganization, reclassification or
change of shares of the Class B Common (other than a change in par value or from
par to no par value or as a result of a subdivision or combination), or in the
case of any consolidation of the Corporation with one or more corporations or a
merger of the Corporation with another corporation, or in the case of any sale,
lease or other disposition of all or substantially all of the assets of the
Corporation, each holder of a share of Class A Common at the time outstanding
shall be entitled to convert such share into the kind and amount of shares of
stock and other securities and properties (including cash) receivable upon such
reorganization, reclassification, change of shares, consolidation, merger, sale,
lease or other disposition, by a holder of the number of shares of Class B
Common into which such shares of Class A Common might have been converted
immediately prior to such reorganization, reclassification, change of shares,
consolidation, merger, sale, lease or other disposition. In the event of such a
reorganization, reclassification, change of shares, consolidation, merger, sale,
lease or other disposition, effective provision shall be made in the charter of
the resulting or surviving corporation or otherwise for the protection of the
conversion rights of the sharers of Class A Common as nearly equivalent as
practicable, into any such other shares of stock and other securities and
property deliverable upon conversion of shares of Class B Common into which such
Class A Common might have been converted immediately prior to such event.
4.1.4.3 The Corporation shall at all times reserve and keep
available out of its authorized but unissued shares of Class B Common, solely
for the purpose of issuance upon conversion of outstanding shares of Class A
Common, such number of shares of Class B Common as shall from time to time be
issuable upon the conversion of all of the outstanding shares of Class A Common.
If any shares of Class B Common required to be reserved for purposes of
conversion
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<PAGE> 4
hereunder (i) require registration with or approval of any governmental
authority under any federal or state law before such shares of Class B Common
may be issued upon conversion or (ii) are listed on any national or regional
securities exchange or listing service, the Corporation shall use its
commercially reasonable efforts and incur commercially reasonable costs to cause
such shares to be duly registered, approved or listed, as the case may be prior
to the effective time of such conversion.
4.1.4.4 The Corporation shall pay all documentary stamp or
other transactional taxes attributable to the issuance or delivery of shares of
Class B Common upon conversion of any shares of Class A Common; provided,
however, that the Corporation shall not be required to pay any taxes which may
be payable in respect of any transfer involved in the issuance or delivery of
any certificate for shares of Class B Common in a name other than that of the
registered holder of shares of Class A Common converted.
4.2 Preferred Stock. Except as otherwise provided in that certain
Stockholders' Agreement dated as of August 25, 1994 (or any Stockholders'
Agreement for the Corporation replacing the same and containing substantially
the same terms and provisions) for so long as it remains in force and effect
(either such agreement, the "Stockholders' Agreement"), the Preferred Stock may
be issued as a class, without series, or if so determined from time to time by
the Board of Directors, either in whole or in part in one or more series, each
series to be expressly designated by distinguishing number, letter or title
prior to the issue of any shares thereof. The Preferred Stock, and each series
thereof, may have such voting powers, full or limited, including the right to
have more or less than one vote per share, or no voting powers, and such
designations, preferences, dividend rights and relative, participating, optional
or other special rights, qualifications, limitations and restrictions, if any,
as shall be stated and expressed in the resolution or resolutions of the Board
of Directors providing for the issuance of such Preferred Stock (a "Preferred
Stock Designation").
The Board of Directors is hereby authorized to (i) fix or alter the
dividend rights, dividend rates, dividend preferences and participations,
conversion rights, voting rights, rights and terms of redemption (including
sinking fund provisions), the price or other consideration for which shares
shall be issued, the redemption price or prices, the liquidation preferences and
any and all relative, participating, optional or other special rights,
qualifications, limitations on and restrictions on each series of the Preferred
Stock and the number of shares constituting any such series and the designation
thereof, and (ii) increase or decrease the number of shares of any series
subsequent to the issuance of shares of that series to the extent permitted by
the DGCL, but not below the number of shares of such series then outstanding. In
case the number of shares of any series shall be so decreased, the shares
constituting such decrease shall resume the status which they had prior to the
adoption of the resolution originally fixing the number of shares of such
series. Notwithstanding anything to the contrary contained in this Certificate
of Incorporation or any Preferred Stock Designation, the holders of Preferred
Stock shall not be entitled to vote separately as a class with respect to any
amendment to this Certificate of Incorporation to increase the number of
authorized shares of Preferred Stock.
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<PAGE> 5
4.3 Issuance of Nonvoting Stock. The Corporation will not issue
nonvoting equity securities to the extent prohibited by Section 1123 of the
Bankruptcy Code; provided, however, that this Section 4.3, (i) will have no
further force or effect beyond that required under Section 1123 of the
Bankruptcy Code, (ii) will have such force and effect, if any, only for so long
as such section is in effect and applicable to the Corporation or any of its
wholly-owned subsidiaries and (iii) in all events may be amended or eliminated
in accordance with applicable law as from time to time in effect.
FIFTH
INCORPORATOR
------------
The name and address of the incorporator is:
Kenneth M. Hale
c/o Andrews & Kurth L.L.P.
4200 Texas Commerce Tower
600 Travis
Houston, Texas 77002
SIXTH
NUMBER AND TERM OF DIRECTORS.
-----------------------------
The Board of Directors of the Corporation shall consist of up to 15
members, which number may be increased or decreased from time to time by
resolution duly adopted by such Board; provided, however, that at no time shall
there be fewer than nine or more than 15 members (except for increases above 15
members caused by a provision allowing holders of Preferred Stock to elect
additional directors in the event of nonpayment of dividends). No decrease in
the number of Directors shall have the effect of shortening the term of any
incumbent Director. Except as otherwise provided in the Stockholders' Agreement,
any Director may be removed by the stockholders of the Corporation with or
without cause pursuant to the Bylaws and applicable law. The number of directors
constituting the initial Board of Directors is 15 and the names and addresses of
the persons who are to serve as directors until their successors are duly
elected and qualified are:
Julia Chang Bloch Stephen F. Bollenbach
c/o U.S. Japan Foundation c/o The Hilton Hotels Corporation
145 East 32nd St., 12th Floor 9336 Civic Center Drive
New York, New York 10016 Beverly Hills, California 90210
Frederick W. Bradley, Jr. Richard C. Kraemer
764 Norgate 8236 S. Pecan Grove Circle
Westfield, New Jersey 07090 Tempe, Arizona 85284
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<PAGE> 6
William A. Franke John F. Fraser
c/o America West Airlines, Inc. c/o Russel Metals Inc.
4000 E. Sky Harbor Blvd. Suite 600 - One Lombard Place
Phoenix, Arizona 85034 Winnipeg, Manitoba
R3B 0X3 Canada
John L. Goolsby James G. Coulter
c/o The Howard Hughes Corporation c/o Texas Pacific Group
3800 Howard Hughes Parkway, 17th Floor 600 California Street, Suite 1850
Las Vegas, Nevada 89109 San Francisco, California 94108
John R. Power, Jr. Larry L. Risley
c/o The Patrician Corporation c/o Mesa Airlines, Inc.
184 E. Shuman Blvd., Suite 200 2325 East 30th Street
Naperville, Illinois 60563 Farmington, New Mexico 87401
Frank B. Ryan Raymond S. Troubh
20 Sunset Boulevard 10 Rockefeller Plaza, Suite 712
Houston, Texas 77005 New York, New York 10020
Richard R. Goodmanson Richard P. Schifter
c/o America West Airlines, Inc. c/o Texas Pacific Group
4000 E. Sky Harbor Blvd. 1133 Connecticut Ave., N.W., Suite 700
Phoenix, Arizona 85034 Washington D.C. 20036
John F. Tierney
c/o GPA Group plc
GPA House
Assistant Chief Executive and Financial Director
Shannon, Ireland
Each Director shall be elected (i) in accordance with the Bylaws and shall serve
for a term of one year or until the death, resignation or removal of such
Director, and until a successor shall have been properly elected and shall
qualify, and (ii) as provided in the Stockholders' Agreement.
Beginning at the first annual meeting of the stockholders on or after
August 25, 1997, the number of Directors shall be divided into three classes, as
nearly equal in number as may be, to serve in the first instance until the
first, second and third annual meetings of the stockholders to be held after
such annual meeting, respectively, and until their successors shall have been
properly elected and shall qualify; and thereafter for three-year terms. In the
case of any increase in the number of Directors of the Corporation, the
additional Directors shall be so classified that all classes of Directors shall
be increased equally as nearly as may be, and the additional Directors shall be
elected as provided herein by the Directors or by the stockholders at an annual
meeting. In case of any
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<PAGE> 7
decrease in the number of Directors of the Corporation, all classes of Directors
shall be decreased equally, as nearly as may be. Election of Directors shall be
conducted as provided in this Certificate of Incorporation, in the Bylaws, or by
applicable law.
SEVENTH
MANAGEMENT
----------
The Corporation shall be managed by the Board of Directors, which shall
exercise all powers conferred under the laws of the State of Delaware. The power
to make, alter or repeal the Bylaws shall be vested in the Board of Directors,
except as may be limited by the Bylaws.
EIGHTH
COMPROMISE OR ARRANGEMENT WITH CREDITORS
----------------------------------------
Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware, may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under the
provisions of Section 291 of the DGCL or on the application of trustees in
dissolution or of any receiver or receivers appointed for the Corporation under
the provisions of Section 279 of the DGCL order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of the Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of the Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the Court to which the application has
been made, be binding on all the creditors or class of creditors, and/or on all
the stockholders of the Corporation, as the case may be and also on the
Corporation.
NINTH
VACANCIES ON THE BOARD OF DIRECTORS
-----------------------------------
Except as otherwise provided in the Stockholders' Agreement, in case
any vacancy shall occur on the Board of Directors because of death, resignation,
retirement, disqualification, removal, an increase in the authorized number of
Directors or any other cause, the Board of Directors shall have the sole and
exclusive authority to, in accordance with the Bylaws, elect a Director to fill
such vacancy.
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<PAGE> 8
TENTH
SPECIAL MEETINGS OF STOCKHOLDERS
Special meetings of the stockholders of the Corporation, for any
purpose or purposes, unless otherwise prescribed herein or by statute, may be
called by the Chairman of the Board and shall be called by the Secretary at the
written request, or by resolution adopted by the affirmative vote, of a majority
of the Board of Directors. Stockholders of the Corporation shall not be entitled
to request a special meeting of the stockholders.
ELEVENTH
ACTIONS OF STOCKHOLDERS; MEETINGS AND WRITTEN CONSENT
All action by holders of the Corporation's outstanding voting
securities shall be taken at an annual or special meeting of the stockholders
following notice as provided by law or in the Bylaws (or by written consent as
provided below). Stockholders of the Corporation shall have the power to act by
means of written consent only in the removal of directors in accordance with the
Stockholders' Agreement or any other voting agreement of even date therewith by
and between GPA Group plc and AmWest Partners, L.P., for so long as any such
agreement remains in force and effect.
TWELFTH
NOMINATIONS FOR ELECTION OF DIRECTORS
Except as may be otherwise provided in the Stockholders' Agreement, no
person shall be elected to the Board of Directors of the Corporation at an
annual meeting of the stockholders, or at a special meeting called for that
purpose, unless a written nomination of such person to the Board of Directors
(i) by a stockholder of the Corporation shall be received by the Corporation in
accordance with the Bylaws or (ii) is made by or at the direction of the Board
of Directors.
THIRTEENTH
LIMITATION OF DIRECTOR LIABILITY;
INDEMNIFICATION OF DIRECTORS AND OFFICERS.
13.1 Limitation of Liability. A person who is or was a Director of the
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the Director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL or (iv) for any transaction from which the Director
derived an improper personal benefit. If the DGCL is amended to authorize
corporate action further eliminating or limiting the personal liability of
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<PAGE> 9
directors, then the liability of the Directors of the Corporation shall be
eliminated or limited to the fullest extent permitted by the DGCL, as so
amended. The elimination and limitation of liability provided herein shall
continue after a Director has ceased to occupy such position as to acts or
omissions occurring during such Director's term or terms of office, and no
amendment or repeal of this Section 13.1 shall apply to or have any effect on
the liability or alleged liability of any Director of the Corporation for or
with respect to any acts or omissions of such Director occurring prior to such
amendment or repeal.
13.2 Indemnification. The Corporation shall indemnify, to the fullest
extent permitted by applicable law and pursuant to the Bylaws, each person who
is or was a Director or officer of the Corporation, and may indemnify each
employee and agent of the Corporation and all other persons whom the Corporation
is authorized to indemnify under the provisions of the DGCL.
FOURTEENTH
FOREIGN OWNERSHIP OF VOTING STOCK
At no time shall more than 25% of the voting interest of the
Corporation be owned or controlled by persons who are not "citizens of the
United States" (as such term is defined in Title 49, United States Code, Section
40102), or as the same may be from time to time amended) ("Non- Citizens"). In
the event that Non-Citizens shall own (beneficially or of record) or have voting
control over any shares of common stock of the Corporation, the voting rights of
such persons shall be subject to automatic suspension to the extent required to
ensure that the Corporation is in compliance with applicable provisions of law
and regulations relating to ownership or control of a U.S. carrier. The Bylaws
shall contain provisions to implement this Article Fourteenth, including,
without limitation, provisions restricting or prohibiting transfer of shares of
voting stock to Non- Citizens and provisions restricting or removing voting
rights as to shares of voting stock owned or controlled by Non-Citizens. Any
determination as to ownership, control or citizenship made by the Board of
Directors shall be conclusive and binding as between the Corporation and any
stockholder for purposes of this Article Fourteenth.
FIFTEENTH
BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS
The Corporation elects not to be governed by Section 203 of the DGCL,
as the same may be amended from time to time. This election shall be effective
as of the earliest date permitted by law.
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<PAGE> 10
SIXTEENTH
ARIZONA CORPORATE TAKEOVERS ACT
The Corporation elects not to be subject to Article 2, Chapter 6, Title
10 of the Arizona Revised Statutes, as the same may be amended from time to
time. This election shall be effective as of the earliest date permitted by law.
The Corporation elects not to be subject to Article 3, Chapter 6, Title
10 of the Arizona Revised Statutes, as the same shall be amended from time to
time. This election shall be effective as of the earliest date permitted by law.
* * *
THE UNDERSIGNED, being the incorporator, for the purpose of forming a
corporation under the laws of the State of Delaware, does hereby make, file and
record this Certificate of Incorporation, does hereby certify that the facts
herein stated are true, and, accordingly, has hereunto set my hand this 12th day
of December, 1996.
/s/ Kenneth M. Hale
--------------------------------------
Kenneth M. Hale
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<PAGE> 1
EXHIBIT 3.2
================================================================================
================================================================================
BYLAWS
OF
AMERICA WEST HOLDINGS CORPORATION
================================================================================
DECEMBER 19, 1996
================================================================================
<PAGE> 2
TABLE OF CONTENTS
PAGE
ARTICLE I - OFFICES ......................................................... 1
ARTICLE II - SEAL............................................................ 1
ARTICLE III - MEETINGS OF STOCKHOLDERS....................................... 1
Section 3.01 Place of Meetings......................................... 1
Section 3.02 Annual Meetings........................................... 1
Section 3.03 Special Meetings.......................................... 2
Section 3.04 Action by Consent in Lieu of a Meeting.................... 2
Section 3.05 Notice of Meetings........................................ 2
Section 3.06 Stockholder Notices....................................... 2
Section 3.07 Adjourned Meetings........................................ 3
Section 3.08 Quorum and Adjournment.................................... 3
Section 3.09 Majority Vote Required.................................... 3
Section 3.10 Manner of Voting.......................................... 3
Section 3.11 Proxies................................................... 4
Section 3.12 Presiding Officer and Secretary........................... 4
Section 3.13 Disregard of Nomination or Proposal....................... 4
Section 3.14 Inspections of Elections.................................. 4
ARTICLE IV - DIRECTORS....................................................... 4
Section 4.01 Powers.................................................... 4
Section 4.02 Number and Classification................................. 4
Section 4.03 Nominations............................................... 5
Section 4.04 Resignations.............................................. 5
Section 4.05 Removal................................................... 5
Section 4.06 Vacancies................................................. 6
Section 4.07 Presiding Officer and Secretary........................... 6
Section 4.08 Annual Meetings........................................... 6
Section 4.09 Regular Meetings.......................................... 6
Section 4.10 Special Meetings.......................................... 6
Section 4.11 Quorum and Powers of a Majority........................... 7
Section 4.12 Waiver of Notice.......................................... 7
Section 4.13 Manner of Acting.......................................... 7
Section 4.14 Compensation.............................................. 7
Section 4.15 Committees................................................ 7
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Section 4.16 Committee Procedure........................................ 8
Section 4.17 Executive Committee........................................ 8
ARTICLE V - OFFICERS.......................................................... 9
Section 5.01 Number..................................................... 9
Section 5.02 Election of Officers, Qualification and Term............... 9
Section 5.03 Removal................................................... 10
Section 5.04 Resignations.............................................. 10
Section 5.05 Vacancies................................................. 10
Section 5.06 Salaries.................................................. 10
Section 5.07 The Chairman of the Board................................. 10
Section 5.08 The President............................................. 10
Section 5.09 The Vice Presidents....................................... 11
Section 5.10 The Secretary and the Assistant Secretary................. 11
Section 5.11 The Treasurer and the Assistant Treasurer................. 11
Section 5.12 Treasurer's Bond.......................................... 12
Section 5.13 Chief Executive Officer................................... 12
Section 5.14 Chief Operating Officer................................... 12
ARTICLE VI - STOCK........................................................... 12
Section 6.01 Certificates.............................................. 12
Section 6.02 Transfers................................................. 13
Section 6.03 Lost, Stolen or Destroyed Certificates.................... 13
Section 6.04 Record Date............................................... 13
Section 6.05 Registered Stockholders................................... 13
Section 6.06 Additional Powers of the Board............................ 14
ARTICLE VII - LIMITATIONS OF OWNERSHIP BY NON-CITIZENS....................... 14
Section 7.01 Definitions............................................... 14
Section 7.02 Policy.................................................... 15
Section 7.03 Foreign Stock Record...................................... 15
Section 7.04 Suspension of Voting Rights............................... 15
Section 7.05 Beneficial Ownership Inquiry.............................. 15
ARTICLE VIII - MISCELLANEOUS................................................. 16
Section 8.01 Place and Inspection of Books............................. 16
Section 8.02 Indemnification of Directors,
Officers, Employees and Agents ........................ 17
Section 8.03 Dividends................................................. 19
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<PAGE> 4
Section 8.04 Execution of Deeds, Contracts, and Other
Agreements and Instruments............................. 19
Section 8.05 Checks.................................................... 19
Section 8.06 Voting Shares in Other Corporations....................... 19
Section 8.07 Fiscal Year............................................... 19
Section 8.08 Gender/Number............................................. 20
Section 8.09 Paragraph Titles.......................................... 20
Section 8.10 Amendment................................................. 20
Section 8.11 Certificate of Incorporation.............................. 20
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BYLAWS
OF
AMERICA WEST HOLDINGS CORPORATION
(as effective on December 19, 1996)
ARTICLE I
OFFICES
In addition to its registered office in the state of Delaware, the
Corporation shall have a general office at Maricopa County, Arizona, and such
other offices, either within or without the State of Delaware, at such locations
as the Board of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE II
SEAL
The Corporation shall have a seal, which shall have inscribed thereon
its name and year of incorporation and the words, "Corporate Seal Delaware." The
seal shall be kept in safe custody by the Secretary of the Corporation. It shall
be affixed by the Chairman of the Board, the President or any Vice President,
the Secretary or any Assistant Secretary, or the Treasurer to any corporate
instrument or document requiring it, by practice or by law, and when so affixed,
it may be attested by the signature of the officer so affixing it.
ARTICLE III
MEETINGS OF STOCKHOLDERS
Section 3.01 Place of Meetings. All meetings of stockholders of the
Corporation shall be held at the general office of the Corporation in Maricopa
County, State of Arizona, unless otherwise specified in the notice calling any
such meeting.
Section 3.02 Annual Meetings. (a) All annual meetings of stockholders
shall be held on the first Tuesday of May, if not a legal holiday, and if a
legal holiday, then on the next business day following, or at such other time,
date and place as shall be determined by the Board of Directors from time to
time.
(b) At each annual meeting the stockholders shall, by plurality of the
votes cast, elect Directors and transact such other business as may properly be
brought before them.
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(c) The Board of Directors may, in advance of any annual or special
meeting of the stockholders, adopt an agenda for such meeting, adherence to
which the Chairman of the Board may enforce.
Section 3.03 Special Meetings. Special meetings of the stockholders of
the Corporation, for any purpose or purposes, unless otherwise prescribed herein
or by statute, may be called by the Chairman of the Board and shall be called by
the Secretary at the written request, or by resolution adopted by the
affirmative vote, of a majority of the Board of Directors. Such request shall
state the purpose or purposes of the proposed meeting. Stockholders of the
Corporation shall not be entitled to request a special meeting of the
stockholders.
Section 3.04 Action by Consent in Lieu of a Meeting. Stockholders may
act by consent in lieu of a meeting in accordance with Delaware Law only in the
removal of directors in accordance with the Certificate of Incorporation of the
Corporation.
Section 3.05 Notice of Meetings. (a) Notices of meetings of
stockholders shall be in writing and shall state the place (which may be within
or without the state of Delaware), date and hour of the meeting, and, in the
case of a special meeting, the purpose or purposes for which a meeting is
called. No business other than that specified in the notice thereof shall be
transacted at any special meeting.
(b) Such notice shall either be delivered personally or mailed, postage
prepaid, to each stockholder entitled to vote at such meeting not less than ten
nor more than 60 days before the date of the meeting. If mailed, the notice
shall be directed to the stockholder at his or her address as it appears on the
records of the Corporation. Personal delivery of any such notice to any officer
of a corporation or association or to any member of a partnership shall
constitute delivery of such notice to such corporation, association or
partnership.
(c) Notice of any meeting of stockholders need not be given to any
stockholder if waived by such stockholder in writing, whether before or after
such meeting is held, or if such stockholder shall sign the minutes or attend
the meeting.
Section 3.06 Stockholder Notices. (a) At any meeting of the
stockholders, only such business shall be conducted, and only such proposals
shall be acted upon as shall have been brought before the meeting (i) by, or at
the direction of the Board of Directors or (ii) by any stockholder who complies
with the notice procedures set forth in this Section 3.06 (or for election of
directors, with the notice provisions set forth in Section 4.03).
(b) For a proposal to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the Secretary. To be timely, a stockholder's notice must be delivered to, or
mailed and received at, the principal executive offices of the Corporation not
less than 60 days nor more than 90 days prior to the scheduled annual meeting,
regardless of any postponements, deferrals or adjournments of that meeting to a
later date;
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provided, however, that if less than 70 days notice or prior public disclosure
of the date of the scheduled annual meeting is given or made, notice by the
stockholder to be timely must be so delivered or received no later than the
close of business on the tenth day following the earlier of the day on which
such notice of the date of the scheduled annual meeting was mailed or the day on
which such public disclosure was made.
(c) A stockholder's notice to the Secretary shall in addition set forth
as to each matter the stockholder proposes to bring before the meeting (i) a
brief description of the proposal desired to be brought before the meeting and
the reasons for conducting such business at the meeting, (ii) the name and
address, as they appear on the Corporation's books, of the stockholder proposing
such business, (iii) the class and number of shares which are beneficially owned
by the stockholder on the date of such stockholder notice and (iv) any material
interest of the stockholder in such proposal.
Section 3.07 Adjourned Meetings. When a meeting is adjourned to another
time or place, unless otherwise provided by these Bylaws, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
stockholders may transact any business which might have been transacted at the
original meeting. If an adjournment is for more than 30 days or if after an
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder entitled to vote at the
meeting.
Section 3.08 Quorum and Adjournment. Except as otherwise provided by
law, by the Certificate of Incorporation of the Corporation or by these Bylaws,
the presence, in person or by proxy, of the holders of a majority of the
aggregate voting power of the stock issued and outstanding, entitled to vote
thereat, and the voting rights of which are not suspended, shall be requisite
and shall constitute a quorum for the transaction of business at all meetings of
stockholders. If, however, such majority shall not be present or represented at
any meeting of stockholders, the stockholders present, although less than a
quorum, shall have the power to adjourn the meeting.
Section 3.09 Majority Vote Required. When a quorum is present at any
meeting of stockholders, the affirmative vote of the majority of the aggregate
voting power of the shares present in person or represented by proxy at the
meeting and entitled to vote on the subject matter shall constitute the act of
the stockholders, unless by express provision of law, the Certificate of
Incorporation or these Bylaws a different vote is required, in which case such
express provision shall govern and control.
Section 3.10 Manner of Voting. At each meeting of stockholders, each
stockholder having the right to vote, and whose voting rights have not been
suspended shall be entitled to vote in person or by proxy. Proxies need not be
filed with the Secretary of the Corporation until the meeting is called to
order, but shall be filed before being voted. Each stockholder shall be entitled
to vote each share of stock having voting power registered in his or her name on
the books of the Corporation on the record date fixed, as provided in Section
6.04 of these Bylaws, for the
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determination of stockholders entitled to vote at such meeting. All elections of
directors shall be by written ballot.
Section 3.11 Proxies. (a) At any meeting of stockholders, any
stockholder may be represented and vote by proxy or proxies appointed by a
written form of proxy. In the event that any form of proxy shall designate two
or more persons to act as proxies, a majority of such persons present at the
meeting or, if only one shall be present, then that one shall have and may
exercise all of the powers conferred by the form of proxy upon all of the
persons so designated unless the form of proxy shall otherwise provide.
(b) The Board of Directors may, in advance of any annual or special
meeting of the stockholders, prescribe additional regulations concerning the
manner of execution and filing of proxies and the validation of the same, which
are intended to be voted at any such meeting.
Section 3.12 Presiding Officer and Secretary. At each meeting of
stockholders, the Chairman of the Board shall preside and the Secretary shall
act as Secretary of the meeting.
Section 3.13 Disregard of Nomination or Proposal. Except as otherwise
provided by law, the Certificate of Incorporation or these Bylaws, the person
presiding over any meeting of the stockholders shall have the power and duty to
determine whether a nomination or any other business proposed to be brought
before the meeting was made in accordance with the procedures set forth in this
Article III or Section 4.03 and, if any proposed nomination or business is not
in compliance with such provisions, to declare that such defective proposal or
nomination shall be disregarded.
Section 3.14 Inspections of Elections. The Board of Directors by
resolution shall appoint one or more inspectors of election (which may include
individuals who serve the Corporation in other capacities including, without
limitation, as officers, employees, agents or representatives of the
Corporation) to act at any meeting of the stockholders and make a written report
thereof. Such appointments shall be made in accordance with, and each inspector
shall have the duties prescribed by, Section 231 of the General Corporation Law
of the State of Delaware (the "DGCL").
ARTICLE IV
DIRECTORS
Section 4.01 Powers. The Board of Directors shall exercise all of the
power of the Corporation except such as are by law, or by the Certificate of
Incorporation of this Corporation or by these Bylaws conferred upon or reserved
to the stockholders of any class or classes.
Section 4.02 Number and Classification. (a) The Board of Directors of
the Corporation shall consist of up to 15 members, which number may be increased
or decreased from time to time by resolution duly adopted by such Board,
provided that at no time shall there be fewer than nine or more than 15 members
(except for increases above 15 caused by a provision allowing holders of
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preferred stock to elect additional directors in the event of nonpayment of
dividends) and provided further that, the Stockholders' Agreement dated as of
December 19, 1996, for so long as it remains in force and effect (as
supplemented and amended from time to time, herein "Stockholders' Agreement"),
shall prescribe the exact number of directors and their method of election,
removal and replacement. No decrease in the number of Directors shall have the
effect of shortening the term of any incumbent Director.
(b) Subject to and at such time as provided in the Certificate of
Incorporation, the number of Directors shall be divided into three classes, as
nearly equal in number as may be, to serve staggered three-year terms on the
Board of Directors. In the case of any increase in the number of Directors of
the Corporation, the additional Directors shall be classified so that all
classes of Directors shall be increased equally as nearly as may be, and the
additional Directors shall be elected as provided herein by the Directors or by
the stockholders at an annual meeting. In case of any decrease in the number of
Directors of the Corporation, all classes of Directors shall be decreased
equally, as nearly as may be. Election of Directors shall be conducted as
provided in the Certificate of Incorporation, in these Bylaws, or by applicable
law.
(c) At all times the composition of the Board of Directors shall comply
in all respects with the U.S. citizenship requirements of the Act (as
hereinafter defined).
Section 4.03 Nominations. Except as otherwise provided in the
Stockholders' Agreement, no person shall be elected to the Board of Directors of
this Corporation at an annual meeting of the stockholders, or at a special
meeting called for that purpose, unless a written nomination of such person to
the Board of Directors (i) by a stockholder of the Corporation who is entitled
to vote at such meeting shall be received by the Secretary of the Corporation at
least 90 days prior to such meeting or (ii) is made by or at the direction of
the Board of Directors.
Section 4.04 Resignations. Any Director may resign at any time by
giving written notice to the Board of Directors or the Secretary. Such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein. Acceptance of such resignation shall not be
necessary to make it effective.
Section 4.05 Removal. Except as otherwise provided in the Stockholders'
Agreement, at any special meeting of the stockholders duly called as provided
herein, any Director may, by a vote of the holders of stock representing a
majority of the voting power of all the shares of stock issued and outstanding
and entitled to vote thereat, be removed from office with or without cause, and
the successor of the Director so removed may be elected at such meeting.
Stockholders shall have the right to act by written consent only in the removal
of directors in accordance with the Stockholders' Agreement or any other voting
agreement by and between GPA Group plc and AmWest Partners, L.P. and their
successors and assigns, for so long as any such agreement remains in force and
effect. In the absence of such an election, any vacancy may be filled as
provided in Section 4.06.
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Section 4.06 Vacancies. (a) Except as otherwise provided in the
Stockholders' Agreement, in case any vacancy shall occur on the Board of
Directors because of death, resignation, retirement, disqualification, removal,
an increase in the authorized number of Directors or any other cause, the Board
of Directors may, at any meeting, by resolution adopted by the affirmative vote
of a majority of the Directors then in office, though less than a quorum, elect
a Director to fill such vacancy.
(b) If, as a result of a disaster or emergency (as determined in good
faith by the then remaining Directors), it becomes impossible to ascertain
whether or not vacancies exist on the Board of Directors, and a person is or
persons are elected by Directors, who in good faith believe themselves to be a
majority of the remaining Directors, to fill a vacancy or vacancies that said
remaining Directors in good faith believe exists, then the acts of such person
or persons who are so elected as Directors shall be valid and binding upon the
Corporation and the stockholders, although it may subsequently develop that at
the time of the election (i) there was in fact no vacancy or vacancies existing
on the Board of Directors, or (ii) the Directors who so elected such person or
persons did not in fact constitute a majority of the remaining Directors.
Section 4.07 Presiding Officer and Secretary. At each meeting of the
Board of Directors, the Chairman of the Board shall preside, and the Secretary
shall act as secretary of the meeting.
Section 4.08 Annual Meetings. The Board of Directors shall meet each
year immediately following the annual meeting of stockholders, at the place
where such meeting of stockholders has been held, or at such other place as
shall be fixed by the person presiding over the meeting of the stockholders at
which such Directors are elected, for the purpose of organization, election of
officers, and consideration of such other business as the Board considers
relevant to the management of the Corporation.
Section 4.09 Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places, within or
without the state of Delaware, as shall from time to time be determined by the
Board of Directors; provided, however, that the Board of Directors shall hold at
least four regular meetings in each year. In the absence of any such
determination, such meetings shall be held at such times and places, within or
without the State of Delaware, as shall be designated by the Chairman of the
Board on not less than three calendar days' notice (specifying the time and
place of the meeting and the agenda therefor) to each Director, given verbally
or in writing either personally, by telephone, by facsimile transmission, by
mail, by telegram or by telex.
Section 4.10 Special Meetings. Special meetings of the Board of
Directors shall be held at the call of the Chairman of the Board at such times
and places, within or without the State of Delaware, as he or she shall
designate, on not less than three calendar days' notice (specifying the time and
place of the meeting and the agenda therefor) to each Director, given verbally
or in writing either personally, by telephone, by facsimile transmission, by
mail, by telegram or by telex. Special meetings shall be called by the Secretary
on like notice at the written request of a majority of the Directors.
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Section 4.11 Quorum and Powers of a Majority. At all meetings of the
Board of Directors and of each committee thereof, a majority of the members
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the Board of Directors or such
committee, unless by express provision of law, of the Certificate of
Incorporation or these Bylaws, a different vote is required, in which case such
express provision shall govern and control. In the absence of a quorum, a
majority of the members present at any meeting may, without notice other than
announcement at the meeting, adjourn such meeting from time to time until a
quorum is present.
Section 4.12 Waiver of Notice. Notice of any meeting of the Board of
Directors, or any committee thereof, need not be given to any member if waived
by him or her in writing, whether before or after such meeting is held, or if he
or she shall sign the minutes or attend the meeting.
Section 4.13 Manner of Acting. (a) Members of the Board of Directors,
or any committee thereof, may participate in any meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating therein can
hear each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at any meeting of the
Board of Directors or any committee thereof may be taken without a meeting if
all members of the Board of Directors or such committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board of Directors or such committee.
Section 4.14 Compensation. (a) The Board of Directors, by a resolution
or resolutions may fix, and from time to time change, the compensation of
Directors.
(b) Each Director shall be entitled to reimbursement from the
Corporation for his or her reasonable expenses incurred in attending meetings of
the Board of Directors or any committee thereof.
(c) Nothing contained in these Bylaws shall be construed to preclude
any Director from serving the Corporation in any other capacity and from
receiving compensation from the Corporation for service rendered to it in such
other capacity.
Section 4.15 Committees. The Board of Directors may, by resolution or
resolutions adopted by the affirmative vote of a majority of the Board of
Directors, designate one or more committees, each committee to consist of two or
more Directors, which to the extent provided in said resolution or resolutions
shall have and may exercise the powers and authority of the Board of Directors
in the management of the business and affairs of the Corporation; provided,
however, that no such committee shall have the power to (i) elect Directors,
(ii) alter, amend, or repeal these Bylaws or any resolution of the Board
relating to such committee, (iii) appoint any member of such committee, (iv)
declare any dividend or make any other distribution to the stockholders of the
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Corporation or (v) take any other actions which may lawfully be taken only by
the full Board of Directors. Such committee or committees shall have such name
or names as may be determined from time to time by resolutions adopted by the
Board of Directors.
Section 4.16 Committee Procedure. (a) Except as otherwise provided by
these Bylaws, each committee shall adopt its own rules governing the time, place
and method of holding its meetings and the conduct of its proceedings and shall
meet as provided by such rules or by resolution of the Board of Directors.
Unless otherwise provided by these Bylaws or any such rules or resolutions,
notice of the time and place of each meeting of a committee shall be given to
each member of such committee as provided in Section 4.10 of the Bylaws with
respect to notices of special meetings of the Board of Directors.
(b) Each committee shall keep regular minutes of its proceedings and
report the same to the Board of Directors when required.
(c) Any member of any committee, other than a member thereof serving
ex-officio, may be removed from such committee either with or without cause, at
any time, by resolution adopted by the affirmative vote of a majority of the
Board of Directors at any meeting thereof. Any vacancy in any committee shall be
filled by the Board of Directors in the manner prescribed by these Bylaws for
the original appointment of the members of such committee.
Section 4.17 Executive Committee. There shall be established an
Executive Committee consisting of four members. The Chairman of the Board shall
be a member and shall act as Chairman of the Executive Committee. In addition,
the Board of Directors shall elect from its members the remaining members of the
Executive Committee.
The Executive Committee shall, to the full extent of the DGCL, have and
may exercise in the intervals between meetings of the Board of Directors, all
the powers of the whole Board of Directors in its management of the affairs and
business of the Corporation, except the power or authority to:
(a) amend the Certificate of Incorporation;
(b) adopt any agreement of merger or consolidation;
(c) recommend to stockholders the sale, lease or exchange of all
or substantially all of the Corporation's property and assets;
(d) recommend to stockholders a dissolution of the Corporation or
a revocation of a dissolution;
(e) amend these Bylaws;
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(f) appoint or remove a member of any committee established by the
Board of Directors, fill vacancies on the Board of Directors, remove an
officer elected by the Board of Directors, or raise or lower any
officer's salary; or
(g) declare dividends or authorize the issuance of stock.
Meetings of the Executive Committee may be called at any time by the
Chairman of the Board and shall be held at the general office of the Corporation
or at such other place, within or without the State of Delaware, as the Chairman
of the Board may designate, on not less than one day's notice to each member of
the Executive Committee, given verbally or in writing either personally, by
telephone, by facsimile transmission, by mail, by telegram or telex.
ARTICLE V
OFFICERS
Section 5.01 Number. (a) The officers of the corporation shall include
a Chief Executive Officer, a President, one or more Vice Presidents (including
one or more Executive Vice Presidents and one or more Senior Vice Presidents if
deemed appropriate by the Board of Directors), a Secretary and a Treasurer. The
Board of Directors shall also elect a Chairman of the Board pursuant to Section
5.02. The Board of Directors may also elect such other officers as the Board of
Directors may from time to time deem appropriate or necessary. Except for the
Chairman of the Board, none of the officers of the Corporation need be a
Director of the Corporation. Any two or more offices may be held by the same
person, but no officer shall execute, acknowledge, or verify any instrument in
more than one capacity.
(b) The Chairman of the Board shall be the Chief Executive Officer
unless the Board of Directors, by resolution adopted by the affirmative vote of
not less than a majority of the Directors then in office, designates the
President or some other person as Chief Executive Officer. The President shall
be the Chief Operating Officer. If at any time the offices of the Chairman of
the Board and Chief Executive Officer shall not be filled, the President shall
also be the Chief Executive Officer.
(c) The Board of Directors may delegate to the Chief Executive Officer
the power to appoint one or more employees of the corporation as divisional or
departmental vice presidents and fix the duties of such appointees. However, no
such divisional or departmental vice president shall be considered as an officer
of the Corporation, the officers of the Corporation being limited to those
officers elected by the Board of Directors.
Section 5.02 Election of Officers, Qualification and Term. The officers
of the Corporation to be elected by the Board of Directors shall be elected
annually at the first meeting of the Board of Directors held after each annual
meeting of the stockholders. Each such officer shall hold office for one year
and until a successor shall have been duly elected and shall qualify in his
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or her stead unless the Board of Directors shall have provided by contract or
otherwise in any particular case, or until such officer shall have resigned and
his or her resignation shall have become effective, or until such officer shall
have been removed in the manner hereinafter provided. Notwithstanding anything
in this Section 5.02 to the contrary, the Chairman of the Board may be elected
only by the vote of a majority of the Directors then in office (who may include
the Director who is or is to be the Chairman of the Board).
Section 5.03 Removal. Except as otherwise expressly provided in a
contract duly authorized by the Board of Directors, any officer elected by the
Board of Directors may be removed, either with or without cause, at any time by
resolution adopted by the affirmative vote of a majority of the Board of
Directors at any meeting thereof; provided, however, that the Chairman of the
Board may be removed by the vote of a majority of the Directors then in office
(excluding the Director who is the Chairman of the Board).
Section 5.04 Resignations. Any officer of the Corporation may resign at
any time by giving written notice to the Board of Directors or the Chairman of
the Board. Such resignation shall take effect at the date of the receipt of such
notice or at any later time specified therein and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
Section 5.05 Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause may be filled for the
unexpired portion of the term by election by the Board of Directors at any
meeting thereof.
Section 5.06 Salaries. The salaries of all officers of the Corporation
shall be fixed by the Board of Directors from time to time, and no officer shall
be prevented from receiving such salary by reason of the fact that he is also a
Director of the Corporation.
Section 5.07 The Chairman of the Board. (a) The Chairman of the Board
shall have the powers and duties customarily and usually associated with the
office of the Chairman of the Board. The Chairman of the Board shall preside at
meetings of the stockholders and of the Board of Directors. In the event of the
Chairman of the Board's temporary absence or disability and the absence or
disability of the President, the Chairman of the Board shall have the power to
designate any Director to preside at any or all meetings of the stockholders and
of the Board of Directors.
(b) If at any time the office of President shall not be filled, or in
the event of the disability of the President, the Chairman of the Board (if one
shall be elected) shall have the duties and powers of the President. The
Chairman of the Board shall have such other powers and perform such greater or
lesser duties as may be delegated to him or her from time to time by the Board
of Directors.
Section 5.08 The President. In the event of the disability of the
Chairman of the Board, the President shall have the powers and duties of the
Chairman of the Board. The President shall
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serve as chief operating officer and shall have such other powers and perform
such other duties as may be delegated to him or her from time to time by the
Board of Directors or the Chairman of the Board.
Section 5.09 The Vice Presidents. Each Vice President shall have such
powers and perform such duties as may from time to time be assigned to him or
her by the Board of Directors, the Chairman of the Board or the President.
Section 5.10 The Secretary and the Assistant Secretary. (a) The
Secretary shall attend meetings of the Board of Directors and meetings of the
stockholders and record all votes and minutes of all such proceedings in a book
kept for such purpose and shall perform like duties for the committees of
Directors as provided for in these Bylaws when required. The Secretary shall
give, or cause to be given, notice of all meetings of stockholders and of the
Board of Directors (except in case of meetings called by the Chairman of the
Board in accordance with Sections 4.09 or 4.10). He or she shall have charge of
the stock ledger (unless responsibility for maintaining the stock ledger is
delegated to a transfer agent by the Board of Directors pursuant to Section
6.06) and such other books and papers as the Board of Directors may direct. He
or she shall have all such further powers and duties as generally are incident
to the position of Secretary or as may from time to time be assigned to him or
her by the Board of Directors or the Chairman of the Board.
(b) Each Assistant Secretary shall have such powers and perform such
duties as may from time to time be assigned to him or her by the Board of
Directors, the Chairman of the Board or the Secretary. In case of the absence or
disability of the Secretary, the Assistant Secretary designated by the Secretary
(or, in the absence of such designation, the senior Assistant Secretary) shall
perform the duties and exercise the powers of the Secretary.
Section 5.11 The Treasurer and the Assistant Treasurer. (a) The
Treasurer shall have custody of the corporate funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors. He or she may endorse all commercial
documents requiring endorsements for or on behalf of the Corporation and may
sign all receipts and vouchers for payments made to the Corporation.
(b) The Treasurer shall disburse funds of the Corporation as may from
time to time be ordered by the Board of Directors, taking proper vouchers for
such disbursements, and render to the Board of Directors, the Chairman of the
Board and President, whenever they may require it, an account of all
transactions undertaken by him or her as Treasurer and of the financial
condition of the Corporation.
(c) The Treasurer shall also maintain adequate records of all assets,
liabilities and transactions of the corporation and shall see that adequate
audits thereof are currently and regularly made. The Treasurer shall have such
other powers and perform such other duties that generally are
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incident to the position of Treasurer or as may from time to time be assigned to
him or her by the Board of Directors, the Chairman of the Board or the
President.
(d) Each Assistant Treasurer shall have such powers and perform such
duties as may from time to time be assigned to him or her by the Board of
Directors, the Chairman of the Board, the President or the Treasurer. In case of
the absence or disability of the Treasurer, the Assistant Treasurer designated
by the Treasurer (or, in the absence of such designation, the senior Assistant
Treasurer) shall perform the duties and exercise the powers of the Treasurer.
Section 5.12 Treasurer's Bond. If required by the Board of Directors,
the Treasurer or any Assistant Treasurer shall give the Corporation a bond in
such form and with such surety or sureties as are satisfactory to the Board of
Directors for the faithful performance of the duties of office and for the
restoration to the Corporation, in case of his or her death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his or her possession or under his or her
control belonging to the Corporation.
Section 5.13 Chief Executive Officer. The Chief Executive Officer shall
have, subject to the supervision, direction and control of the Board of
Directors, the general powers and duties of supervision, direction and
management of the affairs and business of the Corporation usually vested in the
chief executive officer of a Corporation, including, without limitation, all
powers necessary to direct and control the organizational and reporting
relationships within the Corporation. If at any time the office of Chairman of
the Board shall not be filled, the Chief Executive Officer shall have the powers
and duties of the Chairman of the Board.
Section 5.14 Chief Operating Officer. The Chief Operating Officer
shall, subject to the supervision, direction and control of the Chief Executive
Officer and the Board of Directors, manage the day-to-day operations of the
Corporation and, in general, shall assist the Chief Executive Officer.
ARTICLE VI
STOCK
Section 6.01 Certificates. Certificates or shares of the stock of the
Corporation shall be issued under the seal of the Corporation, or facsimile
thereof, and shall be numbered and shall be entered in the books of the
Corporation as they are issued. Each certificate shall bear a serial number,
shall exhibit the holder's name and the number of shares evidenced thereby, and
shall be signed by the Chairman of the Board or a Vice Chairman, if any, or the
Chief Executive Officer or the President or any Vice President and the Secretary
or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all
of the signatures on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if such person or entity were such officer,
transfer agent or registrar at the date of issue.
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Section 6.02 Transfers. Transfers of stock of the Corporation shall be
made on the books of the Corporation only upon surrender to the Corporation of a
certificate for the shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer; provided, however, such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, the Bylaws, applicable law, or contract. Thereupon, the
Corporation shall issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
Section 6.03 Lost, Stolen or Destroyed Certificates. Any person
claiming a certificate of stock to be lost, stolen or destroyed shall make an
affidavit or an affirmation of that fact, and shall give the Corporation a bond
of indemnity in satisfactory form and with one or more satisfactory sureties,
whereupon a new certificate may be issued of the same tenor and for the same
number of shares as the one alleged to be lost or destroyed.
Section 6.04 Record Date. (a) In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
the stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors shall fix, in
advance, a record date, which shall not be more than 60 nor less than ten days
before the date of such meeting, nor more than 60 days prior to any other
action.
(b) If no record date is fixed by the Board of Directors, (i) the
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the date on which notice is given, or, if notice is waived by all
stockholders entitled to vote at the meeting, at the close of business on the
day next preceding the day on which the meeting was held and (ii) the record
date for determining stockholders for any other purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating thereto.
(c) A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 6.05 Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares as the person entitled to exercise the rights referred to in
Section 6.04 and shall not be bound to recognize any equitable or other claim to
or interest in any such shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise expressly
provided by the laws of the State of Delaware.
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Section 6.06 Additional Powers of the Board. (a) In addition to those
powers set forth in Section 4.01, the Board of Directors shall have power and
authority to make all such rules and regulations as it shall deem expedient
concerning the issue, transfer and registration of certificates for shares of
stock of the Corporation.
(b) The Board of Directors may appoint and remove transfer agents and
registrars of transfers, and may require all stock certificates to bear the
signature of any such transfer agent and/or any such registrar of transfers.
(c) The Board of Directors shall have power and authority to create and
issue (whether or not in connection with the issue and sale of any stock or
other securities of the Corporation) warrants, rights or options entitling the
holders thereof to purchase from the Corporation any shares of any class or
classes or any other securities of the Corporation for such consideration and to
such persons, firms or corporations as the Board of Directors, in its sole
discretion, may determine, setting aside from the authorized but unissued stock
of the Corporation the requisite number of shares for issuance upon the exercise
of such warrants, rights or options. Such warrants, rights or options shall be
evidenced by such instrument or instruments as shall be approved by the Board of
Directors. The terms upon which, the time or times (which may be limited or
unlimited in duration) at or within which, and the price or prices at which any
such shares or other securities may be purchased from the Corporation upon the
exercise of any such warrant, right or option shall be such as shall be fixed
and stated in a resolution or resolutions of the Board of Directors providing
for the creation and issue of such warrants, rights or options.
ARTICLE VII
LIMITATIONS OF OWNERSHIP BY NON-CITIZENS
Section 7.01 Definitions. (a) "Act" shall mean Subtitle VII of Title 49
of the United States Code, as amended, or as the same may be from time to time
amended.
(b) "Beneficial Ownership," "Beneficially Owned" or "Owned
Beneficially" refers to beneficial membership as defined in Rule 13d-3 (without
regard to the 60-day provision in paragraph (d)(1)(i) thereof) under the
Securities Exchange Act of 1934, as amended.
(c) "Foreign Stock Record" shall have the meaning set forth Section
7.03.
(d) "Non-Citizen" shall mean any person or entity who is not a "citizen
of the United States" (as defined in Section 40102 of the Act), including any
agent, trustee or representative of a Non-Citizen.
(e) "Own or Control" or "Owned or Controlled" shall mean (i) ownership
of record, (ii) beneficial ownership or (iii) the power to direct, by agreement,
agency or in any other manner,
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the voting of Stock. Any determination by the Board of Directors as to whether
Stock is Owned or Controlled by a Non-Citizen shall be final.
(f) "Permitted Percentage" shall mean 25% of the voting power of the
Stock.
(g) "Stock" shall mean the outstanding capital stock of the Corporation
entitled to vote; provided, however, that for the purpose of determining the
voting power of Stock that shall at any time constitute the Permitted
Percentage, the voting power of Stock outstanding shall not be adjusted downward
solely because shares of Stock may not be entitled to vote by reason of any
provision of this Article VII.
Section 7.02 Policy. It is the policy of the Corporation that,
consistent with the requirements of the Act, Non-Citizens shall not Own or
Control more than the Permitted Percentage and, if Non-Citizens nonetheless at
any time Own or Control more than the Permitted Percentage, the voting rights of
the Stock in excess of the Permitted Percentage shall be automatically suspended
in accordance with Sections 7.03 and 7.04 below.
Section 7.03 Foreign Stock Record. The Corporation or any transfer
agent designated by it shall maintain a separate stock record (the "Foreign
Stock Record") in which shall be registered Stock known to the corporation to be
Owned or Controlled by Non-Citizens. The Foreign Stock Record shall include (i)
the name and nationality of each such Non-Citizen, (ii) the number of shares of
Stock Owned or Controlled by such Non-Citizen and (iii) the date of registration
of such shares in the Foreign Stock Record. In no event shall shares in excess
of the Permitted Percentage be entered on the Foreign Stock Record. In the event
that the Corporation shall determine that Stock registered on the Foreign Stock
Record exceeds the Permitted Percentage, sufficient shares shall be removed from
the Foreign Stock Record so that the number of shares entered therein does not
exceed the Permitted Percentage. Stock shall be removed from the Foreign Stock
Record in reverse chronological order based upon the date of registration
therein.
Section 7.04 Suspension of Voting Rights. If at any time the number of
shares of Stock known to the Corporation to be Owned or Controlled by
Non-Citizens exceeds the Permitted Percentage, the voting rights of Stock Owned
or Controlled by Non-Citizens and not registered on the Foreign Stock Record at
the time of any vote or action of the stockholders of the Corporation shall,
without further action by the Corporation, be suspended. Such suspension of
voting rights shall automatically terminate upon the earlier of the (i) transfer
of such shares to a person or entity who is not a Non-Citizen, or (ii)
registration of such shares on the Foreign Stock Record, subject to the last two
sentences of Section 7.03.
Section 7.05 Beneficial Ownership Inquiry. (a) The Corporation may by
notice in writing (which may be included in the form of proxy or ballot
distributed to stockholders in connection with the annual meeting or any special
meeting of the stockholders of the Corporation, or otherwise) require a person
that is a holder of record of Stock or that the Corporation knows to have, or
has reasonable cause to believe has, Beneficial Ownership of Stock to certify in
such
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manner as the Corporation shall deem appropriate (including by way of execution
of any form of proxy or ballot of such person) that, to the knowledge of such
person:
(i) all Stock as to which such person has record ownership or
Beneficial Ownership is Owned and Controlled only by Citizens of the
United States; or
(ii) the number and class or series of Stock owned of record or
Beneficially Owned by such person that is Owned or Controlled by
Non-Citizens is as set forth in such certificate.
(b) With respect to any Stock identified in response to clause (a)(ii)
above, the Corporation may require such person to provide such further
information as the Corporation may reasonably require in order to implement the
provisions of this Article VII.
(c) For purposes of applying the provisions of this Article VII with
respect to any Stock, in the event of the failure of any person to provide the
certificate or other information to which the Corporation is entitled pursuant
to this Section 7.05, the Corporation shall presume that the Stock in question
is Owned or Controlled by Non-Citizens.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Place and Inspection of Books. (a) The books of the
Corporation other than such books as are required by law to be kept within the
State of Delaware shall be kept in the State of Arizona or at such place or
places either within or without the State of Delaware as the Board of Directors
may from time to time determine.
(b) At least ten days before each meeting of stockholders, the officer
in charge of the stock ledger of the Corporation shall prepare a complete list
of the stockholders entitled to vote at the meeting, arranged in alphabetical
order and showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not specified, at the
place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
(c) The Board of Directors shall determine from time to time whether
and, if allowed, when and under what conditions and regulations the accounts and
books of the Corporation (except such as may be by law specifically open to
inspection or as otherwise provided by these Bylaws) or
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any of them shall be open to the inspection of the stockholders and the
stockholders' rights in respect thereof.
Section 8.02 Indemnification of Directors, Officers, Employees and
Agents. (a) The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that such person is or was a Director or officer of the Corporation, or is
or was serving at the request of the Corporation as a director, officer,
employee, agent or fiduciary of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses, including
attorneys' fees, judgments, fines and amounts paid or owed in settlement
actually and reasonably paid or incurred by him or her or rendered or levied
against him or her in connection with such action, suit or proceeding if he or
she acted in good faith and in a manner he or she reasonably believed to be in
or not opposed to the best interests of the Corporation; and with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent shall not, in itself, create a presumption that the person did
not act in good faith and in a manner which he or she reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his or
her conduct was unlawful.
(b) The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that such person is or was a Director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, agent or fiduciary of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against expenses, including attorneys' fees, actually and reasonably paid or
incurred by him or her in connection with the defense or settlement of such
action or suit if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
Corporation; provided, however, that no indemnification shall be made in respect
to any claim, issue or matter as to which such person shall have been adjudged
to be liable to the Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
(c) The Corporation shall, at the discretion of the Board of Directors,
indemnify all employees and agents of the Corporation (other than Directors and
officers) to the extent that Directors and officers shall be indemnified
pursuant to subsections (a) and (b).
(d) To the extent that a person who may be entitled to indemnification
by the Corporation under this section is or has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b), or in defense of any claim, issue or
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matter therein, he or she shall be indemnified against expenses, including
attorney's fees, actually and reasonably paid or incurred by him or her in
connection therewith.
(e) Any indemnification under subsections (a), (b), or (c) shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the Director, officer, employee or agent
is proper in the circumstances because he or she has met the applicable standard
of conduct set forth in subsection (a) or (b). Such determination shall be made
(i) by the Board of Directors by a majority vote of a quorum consisting of
Directors who were not parties to such action, suit or proceeding, (ii) if such
a quorum is not obtainable, or, even if obtainable, a quorum of disinterested
Directors so directs, by independent legal counsel in a written opinion, (iii)
by the stockholders, or (iv) in any case in which applicable law makes court
approval a prerequisite to indemnification, by the court in which such action,
suit or proceeding was brought or another court of competent jurisdiction.
(f) Expenses, including attorneys' fees, incurred by an officer or
Director in defending a civil, criminal, administrative, or investigative
action, suit or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the Director or officer to repay such amount if
it shall ultimately be determined that he or she is not entitled to be
indemnified by the Corporation as authorized in this section. Such expenses,
including attorneys' fees, incurred by other employees and agents shall be so
paid upon terms and conditions, if any, as the Board of Directors deems
appropriate.
(g) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of the
stockholders or disinterested directors or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such
office.
(h) The provisions of this section shall continue as to a person who
has ceased to be a Director, officer, employee or agent and shall inure to the
benefit of the estate, executors, administrators, spouse, heirs, legatees or
devisees of a person entitled to indemnification hereunder and the term
"person," where used in the section shall include the estate, executors,
administrators, spouse, heirs, legatees or devisees of such person.
(i) For the purposes of this Section 8.02, (i) "employee benefit plan"
and "fiduciary" shall be deemed to include, but not be limited to, the meanings
set forth, respectively, in Section 3(3) and 21(A) of the Employee Retirement
Income Security Act of 1974, as amended, and references to the judgments, fines
and amounts paid or owed in settlement or rendered or levied shall be deemed to
encompass and include excise taxes required to be paid pursuant to applicable
law in respect of any transaction involving an employee benefit plan, (ii)
references to the Corporation shall be deemed to include any predecessor
corporation and any constituent corporation absorbed in a merger, consolidation
or other reorganization of or by the Corporation which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers,
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employees, agents or fiduciaries so that any person who was a director, officer,
employee, agent or fiduciary of such predecessor or constituent corporation, or
served at the request of such predecessor or constituent corporation as a
director, officer, employee, agent or fiduciary of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
shall stand in the same position under the provisions of this Section 8.02 with
respect to the Corporation as such person would have with respect to such
predecessor or constituent corporation if its separate existence had continued,
and (iii) all other terms shall be deemed to have the meanings for such terms as
set forth in Section 145 of the DGCL.
Section 8.03 Dividends. (a) Dividends may be declared at the discretion
of the Board of Directors at any meeting thereof.
(b) Dividends may be paid to stockholders in cash or, when the
Directors shall so determine, in stock. A Director shall be fully protected in
relying in good faith upon the books of account of the Corporation or statements
prepared by any of its officers as to the value and amount of the assets,
liabilities or net profits of the Corporation, or any other facts pertinent to
the existence and amount of surplus or other funds from which dividends might
properly be declared.
(c) Before payment of any dividend or any distribution of profits,
there may be set aside out of the said surplus of the Corporation such sum or
sums as the Board of Directors from time to time, in its discretion thinks
proper as a reserve fund to meet contingencies, or for equalizing dividends, or
for such other purpose as the Board of Directors shall think conducive to the
interests of the Corporation and the Board of Directors may abolish any such
reserve in the manner in which it was created.
Section 8.04 Execution of Deeds, Contracts, and Other Agreements and
Instruments. Subject to the specific directions of the Board of Directors, all
deeds, mortgages and bonds entered into by the Corporation and all other written
contracts and agreements to which the Corporation shall be a party shall be
executed in its name by the Chairman of the Board, the President, or a Vice
President, or such other person or persons as may be authorized by any such
officer.
Section 8.05 Checks. All checks, drafts, acceptances, notes and other
orders, demands or instruments in respect to the payment of money may be signed
or endorsed on behalf of the Corporation by such officer or officers or by such
agent or agents as the Board of Directors may from time to time designate.
Section 8.06 Voting Shares in Other Corporations. The Chairman of the
Board of the Corporation (or any other Director designated by a majority of the
Board of Directors) may vote any and all shares held by the Corporation in any
other corporation.
Section 8.07 Fiscal Year. The fiscal year of the Corporation shall
correspond with the calendar year.
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Section 8.08 Gender/Number. As used in these Bylaws, the masculine,
feminine or neuter gender, and the singular or plural number, shall each include
the others whenever the context so indicates.
Section 8.09 Paragraph Titles. The titles of the paragraphs have been
inserted as a matter of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
Section 8.10 Amendment. These Bylaws may be altered, amended or
repealed by the affirmative vote of the holders of a majority of the voting
power of the stock issued and outstanding and entitled to vote at any meeting of
stockholders or by resolution adopted by the affirmative vote of not less than a
majority of the Directors in office at any annual or regular meeting of the
Board of Directors or at any special meeting of the Board of Directors if notice
of the proposed alteration, amendment or repeal be contained in the notice of
such special meeting.
Section 8.11 Certificate of Incorporation. Notwithstanding anything to
the contrary contained herein, if any provision contained in these Bylaws is
inconsistent with or conflicts with a provision of the Certificate of
Incorporation, such provision of these Bylaws shall be superseded by the
inconsistent provision in the Certificate of Incorporation to the extent
necessary to give effect to such provision in the Certificate of Incorporation.
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EXHIBIT 4.3
SUPPLEMENTAL WARRANT AGREEMENT
THIS SUPPLEMENTAL WARRANT AGREEMENT (this "Agreement") dated effective
as of December 31, 1996 is by and between AMERICA WEST AIRLINES, INC., a
Delaware corporation ("AWA"), and HARRIS TRUST AND SAVINGS BANK, as Warrant
Agent (the "Warrant Agent").
PRELIMINARY STATEMENTS
1. AWA is a party to that certain Warrant Agreement dated as of August 25,
1994 (the "Warrant Agreement") between AWA and First Interstate Bank of
California, as Warrant Agent (the "Original Warrant Agent").
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Warrant Agreement.
2. Pursuant to the terms of the Warrant Agreement, AWA issued certain
warrants to purchase shares of the Class B Common Stock, par value
$0.01 per share, of AWA ("AWA Class B Common"), of which there are
warrants to purchase 8,180,086 shares of AWA Class B Common issued and
outstanding on the date hereof (the "Warrants").
3. Pursuant to the terms of the Warrant Agreement, AWA has removed the
Original Warrant Agent and has replaced the Original Warrant Agent with
the Warrant Agent.
4. AWA is a party to that certain Agreement and Plan of Merger (the
"Merger Agreement") dated as of December 19, 1996, among AWA, America
West Holdings Corporation, a Delaware corporation and wholly-owned
subsidiary of AWA ("Holdings"), and AWA Merger, Inc., a Delaware
corporation and wholly-owned subsidiary of Holdings ("Merger Sub"),
providing, among other things, for the merger (the "Merger") of Merger
Sub with and into AWA, with AWA being the surviving corporation in the
Merger (in such capacity, the "Surviving Corporation").
5. Pursuant to the Merger Agreement, at the Effective Time (as defined
in the Merger Agreement), (i) each issued and outstanding share of
Class A Common Stock, par value $0.01 per share, of AWA will be
converted into the right to receive one share of Class A Common Stock,
par value $0.01 per share, of Holdings, (ii) each issued and
outstanding share of AWA Class B Common will be converted into the
right to receive one share of Class B Common Stock, par value $0.01 per
share, of Holdings ("Holdings Class B Common"), (iii) each issued and
outstanding share of common stock, par value $0.01 per share, of Merger
Sub will be converted into the right to receive one share of the common
stock, par value $0.01 per share, of the Surviving Corporation and (iv)
each issued and outstanding share of Holdings Class B Common will be
canceled without any consideration being paid therefor.
<PAGE> 2
6. AWA and the Warrant Agent are entering into this Agreement pursuant
to Section 4.05(c) of the Warrant Agreement, in order to provide and
confirm that, following the Merger, each Warrant shall represent the
right to acquire one share of Holdings Class B Common from AWA.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged by the parties, the
parties, intending to be legally bound, hereby agree as follows:
Section 1. Shares Issuable Upon Exercise of Warrants. AWA hereby
acknowledges that, pursuant to the terms of the Warrant Agreement, effective as
of Effective Time, the holder of each Warrant then outstanding shall have the
right from and after the Effective Time (until the Expiration Date) to receive,
upon exercise thereof, in lieu of each share of AWA Class B Common deliverable
upon such exercise immediately prior to the Effective Time, one share of
Holdings Class B Common.
Section 2. Warrant Price. Pursuant to the terms of the Warrant
Agreement, the Warrant Price for each share of Holdings Class B Common issuable
upon exercise of a Warrant shall be $12.74.
Section 3. Adjustments. Pursuant to the terms of the Warrant Agreement,
the Warrant Price provided in Section 2 above shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions of Article IV of the Warrant Agreement with respect to AWA
Class B Common, and the provisions of Article III of the Warrant Agreement with
respect to AWA Class B Common shall apply on like terms to the shares of
Holdings Class B Common issuable upon exercise of the Warrants.
Section 4. Amendment to Section 6.02(c) of the Warrant Agreement. The
first sentence of Section 6.02(c) of the Warrant Agreement is hereby amended to
read in its entirety as follows:
Any successor Warrant Agent, whether appointed by the Company or by a
court, shall be a corporation or a bank organized, in good standing and
doing business under the laws of the United States of America or any
state thereof or the District of Columbia, and authorized under such
laws to exercise corporate trust powers and subject to supervision or
examination by Federal or state authority and having a combined capital
and surplus of not less than $10,000,000.
Section 5. Warrant Agent Not Responsible for Certain Matters. The
Warrant Agent shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Agreement, the authorization or
permissibility of this Agreement pursuant to the terms of the Warrant Agreement,
the due execution hereof by AWA or for or in respect of the recitals or
statements contained herein, all of such recitals and statements being made
solely by AWA. The
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Warrant Agent shall not be responsible in any manner to determine the
correctness of provisions contained in this Agreement relating either to the
kind or amount of securities receivable by the holders of the Warrants upon the
exercise thereof after the Effective Time or to any adjustment provided herein.
Section 6. Rights and Obligations of the Warrant Agent. All of the
provisions of the Warrant Agreement with respect to the rights, privileges,
immunities, powers and duties of the Warrant Agent shall be applicable in
respect of this Agreement as fully and with the same effect as if set forth
herein in full.
Section 7. Effect of Execution and Delivery of this Agreement. From and
after the execution and delivery of this Agreement, (i) the Warrant Agreement
shall be deemed to be amended and modified as provided herein, (ii) this
Agreement shall form a part of the Warrant Agreement, (iii) except as modified
and amended by this Agreement, the Warrant Agreement shall continue in full
force and effect, and (iv) each holder of a Warrant (irrespective of whether
such Warrant has been heretofore or is hereafter executed, countersigned and
delivered under the Warrant Agreement) shall be bound by this Agreement.
Section 8. Effectiveness. This Agreement shall not become effective
unless and until the Effective Time shall have occurred.
Section 9. Counterparts. This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.
Section 10. Benefit and Burden. This Agreement shall inure to the
benefit of and be binding upon the holders of the Warrants, AWA and the Warrant
Agent and their respective successors and permitted assigns.
Section 11. No Third Party Rights. Nothing in this Agreement shall be
deemed to create any right in any creditor or other person or entity other than
the holders of the Warrants and this Agreement shall not be construed in any
respect to be a contract in whole or in part for the benefit of any other third
party.
Section 12. Interpretation. In this Agreement, unless a clear contrary
intention appears:
(a) the words "hereof," "herein" and "hereunder" and words of similar
import refer to this Agreement as a whole and not to any particular
provision of this Agreement;
(b) reference to any gender includes each other gender and the neuter;
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(c) all terms defined in the singular shall have the same meanings in
the plural and vice versa;
(d) reference to any person or entity includes such person's or
entity's heirs, distributees, legatees, personal representatives,
administrators, successors and assigns; provided, however, that nothing
contained in this clause (d) is intended to authorize any assignment not
otherwise permitted by this Agreement;
(e) reference to a person or entity in a particular capacity or
capacities excludes such person or entity in any other capacity;
(f) reference to any contract or agreement means such contract or
agreement as amended, supplemented or modified from time to time in
accordance with the terms thereof;
(g) all references to Sections shall be deemed to be references to the
Sections of this Agreement;
(h) the captions and headings contained in this Agreement shall not be
considered or given any effect in construing the provisions hereof if any
question of intent should arise; and
(i) no provision of this Agreement shall be interpreted or construed
against AWA or the Warrant Agent solely because it or its legal
representative drafted such provision.
Section 13. Severability. Should any clause, sentence, paragraph,
subsection or Section of this Agreement be judicially declared to be invalid,
unenforceable or void, such decision will not have the effect of invalidating or
voiding the remainder of this Agreement, and the part or parts of this Agreement
so held to be invalid, unenforceable or void will be deemed to have been
stricken herefrom by AWA and the Warrant Agent, and the remainder will have the
same force and effectiveness as if such stricken part or parts had never been
included herein.
Section 14. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
Section 15. Entire Agreement. This Agreement and the Warrant Agreement
set forth all of the promises, agreements, conditions, understandings,
warranties and representations between AWA and the Warrant Agent with respect to
the transactions contemplated hereby, and supersede all prior agreements,
arrangements and understandings between AWA and the Warrant Agent, whether
written, oral or otherwise. There are no promises, agreements, conditions,
understandings, warranties or representations, oral or written, express or
implied, between AWA and the Warrant Agent concerning the subject matter hereof
except as set forth herein.
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<PAGE> 5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
AMERICA WEST AIRLINES, INC.
By: /s/ Stephen L. Johnson
---------------------------------------
Stephen L. Johnson
Senior Vice President - Legal Affairs
HARRIS TRUST AND SAVINGS BANK,
as Warrant Agent
By: /s/ Michael O. Goedecke
---------------------------------------
Michael O. Goedecke
Assistant Vice President
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<PAGE> 1
EXHIBIT 4.4
FORM OF
STOCKHOLDERS' AGREEMENT FOR
AMERICA WEST HOLDINGS CORPORATION
THIS STOCKHOLDERS' AGREEMENT FOR AMERICA WEST HOLDINGS CORPORATION
(this "Agreement") is entered into as of this 19th day of December, 1996 by and
among TPG PARTNERS, L.P., a Texas limited partnership ("TPG Partners"), TPG
PARALLEL I, L.P., a Texas limited partnership ("TPG Parallel"), AIR PARTNERS II,
L.P., a Texas limited partnership ("Air Partners"), CONTINENTAL AIRLINES, INC.,
a Delaware corporation ("Continental"), MESA AIRLINES, INC., a Delaware
corporation ("Mesa"), ROBERT A. EWERT, DAVID T. OBERGFELL, WILLIAM A. FRANKE and
AMERICA WEST HOLDINGS CORPORATION, a Delaware corporation (the "Company").
PRELIMINARY STATEMENTS
1. On June 27, 1991, America West Airlines, Inc., a Delaware corporation
("AWA"), filed a case seeking relief under Chapter 11 of the Bankruptcy
Code in the United States Bankruptcy Court for the District of Arizona
(the "Bankruptcy Court").
2. On December 8, 1993, the Bankruptcy Court entered an order on Motion to
Establish Procedures for submission of Investment Proposals (the
"Procedures Order").
3. Pursuant to the Procedures Order, AmWest Partners, L.P., a Texas
limited partnership ("AmWest") and AWA entered into that certain Third
Revised Investment Agreement dated April 21, 1994 (the "Investment
Agreement"), contemplating an investment by AmWest in AWA (the
"Investment") and providing for the consummation of AWA's Plan of
Reorganization (the "Plan").
4. On August 10, 1994, the Bankruptcy Court entered an order confirming
the Plan.
5. In consideration of the Investment, AWA issued common stock of AWA
("AWA Common Stock") consisting of Class A Common Stock ("AWA Class A
Common") and Class B Common Stock ("AWA Class B Common") and warrants
to purchase Class B Common to AmWest and others.
6. Pursuant to Section 6(b) of the Investment Agreement, (i) the official
Committee of Equity Holders of America West Airlines, Inc., appointed
in AWA's Chapter 11 case (the "Equity Committee") appointed Robert A.
Ewert as a Stockholder Representative, (ii) the Official Committee of
Unsecured Creditors of America West Airlines, Inc., appointed in AWA's
Chapter 11 case (the "Creditors' Committee") appointed David T.
Obergfell as a Stockholder Representative and (iii) the Board of
Directors of AWA, as
<PAGE> 2
constituted prior to consummation of the Plan, appointed William A.
Franke as a Stockholder Representative.
7. In connection with the closing of the transactions contemplated by the
Investment Agreement and the Plan, AWA, AmWest, GPA Group plc, a
corporation organized under the laws of Ireland ("GPA"), and the
Stockholder Representatives referred to above entered into that certain
Stockholders' Agreement for America West Airlines, Inc. (the "Existing
Stockholders' Agreement") pursuant to Section 218(c) of Title 8 of the
Delaware Code (the "General Corporation Law").
8. The rights of AmWest under the Existing Stockholders' Agreement have
heretofore been assigned to, and assumed by, TPG Partners, TPG
Parallel, Air Partners, Continental, and Mesa and the rights of GPA
under the Existing Stockholders' Agreement have terminated.
9. The Company and AWA are parties to that certain Agreement and Plan of
Merger (the "Merger Agreement") dated as of December 19, 1996,
providing, among other things, for the merger (the "Merger") of AWA
Merger, Inc., a Delaware corporation and a wholly-owned subsidiary of
the Company ("Merger Sub"), with and into AWA, with AWA being the
surviving corporation in the Merger (in such capacity, the "Surviving
Corporation").
10. Pursuant to the Merger Agreement, at the Effective Time (as defined in
the Merger Agreement), (i) each issued and outstanding share of AWA
Class A Common will be converted into the right to receive one share of
Class A Common Stock of the Company ("Class A Common"), (ii) each
issued and outstanding share of AWA Class B Common will be converted
into the right to receive one share of Class B Common Stock of the
Company ("Class B Common"), (iii) each issued and outstanding share of
common stock of Merger Sub will be converted into the right to receive
one share of the common stock of the Surviving Corporation and (iv)
each issued and outstanding share of common stock of the Company will
be canceled without any consideration being paid therefor.
11. AWA currently has issued and outstanding warrants to purchase 8,180,086
shares of AWA Class B Common (the "Warrants"), the terms of which are
governed by that certain Warrant Agreement dated as of August 25, 1994
between AWA and First Interstate Bank of California, as Agent (the
"Warrant Agreement").
12. Pursuant to the terms of the Warrant Agreement, as a result of the
Merger, each of the Warrants will from and after the Effective Time
represent the right to purchase a share of Class B Common from AWA.
13. The parties hereto have agreed to enter into this Agreement pursuant to
Section 218(c) of the General Corporation Law.
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<PAGE> 3
NOW, THEREFORE, in consideration of the premises herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used in this Agreement and not otherwise defined
herein shall have the following respective meanings, except as otherwise
provided herein or as the context shall otherwise require:
"Affiliate" shall mean (i) when used with reference to any partnership,
any person or entity that, directly or indirectly, owns or controls ten
percent or more of either the capital or profit interests of such
partnership or is a partner of such partnership or is a person or entity in
which such partnership has a ten percent or greater direct or indirect
equity interest, and (ii) when used with reference to any corporation, any
person or entity that, directly or indirectly, owns or controls ten percent
or more of the outstanding voting securities of such corporation or is a
person or entity in which such corporation has a ten percent or greater
direct or indirect equity interest. In addition, the term "Affiliate," when
used with reference to any person or entity, shall also mean any other
person or entity that, directly or indirectly, controls or is controlled by
or is under common control with such person or entity. As used in the
preceding sentence, (A) the term "control" means the possession, directly
or indirectly, of the power to direct or cause the direction of the
management and policies of the entity referred to, whether through
ownership of voting securities, by contract or otherwise, and (B) the terms
"controlling" and "controls" shall have meanings correlative to the
foregoing. Notwithstanding the foregoing, neither the Company nor any
Fidelity Fund will be deemed to be an Affiliate of TPG Partners, TPG
Parallel or Air Partners.
"Agreement" shall have the meaning set forth in the introductory
paragraph hereof.
"Air Partners" shall have the meaning set forth in the introductory
paragraph hereof.
"Alliance Agreements" shall have the meaning set forth in the
Investment Agreement.
"AmWest" shall have the meaning set forth in the Preliminary Statements
hereof.
"AmWest Affiliates" shall mean AmWest GenPar, Inc., a Delaware
corporation, TPG Partners, TPG Parallel, Air Partners, Continental, and Mesa.
"AmWest Director" shall mean a director of the Company designated by an
AmWest Affiliate pursuant to Section 2.01(a).
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<PAGE> 4
"Annual Meeting" shall mean an annual meeting of the shareholders of
the Company.
"AWA" shall have the meaning set forth in the Preliminary Statements
hereof.
"AWA Class A Common" shall have the meaning set forth in the
Preliminary Statements hereof.
"AWA Class B Common" shall have the meaning set forth in the
Preliminary Statements hereof.
"AWA Common Stock" shall have the meaning set forth in the Preliminary
Statements hereof.
"Bankruptcy Court" shall have the meaning set forth in the Preliminary
Statements hereof.
"Board" shall mean the Company's Board of Directors.
"Bylaws" shall mean the Bylaws of the Company.
"Certificate of Incorporation" shall mean the Certificate of
Incorporation of the Company.
"Citizens of the United States" shall have the meaning set forth in
Section 1301, Title 49, United States Code, as now in effect or as it may
hereafter from time to time be amended.
"Class A Common" shall have the meaning set forth in the Preliminary
Statements hereof.
"Class B Common" shall have the meaning set forth in the Preliminary
Statements hereof.
"Company" shall have the meaning set forth in the introductory
paragraph hereof.
"Continental" shall have the meaning set forth in the introductory
paragraph hereof.
"Creditors' Committee" shall have the meaning set forth in the
Preliminary Statements hereof.
"Creditors' Committee Director" shall mean a director of the company
designated by the Creditors' Committee or otherwise pursuant to Section 2.01(b).
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<PAGE> 5
"Equity Committee" shall have the meaning set forth in the Preliminary
Statements hereof.
"Equity Committee Director" shall mean a director of the Company
designated by the Equity Committee or otherwise pursuant to Section 2.01(b).
"Exchange Act" shall have the meaning set forth in Section 4.04.
"Existing Stockholders' Agreement" shall have the meaning set forth in
the Preliminary Statements hereof.
"Fidelity Fund" shall mean a fund or account managed or advised by
Fidelity Management Trust Company or any of its Affiliates or successors.
"General Corporation Law" shall have the meaning set forth in the
Preliminary Statements hereof.
"GPA" shall have the meaning set forth in the Preliminary Statements
hereof.
"Independent Company Director" shall mean a director of the Company
designated pursuant to Section 2.01(b).
"Independent Directors" shall mean, collectively, the Creditors'
Committee Directors, the Equity Committee Director, and the Independent Company
Director.
"Investment" shall have the meaning set forth in the Preliminary
Statements hereof.
"Investment Agreement" shall have the meaning set forth in the
Preliminary Statements hereof.
"Lehman" shall mean Lehman Brothers Inc. or any successor.
"Merger" shall have the meaning set forth in the Preliminary Statements
hereof.
"Merger Agreement" shall have the meaning set forth in the Preliminary
Statements hereof.
"Merger Sub" shall have the meaning set forth in the Preliminary
Statements hereof.
"Mesa" shall have the meaning set forth in the introductory paragraph
hereof.
"Other Transaction" shall have the meaning set forth in Section 4.03.
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<PAGE> 6
"Plan" shall have the meaning set forth in the Preliminary Statements
hereof.
"Primary Transaction" shall have the meaning set forth in Section 4.03.
"Procedures Order" shall have the meaning set forth in the Preliminary
Statements hereof.
"Public Offering" shall have the meaning set forth in Section 4.02.
"Regulation 13D-G" shall have the meaning set forth in Section 4.04.
"Rule 144" shall have the meaning set forth in Section 4.02.
"Securities Act" shall have the meaning set forth in Section 4.02.
"Stockholder Representatives" shall mean the persons identified as such
in the Preliminary Statements set forth above; provided, however, that in the
case of the death, resignation, removal or disability of a Stockholder
Representative, his or her successor shall be designated in the manner set forth
in Section 2.01(b), and upon providing a written acknowledgment to such effect
to all other parties hereto and agreeing to be bound and subject to the terms
hereof, shall become a Stockholder Representative.
"Successor Independent Director" shall the meaning set forth in Section
2.01(b).
"Surviving Corporation" shall have the meaning set forth in the
Preliminary Statements hereof.
"Terminating Annual Meeting" shall mean the Annual Meeting held on the
day immediately following the Termination Date.
"Termination Date" shall mean the day immediately preceding the date on
which the first Annual Meeting of the Company is held on or after August 25,
1997.
"TPG Parallel" shall have the meaning set forth in the introductory
paragraph hereof.
"TPG Partners" shall have the meaning set forth in the introductory
paragraph hereof.
ARTICLE II
DESIGNATION AND VOTING FOR COMPANY DIRECTORS
Section 2.01 Designation and Voting for Directors. Until the
Termination Date, subject to the exception set forth in Section 4.07(a), the
Board shall consist of up to 14 persons, of whom
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<PAGE> 7
nine persons shall be AmWest Directors and five persons shall be Independent
Directors, all designated in accordance with the following procedure:
(a) The AmWest Directors designated on Exhibit A hereto shall serve
until the first Annual Meeting following the date hereof and until the
successor to each such director shall be duly elected and qualified, or
until their death, disability, removal or resignation. No less than 30 days
in advance of each Annual Meeting prior to (but not including) the
Terminating Annual Meeting, and no less than five days in advance of any
other meeting of the Board prior to (but not including) the Terminating
Annual Meeting at which a director will be elected to sit on the Board in a
seat vacated by an AmWest Director because of death, disability, removal,
resignation, or otherwise, the AmWest Affiliates shall give written notice
to the other parties hereto designating the individual or individuals to
serve as AmWest Directors. The Stockholder Representatives agree to
recommend to the Independent Directors to vote or provide written consents
in favor of such designees and to take any other action necessary to elect
such designees.
(b) Three Creditors' Committee Directors, one Equity Committee
Director, and one Independent Company Director, each as designated on
Exhibit A hereto, shall serve until the first Annual Meeting following the
date hereof and until the successor to each such director shall be duly
elected and qualified, or until their death, disability, removal or
resignation. Until (but not including) the Terminating Annual Meeting, the
Company shall nominate for reelection, and each of the AmWest Affiliates
shall vote the Common Stock held and controlled by it in favor of, each
Independent Director designated on Exhibit A for so long as he or she
continues to serve on the Board. No less than five days in advance of any
meeting of the Board prior to (but not including) the Terminating Annual
Meeting at which a director will be elected to sit on the Board in a seat
vacated by an Independent Director because of death, disability, removal,
resignation, or otherwise (a "Successor Independent Director"), and no less
than 30 days in advance of each Annual Meeting prior to (but not including)
the Terminating Annual Meeting at which the term of any Successor
Independent Director will expire, the Stockholder Representatives shall
give written notice to the other parties hereto designating the individuals
to serve as Independent Directors; provided, however, that (i) if the
Creditors' Committee or the Equity Committee remain in effect, they shall
have the right to designate the Creditors' Committee Directors and the
Equity Committee Director, respectively, or the individuals to fill
vacancies thereof, by giving written notice to the other parties hereto in
accordance with the terms set forth above, and (ii) the Stockholder
Representatives shall select any Successor Independent Director to replace
the Independent Company Director from among the executive officers of the
Company. Each of the AmWest Affiliates agrees to vote the Common Stock held
and controlled by it and to cause the AmWest Directors to vote or provide
written consents in favor of such designees and to take any other action
necessary to elect such designees; provided, however, that each Independent
Director shall be reasonably acceptable to the AmWest Affiliates at the
time of his or her initial designation.
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<PAGE> 8
(c) Except as otherwise provided herein, each of the AmWest Affiliates
and each of the Stockholder Representatives agrees to nominate or cause the
nomination of the AmWest Directors and the Independent Directors,
respectively, in accordance with the Bylaws.
(d) Notwithstanding the foregoing, no party hereto shall be obligated
to vote any shares for which the voting rights have been suspended, whether
voluntarily or involuntarily.
(e) In the event that the AmWest Affiliates, the Creditors' Committee
or the Equity Committee (for so long as each is in existence and has the
ability to designate a director as herein provided), or the Stockholder
Representatives shall fail or refuse to designate a nominee to the Board
for a position allocated to and to be filled by such group or entity as
herein provided, such position shall not be filled and shall remain vacant
unless and until such designation shall be made as herein provided.
(f) The parties hereto agree (i) to vote the Common Stock held and
controlled by them (other than stock held individually by any Stockholder
Representative) in favor of the removal from the Board, upon notice by the
group or entity having the right to designate such director under this
Section 2.01 and requesting such removal, of any person or persons
designated to the Board by such group or entity, and (ii) to vote the
Common Stock held and controlled by them (other than stock held
individually by any Stockholder Representative) and to cause (or in the
case of the Stockholder Representatives, recommend to) the directors
designated by them to vote or take such action as may be required under the
General Corporation Law or otherwise to implement the provisions of this
Agreement. The group or entity who has nominated any director in accordance
with this Agreement shall have the exclusive right to remove or replace
such director by written notice as herein provided; provided, however, that
nothing in this agreement shall be construed to limit or prohibit the
removal of any director for cause.
Section 2.02 Citizenship of Directors. Until the Termination Date, at
least eight of the AmWest Directors, at least two of the Creditors' Committee
Directors, the Equity Committee Director, and the Independent Company Director
shall each be Citizens of the United States.
Section 2.03 Restriction on Designation of AmWest Directors. Each of
the AmWest Affiliates agrees that no AmWest Director shall be an officer or
employee of Continental.
ARTICLE III
VOTING ON CERTAIN MATTERS
Section 3.01 Recusal of Certain Directors. Any director who is selected
by, or who is a director of, Continental shall recuse himself or herself from
voting on, or otherwise receiving any confidential information regarding,
matters in connection with negotiations between Continental and the Company or
AWA (including, without limitation, negotiation between Continental and AWA
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<PAGE> 9
of the Alliance Agreements) and matters in connection with any action involving
direct competition between Continental and the Company or AWA. Any director who
is selected by, or who is a director, officer or employee of, Mesa shall recuse
himself or herself from voting on, or otherwise receiving any confidential
information regarding, matters in connection with negotiations between Mesa and
the Company or AWA (including, without limitation, negotiation between Mesa and
AWA of the Alliance Agreements) and matters in connection with any action
involving direct competition between Mesa and the Company or AWA.
Section 3.02 Required Votes With Respect to Certain Matters. Until the
Termination Date, the affirmative vote of the holders of a majority of the
voting power of the outstanding shares of each class of common stock of the
Company entitled to vote (excluding any shares owned by any of the AmWest
Affiliates or any of their respective Affiliates, but not, however, excluding
shares owned, controlled or voted by Mesa or any of its transferees or
Affiliates that are not otherwise Affiliates of AmWest), voting as a single
class, shall be required to approve, adopt or authorize:
(a) any merger or consolidation of the Company or AWA with or into any
of the AmWest Affiliates or any Affiliate of any of the AmWest Affiliates;
(b) any sale, lease, exchange, transfer, or other disposition by the
Company or AWA of all or any substantial part of its assets to any of the
AmWest Affiliates or any Affiliate of any of the AmWest Affiliates;
(c) any transaction with or involving the Company as a result of which
the AmWest Affiliates or any of their respective Affiliates will, as a
result of issuances of voting securities by the Company (or any other
securities convertible into or exchangeable for such voting securities),
acquire an increased percentage ownership of such voting securities, except
for (i) the exercise of any of the Warrants, (ii) the conversion of Class A
Common held by it to Class B Common, or (iii) otherwise pursuant to a
transaction in which all holders of Class B Common may participate on a pro
rata basis at the same price per share and on the same economic terms,
including, without limitation, (A) a tender or exchange offer for all
shares of the Common Stock and (B) a Public Offering; or
(d) any related series or combination of transactions having or which
will have, directly or indirectly, the same effect as any of the foregoing.
At the request of any party proposing such a transaction, subject to the Board
approving such request, the Company agrees to put to a vote of the shareholders
the approval of any transaction referred to in subparagraphs (a) through (d)
above (excluding the excepted transactions referred to in clauses (i), (ii), and
(iii) of subparagraph (c)) at the next regular or any duly convened special
meeting of the shareholders of the Company; provided, however, that, except to
the extent otherwise required by applicable law, the shareholder voting
requirements specified above shall not be applicable to a proposed action which
has been approved or recommended by at least three Independent Directors.
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<PAGE> 10
ARTICLE IV
FURTHER COVENANTS
Section 4.01 Proportional Ownership of Class A Common and Class B
Common. None of the AmWest Affiliates or any of their respective Affiliates
shall sell or otherwise transfer any Common Stock (other than to an Affiliate of
the transferor) if, after giving effect thereto and to any related transaction
by such party, the total number of shares of Class B Common beneficially owned
by the transferor is less than twice the total number of shares of Class A
Common beneficially owned by the transferor; provided, however, that nothing
contained in this Section 4.01 shall prohibit any owner of Common Stock from
selling or otherwise transferring, in a single transaction or related series of
transactions, all shares of Common Stock owned by it, subject to the remaining
provisions of this Agreement.
Section 4.02 Restrictions With Respect to Governing Documents and Sale
of Securities by AmWest Affiliates. Each of the AmWest Affiliates agrees that
its constituent documents shall at all times require that this Agreement be
binding upon all general and limited partners of such AmWest Affiliate, and any
of their respective Affiliates who hold or receive shares of the Company or
direct the voting of any shares held by such AmWest Affiliate, and upon any
assignees or transferees in a single transaction or a related series of
transactions of all or substantially all of the Common Stock owned by such
AmWest Affiliate or any of its Affiliates or partners; provided, however, that
this Agreement shall not be binding upon any assignee or transferee who acquires
such Common stock pursuant to (a) a tender or exchange offer open to all
shareholders of the Company on a pro rata basis at the same price per share and
on the same economic terms, (b) a public distribution registered under the
Securities Act of 1933, as amended (the "Securities Act"), or sale on the open
market through a "brokers' transaction," as that term is defined in subsection
(g) of Rule 144 (a "Public Offering"), or (c) a transfer made pursuant to Rule
144, as amended ("Rule 144"), under the Securities Act. None of AmWest
Affiliates shall sell or transfer any Common Stock held by it to any of its
general or limited partners, to any Fidelity Fund, to Lehman, or to any
Affiliate of any of the AmWest Affiliates or such partners and none of the
AmWest Affiliates shall sell or transfer all or substantially all of the Common
Stock held by it in a single transaction or a related series of transactions,
except in accordance with clauses (a), (b) or (c), above, unless and until it
causes any assignee or transferee to provide a written acknowledgment to the
other parties hereto that it accepts and is bound by and subject to the terms of
this Agreement.
Section 4.03 Restriction With Respect to Sale of Control. Each of the
AmWest Affiliates covenants and agrees that, without the prior written consent
of the Company given pursuant to a resolution duly adopted by the affirmative
vote of not less than 75% of all directors of the Company, it shall not sell or
transfer, alone or together with the other AmWest Affiliates, in a single
transaction or a related series of transactions, shares of Common Stock
representing 51% or more of the combined voting power of all shares of Common
Stock then outstanding, other than (a) pursuant to or in connection with a
tender or exchange offer for all shares of Common Stock and for the benefit of
all holders of Class B Common on a pro rata basis at the same price per share
and on
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<PAGE> 11
the same economic terms, (b) to any Affiliate of any of the AmWest Affiliates,
(c) pursuant to a bankruptcy or insolvency proceeding, (d) pursuant to a
judicial order, legal process, execution, or attachment, (e) in a Public
Offering, or (f) in any other transaction where the purchase price per share of
the Common Stock being sold or transferred therein is equal to or less than the
then-current market price per share (i.e., the average of the daily mean between
the high and low sales prices regular way of the shares of Common Stock on the
exchange on which shares of Common Stock are listed for ten consecutive trading
days preceding the effective date of such transaction). For purposes of the
foregoing, a transaction (the "Primary Transaction") involving any person or
entity will not be deemed to be related to any other transaction (the "Other
Transaction") if (i) the Other Transaction does not involve, directly or
indirectly, such person or entity or any Affiliate of such person or entity, it
being understood that, for purposes of this clause (i), TPG Partners, TPG
Parallel, Air Partners, and Continental will be deemed not to be Affiliates of
one another, and (ii) the Primary Transaction and the Other Transaction do not
involve, directly or indirectly, persons or entities who are assignees, direct
or indirect, of any of the AmWest Affiliates and who are acting in concert with
respect thereto, it being understood that, for purposes of this clause (ii),
persons or entities will be deemed to be acting in concert when they act jointly
or on a coordinated basis pursuant to any express or tacit agreement,
arrangement or understanding.
Section 4.04 Certain Securities Law Filings. If required by applicable
law, within ten days of the date hereof, each of the AmWest Affiliates shall
file with the Securities and Exchange Commission, a Schedule 13D pursuant to
Regulation 13D-G ("Regulation 13D-G") under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and shall amend such filing as required by
Regulation 13D-G. Each other party hereto covered by such filing covenants and
agrees to promptly provide to each of the AmWest Affiliates all information
pertaining to such party and necessary to make such amendments and to notify
each of the AmWest Affiliates of any changes in facts or circumstances
pertaining to such party that would require any amendments under Regulation
13D-G.
Section 4.05 Amendments of Certificate of Incorporation and Bylaws.
Each of the AmWest Affiliates agrees that it shall not, alone or together with
the other AmWest Affiliates, cause any amendment to the provisions of the
Certificate of Incorporation or the Bylaws or otherwise take any action that
supersedes or materially adversely affects or impairs the rights and obligations
of the parties under this Agreement or is contrary to the provisions of this
Agreement.
Section 4.06 Legending of Securities. (a) Each certificate evidencing
shares of Common Stock issued to any of the AmWest Affiliates or any of its
partners and any of their respective Affiliates, and any assignee or transferee
bound by the terms hereof, including shares of Common Stock issued in connection
with the exercise of any warrant, so long as such Common Stock is held by them
and prior to the termination or expiration of this Agreement, shall be
conspicuously stamped or marked with a legend including substantially as
follows:
THE RIGHTS AND OBLIGATIONS OF THE HOLDER OF THIS CERTIFICATE SHALL BE
SUBJECT TO THE TERMS AND PROVISIONS OF THAT CERTAIN STOCKHOLDERS'
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AGREEMENT FOR AMERICA WEST HOLDINGS CORPORATION DATED DECEMBER
19, 1996, COPIES OF WHICH ARE ON FILE AT THE PRINCIPAL OFFICE OF AMERICA
WEST HOLDINGS CORPORATION.
and each such certificate, for so long as such certificate is held by any of the
AmWest Affiliates or any of its partners, any of their respective Affiliates, or
any assignee or transferee bound by the terms hereof and prior to the
termination or expiration of this Agreement, shall include in such legend the
following:
THIS CERTIFICATE AND ANY INTEREST HEREIN MAY NOT BE SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE AFORESAID
STOCKHOLDERS' AGREEMENT.
(b) All certificates evidencing shares of Common Stock and warrants of
the Company that have not been registered pursuant to the Securities Act and
that are not exempt from registration under Section 1145 of the Bankruptcy Code,
shall at all times be conspicuously stamped or marked with a legend including
substantially as follows:
THE ISSUANCE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT") OR
PURSUANT TO THE SECURITIES LAWS OF ANY STATE, AND SUCH SECURITIES MAY NOT
BE SOLD OR TRANSFERRED OTHER THAN IN ACCORDANCE WITH THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT AND THE RULES AND REGULATIONS THEREUNDER OR AN
EXEMPTION THEREFROM AND FROM ANY APPLICABLE STATE SECURITIES LAWS.
(c) Upon the termination of this Agreement, the Company shall, without
charge and upon surrender of certificates by the holders thereof and written
request, cancel all certificates evidencing shares of Common Stock bearing any
legend described in subparagraph (a) above and issue to the holders thereof
replacement certificates that do not bear such a legend for an equal number of
shares held by such holders. Upon the transfer of any Common Stock bearing any
legend described in subparagraph (a) above to a party not bound by and subject
to this Agreement, the Company shall, without charge and upon the surrender of
certificates by the holders thereof and written request, cancel all certificates
evidencing such shares of Common Stock and issue to the transferee thereof
replacement certificates that do not bear any such legend.
Section 4.07 Issuance of Preferred Stock. During the term of this
Agreement, none of the AmWest Affiliates shall, alone or together with the other
AmWest Affiliates, cause the issuance of any preferred stock by the Company that
would (a) increase the number of directors in excess of the number provided in
Section 2.01 (except for increases caused by a provision allowing holders of
preferred stock to elect additional directors in the event of nonpayment of
dividends), or (b) eliminate or reduce the number of Creditors' Committee
Directors or eliminate the Equity Committee Director or the Independent Company
Director.
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<PAGE> 13
ARTICLE V
RIGHTS UPON BREACH
Section 5.01 Remedies. Each party hereto recognizes and agrees that a
violation of any term, provision, or condition of this Agreement may cause
irreparable damage to the other parties which is difficult or impossible to
quantify or ascertain and that the award of any sum of damages may not be
adequate relief to such other parties. Each party hereto therefore agrees that
in the event of any breach of this Agreement, the other party or parties shall,
in addition to any remedies at law which may be available, have the right to
obtain appropriate equitable (including, but not limited to, injunctive) relief.
All remedies hereunder shall be cumulative and not exclusive.
Section 5.02 Additional Rights of the Company. In addition to any other
remedies available at law or in equity, each party hereto agrees that the
Company shall have the right (a) to withhold transfer, and to instruct any
transfer agent for securities of the Company to withhold transfer, of any
certificates evidencing shares of Common Stock held by any of the AmWest
Affiliates or any partner or Affiliate of any of the AmWest Affiliates or
transferee if the Company reasonably believes that such transfer would not be in
material compliance with the terms and provisions of this Agreement, unless the
transferee provides to the Company an opinion of legal counsel reasonably
acceptable to the Company that such transfer will be in material compliance with
the terms and provisions hereof, and (b) to require any person or entity
requesting transfer of securities subject to this Agreement to provide such
information as may reasonably be requested by the Company regarding ownership of
securities, affiliations, if any, between the party requesting transfer and the
transferee and such other matters pertaining to the transfer as may be
appropriate to enable the Company to determine the compliance of the proposed
transfer of securities with the terms and provisions of this Agreement.
ARTICLE VI
TERMINATION
This Agreement shall automatically terminate without any action by any
party on the Termination Date and shall not be extended except in accordance
with Section 7.03. Upon such termination, the rights and obligations of each
party hereunder shall terminate and the provisions of this Agreement shall be of
no force and effect; provided, however, that no such termination shall relieve
any person or entity from liability for breach or default of this Agreement
prior to such termination.
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<PAGE> 14
ARTICLE VII
MISCELLANEOUS
Section 7.01 Notices. All notices, requests, and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally or by facsimile transmission or mailed (first class postage
prepaid) or by prepaid express courier at the following addresses or facsimile
numbers:
If to TPG Partners, TPG Parallel or Air Partners, to:
TPG GenPar, L.P.
201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James G. Coulter
Fax Number: (817) 871-4010
with copies to:
Arnold & Porter
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036
Attention: Richard P. Schifter
Fax Number: (202) 872-6720
and
Jones, Day, Reavis & Pogue
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
Attention: Lyle G. Ganske
Fax Number: (216) 586-7864
If to Continental, to:
2929 Allen Parkway, Suite 2010
Houston, Texas 77019
Attention: Jeffrey Smisek
Fax Number: (713) 834-2687
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<PAGE> 15
with copies to:
Arnold & Porter
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036
Attention: Richard P. Schifter
Fax Number: (202) 872-6720
and
Jones, Day, Reavis & Pogue
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
Attention: Lyle G. Ganske
Fax Number: (216) 586-7864
If to Mesa, to:
2325 East 30th Street
Farmington, New Mexico 87401
Attention: Larry L. Risley
Fax Number: (505) 326-4485
with copies to:
Jones, Day, Reavis & Pogue
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
Attention: Lyle G. Ganske
Fax Number: (216) 586-7864
and
Arnold & Porter
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036
Attention: Richard P. Schifter
Fax Number: (202) 872-6720
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<PAGE> 16
If to Robert A. Ewert, to:
Robert A. Ewert
3819 E. Nowata Drive
Phoenix, Arizona 85044
Fax Number: (602) 893-2239
If to David T. Obergfell, to:
David T. Obergfell
2606 Beechmont Drive
Dallas, Texas 75228
Fax Number: (214) 965-6140
with a copy to:
Stutzman & Bromberg
2323 Bryan Street, Suite 2300
Dallas, Texas 75201
Attention: Sandy Esserman
Fax Number: (214) 969-4999
If to William A. Franke, to:
William A. Franke
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Fax Number: (602) 693-5517
If to the Company, to:
America West Holdings Corporation
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: General Counsel
Fax Number: (602) 693-5904
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<PAGE> 17
with a copy to:
Andrews & Kurth, L.L.P.
4200 Texas Commerce Tower
Houston, Texas 77002
Attention: David G. Elkins
Fax Number: (713) 220-4285
All such notices, requests and other communications will (a) if delivered
personally to the address as provided in this Section 7.01, be deemed given upon
delivery, (b) if delivered by facsimile transmission to the facsimile number as
provided in this Section 7.01, be deemed given upon receipt, and (c) if
delivered by mail or by express courier in the manner described above to the
address as provided in this Section 7.01, be deemed given upon receipt (in each
case regardless of whether such notice is received by any other person or entity
to whom a copy of such notice, request or other communication is to be delivered
pursuant to this Section 7.01). Any party from time to time may change its
address, facsimile number or other information for the purpose of notices to
that party by giving notice as provided in this Section 7.01 specifying such
change to the other parties hereto. Nothing in this Section 7.01 shall be deemed
or construed to alter any notice provisions contained in the Bylaws.
Section 7.02 Governing Law. This Agreement shall in all respects be
governed by and construed in accordance with the laws of the State of Delaware
without reference to principles of conflicts or choice of law under which the
law of any other jurisdiction would apply.
Section 7.03 Amendments and Waiver. This Agreement may only be amended,
waived, supplemented, modified, or extended by a written instrument signed by
authorized representatives of each party hereto.
Section 7.04 Benefit and Burden. This Agreement shall inure to the
benefit of and be binding upon each of the parties hereto and their respective
successors and permitted assigns.
Section 7.05 Counterparts. This Agreement may be executed by the
parties hereto in counterparts and by telecopy, each of which shall be deemed to
constitute an original and all of which together shall constitute one and the
same instrument.
Section 7.06 Severability. If any term or provision of this Agreement
shall be found by a court of competent jurisdiction to be illegal, invalid, or
unenforceable to any extent, the remainder of this Agreement shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
Section 7.07 Inconsistent Provisions. The parties hereto intend that in
the case of any conflict or inconsistency between this Agreement and the
Certificate of Incorporation or the Bylaws, that this Agreement shall control,
and therefore, in the event that any term or provision of this
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<PAGE> 18
Agreement is rendered invalid, illegal or unenforceable by the Certificate of
Incorporation or the Bylaws, the parties agree to amend the Certificate of
Incorporation or the Bylaws (as the case may be) so as to render such term or
provision valid, legal, and enforceable, if and to the extent legally permitted.
Section 7.08 Effectiveness and Termination of Existing Stockholders'
Agreement. This Agreement shall become effective upon the later to occur of (a)
the execution by each of the parties hereto of this Agreement and (b) the
effectiveness of the Merger. Upon this Agreement becoming effective, the
Existing Stockholders' Agreement shall terminate and be of no further force or
effect; provided, however, that such termination of the Existing Stockholders'
Agreement shall not relieve any of the parties thereto from liability for any
breach or default of the Existing Stockholders' Agreement prior to such
termination.
IN WITNESS WHEREOF, the parties hereto, by their respective officers
thereunto duly authorized, have executed this Agreement as of the date first
written above.
TPG PARTNERS, L.P.
By: TPG GenPar, L.P., its General Partner
By: TPG Advisors, Inc., its General Partner
By:______________________________________
Name:____________________________________
Title:___________________________________
TPG PARALLEL I, L.P.
By: TPG GenPar, L.P., its General Partner
By: TPG Advisors, Inc., its General Partner
By:______________________________________
Name:____________________________________
Title:___________________________________
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<PAGE> 19
AIR PARTNERS II, L.P.
By: TPG GenPar, L.P., its General Partner
By: TPG Advisors, Inc., its General Partner
By:________________________________________
Name:______________________________________
Title:_____________________________________
CONTINENTAL AIRLINES, INC.
By:________________________________________________
Name:______________________________________________
Title:_____________________________________________
MESA AIRLINES, INC.
By:________________________________________________
Name:______________________________________________
Title:_____________________________________________
STOCKHOLDER REPRESENTATIVES
___________________________________________________
Robert A. Ewert,
Stockholder Representative
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<PAGE> 20
____________________________________________________
David T. Obergfell,
Stockholder Representative
____________________________________________________
William A. Franke,
Stockholder Representative
AMERICA WEST HOLDINGS CORPORATION
By:
_________________________________________________
Stephen L. Johnson
Senior Vice President - Legal Affairs
America West Airlines, Inc., a Delaware corporation, hereby executes
this Agreement solely for the purposes of evidencing its consent to the
termination of the Existing Stockholders' Agreement provided in Section 7.08
hereof.
AMERICA WEST AIRLINES, INC.
By:
_________________________________________________
Stephen L. Johnson
Senior Vice President - Legal Affairs
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<PAGE> 21
EXHIBIT A
DIRECTOR DESIGNEES
AmWest Directors:
- -----------------
Julia Chang Bloch
Frederick W. Bradley, Jr.
James G. Coulter
John F. Fraser
John L. Goolsby
Richard C. Kraemer
Larry L. Risley
Richard P. Schifter
Richard R. Goodmanson
Creditors' Committee Directors:
- -------------------------------
Stephen F. Bollenbach
Raymond S. Troubh
Frank B. Ryan
Equity Committee Director:
- --------------------------
John R. Power, Jr.
Independent Company Director:
- -----------------------------
William A. Franke
A-i
<PAGE> 1
EXHIBIT 4.5
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement"), dated as of December
31, 1996, is by and between AMERICA WEST AIRLINES, INC., a Delaware corporation
("AWA"), and AMERICA WEST HOLDINGS CORPORATION, a Delaware corporation and a
wholly-owned subsidiary of AWA ("Holdings" and, together with AWA, the
"Parties").
PRELIMINARY STATEMENTS
1. The Parties are parties to that certain Agreement and Plan of Merger
(the "Merger Agreement") dated as of December 19, 1996, providing,
among other things, for the merger (the "Merger") of AWA Merger, Inc.,
a Delaware corporation and a wholly-owned subsidiary of Holdings
("Merger Sub"), with and into AWA, with AWA being the surviving
corporation in the Merger (in such capacity, the "Surviving
Corporation").
2. Pursuant to the Merger Agreement, at the Effective Time (as defined in
the Merger Agreement), (i) each issued and outstanding share of Class A
Common Stock of AWA will be converted into the right to receive one
share of Class A Common Stock of Holdings, (ii) each issued and
outstanding share of Class B Common Stock of AWA ("AWA Class B Common")
will be converted into the right to receive one share of Class B Common
Stock of Holdings ("Holdings Class B Common"), (iii) each issued and
outstanding share of common stock of Merger Sub will be converted into
the right to receive one share of the common stock of the Surviving
Corporation and (iv) each issued and outstanding share of common stock
of Holdings will be canceled without any consideration being paid
therefor.
3. AWA currently has issued and outstanding warrants to purchase 8,180,086
shares of AWA Class B Common (the "Warrants"), the terms of which are
governed by that certain Warrant Agreement dated as of August 25, 1994
between AWA and First Interstate Bank of California, as Warrant Agent
(the "Warrant Agreement").
4. Pursuant to the terms of the Warrant Agreement, as a result of the
Merger, each of the Warrants will from and after the Effective Time
represent the right to purchase a share of Holdings Class B Common from
AWA.
5. AWA desires to acquire from Holdings, and Holdings desires to issue to
AWA, options to purchase shares of Holdings Class B Common so that AWA
will be expected to have the ability to satisfy its obligations under
the Warrants at the times the Warrants are exercised.
<PAGE> 2
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged by the Parties, the
Parties, intending to be legally bound, hereby agree as follows:
Section 1. The Options; Purchase Price. Holdings hereby grants to AWA
8,180,086 irrevocable options (each, an "Option" and collectively, the
"Options"), each of which entitles AWA to purchase one share of Holdings Class B
Common (each, an "Option Share" and collectively, the "Option Shares"), in the
manner and at the exercise price set forth below. The aggregate purchase price
payable by AWA to Holdings in connection with the grant of the Options shall be
an amount equal to $62,373,155.75 (the "Purchase Price"), representing a
purchase price of $7.625 per Option, and shall be payable by AWA to Holdings
pursuant to a promissory note executed by AWA and made payable to the order of
Holdings in an original principal amount equal to the Purchase Price.
Section 2. Exercise. (a) Subject to Section 4, each Option may be
exercised by AWA at any time and from time to time during the period commencing
with the date hereof and ending on the termination of this Agreement in
accordance with Section 9. In the event AWA wishes to exercise one or more of
the Options, AWA shall send a written notice to Holdings (an "Exercise Notice")
specifying (i) the total number of Option Shares it wishes to purchase, (ii) the
portion, if any, of the Exercise Price (as hereinafter defined) to be paid in
cash, (iii) the portion, if any, of the Exercise Price to be paid by delivery of
a promissory note in an original principal amount equal to such portion of the
Exercise Price, (iv) the name or names in which the certificates for the Option
Shares are to be issued and the denominations thereof and (v) the date for the
closing of the purchase of such Option Shares.
(b) Upon, and as of the date of, the delivery by AWA to Holdings of an
Exercise Notice, that number of Options as is equal to the number of Option
Shares specified in such Exercise Notice shall be deemed to have been exercised
by AWA; provided, however, that neither AWA (nor any designee of AWA) shall have
any rights as a stockholder of Holdings with respect to such Option Shares until
the Exercise Price for such Option Shares is paid to Holdings in full, either in
cash and/or by delivery of a promissory note, as the case may be.
Section 3. Exercise Price. At the closing of any exercise of any of the
Options and the purchase of Option Shares hereunder, (a) Holdings will deliver
to AWA a certificate or certificates representing the Option Shares with respect
to which such Options are exercised in the denominations, and issued in the
names, designated by AWA in its Exercise Notice and (b) AWA will purchase such
Option Shares from Holdings at a price per Option Share equal to $12.74 (the
"Exercise Price"), payable, at AWA's option, (i) in cash, (ii) by delivery of a
promissory note executed by AWA and made payable to the order of Holdings, with
a maturity date that is no later than 180 days after the closing of the exercise
of such Options, or (iii) any combination of the foregoing.
Section 4. Conditions to Delivery of Shares. Each of (a) AWA's right to
exercise any of the Options, (b) AWA's obligation to purchase the Option Shares
following an exercise of any
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<PAGE> 3
of the Options and (c) Holdings' obligation to deliver any Option Shares
following an exercise of any of the Options, is subject to the condition that no
preliminary or permanent injunction or other order issued by any federal or
state court of competent jurisdiction in the United States prohibiting the
exercise of such Options or the delivery of such Option Shares, as applicable,
shall be in effect, but excluding any such injunction or order issued upon the
application, at the request or with the support of Holdings or AWA.
Section 5. The Closing. Any closing hereunder shall take place (i)
concurrently with the closing of the purchase of shares pursuant to the Warrant
or (ii) at such other time and place as the Parties may agree.
Section 6. Adjustments. The number and nature of Option Shares subject
to the Options and/or the Exercise Price shall be subject to adjustment in the
same manner and to the same extent as the Warrant Price (as defined in that
certain Warrant Agreement dated as of August 25, 1994 between AWA and First
Interstate Bank of California, as Agent, as amended, the "Warrant Agreement")
and the number of shares of AWA Class B Common deliverable upon exercise of the
Warrants are adjusted pursuant to Sections 4.01 through 4.08 of the Warrant
Agreement, so that all times during the term of this Agreement, AWA shall be
entitled to purchase, at an Exercise Price equal to the Warrant Price (except
with respect to Options that have previously been exercised for a number of
Option Shares in excess the number of shares previously purchased pursuant to
the Warrant Agreement), that number of Option Shares or other securities which
is equal to the number of shares of Holdings Class B Common or other securities
which AWA would be obligated to deliver to the holders of the Warrants if all of
the Warrants were exercised (except to the extent that Options have previously
been exercised for a number of Option Shares in excess the number of shares
previously purchased pursuant to the Warrant Agreement). Subject to the
above-described exceptions, any such adjustment pursuant to the terms of the
Warrant Agreement shall automatically result in a corresponding adjustment
hereunder, without any further action by any of the Parties.
Section 7. Representations and Warranties of Holdings. Holdings
represents and warrants to AWA that:
(a) Holdings is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby;
(b) the execution and delivery by Holdings of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by the Board of Directors of Holdings and no other corporate
proceedings or approvals on the part of Holdings are necessary to authorize
this Agreement;
(c) this Agreement has been duly executed and delivered by Holdings and
constitutes the legal, valid and binding obligation of Holdings,
enforceable against Holdings in accordance with its terms, except as such
enforcement may be limited by applicable bankruptcy,
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<PAGE> 4
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and general equitable principles;
(d) except for routine filings, no consents, approvals or
authorizations of any governmental authority and no notifications, filings
or registrations to or with any governmental authority or any other person
or entity is or will be necessary for the valid execution and delivery by
Holdings of this Agreement, or the enforceability hereof, other than those
which have been obtained or made and are in full force and effect;
(e) the execution and delivery by Holdings of this Agreement and the
consummation of the transactions contemplated hereby do not and shall not,
by the lapse of time, the giving of notice or otherwise, (i) constitute a
violation of any law, statute, rule or regulation, (ii) constitute a breach
or violation of any provision contained in its Certificate of Incorporation
or Bylaws or (iii) constitute a breach of any provision contained in, or a
default under, any consent, approval or authorization of any governmental
authority or any writ, injunction, order, judgment or decree of any
governmental authority or any contract or agreement to which Holdings is a
party or by which Holdings or its assets and properties is bound or
affected, other than such violations, breaches and defaults which would not
have a material adverse effect on Holdings and its subsidiaries, taken as a
whole; and
(f) the Option Shares delivered to AWA upon exercise of any of the
Options will be duly authorized, validly issued, fully paid and
nonassessable and free of preemptive rights and all liens, security
interests and other encumbrances.
Section 8. Representations and Warranties of AWA. AWA represents and
warrants to Holdings that:
(a) AWA is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby;
(b) the execution and delivery by AWA of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by the Board of Directors of AWA and no other corporate
proceedings or approvals on the part of AWA are necessary to authorize this
Agreement;
(c) this Agreement has been duly executed and delivered by AWA and
constitutes the legal, valid and binding obligation of AWA, enforceable
against AWA in accordance with its terms, except as such enforcement may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and general equitable
principles;
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<PAGE> 5
(d) except for routine filings, no consents, approvals or
authorizations of any governmental authority and no notifications, filings
or registrations to or with any governmental authority or any other person
or entity is or will be necessary for the valid execution and delivery by
AWA of this Agreement, or the enforceability hereof, other than those which
have been obtained or made and are in full force and effect; and
(e) the execution and delivery by AWA of this Agreement and the
consummation of the transactions contemplated hereby do not and shall not,
by the lapse of time, the giving of notice or otherwise, (i) constitute a
violation of any law, statute, rule or regulation, (ii) constitute a breach
or violation of any provision contained in its Certificate of Incorporation
or Bylaws or (iii) constitute a breach of any provision contained in, or a
default under, any consent, approval or authorization of any governmental
authority or any writ, injunction, order, judgment or decree of any
governmental authority or any contract or agreement to which AWA is a party
or by which AWA or its assets and properties is bound or affected, other
than such violations, breaches and defaults which would not have a material
adverse effect on AWA and its subsidiaries, taken as a whole.
Section 9. Termination. This Agreement shall terminate on the earlier
to occur of (a) the date on which AWA shall have the exercised all of the
Options, all of the Option Shares shall have been delivered by Holdings to AWA
or AWA's designee(s) and AWA shall have paid the Exercise Price for all of the
Option Shares, either in cash and/or by delivery of a promissory note, as the
case may be, and (b) the Expiration Date (as defined in the Warrant Agreement);
provided, however, that if any of the Options have been exercised on or prior to
the Expiration Date and, as of the Expiration Date, either (i) Holdings has not
delivered to AWA or AWA's designee(s) the Option Shares required to be delivered
in connection with the exercise of such Options and/or (ii) AWA has not paid the
Exercise Price for such Option Shares, either in cash and/or by delivery of a
promissory note, as the case may be, the obligation of Holdings to deliver such
Options Shares and the obligation of AWA to pay the Exercise Price for such
Option Shares shall survive such termination solely with respect to such Option
Shares until such Option Shares have been delivered by Holdings to AWA or AWA's
designee(s) and the Exercise Price therefor has been paid by AWA, either in cash
and/or by delivery of a promissory note. If this Agreement is terminated, this
Agreement shall forthwith become void and there shall be no liability hereunder
on the part of AWA or Holdings, except with respect to the provisions of Section
10 through 21, which shall survive any such termination.
Section 10. Notices. Any and all notices, requests or other
communications hereunder shall be given in writing and delivered by (a) regular,
overnight or registered or certified mail (return receipt requested), with first
class postage prepaid, (b) hand delivery, (c) facsimile transmission or (d)
overnight courier service, to the Parties at the following addresses or
facsimile numbers:
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<PAGE> 6
(i) if to AWA, to:
America West Airlines, Inc.
4000 E. Sky Harbor Blvd.
Phoenix, Arizona 85034
Attention: Senior Vice President - Legal Affairs
Facsimile Number: (602) 693-5904
Telephone Number: (602) 693-0800
(ii) if to Holdings, to:
America West Airlines, Inc.
4000 E. Sky Harbor Blvd.
Phoenix, Arizona 85034
Attention: Senior Vice President - Legal Affairs
Facsimile Number: (602) 693-5904
Telephone Number: (602) 693-0800
or at such other address or number as shall be designated by any Party in a
notice to the other Party given in accordance with this Section 10. Except as
otherwise provided in this Agreement, all such communications shall be deemed to
have been duly given, (A) in the case of a notice sent by regular mail, on the
date actually received by the addressee, (B) in the case of a notice sent by
registered or certified mail, on the date receipted for (or refused) on the
return receipt, (C) in the case of a notice delivered by hand, when personally
delivered, (D) in the case of a notice sent by facsimile, upon transmission
subject to telephone confirmation of receipt, and (E) in the case of a notice
sent by overnight mail or overnight courier service, the date delivered at the
designated address, in each case given or addressed as aforesaid.
Section 11. Benefit and Burden. This Agreement shall inure to the
benefit of, and shall be binding upon, the Parties and their respective
successors and permitted assigns.
Section 12. No Third Party Rights. Nothing in this Agreement shall be
deemed to create any right in any creditor or other person or entity and this
Agreement shall not be construed in any respect to be a contract in whole or in
part for the benefit of any third party.
Section 13. Amendments and Waiver. No amendment, modification,
restatement or supplement of this Agreement shall be valid unless the same is in
writing and signed by the Parties. No waiver of any provision of this Agreement
shall be valid unless in writing and signed by the Party against whom that
waiver is sought to be enforced. No failure or delay on the part of any Party in
exercising any right, power or privilege hereunder and no course of dealing
between or among any of the Parties shall operate as a waiver of any right,
power or privilege hereunder. No single or partial exercise of any right, power
or privilege hereunder shall preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder. No notice to or
demand on
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<PAGE> 7
any Party in any case shall entitle such Party to any other or further notice or
demand in similar or other circumstances or constitute a waiver of the rights of
any Party to any other or further action in any circumstances without notice or
demand.
Section 14. Assignments. Neither this Agreement nor any right, interest
or obligation hereunder may be assigned by either of the Parties without the
consent of the other Party and any attempt to do so shall be null and void.
Section 15. Counterparts. This Agreement may be executed in
counterparts and by the different Parties in separate counterparts, each of
which when so executed shall be deemed an original and all of which taken
together shall constitute one and the same agreement. It shall not be necessary
in making proof of this Agreement to produce or account for more than one
counterpart signed by the Party to be charged thereby.
Section 16. Interpretation. In this Agreement, unless a clear contrary
intention appears:
(a) the words "hereof," "herein" and "hereunder" and words of similar
import refer to this Agreement as a whole and not to any particular
provision of this Agreement;
(b) reference to any gender includes each other gender and the neuter;
(c) all terms defined in the singular shall have the same meanings in
the plural and vice versa;
(d) reference to any person or entity includes such person's or
entity's successors and assigns; provided, however, that nothing contained
in this clause (d) is intended to authorize any assignment not otherwise
permitted by this Agreement;
(e) reference to a person or entity in a particular capacity or
capacities excludes such person or entity in any other capacity;
(f) reference to any contract or agreement means such contract or
agreement as amended, supplemented or modified from time to time in
accordance with the terms thereof;
(g) all references to Sections shall be deemed to be references to the
Sections of this Agreement;
(h) the word "including" (and with correlative meaning "include") means
including, without limiting the generality of any description preceding
such term;
(i) with respect to the determination of any period of time, the word
"from" means "from and including" and the words "to" and "until" each means
"to but excluding";
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<PAGE> 8
(j) the captions and headings contained in this Agreement shall not be
considered or given any effect in construing the provisions hereof if any
question of intent should arise;
(k) reference to any law, statute, rule or regulation means such law,
statute, rule or regulation as amended, modified, codified, reenacted,
supplemented or superseded in whole or in part, and in effect from time to
time;
(l) where any provision of this Agreement refers to action to be taken
by any person or entity, or which such person or entity is prohibited from
taking, such provision shall be applicable whether such action is taken
directly or indirectly by such person or entity; and
(m) no provision of this Agreement shall be interpreted or construed
against any of the Parties solely because that Party or its legal
representative drafted such provision.
Section 17. Severability. Should any clause, sentence, paragraph,
subsection or Section of this Agreement be judicially declared to be invalid,
unenforceable or void, such decision will not have the effect of invalidating or
voiding the remainder of this Agreement, and the part or parts of this Agreement
so held to be invalid, unenforceable or void will be deemed to have been
stricken herefrom by the Parties, and the remainder will have the same force and
effectiveness as if such stricken part or parts had never been included herein,
and, in lieu of such invalid, unenforceable or void clause, sentence, paragraph,
subsection or Section, there will be added automatically as a part of this
Agreement a valid and enforceable provision as similar in terms to such invalid,
unenforceable or void clause, sentence, paragraph, subsection or Section as may
be possible which preserves the economic benefits to the Parties.
Section 18. Remedies. The Parties agree that the covenants and
obligations contained in this Agreement relate to special, unique and
extraordinary matters and that a violation of any of the terms hereof would
cause irreparable injury in an amount which would be impossible to estimate or
determine and for which any remedy at law would be inadequate. Accordingly, if
either of the Parties fails or refuses to fulfill any of its obligations under
this Agreement or to make any payment or deliver any instrument required
hereunder, then the other Party shall have the remedy of specific performance,
which remedy shall be cumulative and nonexclusive and shall be in addition to
any other rights and remedies otherwise available under any other contract or
agreement or at law or in equity and to which such Party might be entitled.
Section 19. Applicable Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAW PRINCIPLES THEREOF.
Section 20. Expenses. Except as otherwise expressly provided for in
this Agreement, each of the Parties shall pay its own expenses incident to this
Agreement and the transactions contemplated hereby, including legal and
accounting fees and disbursements.
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Section 21. Entire Agreement. This Agreement sets forth all of the
promises, agreements, conditions, understandings, warranties and representations
among the Parties with respect to the transactions contemplated hereby, and
supersedes all prior agreements, arrangements and understandings among the
Parties, whether written, oral or otherwise. There are no promises, agreements,
conditions, understandings, warranties or representations, oral or written,
express or implied, among the Parties concerning the subject matter hereof
except as set forth herein.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed and delivered on the day and year first above written.
AMERICA WEST HOLDINGS CORPORATION
By: /s/ Stephen L. Johnson
---------------------------------------
Stephen L. Johnson
Senior Vice President - Legal Affairs
AMERICA WEST AIRLINES, INC.
By: /s/ Stephen L. Johnson
---------------------------------------
Stephen L. Johnson
Senior Vice President - Legal Affairs
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<PAGE> 1
EXHIBIT 4.7
ASSUMPTION OF
CERTAIN OBLIGATIONS UNDER
REGISTRATION RIGHTS AGREEMENT
THIS ASSUMPTION OF CERTAIN OBLIGATIONS UNDER REGISTRATION RIGHTS
AGREEMENT (this "Agreement"), dated as of December 19, 1996, is executed by
AMERICA WEST HOLDINGS CORPORATION, a Delaware corporation ("Holdings"), for the
benefit of TPG PARTNERS, L.P., TPG PARALLEL I, L.P., AIR PARTNERS II, L.P.,
CONTINENTAL AIRLINES, INC., MESA AIRLINES, INC., LEHMAN BROTHERS INC., BELMONT
CAPITAL PARTNERS II, L.P. and BELMONT FUND, L.P. (collectively, the "Holders").
PRELIMINARY STATEMENTS
1. America West Airlines, Inc., a Delaware corporation and the sole
stockholder of Holdings ("AWA"), is a party to that certain
Registration Rights Agreement dated as of August 25, 1994 (the
"Registration Rights Agreement") between AWA and AmWest Partners, L.P.,
Lehman Brothers Inc., Belmont Capital Partners II, L.P., Belmont Fund,
L.P. and Fidelity Copernicus Fund, L.P. (collectively, the "Original
Holders"). Capitalized terms used but not defined herein have the
meanings ascribed to such terms in the Registration Rights Agreement.
2. Pursuant to the terms of the Registration Rights Agreement, the
Original Holders were granted certain rights to have their Registrable
Debt Securities and Registrable Equity Securities registered under the
Exchange Act.
3. The Holders have succeeded to all of the rights of the Original Holders
under the Registration Rights Agreement.
4. AWA and Holdings are parties to that certain Agreement and Plan of
Merger (the "Merger Agreement") dated as of December 19, 1996,
providing, among other things, for the merger (the "Merger") of AWA
Merger, Inc., a Delaware corporation and a wholly-owned subsidiary of
Holdings ("Merger Sub"), with and into AWA, with AWA being the
surviving corporation in the Merger (in such capacity, the "Surviving
Corporation").
5. Pursuant to the Merger Agreement, at the Effective Time (as defined in
the Merger Agreement), (i) each issued and outstanding share of Class A
Common Stock of AWA ("AWA Class A Common") will be converted into the
right to receive one share of Class A Common Stock of Holdings
("Holdings Class A Common"), (ii) each issued and
<PAGE> 2
outstanding share of Class B Common Stock of AWA ("AWA Class B Common")
will be converted into the right to receive one share of Class B Common
Stock of Holdings ("Holdings Class B Common"), (iii) each issued and
outstanding share of common stock of Merger Sub will be converted into
the right to receive one share of the common stock of the Surviving
Corporation and (iv) each issued and outstanding share of common stock
of Holdings will be canceled without any consideration being paid
therefor.
6. AWA currently has issued and outstanding warrants to purchase 8,180,086
shares of AWA Class B Common (the "Warrants"), the terms of which are
governed by that certain Warrant Agreement dated as of August 25, 1994
between AWA and First Interstate Bank of California, as Warrant Agent
(the "Warrant Agreement").
7. Pursuant to the terms of the Warrant Agreement, as a result of the
Merger, each of the Warrants will from and after the Effective Time
represent the right to purchase one share of Holdings Class B Common
from AWA.
8. At and after the Effective Time and the exchange of securities provided
for in the Merger Agreement, the Holders will hold (i) shares of
Holdings Class A Common, (ii) shares of Holdings Class B Common, (iii)
warrants to purchase shares of Holdings Class B Common from AWA and/or
(iv) Registrable Debt Securities of AWA, as the case may be.
9. Pursuant to the terms of the Registration Rights Agreement, (i) each
share of Holdings Class A Common into which the shares of AWA Class A
Common issued to the Original Holders or the Holders on the Effective
Date are converted pursuant to the Merger, (ii) each share of Holdings
Class B Common into which the shares of AWA Class B Common issued to
the Original Holders or the Holders on the Effective Date are converted
pursuant to the Merger, (iii) each Warrant which will represent the
right to purchase shares of Holdings Class B Common from AWA by virtue
of the Merger and (iv) each share of Holdings Class B Common
deliverable upon exercise of the Warrants, will constitute a
Registrable Equity Security for purposes of the Registration Rights
Agreement.
10. Holdings desire to assume, as a co-obligor with AWA, certain of the
obligations of AWA under the Registration Rights Agreement in order to
ensure that the Holders retain rights immediately after the Effective
Time substantially equivalent to those held by the Holders under the
Registration Rights Agreement immediately prior to the Effective Time.
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<PAGE> 3
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, Holdings, intending to be legally bound, hereby agrees
as follows:
Section 1. Assumption of Certain Obligations. Holdings hereby assumes,
as a co-obligor with AWA, on a joint and several basis, all of the obligations
and liabilities of AWA under the Registration Rights Agreement which relate to
shares of Holdings Class A Common and shares of Holdings Class B Common,
including shares of Holdings Class B Common to be delivered by AWA upon exercise
of the Warrants, in each case which constitute Registrable Equity Securities
thereunder, to the same extent as if Holdings were originally a party to the
Registration Rights Agreement.
Section 2. Representations and Warranties. Holdings hereby represents
and warrants to the Holders that:
(a) this Agreement has been duly authorized, executed and delivered on
behalf of Holdings; and
(b) this Agreement constitutes a legal, valid and binding obligation of
Holdings, enforceable against Holdings in accordance with its terms, except as
such enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
and general equitable principles.
Section 3. Effectiveness. This Agreement shall not become effective
unless and until the Effective Time shall have occurred.
Section 4. Benefit and Burden. This Agreement (i) shall inure to the
benefit of the Holders and their respective successors and permitted assigns and
(ii) shall inure to the benefit of and be binding upon Holdings and its
successors and permitted assigns.
Section 5. No Third Party Rights. Nothing in this Agreement shall be
deemed to create any right in any creditor or other person or entity other than
the Holders and this Agreement shall not be construed in any respect to be a
contract in whole or in part for the benefit of any other third party.
Section 6. Interpretation. In this Agreement, unless a clear contrary
intention appears:
(a) the words "hereof," "herein" and "hereunder" and words of similar
import refer to this Agreement as a whole and not to any particular
provision of this Agreement;
(b) reference to any gender includes each other gender and the neuter;
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<PAGE> 4
(c) all terms defined in the singular shall have the same meanings in
the plural and vice versa;
(d) reference to any person or entity includes such person's or
entity's heirs, distibutees, legatees, personal representatives,
administrators, successors and assigns; provided, however, that nothing
contained in this clause (d) is intended to authorize any assignment not
otherwise permitted by this Agreement;
(e) reference to a person or entity in a particular capacity or
capacities excludes such person or entity in any other capacity;
(f) reference to any contract or agreement means such contract or
agreement as amended, supplemented or modified from time to time in
accordance with the terms thereof;
(g) all references to Sections shall be deemed to be references to the
Sections of this Agreement;
(h) the captions and headings contained in this Agreement shall not be
considered or given any effect in construing the provisions hereof if any
question of intent should arise; and
(i) no provision of this Agreement shall be interpreted or construed
against Holdings or any of the Holders solely because it or its legal
representative drafted such provision.
Section 7. Severability. Should any clause, sentence, paragraph,
subsection or Section of this Agreement be judicially declared to be invalid,
unenforceable or void, such decision will not have the effect of invalidating or
voiding the remainder of this Agreement, and the part or parts of this Agreement
so held to be invalid, unenforceable or void will be deemed to have been
stricken herefrom by Holdings and the Holders, and the remainder will have the
same force and effectiveness as if such stricken part or parts had never been
included herein.
Section 8. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
Section 9. Entire Agreement. This Agreement and the obligations and
liabilities under the Registration Rights Agreement which are assumed by
Holdings hereby set forth all of the promises, agreements, conditions,
understandings, warranties and representations among Holdings and the Holders
with respect to the transactions contemplated hereby and thereby, and supersede
all prior agreements, arrangements and understandings among Holdings and the
Holders, whether written, oral or otherwise. There are no promises, agreements,
conditions, understandings, warranties or representations, oral or written,
express or implied, among Holdings and the Holders concerning the subject matter
hereof or thereof except as set forth herein and therein.
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<PAGE> 5
IN WITNESS WHEREOF, Holdings has executed this Agreement as of the date
first above written.
AMERICA WEST HOLDINGS CORPORATION
By: /s/ Stephen L. Johnson
---------------------------------------
Stephen L. Johnson
Senior Vice President -- Legal Affairs
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<PAGE> 1
EXHIBIT 10.41
AMERICA WEST 1994 INCENTIVE EQUITY PLAN
America West Airlines, Inc., a Delaware corporation ("AWA"),
established the America West Airlines, Inc. 1994 Incentive Equity Plan (this
"Plan"), effective as of December 1, 1994. Pursuant to that certain Agreement
and Plan of Merger, dated as of December 19, 1996, among AWA, America West
Holdings Corporation, a Delaware corporation and a wholly-owned subsidiary of
AWA ("Holdings"), and AWA Merger, Inc., a Delaware corporation and a
wholly-owned subsidiary of Holdings ("Merger Sub"), Merger Sub will merge with
and into AWA (the "Merger"), as a result of which AWA will become a wholly-owned
subsidiary of Holdings (the "Reorganization"). In connection with the
Reorganization, (a) AWA has assigned this Plan to Holdings and Holdings has
assumed the obligations of AWA under this Plan (such assignment and assumption
becoming effective immediately prior to the effectiveness of the Merger) and (b)
this Plan is amended and restated in its entirety as hereinafter provided (such
amendment and restatement becoming effective immediately prior to the
effectiveness of the Merger), to provide, among other things, that (i) effective
immediately prior to the effectiveness of the Merger, Holdings shall replace AWA
as the "Company" under this Plan, and (ii) effective as of the effectiveness of
the Merger, all Awards outstanding immediately prior to the effectiveness of the
Merger shall automatically became Awards with respect to the Class B Common
Stock, par value $0.01 per share, of Holdings, without any other change in the
terms of such Awards.
1. Purpose. The purpose of the Plan is to promote the interests of the
Company by encouraging employees of the Company and its Subsidiaries and the
Nonemployee Directors of the Company to acquire or increase their equity
interests in the Company and to provide a means whereby employees may develop a
sense of proprietorship and personal involvement in the development and
financial success of the Company, and to encourage them to remain with and
devote their best efforts to the business of the Company, thereby advancing the
interests of the Company and its stockholders. The Plan is also contemplated to
enhance the ability of the Company and its Subsidiaries to attract and retain
the services of individuals who are essential for the growth and profitability
of the Company.
2. Definitions. As used in this Plan:
(a) "Appreciation Right" means a right granted pursuant to Paragraph
5.
(b) "Award" means an Appreciation Right, an Option Right, a Director
Option, Phantom Shares, a Performance Unit, Bonus Stock, Restricted Stock
or a Cash Tax Right.
(c) "Board" means the Board of Directors of the Company.
<PAGE> 2
(d) "Bonus Stock" means unrestricted shares of Common Stock granted
pursuant to Paragraph 9.
(e) "Cash Tax Right" means a right granted pursuant to Paragraph 10.
(f) "Change in Control" shall occur if:
(i) the individuals who, upon consummation of the Reorganization,
constitute the Board (the "Incumbent Board"), cease for any
reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to
the Reorganization whose election, or nomination for election by
the Company's stockholders, was approved by a vote of at least
two-thirds of the directors then comprising the Incumbent Board
shall be considered as though such individual were a member of
the Incumbent Board; or
(ii) any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended), but not including David Bonderman or James G. Coulter
or any individual, entity or group which is controlled (whether
directly or indirectly and whether through ownership of voting
securities, contract or otherwise) by AWA, Holdings, David
Bonderman and/or James G. Coulter, acquires (directly or
indirectly) the beneficial ownership (within the meaning of Rule
13d-3 promulgated under such Act) of more than 50% of the
combined voting power of the then outstanding voting securities
of AWA or Holdings entitled to vote generally in the election of
directors ("Voting Power"); or
(iii) any shares of Common Stock or any other voting securities of the
Company shall be purchased pursuant to a tender or exchange offer
(other than a tender or exchange offer made by the Company); or
(iv) the Company's stockholders shall approve a merger or
consolidation, sale or disposition of all or substantially all of
the Company's assets or a plan of liquidation or dissolution of
the Company, other than (A) a merger or consolidation in which
the voting securities of the Company outstanding immediately
prior thereto will become (by operation of law), or are to be
converted into, voting securities of the surviving corporation or
its parent corporation immediately after such merger or
consolidation that are owned by the same person or entity or
persons or entities as immediately prior thereto and possess at
least 75% of the Voting Power held by the voting securities of
the surviving corporation or its parent corporation, (B) a merger
or consolidation
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<PAGE> 3
effected to implement a recapitalization of the Company (or
similar transaction) in which no person acquires more than 50% of
the Voting Power or (C) a merger or consolidation in which the
Company is the surviving corporation and such transaction was
determined not to be a Change in Control, which transaction and
determination was approved by a majority of the Board in actions
taken prior to, and with respect to, such transaction.
(g) "Code" means the Internal Revenue Code of 1986, as in effect from
time to time.
(h) "Committee" means the Compensation/Human Resources Committee of
the Board.
(i) "Common Stock" means the Class B Common Stock, $0.01 par value, of
the Company or any security into which such Common Stock may be changed by
reason of any transaction or event of the type described in Paragraph 13.
(j) "Company" means (i) immediately prior to the effectiveness of the
Merger, Holdings, and (ii) at all times prior to such time, AWA.
(k) "Date of Grant" means (i) with respect to an Award other than a
Director Option, the date specified by the Committee on which such Award
will become effective (which date will not be earlier than the date on
which the Committee takes action with respect thereto) and (ii) with
respect to a Director Option, the automatic date of grant as provided in
Paragraph 11.
(l) "Director Option" means the right to purchase a share of Common
Stock upon exercise of an option granted pursuant to Paragraph 11.
(m) "Dividend Equivalent" means, with respect to a Phantom Share, an
amount equal to the amount of any dividends that are declared and become
payable after the Date of Grant for such Award and on or before the date
such Award is paid or forfeited, as the case may be.
(n) "Grant Price" means the price per share of Common Stock at which
an Appreciation Right not granted in tandem with an Option Right is
granted.
(o) "Management Objectives" means the objectives, if any, established
by the Committee that are to be achieved with respect to an Award granted
under this Plan, which may be described in terms of Company-wide
objectives, in terms of objectives that are related to performance of the
division, Subsidiary, department or function within the Company or a
Subsidiary in which the Participant receiving the Award is employed or in
individual or other terms, and which will relate to the period of time
(Performance Cycle) determined by the
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<PAGE> 4
Committee. The Management Objectives intended to qualify under Section
162(m) of the Code shall be with respect to one or more of the following:
(i) earnings before interest, taxes, depreciation and amortization expenses
("EBITDA"); (ii) earnings before interest and taxes ("EBIT"); (iii) EBITDA,
EBIT or earnings before taxes and unusual or nonrecurring items as measured
either against the annual budget or as a ratio to revenue; return on total
capital; (iv) total stockholder return; (v) stock price performance; (vi)
revenue per average seat mile; (vii) costs per average seat mile; and
(viii) customer satisfaction rating using the PLOG survey. Which objectives
to use with respect to an Award, the weighting of the objectives if more
than one is used, and whether the objective is to be measured against a
Company-established budget or target, an index or a peer group of airlines,
shall be determined by the Committee in its discretion at the time of grant
of the Award. A Management Objective need not be based on an increase or a
positive result and may include, for example, maintaining the status quo or
limiting economic losses. The Committee, in its sole discretion and without
the consent of the Participant, may amend an Award to reflect (1) a change
in corporate capitalization, such as a stock split or dividend, (2) a
corporate transaction, such as a corporate merger, a corporate
consolidation, any corporate separation (including a spinoff or other
distribution of stock or property by a corporation), any corporate
reorganization (whether or not such reorganization comes within the
definition of such term in section 368), or (3) any partial or complete
corporate liquidation. With respect to an Award that is subject to
Management Objectives, the Committee must first certify that the Management
Objectives have been achieved before the Award may be paid.
(p) "Market Value per Share" means, at any date, the closing sale
price per share of the Common Stock on that date (or, if there are no sales
on that date, the last preceding date on which there was a sale) in the
principal market in which the Common Stock is traded.
(q) "Nonemployee Director" means a director of the Company who is not
also an employee of the Company or a Subsidiary.
(r) "Option Price" means the purchase price per share payable on
exercise of an Option Right or Director Option.
(s) "Option Right" means the right to purchase a share of Common Stock
upon exercise of an option granted pursuant to Paragraph 4.
(t) "Participant" means an employee of the Company, or any of its
Subsidiaries who is selected by the Committee to receive an Award under any
of Paragraphs 4 through 10 and shall also include a Nonemployee Director
who has received an automatic grant of Director Options pursuant to
Paragraph 11.
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<PAGE> 5
(u) "Performance Unit" means a unit equivalent to $100 (or such other
value as the Committee determines) awarded pursuant to Paragraph 8.
(v) "Phantom Shares" means notional shares of Common Stock awarded
pursuant to Paragraph 7.
(w) "Restricted Stock" means shares of Common Stock granted or sold
pursuant to Paragraph 6 as to which neither the ownership restrictions nor
the restriction on transfers referred to therein has expired.
(x) "Rule 16b-3" means Rule 16b-3 of the Securities and Exchange
Commission (or any successor rule to the same effect) as in effect from
time to time.
(y) "Spread" means the amount determined by multiplying (a) the excess
of the Market Value per Share on the date when an Appreciation Right is
exercised over the Option Price provided for in the related Option Right
or, if there is no tandem Option Right, the Grant Price provided for in the
Appreciation Right by (b) the number of shares of Common Stock in respect
of which the Appreciation Right is exercised.
(z) "Subsidiary" means, at any time, any corporation in which at the
time the Company then owns or controls, directly or indirectly, not less
than 50% of the total combined voting power represented by all classes of
stock issued by such corporation.
3. Shares Available Under Plan. Subject to adjustments as provided in
Paragraph 13, (i) 3,500,000 is the maximum number of shares of Common Stock
which may be issued or transferred and covered by all outstanding Awards under
this Plan, of which number no more than 1,500,000 shares will be issued or
transferred as Restricted Stock or Bonus Stock, and (ii) 350,000 is the maximum
number of shares of Common Stock which may be issued pursuant to or covered by
Option Rights and Appreciation Rights granted under this Plan to any one
Participant during any calendar year. Such shares may be shares of original
issuance or treasury shares or a combination of the foregoing. Upon exercise of
any Appreciation Rights or the payment of any Phantom Shares, there will be
deemed to have been delivered under this Plan for purposes of this Paragraph 3
the number of shares of Common Stock covered by the Appreciation Rights or equal
to the Phantom Shares, as applicable, regardless of whether such Appreciation
Rights or Phantom Shares were paid in cash or shares of Common Stock. Subject to
the provisions of the preceding sentence, any shares of Common Stock which are
subject to Option Rights, Appreciation Rights, or Phantom Shares awarded or sold
as Restricted Stock that are terminated, unexercised, forfeited or surrendered
or which expire for any reason will again be available for issuance under this
Plan, unless, with respect to Restricted Stock, the Participant has received
benefits of ownership with respect to such shares, such as dividends, but not
including voting rights.
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<PAGE> 6
4. Option Rights. The Committee may from time to time authorize grants
to any Participant of options to purchase shares of Common Stock upon such terms
and conditions as it may determine in accordance with the following provisions:
(a) Each grant will specify the number of shares of Common Stock to
which it pertains.
(b) Each grant will specify its Option Price, which may not be less
than 100% of the Market Value per Share on the Date of Grant.
(c) Each grant will specify that the Option Price will be payable (i)
in cash by check acceptable to the Company, (ii) by the transfer to the
Company of shares of Common Stock already-owned by the optionee having an
aggregate Market Value per Share at the date of exercise equal to the
aggregate Option Price, (iii) from the proceeds of a sale through a broker
of some or all of the shares to which such exercise relates, or (iv) by a
combination of such methods of payment.
(d) Successive grants may be made to the same Participant whether or
not any Option Rights previously granted to such Participant remain
unexercised.
(e) Each grant will specify the required period or periods of
continuous service by the Participant with the Company and/or any
Subsidiary and/or the Management Objectives (if any) to be achieved before
the Option Rights or installments thereof will become exercisable, and any
grant may provide for the earlier exercise of the Option Rights in the
event of a Change in Control or other corporate transaction or event or
upon termination of the Participant's employment due to death, disability,
retirement or otherwise.
(f) Each grant the exercise of which, or the timing of the exercise of
which, is dependent, in whole or in part, on the achievement of Management
Objectives may specify a minimum level of achievement in respect of the
specified Management Objectives below which no Options Rights will be
exercisable and may set forth a formula or other method for determining the
number of Option Rights that will be exercisable if performance is at or
above such minimum but short of full achievement of the Management
Objectives.
(g) Option Rights granted under this Plan may be (i) options which are
intended to qualify as incentive stock options under Section 422 of the
Code, (ii) options which are not intended to so qualify or (iii)
combinations of the foregoing.
(h) Each grant shall specify the period during which the Option Right
may be exercised, but no Option Right will be exercisable more than ten
years from the Date of Grant.
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<PAGE> 7
(i) Each grant of Option Rights will be evidenced by an agreement
executed on behalf of the Company by any officer and delivered to the
Participant and containing such terms and provisions, consistent with this
Plan, as the Committee may approve.
5. Appreciation Rights. The Committee may also from time to time
authorize grants to any Participant of Appreciation Rights upon such terms and
conditions as it may determine in accordance with this Paragraph. Appreciation
Rights may be granted in tandem with Option Rights or separate and part from a
grant of Option Rights. An Appreciation Right will be a right of the Participant
granted such Award to receive from the Company, upon exercise, an amount which
will be determined by the Committee at the Date of Grant and will be expressed
as a percentage of the Spread (not exceeding 100%) at the time of exercise. An
Appreciation Right granted in tandem with an Option Right may be exercised only
by surrender of the related Option Right. Each grant of an Appreciation Right
may utilize any or all of the authorizations, and will be subject to all of the
limitations, contained in the following provisions:
(a) Each grant will state whether it is made in tandem with Option
Rights and, if not made in tandem with any Option Rights, will specify the
number of shares of Common Stock in respect of which it is made.
(b) Each grant made in tandem with Option Rights will specify the
Option Price and each grant not made in tandem with Option Rights will
specify the Grant Price, which in either case will not be less than 100% of
the Market Value per Share on the Date of Grant.
(c) Any grant may specify that the amount payable on exercise of an
Appreciation Right may be paid by the Company in (i) cash, (ii) shares of
Common Stock having an aggregate Market Value per Share equal to the Spread
or (iii) any combination thereof, as determined by the Committee in its
sole discretion.
(d) Any grant may specify that the amount payable on exercise of an
Appreciation Right may not exceed a maximum specified by the Committee at
the Date of Grant (valuing shares of Common Stock for this purpose at their
Market Value per Share at the date of exercise).
(e) Each grant will specify the required period or periods of
continuous service by the Participant with the Company and/or any
Subsidiary and/or Management Objectives to be achieved before the
Appreciation Rights or installments thereof will become exercisable, and
will provide that no Appreciation Right may be exercised except at a time
when the Spread is positive and, with respect to any grant made in tandem
with Option Rights, when the related Option Right is also exercisable. Any
grant may provide for the earlier exercise
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of the Appreciation Rights in the event of a Change in Control or other
corporate transaction or event or upon the Participant's termination due to
death, disability or retirement.
(f) Each grant the exercise of which, or the timing of the exercise of
which, is dependent, in whole or in part, on the achievement of Management
Objectives may specify a minimum level of achievement in respect of the
specified Management Objectives below which no Appreciation Rights will be
exercisable and may set forth a formula or other method for determining the
number of Appreciation Rights that will be exercisable if performance is at
or above such minimum but short of full achievement of the Management
Objectives.
(g) Each grant of an Appreciation Right will be evidenced by an
agreement executed on behalf of the Company by any officer and delivered to
and accepted by the Participant receiving the grant, which agreement will
describe such Appreciation Right, identify any Option Right granted in
tandem with such Appreciation Right, state that such Appreciation Right is
subject to all the terms and conditions of this Plan and contain such other
terms and provisions, consistent with this Plan, as the Committee may
approve.
6. Restricted Stock. The Committee may also from time to time
authorize grants or sales to any Participant of Restricted Stock upon such terms
and conditions as it may determine in accordance with the following provisions:
(a) Each grant or sale will constitute an immediate transfer of the
ownership of shares of Common Stock to the Participant in consideration of
the performance of services, entitling such Participant to voting and other
ownership rights, but subject to the restrictions hereinafter referred to.
Each grant or sale may limit the Participant's dividend rights during the
period in which the shares of Restricted Stock are subject to any such
restrictions.
(b) Each grant or sale will specify the Management Objectives, if any,
that are to be achieved in order for the ownership restrictions to lapse.
Each grant or sale that is subject to the achievement of Management
Objectives will specify a minimum acceptable level of achievement in
respect of the specified Management Objectives below which the shares of
Restricted Stock will be forfeited and may set forth a formula or other
method for determining the number of shares of Restricted Stock with
respect to which restrictions will lapse if performance is at or above such
minimum but short of full achievement of the Management Objectives.
(c) Each such grant or sale may be made without additional
consideration or in consideration of a payment by such Participant that is
less than the Market Value per Share at the Date of Grant.
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(d) Each such grant or sale will provide that the shares of Restricted
Stock covered by such grant or sale will be subject, for a period to be
determined by the Committee at the Date of Grant, to one or more
restrictions, including, without limitation, a restriction that constitutes
a "substantial risk of forfeiture" within the meaning of Section 83 of the
Code and the regulations thereunder, and any grant or sale may provide for
the earlier termination of such period in the event of a Change in Control
or other corporate transaction or event or upon termination of the
Participant's employment due to death, disability, retirement or otherwise.
(e) Each such grant or sale will provide that during the period for
which such restriction or restrictions are to continue, the transferability
of the Restricted Stock will be prohibited or restricted in a manner and to
the extent prescribed by the Committee at the Date of Grant (which
restrictions may include, without limitation, rights of repurchase or first
refusal in the Company or provisions subjecting the Restricted Stock to
continuing restrictions in the hands of any transferee).
(f) Each grant or sale of Restricted Stock will be evidenced by an
agreement executed on behalf of the Company by any officer and delivered to
and accepted by the Participant and containing such terms and provisions,
consistent with this Plan, as the Committee may approve.
(g) Unless otherwise approved by the Committee, certificates
representing shares of Common Stock transferred pursuant to a grant of
Restricted Stock will be held in escrow pursuant to an agreement
satisfactory to the Committee until such time as the restrictions on
transfer have expired or the shares have been forfeited.
(h) The maximum number of shares of Restricted Stock that may be
granted or sold to any one Participant in any calendar year is 150,000
shares.
7. Phantom Shares. The Committee may also from time to time authorize
grants to any Participant of Phantom Shares upon such terms and conditions as it
may determine in accordance with the following provisions:
(a) Each grant will specify the number of Phantom Shares to which it
pertains and the payment or crediting of any Dividend Equivalents with
respect to such Phantom Shares.
(b) Each grant will specify the Management Objectives, if any, that
are to be achieved in order for the Phantom Shares to be earned. Each grant
that is subject to the achievement of Management Objectives will specify a
minimum acceptable level of achievement in respect of the specified
Management Objectives below which the Phantom Shares will be forfeited and
may set forth a formula or other method for determining the
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<PAGE> 10
number of Phantom Shares to be earned if performance is at or above such
minimum but short of full achievement of the Management Objectives.
(c) Each grant will specify the time and manner of payment of Phantom
Shares which have been earned, which payment may be made in (i) cash, (ii)
shares of Common Stock or (iii) any combination thereof, as determined by
the Committee in its sole discretion.
(d) Each grant of Phantom Shares will be evidenced by an agreement
executed on behalf of the Company by any officer and delivered to and
accepted by the Participant and containing such terms and provisions,
consistent with this Plan, as the Committee may approve, including
provisions relating to a Change in Control or other corporate transaction
or event or upon the Participant's termination due to death, disability or
retirement.
(e) The maximum number of Phantom Shares that may be granted to any
one Participant in any calendar year is 150,000 shares.
8. Performance Units. The Committee may also from time to time
authorize grants to any Participant of Performance Units upon such terms and
conditions as it may determine in accordance with the following provisions:
(a) Each grant will specify the number of Performance Units to which
it pertains.
(b) Each grant will specify the Management Objectives that are to be
achieved in order for the Performance Units to be earned. Each grant will
specify a minimum acceptable level of achievement in respect of the
specified Management Objectives below which no payment will be made and may
set forth a formula or other method for determining the amount of payment
to be made if performance is at or above such minimum but short of full
achievement of the Management Objectives.
(c) Each grant will specify the time and manner of payment of
Performance Units which have become payable, which payment may be made in
(i) cash, (ii) shares of Common Stock having an aggregate Market Value per
Share equal to the aggregate value of the Performance Units which have
become payable or (iii) any combination thereof, as determined by the
Committee in its sole discretion at the time of payment.
(d) Each grant of a Performance Unit will be evidenced by an agreement
executed on behalf of the Company by any officer and delivered to and
accepted by the Participant and containing such terms and provisions,
consistent with this Plan, as the Committee may approve, including
provisions relating to a Change in Control or other corporate transaction
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<PAGE> 11
or event or upon the Participant's termination of employment due to death,
disability, retirement or otherwise.
(e) The maximum amount of compensation that may be made subject to any
Performance Unit grant made to any one Participant in any calendar year is
$1.5 million.
9. Bonus Stock. The Committee may also from time to time authorize
grants to any Participant of Bonus Stock, which shall constitute a transfer of
shares of Common Stock, without other payment therefor, as additional
compensation for the Participant's services to the Company or its Subsidiaries.
10. Cash Tax Rights. (a) The Committee may also from time to time
authorize grants to any Participant of Cash Tax Rights upon such terms and
conditions as it may determine in accordance with this Paragraph. Cash Tax
Rights may be granted in tandem with any Award that is payable in shares of
Common Stock. A Cash Tax Right will be the right of the Participant granted such
Award to receive from the Company, upon receipt of shares of Common Stock
pursuant to the tandem Award, an amount of cash, which will be determined by the
Committee at the Date of Grant and will be expressed as a percentage of the
Market Value per Share (not exceeding 100%) of each share of Common Stock
received upon payment of the tandem Award.
(b) Each grant of a Cash Tax Right will (i) state the Award it is made
in tandem with and will specify the percentage of the Market Value per Share
that shall be payable in cash and (ii) be evidenced by an agreement extended on
behalf of the Company by any officer and delivered to and accepted, by the
Participant and containing such terms and provisions, consistent with this Plan,
as the Committee may approve, including provisions relating to a Change in
Control or other corporate transaction or event or upon the Participant's
termination of employment due to death, disability, retirement or otherwise.
11. Director Options. (a) Each Nonemployee Director who is elected or
appointed to the Board for the first time after the Reorganization Date shall
automatically receive, on the date of his or her election or appointment, a
Director Option for 3,000 shares of Common Stock.
(b) On the day following the regular annual meeting of the
stockholders of the Company in each year that this Plan is in effect (commencing
with the 1995 annual meeting of stockholders), each Nonemployee Director who is
in office on that day and who was not elected for the first time at such annual
meeting shall automatically receive a Director Option for 3,000 shares of Common
Stock.
(c) Each Director Option will be subject to all of the limitations
contained in the following provisions:
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(i) Each Director Option shall become exercisable (vested) on the
first day that is more than six months following its Date of Grant.
(ii) The Option Price of each Director Option shall be the Market
Value per Share on its Date of Grant.
(iii) Each Director Option that is vested may be exercised in full at
one time or in part from time to time by giving written notice to the
Company, stating the number of shares of Common Stock with respect to which
the Director Option is being exercised, accompanied by payment in full of
the Option Price for such shares, which payment may be (i) in cash by check
acceptable to the Company, (ii) by the transfer to the Company of shares of
Common Stock already-owned by the optionee having an aggregate Market Value
per Share at the date of exercise equal to the aggregate Option Price,
(iii) from the proceeds of a sale through a broker of some or all of the
shares to which such exercise relates, or (iv) by a combination of such
methods of payment.
(iv) Each Director Option shall expire 10 years from the Date of Grant
thereof, but shall be subject to earlier termination as follows: Director
Options, to the extent exercisable as of the date a Nonemployee Director
ceases to serve as a director of the Company, must be exercised within
three months of such date unless such termination from the Board results
from the Nonemployee Director's death, disability or retirement, in which
case the Director Options may be exercised by the optionee or the
optionee's legal representative or the person to whom the Nonemployee
Director's rights shall pass by will or the laws of descent and
distribution, as the case may be, within three years from the date of
termination; provided however, that no such event shall extend the normal
expiration date of such Director Options.
(v) In the event that the number of shares of Common Stock available
for grants under this Plan is insufficient to make all automatic grants
provided for in this Paragraph 11 on the applicable date, then all
Nonemployee Directors who are entitled to a grant on such date shall share
ratably in the number of shares then available for grant under this Plan,
and shall have no right to receive a grant with respect to the deficiencies
in the number of available shares and all future grants under this
Paragraph 11 shall terminate.
(vi) Grants made pursuant to this Paragraph 11 shall be subject to all
of the terms and conditions of this Plan; however, if there is a conflict
between the terms and conditions of this Paragraph 11 and the terms and
conditions of any other Paragraph, then the terms and conditions of this
Paragraph 11 shall control.
12. Transferability. No Award that has not become payable or earned
will be transferable by a Participant other than by will or the laws of descent
and distribution. Director
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Options, Option Rights or Appreciation Rights will be exercisable during the
Participant's lifetime only by the Participant or by the Participant's guardian
or legal representative.
13. Adjustments. The Board may make or provide for such adjustments in
the maximum number of shares specified in Paragraph 3, in the numbers of shares
of Common Stock covered by outstanding Director Options, Option Rights,
Appreciation Rights and Phantom Shares granted hereunder, in the Option Price or
Grant Price applicable to any such Director Options, Option Rights and
Appreciation Rights, and/or in the kind of shares covered thereby (including
shares of another issuer), as the Board, in its sole discretion exercised in
good faith, may determine is equitably required to prevent dilution or
enlargement of the rights of Participants that otherwise would result from any
stock dividend, stock split, combination of shares, recapitalization or other
change in the capital structure of the Company, merger, consolidation, off,
reorganization, partial or complete liquidation, issuance of rights or warrants
to purchase securities or any other corporation transaction or event having an
effect similar to any of the foregoing.
14. Fractional Shares. The Company will not be required to issue any
fractional share of Common Stock pursuant to this Plan. The Committee may
provide for the elimination of fractions for the settlement of fractions in
cash.
15. Withholding of Taxes. To the extent that the Company is required
to withhold federal, state, local or foreign taxes in connection with any grant
or payment made to a Participant or any other person under this Plan, or is
requested by a Participant to withhold additional amounts with respect to such
taxes, and the amounts available to the Company for such withholding are
insufficient, it will be a condition to the receipt of such grant or payment
that the Participant or such other person make arrangements satisfactory to the
Company for the payment of balance of the such taxes required or requested to be
withheld, which arrangements in the discretion the Committee may include
relinquishment of a portion of such Award or payment. With respect to any
Participant who is subject to Rule 16b-3 at the time withholding is required
with respect to an Award payable in Common Stock, to the extent such withholding
is not satisfied by a tandem Cash Tax Right, if any, the Participant may direct
the Company to withhold a number of shares of Common Stock having an aggregate
Market Value per Share equal to the amount of taxes required to be withheld by
the Company.
16. Parachute Tax Gross-Up. To the extent that the acceleration of
vesting or any payment, distribution or issuance made to a Participant under the
Plan (a "Benefit") is subject to a golden parachute excise tax under Section
4999(a) of the Code (a "Parachute Tax"), the Company shall pay such Participant
an amount of cash (the "Gross-up Amount") such that the "net" Benefit received
by the Participant under this Plan, after paying all applicable Parachute Taxes
(including those on the Gross-up Amount) and any federal or state income taxes
on the Gross-up Amount, shall
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be equal to the Benefit that such Participant would have received if such
Parachute Tax had not been applicable.
17. Administration of the Plan. (a) This Plan will be administered by
the Committee. A majority of the Committee will constitute a quorum, and the
action of the members the Committee present at any meeting at which a quorum is
present, or acts unanimously approved writing, will be the acts of the
Committee.
(b) The interpretation and construction by the Committee of any
provision of this Plan or of any agreement, notification or document evidencing
the grant of an Award and any determination by the Committee pursuant to any
provision of this Plan or of any such agreement, notification or documentation
will be final and conclusive. No member of the Committee will be liable for any
such action or determination made in good faith or in the absence of gross
negligence or willful misconduct on the part of such member.
18. Amendments, Etc. (a) This Plan may be amended from time to time by
the Board.
(b) The Committee may, in its sole discretion, take any action it
deems to be equitable under the circumstances or in the best interests of the
Company with respect to any Award, unless such Award is intended to qualify as
"performance based" compensation under Section 162(m) of the Code and such
action would cause the Award to fail to so qualify.
(c) This Plan will not confer upon any Participant any right with
respect to continuance of employment or other service with the Company or any
Subsidiary, nor will it interfere in any way with any right the Company or any
Subsidiary would otherwise have to terminate such Participant's employment or
other service at any time.
19. Term. This Plan became effective as of December 1, 1994. Unless
sooner terminated, this Plan shall terminate on November 30, 2004, and no
further Awards shall be made, but all outstanding Awards on such date shall
remain effective in accordance with their terms and the terms of this Plan.
* * *
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EXHIBIT 21.1
Subsidiaries of America West Holdings Corporation (the "Registrant")
Percent
Subsidiary Jurisdiction of Incorporation Owned
---------- ----------------------------- -------
America West Airlines, Inc. Delaware 100%
