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As filed with the Securities and Exchange Commission on January 10, 2000
Registration No. 333-26935
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST EFFECTIVE AMENDMENT
NO. 1 TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICA WEST HOLDINGS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 86-0847214
(State of Incorporation) (I.R.S. Employer Identification No.)
111 West Rio Salado Parkway
Tempe, Arizona 85281
(Address of principal executive offices)
America West
1994 Incentive Equity Plan
(Full title of the plans)
Stephen L. Johnson
America West Holdings Corporation
111 West Rio Salado Parkway
Tempe, Arizona 85281
(602) 693-0800
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copies to:
Samuel M. Livermore, Esq.
Cooley Godward LLP
One Maritime Plaza, 20th Floor
San Francisco, CA 94111-3580
(415) 693-2000
Fax (415) 951-3699
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SUBJECT TO COMPLETION DATED JANUARY 10, 2000
PROSPECTUS
AMERICA WEST HOLDINGS CORPORATION
3,851,501 SHARES OF CLASS B COMMON STOCK
This prospectus relates to 3,851,501 shares of Class B Common Stock (the
"Shares"), of America West Holdings Corporation, a Delaware corporation
("Holdings"). Shares of Class B Common Stock are issuable upon the exercise of
options granted pursuant to the America West 1994 Incentive Equity Plan (the
"Shares"). Holdings is the parent company for America West Airlines, Inc.
("AWA") and The Leisure Company ("TLC"). Unless otherwise indicated, the
"Company" and "America West" refer collectively to Holdings, AWA and TLC.
The Selling Stockholders may offer the Shares through public or private
transactions, on or off the New York Stock Exchange, at prevailing market prices
or at individually negotiated prices.
The Company's Class B Common Stock is traded on the New York Stock
Exchange under the symbol "AWA." The last reported sales price of the Company's
Class B Common Stock on the New York Stock Exchange on December 31, 1999 was
$20.75 per share.
SEE "RISK FACTORS" BEGINNING ON PAGE 5 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY INVESTORS IN EVALUATING AN INVESTMENT IN THE
SECURITIES OFFERED HEREBY.
The Company will pay for expenses incurred to prepare and file the
Registration Statement of which this prospectus is a part as well as all
post-effective amendments. Estimated expenses payable by the Company in
connection with this offering are approximately $10,000.
The aggregate proceeds to the Selling Stockholders from the Shares will be
the price of the Shares sold. The Company will not receive any proceeds from the
sale by the Selling Stockholder of the Shares being offered hereby.
NEITHER THE SEC NOR ANY STATE SECURITIES COMMISSION HAS APPROVED THE
SHARES OFFERED OR SOLD UNDER THIS PROSPECTUS OR DETERMINED THAT THIS PROSPECTUS
IS ACCURATE OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
THE DATE OF THIS PROSPECTUS IS JANUARY 10, 2000.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
THESE SECURITIES MAY NOT BE SOLD PURSUANT TO THIS PROSPECTUS UNTIL THE
REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS
EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS
NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR
SALE IS NOT PERMITTED.
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NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH OTHER INFORMATION AND REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY STATE
IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED, OR IN WHICH THE PERSON
MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO, OR TO ANY PERSON TO
WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. THE DELIVERY OF THIS
PROSPECTUS AT ANY TIME DOES NOT IMPLY THAT THE INFORMATION HEREIN IS CORRECT AS
OF ANY TIME SUBSEQUENT TO THE DATE HEREOF.
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
<S> <C>
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS PROSPECTUS.............. 3
WHERE TO FIND MORE INFORMATION............................................... 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.............................. 3
FORWARD-LOOKING INFORMATION.................................................. 4
THE COMPANY.................................................................. 4
RISK FACTORS................................................................. 5
USE OF PROCEEDS.............................................................. 9
DETERMINATION OF OFFERING PRICE.............................................. 9
DILUTION..................................................................... 9
SELLING STOCKHOLDERS......................................................... 10
DESCRIPTION OF CAPITAL STOCK................................................. 10
PLAN OF DISTRIBUTION......................................................... 10
EXPERTS...................................................................... 11
</TABLE>
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IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS PROSPECTUS
You should rely only on the information provided in this prospectus
including the information incorporated by reference. We have not authorized
anyone to provide you with different information. The Selling Stockholders are
offering to sell and seeking offers to buy the Shares only in jurisdictions
where offers and sales are permitted. The information in this prospectus is
accurate only as of the date of this prospectus, regardless of the time of
delivery of this prospectus or of any sale of the Shares.
WHERE TO FIND MORE INFORMATION
We file reports, proxy statements and other information with the
Securities and Exchange Commission. You may read and copy, or request copies of
any document we file at the SEC's Public Reference Room at Judiciary Plaza, 450
Fifth Street, N.W., Room 1024, Washington, D.C. 20549. You may obtain
information on the operation of the SEC's Public Reference room by calling the
SEC at (800) SEC-0300. Our SEC filings are available to you on the SEC's
Internet site at http://www.sec.gov. Our Class B Common Stock is quoted on The
New York Stock Exchange. Reports, proxy statements and other information
concerning America West may also be inspected at the offices of the New York
Stock Exchange.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" information we file with
the SEC, which means that we can disclose information to you by referring you to
those documents. The information incorporated by reference is considered to be
part of this prospectus, and information that we later file with the SEC will
automatically update the information in this prospectus.
We incorporate by reference all annual, quarterly and current reports
filed by the Company during 1999. These include the Annual Report on Form 10-K
for the year ended December 31, 1998, the Quarterly Reports on Forms 10-Q filed
for the quarters ended March 31, 1999, June 30, 1999, September 30, 1999 and the
Current Report on Form 8-K filed on July 21, 1999. We also incorporate by
reference the portions of the Proxy Statement for the annual stockholder meeting
held on May 20, 1999, that were incorporated by reference in the Form 10-K. In
addition, the description of the Company's Class B Common Stock set forth in
AWA's Registration Statement on Form 8-A filed on August 10, 1994, including any
amendments or reports filed for the purpose of updating such description, is
incorporated by reference. Any future annual, quarterly or current reports and
proxy materials filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act is also hereby incorporated by reference.
As a recipient of this prospectus, you may request a copy of any document
we incorporate by reference, except exhibits to the documents (unless the
exhibits are specifically incorporated by reference), at no cost, by writing or
calling us at: Corporate Secretary, America West Holdings Corporation, 111 West
Rio Salado Parkway, Tempe, Arizona 85281; (602) 693-0800.
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FORWARD-LOOKING INFORMATION
This prospectus contains various forward-looking statements and
information that are based on management's beliefs as well as assumptions made
by and information currently available to management. When used in this
document, the words "anticipate," "estimate," "project," "expect" and similar
expressions are intended to identify forward-looking statements. Such statements
are subject to certain risks, uncertainties and assumptions. Should one or more
of these risks or uncertainties materialize, or should underlying assumptions
prove incorrect, actual results may vary materially from those anticipated,
estimated, projected or expected. Among the key factors that may have a direct
bearing on the Company's results are competitive practices in the airline and
travel industries generally and particularly in the Company's principal markets,
the ability of the Company to meet existing financial obligations in the event
of adverse industry or economic conditions or to obtain additional capital to
fund future commitments and expansion, the Company's relationship with employees
and the Company's ability to negotiate the terms of future collective bargaining
agreements and the impact of current and future laws and governmental
regulations affecting the airline and travel industries and the Company's
operations. For additional discussion of such risks see "Risk Factors." Any
forward-looking statements speak only as of the date such statements are made.
THE COMPANY
Holdings is a Delaware corporation and the parent company for AWA and
TLC. AWA is the ninth largest commercial airline carrier in the United States,
operating through its principal hubs located in Phoenix, Arizona and Las Vegas,
Nevada, and a mini-hub located in Columbus, Ohio. AWA is the lowest cost major
airline in the United States. In January 1998, Holdings commenced operations of
TLC to develop and grow the Company's vacation package tour business. TLC
arranges and sells vacation packages that include hotel accommodations, airfare,
ground transportation and a variety of entertainment options.
The Company's principal offices are located at 111 West Rio Salado
Parkway, Tempe, Arizona 85281, and its telephone number is (602) 693-0800.
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RISK FACTORS
The Shares offered involve a high degree of risk. You should carefully
consider the risks below before making an investment decision. The risks below
are not the only risks facing the Company. There may be additional risks and
uncertainties not presently known to us or that we have deemed immaterial which
could also negatively impact our business operations. If any of the following
risks actually occur, our business, financial condition and results of
operations would be materially adversely affected. In that event, the trading
price of our securities could decline, and you may lose all or part of your
investment. This prospectus may contain certain forward-looking statements that
involve risks and uncertainties, such as statements of our plans, objectives,
expectations and intentions. Our actual results could differ materially from
those anticipated in these forward-looking statements as a result of certain
factors, including the risks described below and elsewhere in this prospectus.
COMPETITION AND INDUSTRY CONDITIONS
The airline industry is highly competitive and industry earnings are
typically volatile. From 1990 to 1992, the airline industry experienced
unprecedented losses due to high fuel costs, general economic conditions,
intense price competition and other factors. Airlines compete on the basis of
pricing, scheduling (frequency and flight times), on-time performance, frequent
flyer programs and other services.
The airline industry is susceptible to price discounting, which occurs
when a carrier offers discounts or promotional fares to passengers. Discounted
fares offered by one carrier are normally matched by competing carriers, which
may have the effect of lowering the profit per passenger but not necessarily
increasing the number of passengers who fly. In addition, in recent years
several new carriers have entered the airline industry, and many of them have
low-cost structures. In some cases, these new carriers have initiated or
triggered price discounting. The entry of additional new carriers in many of our
markets, as well as increased competition from or the introduction of new
services by existing carriers, could have a material adverse effect on our
business, financial condition and operating results.
Most of the markets we serve are highly competitive and are served by
larger carriers with substantially greater financial resources than we have
available. At our Phoenix and Las Vegas hubs, our principal competitor is
Southwest Airlines. A number of our larger competitors have proprietary
reservation systems, which gives them certain competitive advantages.
The air travel business historically fluctuates in response to general
economic conditions. The airline industry is sensitive to changes in economic
conditions that affect business and leisure travel and is highly susceptible to
unforeseen events that result in declines in air travel, including:
- - political instability
- - regional hostilities
- - recession
- - fuel price escalation
- - inflation
- - adverse weather conditions
- - labor instability
- - regulatory oversight
If the rates of travel on the routes that we serve decreases or if
competition increases between carriers, our business, financial condition and
operating results could be materially adversely affected.
THE COMPANY'S ABILITY TO BORROW FUNDS IN THE FUTURE
As of September 30, 1999, the Company owed approximately $155.7 million of
long-term debt (less current maturities). Much of this debt is secured by a
large portion of the Company's assets, leaving a limited
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number of assets to use to obtain additional financing which may be needed if
the Company encounters adverse industry conditions or a prolonged economic
recession in the future.
In addition, as of September 30, 1999, the Airline had firm commitments to
AVSA S.A.R.L., an affiliate of Airbus Industrie ("AVSA") to purchase a total of
19 Airbus aircraft. AWA also had an option to purchase 46 more Airbus aircraft.
The aggregate net cost of firm commitments remaining under the aircraft order is
approximately $800 million, based on a 3.5% annual price escalation.
In October 1999, we entered into an agreement with AVSA to purchase 15
Airbus A318-100 and 12 Airbus A320-200 aircraft. Deliveries for the A320
aircraft will begin August 2000 and continue through 2003. The A318s are
scheduled to be delivered in 2003 and 2004. We also received 25 options and 25
purchase rights to purchase aircraft in the "A320 family" of aircraft (A318s,
A319s, A320s and A321s) for delivery in 2004 through 2008. As part of this
agreement, all options outstanding under the previous agreement were cancelled.
The aggregate net cost of firm commitments under this aircraft order is
approximately $1.1 billion based on a 3.5% annual price escalation.
We have arranged for financing from AVSA for approximately 75% of the
remaining aircraft to be delivered under the purchase commitment existing at
September 30, 1999, but we will have to look to outside sources to finance the
remaining commitments. We cannot guarantee that we will be able to obtain enough
capital to finance the remainder of the aircraft, and if we default on our
commitments to purchase aircraft, our business, financial condition and
operating results could be materially adversely affected.
LABOR RELATIONS
In the recent past, labor unions have made several attempts to organize
our employees, and we expect that these efforts will continue. Certain groups of
our employees have chosen to be represented by a union and we are currently
negotiating initial collective bargaining agreements with some of these groups.
We cannot predict which, if any, other groups of employees may seek union
representation or the outcome of collective bargaining agreements that we may be
forced to negotiate in the future. If we are unable to negotiate acceptable
collective bargaining agreements, we might have to wait through "cooling off"
periods, which are often followed by union-initiated work actions, including
strikes. Depending on the type and duration of work action we endure, our
business, financial condition and operating results could be materially
adversely affected.
CONTROL BY CERTAIN PRINCIPAL STOCKHOLDERS
Currently, three stockholders collectively control more than 50% of the
total voting power of the Company. These stockholders, TPG Partners, L.P., TPG
Parallel I, L.P. and Air Partners II, L.P. are all controlled by the same
company, TPG Advisors, Inc. We cannot guarantee that the controlling
stockholders identified above will not try to influence the Company's business
in a way that would favor their own personal interests to the detriment of our
interests.
FLUCTUATIONS IN FUEL COSTS
Fuel is the principal raw material used in our business, accounting for
approximately 11% of our total operating expenses during the nine-month period
ended September 30, 1999. For example, with our current level of fuel
consumption, if jet fuel prices increase by one cent per gallon, our annual
operating results will decrease by $4.6 million for 2000. Among the
unpredictable events whose occurrence could effect the price and supply of jet
fuel in the future are:
- geopolitical developments
- regional production patterns
- environmental concerns
In 1996, we implemented a "fuel hedging" program to manage the risk and
possible effect that fluctuating jet fuel prices could have on our business. The
program primarily addresses our exposure to fuel requirements on
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the East Coast. West Coast jet fuel prices, however, tend to be more volatile
than jet fuel prices in other areas of the United States and because we
primarily serve the Western United States, we purchase a substantially larger
portion of our jet fuel requirements on the West Coast compared to our larger
competitors.
Accordingly, if the price of jet fuel goes up substantially or the supply
of jet fuel is inadequate in the future and we have not implemented adequate
protection measures, our business, financial condition and operating results
could be materially adversely affected.
AVIATION TICKET TAXES
On August 5, 1997 President Clinton signed a new aviation ticket tax into
law that is scheduled to remain in effect though September 30, 2007. As a result
of the competitive environment in the passenger airline industry, we have been
limited in our ability to pass on the additional costs of these taxes to
passengers through fare increases.
SECURITY AND SAFETY MEASURES
Congress recently adopted increased safety measures designed to increase
airline passenger security and protect against terrorist acts. Implementing
these measures has increased operating costs for the airline industry as a
whole. A recent report from Congress' Aviation Safety Commission recommends that
airlines implement additional measures to improve the safety and security of air
travel. We cannot predict which additional measures Congress will impose or the
impact that implementing those measures will have on our operating results, but
it is possible that the impact could be significant.
OTHER REGULATORY MATTERS
The airline industry is heavily regulated. Both federal and state
governments from time to time propose laws and regulations that would impose
additional requirements and restrictions on airline operations. Depending on
which and how many of these laws and regulations are enacted, the cost of
operating an airline could increase significantly. We cannot predict which laws
and regulations will be adopted or the changes and increased expense that they
could cause. Accordingly, we cannot guarantee that future legislative and
regulatory acts will not have a materially adverse effect on our business,
financial conditions or operating results.
SUBSTANTIAL RESTRICTIONS IMPOSED AND PROMISES MADE IN CONNECTION WITH
CURRENT LOAN AGREEMENTS AND DEBT INSTRUMENTS
We have borrowed money pursuant to certain loan agreements and debt
instruments with significant operating and financial restrictions. These
agreements and instruments contain terms that may significantly restrict or
prohibit our ability to take certain actions, including our ability:
- to repay certain debts before they come due
- to sell assets
- to participate in certain mergers and acquisitions
- to conduct future financings
- to make needed capital expenditures
- to implement certain measures that would better enable us to
withstand future downturns in the airline industry or the economy in
general
In addition, several of these borrowing arrangements require us to satisfy
certain benchmarks in respect of our financial position.
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We are currently in compliance with the restrictions and requirements
referred to above, but any default would allow our lenders to require repayment
of the full amount of money borrowed, plus accrued and unpaid interest. If this
were to occur, we cannot guarantee that we would have or be able to raise the
funds needed to repay these debts.
Finally, we may be obligated to offer to purchase certain amounts of the
debts referred to above. Such obligations would arise if certain changes occur
with respect to who controls us, or if we dispose of certain assets.
YEAR 2000 COMPLIANCE PROGRAM AND RISKS
Many installed computer systems and software products were programmed to
accept only two digits in the date code field. As of January 1, 2000, these
date code fields needed to accept four digit entries to distinguish years
beginning with "19" from those beginning with "20." Otherwise computer systems
using time-sensitive software could shut down or perform incorrect
computations.
We undertook a project (the "Year 2000 Project") to identify and assess
the readiness of our computer systems, programs and other infrastucture that
could be affected by the Year 2000 issue and to remedy the problems indentified.
Our Year 2000 Project also included an assessment of the Year 2000 readiness of
key third parties on whom our operations depend, including the Federal Aviation
Administration which manages the nation's air traffic control system, local
authorities who manage the airports where we operate, and vendors and suppliers
who provide us goods (such as fuel and catering), services (such as
telecommunications and data networks) and permit us to continue operations,
consistent with the highest standards of safety, in the event Year 2000
problems arose.
To date, we have not experienced any material Year 2000 problems.
However, monitoring will continue at least through the first quarter of 2000,
corrective action will be taken if we encounter any previously-unidentified Year
2000 problems internally or in interfacing with third parties, and our
contingency plans remain available.
Our Year 2000 Project required us to replace certain equipment and modify
certain software, and to devote considerable internal resources and hire
substantial external resources to assist with the implementation and monitoring
of the Project. We currently estimate that the total cost of our Year 2000
Project has been approximately $43 million. These costs, which were funded from
operation cash flows, included approximately $8 million of system software and
equipment upgrades and replacements which would have been incurred in the
ordinary course of business even in the absence of Year 2000 issues.
Approximately $36 million of these costs have been expensed, and approximately
$7 million have been capitalized. At this time we do not expect
to incur any significant additional costs as a result of our Year 2000 Project,
unless our ongoing monitoring program indicates that additional Year 2000
corrective action is required, in which case addititional costs (which could be
material) might be incurred.
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VOLATILITY OF STOCK PRICE
The stock market has experienced significant price and volume fluctuations
that have affected the market prices of equity securities of companies in the
airline industry and that often have been unrelated to the operating performance
of such companies. These broad market fluctuations may adversely affect the
market price of the Class B Common Stock of Holdings (the "Class B Common
Stock"). In addition, the market price of our Class B Common Stock is volatile
and subject to fluctuations in response to quarterly variations in operating
results, announcements of new services by us or our competitors, changes in
financial estimates by securities analysts or other events or factors, many of
which are beyond our control.
USE OF PROCEEDS
The proceeds from the sale of the Shares will go to the Selling Stockholders
who offer and sell them. Accordingly, the Company will not receive any proceeds
from sales of the Shares.
DETERMINATION OF OFFERING PRICE
Not applicable.
DILUTION
Not applicable.
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SELLING STOCKHOLDERS
The following table sets forth certain information as of December 31, 1999
regarding (1) the number of shares of Class B Common Stock that the Selling
Stockholders would own if they exercised outstanding options that they hold to
purchase shares of Class B Common Stock issued under the America West 1994
Incentive Equity Plan (the "Plan"), (2) the number of shares of Class B Common
Stock that the Selling Stockholders hold pursuant to restricted stock grants
made under the Plan and (3) the number of shares which may be offered pursuant
to this prospectus. Our registration of the Shares does not necessarily mean
that the Selling Stockholders will sell all or any of the Shares.
<TABLE>
<CAPTION>
CLASS B COMMON STOCK CLASS B COMMON STOCK
ISSUABLE UPON EXERCISE HELD PURSUANT TO CLASS B COMMON STOCK
OF OUTSTANDING OPTIONS RESTRICTED STOCK GRANTS SUBJECT TO OFFERING
<S> <C> <C> <C>
William A. Franke 1,336,000 262,334 1,598,334
W. Douglas Parker 385,000 30,000 415,000
John R. Garel 169,000 0 169,000
Stephen L. Johnson 260,000 15,000 275,000
C.A. Howlett 156,000 7,500 163,500
Bernard L. Han 182,000 15,000 197,000
Gilbert D. Mook 190,000 20,000 210,000
J. Scott Kirby 138,000 10,000 148,000
Michael A. Smith 137,000 7,500 144,500
Michael R. Carreon 87,500 5,000 92,500
Evon L. Jones 100,000 7,500 107,500
Jeffrey McClelland 100,500 15,000 115,500
Jack E. Richards 99,000 5,000 104,000
John L. Goolsby 18,000 2,282 20,282
Richard C. Kraemer 18,000 2,282 20,282
Richard P. Schifter 18,000 2,282 20,282
John F. Tierney 18,000 2,282 20,282
Walter T. Klenz 9,000 1,196 10,196
Denise M. O'Leary 9,000 1,196 10,196
Marie L. Knowles 3,000 255 3,255
Jeffrey A. Shaw 3,000 446 3,446
Robert J. Miller 3,000 446 3,446
--------- --------- ---------
Totals 3,439,000 412,501 3,851,501
</TABLE>
Because the Selling Stockholders may offer all or some of the Shares that
they hold pursuant to the offering contemplated by this prospectus, and because
there are currently no agreements, arrangements or understandings with respect
to the sale of any of the Shares by the Selling Stockholders, no estimate can be
given as to the number of Shares that will be held by the Selling Stockholders
after completion of this offering.
DESCRIPTION OF CAPITAL STOCK
Not applicable.
PLAN OF DISTRIBUTION
The Selling Stockholders may offer the Shares at various times in one or
more of the following transactions:
- on the New York Stock Exchange
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- in the over-the-counter market;
- in negotiated transactions other than on the New York Stock Exchange
or the over-the-counter market;
- by pledge to secure debts and other obligations;
- in connection with the writing of call options, in hedge
transactions and in settlement of other transactions in standardized
or over-the-counter options; or
- in a combination of any of the above transactions.
The Selling Stockholders may sell their shares at market prices at the
time of sale, at prices related to such prevailing market prices, at negotiated
or at fixed prices.
The Selling Stockholders may use broker-dealers to sell their shares. If
this happens, broker-dealers will either receive discounts or commissions from
the Selling Stockholders, or they will receive commissions from purchasers for
whom they acted as agents.
In order to comply with the securities laws of certain states, if
necessary, the Shares will only be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states, the
Shares may not be sold unless they have been registered or qualified for sale or
an exemption from registration or qualification requirements is available and is
complied with.
We will pay all of the expenses incident to the offering and sale to the
public of the Shares offered hereby and any commissions and discounts of
underwriters, dealers or agents. Such expenses (excluding such commissions and
discounts) are estimated at approximately $10,000.
EXPERTS
The consolidated financial statements and consolidated financial statement
schedule of the Company as of December 31, 1998 and 1997, and for each of the
years in the three-year period ended December 31, 1998, have been incorporated
by reference herein and in the Registration Statement in reliance upon the
report of KPMG LLP, independent certified public accountants, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing.
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PART II
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Please see p. 3 of the prospectus filed herewith.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Please see p. 11 of the prospectus filed herewith.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Restated Certificate of Incorporation and Restated Bylaws
provide that the Company will indemnify each of its directors and officers to
the full extent permitted by the laws of the State of Delaware and may indemnify
certain other persons as authorized by the Delaware General Corporation Law (the
"GCL").
Section 145 of the GCL provides as follows:
"(a) A corporation shall have power to 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 he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he 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 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, of
itself, create a presumption that the person did not act in good faith and in a
manner which he 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 conduct was unlawful.
(b) A corporation shall have power to 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 he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall be
made in respect of 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 the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
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(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) 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 has met the
applicable standard of conduct set forth in subsections (a) and (b). Such
determination shall be made (1) by a majority vote of the board of directors who
are not parties to such action, suit or proceeding, even though less than a
quorum, or (2) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative, or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of undertaking
by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he 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 may be so paid upon such terms and
conditions, if any, as the board of directors deems appropriate.
(f) 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
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent for such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
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<PAGE> 15
(k) The Court of Chancery is hereby vested with exclusive jurisdiction to
hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees)."
(l) The Restated Certificate of Incorporation and Restated Bylaws also
limit the personal liability of directors to the Company and its stockholders
for monetary damages resulting from certain breaches of the directors' fiduciary
duties. The Restated Certificate of Incorporation of the Company provides as
follows:
"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 any 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 Directors of the Corporation shall be eliminated or limited to the full
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 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."
The Company has entered into indemnification agreements with each of its
directors providing for indemnification to the fullest extent permitted by the
DGCL. These agreements provide for specific procedures to better assure the
directors' rights to indemnification, including procedures for directors to
submit claims, for determination of directors entitled to indemnification
(including the allocation of the burden of proof and selection of a reviewing
party) and for enforcement of directors' indemnification rights.
The Company maintains directors' and officers' liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. CONSULTANTS AND ADVISORS
Not applicable.
ITEM 9. EXHIBITS
EXHIBIT
NUMBER
24.1 Consent of KPMG LLP.
25.1 Power of Attorney is contained on the signature pages.
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<PAGE> 16
ITEM 10. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) (Section 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement shall
be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
3. The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is
sent or given, the latest annual report to security holders that is
incorporated by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required to
be presented by Article 3 of Regulation S-X are not set forth in the
prospectus, to deliver, or cause to be delivered to each person to whom
the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such
interim financial information.
4. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
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<PAGE> 17
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
5. The Registrant will submit or has submitted the America West 1994
Incentive Equity Plan (the "Plan") and any amendment thereto to the
Internal Revenue Service ("IRS") in a timely manner and has made or will
make all changes required by the IRS in order to qualify the Plan.
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<PAGE> 18
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant has caused this Post-Effective Amendment No. 1 to Registration
Statement No. 333-26935 on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Tempe, State of Arizona,
on December 31, 1999.
AMERICA WEST HOLDINGS CORPORATION
By: /s/ William A. Franke
---------------------------------------
William A. Franke
Chairman of the Board and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints, jointly and severally, William A.
Franke, W. Douglas Parker, Stephen L. Johnson, and each of them acting
individually, as his attorney-in-fact, each with full power of substitution, for
him in any and all capacities, including as an individual or as an officer or
director authorized to act on behalf of an entity, to sign any and all
amendments to this Registration Statement, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they may
be signed by our said attorney to any and all amendments to said Registration
Statement.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Post-Effective Amendment No. 1 to Registration Statement No. 333-26935 on
Form S-8 has been signed by the following persons in the capacities and on the
dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
Chairman of the Board of
/s/ William A. Franke Directors and Director,
- ------------------------------------- President and Chief December 31, 1999
William A. Franke Executive Officer
(Principal Executive
Officer)
Executive Vice
/s/ W. Douglas Parker President, Corporate
- ------------------------------------- Group (Principal December 31, 1999
W. Douglas Parker Financial Officer and
Principal Accounting
Officer) and Director
/s/ John L. Goolsby
- ------------------------------------- Director December 31, 1999
John L. Goolsby
/s/ Walter T. Klenz
- ------------------------------------- Director December 31, 1999
Walter T. Klenz
</TABLE>
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<PAGE> 19
<TABLE>
<S> <C> <C>
/s/ Marie L. Knowles
- ------------------------------------- Director December 31, 1999
Marie L. Knowles
/s/ Richard C. Kraemer
- ------------------------------------- Director December 31, 1999
Richard C. Kraemer
/s/ Robert J. Miller
- ------------------------------------- Director December 31, 1999
Robert J. Miller
/s/ Gilbert D. Mook
- ------------------------------------- Director December 31, 1999
Gilbert D. Mook
/s/ Denise M. O'Leary
- ------------------------------------- Director December 31, 1999
Denise M. O'Leary
/s/ Richard P. Schifter
- ------------------------------------- Director December 31, 1999
Richard P. Schifter
/s/ Jeffrey A. Shaw
- ------------------------------------- Director December 31, 1999
Jeffrey A. Shaw
/s/ John F. Tierney
- ------------------------------------- Director December 31, 1999
John F. Tierney
</TABLE>
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<PAGE> 20
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NUMBER
- ------ ----------- -----------
<S> <C> <C>
23.1 Consent of KPMG LLP.
24.1 Power of Attorney is
contained on the signature pages.
</TABLE>
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<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
To Board of Directors
America West Holdings Corporation
We consent to the use of our reports incorporated herein by reference and to the
reference to our Firm under the heading "Experts" in the prospectus.
KPMG LLP
Phoenix, Arizona
January 10, 2000
