SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
America West Airlines, Inc.
-------------------
(Name of Issuer)
Class A Common Stock, $.01 par value
Class B Common Stock, $.01 par value
Warrants to Purchase Class B Common
Stock
----------------------------
(Title of Class of Securities)
023650 302
023650 203
023650 112
--------------
(CUSIP Numbers)
Victor I. Lewkow, Esq.
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
(212) 225-2000
----------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
August 25, 1994
--------------
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this Schedule 13D, and
is filing this Schedule because of Rule 13d-1(b)(3) or (4), check the
following box [ ].
Check the following box if a fee is being paid with the statement
[X].
<PAGE>
SCHEDULE 13D
CUSIP Nos. 023650 302, 023650 203, 023650 112
------------
_________________________________________________________________
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TPG Partners, L.P.
75-2473270
_________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) | x|
(b) | |
_________________________________________________________________
3 SEC USE ONLY
_________________________________________________________________
4 SOURCE OF FUNDS
WC
_________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e)
|__|
_________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
_________________________________________________________________
7 SOLE VOTING POWER
CLASS A COMMON STOCK 642,078
CLASS B COMMON STOCK 5,739,480
WARRANTS 1,583,688
NUMBER OF ____________________________________________________
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY CLASS A COMMON STOCK 1,200,000
EACH CLASS B COMMON STOCK 14,501,967
WARRANTS 4,897,538
____________________________________________________________
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH CLASS A COMMON STOCK 642,078
CLASS B COMMON STOCK 5,739,480
WARRANTS 1,583,688
____________________________________________________________
10 SHARED DISPOSITIVE POWER
CLASS A COMMON STOCK 1,200,000
CLASS B COMMON STOCK 14,501,967
WARRANTS 4,897,538
______________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
CLASS A COMMON STOCK 1,200,000
CLASS B COMMON STOCK 14,501,967
WARRANTS 4,897,538
_______________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
_______________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
CLASS A COMMON STOCK 100.0%
CLASS B COMMON STOCK 29.7%
WARRANTS 47.2%
________________________________________________________________
14 TYPE OF REPORTING PERSON
PN
________________________________________________________________
<PAGE>
SCHEDULE 13D
CUSIP Nos. 023650 302, 023650 203, 023650 112
------------
_________________________________________________________________
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TPG Parallel I, L.P.
75-2544886
_________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) | x|
(b) | |
_________________________________________________________________
3 SEC USE ONLY
_________________________________________________________________
4 SOURCE OF FUNDS
WC
_________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e)
|__|
_________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
_________________________________________________________________
7 SOLE VOTING POWER
CLASS A COMMON STOCK 64,699
CLASS B COMMON STOCK 578,338
WARRANTS 159,580
NUMBER OF _____________________________________________________
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY CLASS A COMMON STOCK 1,200,000
EACH CLASS B COMMON STOCK 14,501,967
WARRANTS 4,897,538
____________________________________________________________
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH CLASS A COMMON STOCK 64,699
CLASS B COMMON STOCK 578,338
WARRANTS 159,580
____________________________________________________________
10 SHARED DISPOSITIVE POWER
CLASS A COMMON STOCK 1,200,000
CLASS B COMMON STOCK 14,501,967
WARRANTS 4,897,538
______________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
CLASS A COMMON STOCK 1,200,000
CLASS B COMMON STOCK 14,501,967
WARRANTS 4,897,538
_______________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
_______________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
CLASS A COMMON STOCK 100.0%
CLASS B COMMON STOCK 29.7%
WARRANTS 47.2%
________________________________________________________________
14 TYPE OF REPORTING PERSON
PN
________________________________________________________________
<PAGE>
SCHEDULE 13D
CUSIP Nos. 023650 302, 023650 203, 023650 112
------------
_________________________________________________________________
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Air Partners II, L.P.
75-2553295
_________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) | x|
(b) | |
_________________________________________________________________
3 SEC USE ONLY
_________________________________________________________________
4 SOURCE OF FUNDS
WC
_________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e)
|__|
_________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
TEXAS
_________________________________________________________________
7 SOLE VOTING POWER
CLASS A COMMON STOCK 67,718
CLASS B COMMON STOCK 605,330
WARRANTS 167,028
NUMBER OF ______________________________________________________
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY CLASS A COMMON STOCK 1,200,000
EACH CLASS B COMMON STOCK 14,501,967
WARRANTS 4,897,538
____________________________________________________________
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH CLASS A COMMON STOCK 67,718
CLASS B COMMON STOCK 605,330
WARRANTS 167,028
____________________________________________________________
10 SHARED DISPOSITIVE POWER
CLASS A COMMON STOCK 1,200,000
CLASS B COMMON STOCK 14,501,967
WARRANTS 4,897,538
______________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
CLASS A COMMON STOCK 1,200,000
CLASS B COMMON STOCK 14,501,967
WARRANTS 4,897,538
_______________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
_______________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
CLASS A COMMON STOCK 100.0%
CLASS B COMMON STOCK 29.7%
WARRANTS 47.2%
________________________________________________________________
14 TYPE OF REPORTING PERSON
PN
________________________________________________________________
<PAGE>
Item 1. Security and Issuer.
The securities to which this statement relates are the Class A Common
Stock, $ 0.01 par value per share (the "Class A Common"), the Class B Common
Stock, $0.01 par value per share (the "Class B Common"), and the Warrants to
Purchase Class B Common (the "Warrants") of America West Airlines, Inc., a
Delaware corporation (the "Company"). The principal offices of the Company
are located at 4000 East Sky Harbor Boulevard, Phoenix, Arizona 85034.
Pursuant to a Plan of Reorganization (the "Plan") which was confirmed by the
United States Bankruptcy Court for the District of Arizona (the "Bankruptcy
Court") on August 10, 1994 and which became effective on August 25, 1994 (the
"Effective Date"), the Company has emerged from bankruptcy and is no longer
operating as a debtor-in-possession under Chapter 11 of the United States
Bankruptcy Code.
Item 2. Identity and Background.
This Schedule 13D is filed by TPG Partners, L.P. ("TPG"), TPG Parallel I,
L.P. ("TPG Parallel") and Air Partners II, L.P. ("Air Partners II"). TPG, TPG
Parallel and Air Partners II are referred to collectively herein as the
"Filing Parties". TPG, TPG Parallel and Air Partners II are making this
single, joint filing because they are controlled by the same controlling
persons.
TPG is a Delaware limited partnership, whose principal executive offices
are located at 201 Main Street, Suite 2420, Fort Worth, Texas 76102. TPG is a
limited partnership, formed in December, 1993 to invest in securities of
entities to be selected by its general partner.
Pursuant to General Instruction "C" for Schedule 13D, set forth below is
certain information concerning (i) the General Partner of TPG, (ii) the
General Partner of the General Partner of TPG, and (iii) each person
controlling such General Partner.
The General Partner of TPG is TPG GenPar, L.P. ("TPG GenPar"), a Delaware
limited partnership, whose principal executive offices are located at 201 Main
Street, Suite 2420, Fort Worth, Texas 76102. The principal business of TPG
GenPar is to serve as the General Partner of TPG and certain related entities,
including TPG Parallel and Air Partners II.
The General Partner of TPG GenPar is TPG Advisors, Inc. ("TPG Advisors"),
a Delaware corporation, whose principal executive offices are located at 201
Main Street, Suite 2420, Fort Worth, Texas 76102. The principal business of
TPG Advisors is to serve as the General Partner of TPG GenPar.
The executive officers and directors of TPG Advisors are: David
Bonderman (director and President), James Coulter (director and Vice
President), William Price (director and Vice President), Richard Schifter
(Vice President) and James O'Brien (Vice President, Treasurer and Secretary),
each of whom is a natural person. No other persons control TPG, TPG GenPar,
or TPG Advisors.
David Bonderman has his business address at 201 Main Street, Suite 2420,
Fort Worth, Texas 76102. Mr. Bonderman's principal occupation is as a
director and President of TPG Advisors, which has its business address at 201
Main Street, Suite 2420, Fort Worth, Texas 76102. Mr. Bonderman is a citizen
of the United States.
James Coulter has his business address at 201 Main Street, Suite 2420,
Fort Worth, Texas 76102. Mr. Coulter's principal occupation is as a director
and Vice President of TPG Advisors, which has its business address at 201 Main
Street, Suite 2420, Fort Worth, Texas 76102. Mr. Coulter is a citizen of the
United States.
William Price has his business address at 201 Main Street, Suite 2420,
Fort Worth, Texas 76102. Mr. Price's principal occupation is as a director
and Vice President of TPG Advisors, which has its business address at 201 Main
Street, Suite 2420, Fort Worth, Texas 76102. Mr. Price is a citizen of the
United States.
Richard Schifter has his business address at 1133 Connecticut Avenue,
N.W., Washington, D.C. 20036. Mr. Schifter's principal occupation is as a
Vice President of TPG Advisors, which has its business address at 201 Main
Street, Suite 2420, Fort Worth, Texas 76102 and as of counsel to Arnold &
Porter, which has its business address at 1200 New Hampshire Avenue, N.W.,
Washington, D.C. 20036. Mr. Schifter is a citizen of the United States.
James O'Brien has his business address at 201 Main Street, Suite 2420,
Fort Worth, Texas 76102. Mr. O'Brien's principal occupation is as a Vice
President, Secretary, and Treasurer of TPG Advisors, which has its business
address at 201 Main Street, Suite 2420, Fort Worth, Texas 76102. Mr. O'Brien
is a citizen of the United States.
TPG Parallel is a Delaware limited partnership, whose principal executive
offices are located at 201 Main Street, Suite 2420, Fort Worth, Texas 76102.
TPG Parallel is a limited partnership, formed in June, 1994 to invest along
with TPG in securities of entities to be selected by its general partner.
Pursuant to General Instruction "C" for Schedule 13D, set forth below is
certain information concerning (i) the General Partner of TPG Parallel, (ii)
the General Partner of the General Partner of TPG Parallel, and (iii) each
person controlling such General Partner.
The General Partner of TPG Parallel is TPG GenPar. The General Partner
of TPG GenPar is TPG Advisors. The executive officers and directors of TPG
Advisors are set forth above. No other persons control TPG Parallel, TPG
GenPar or TPG Advisors.
Air Partners II is a Texas limited partnership, whose principal executive
offices are located at 201 Main Street, Suite 2420, Fort Worth, Texas 76102.
Air Partners II is a limited partnership, formed in April, 1994 to invest in
the securities of the Company upon its emergence from bankruptcy.
Pursuant to General Instruction "C" for Schedule 13D, set forth below is
certain information concerning (i) the General Partner of Air Partners II,
(ii) the General Partner of the General Partner of Air Partners II and (iii)
each person controlling such General Partner.
The General Partner of Air Partners II is TPG GenPar. The General
Partner of TPG GenPar is TPG Advisors. The executive officers and directors
of TPG Advisors are set forth above. No other persons control Air Partners
II, TPG GenPar or TPG Advisors.
During the last five years, none of the Filing Parties and, to the best
knowledge of the Filing Parties, none of the executive officers or directors
of TPG Advisors has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors). During the last five years, none of the
Filing Parties and, to the best knowledge of the Filing Parties, none of such
individuals has been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or finding any violation with respect to such
laws.
Item 3. Source and Amount of Funds or Other Consideration.
The aggregate amount of funds required by TPG to purchase the Class A
Common, Class B Common and Warrants was $30,274,545. Of this amount,
$29,259,625 was paid to the Company in exercise of rights to purchase
securities of the Company under the Investment Agreement (as defined and
described in Item 4). In addition, pursuant to the Plan, TPG received (i)
156,659 shares of Class B Common and 433,825 Warrants in exchange for shares
of common stock of Old America West and (ii) 114,177 shares of Class B
Common upon its payment to the Company of $1,014,920 in connection with the
equity subscription rights provided to holders of Old America West
securities under the Plan. All funds used by TPG to purchase the Class A
Common, the Class B Common and the Warrants were obtained from the working
capital of TPG, by means of contributions made by the partners of TPG in
response to non-discretionary calls made by TPG GenPar on the capital
committed to TPG by such partners in connection with their subscription to
TPG and no part of the purchase price for the Class A Common, Class B Common
or Warrants consisted of borrowed funds.
The aggregate amount of funds required by TPG Parallel to purchase the
Class A Common, the Class B Common and the Warrants was $3,050,608. Of this
amount, $2,948,340 was paid to the Company in exercise of rights to purchase
securities of the Company under the Investment Agreement (as defined and
described in Item 4). In addition, pursuant to the Plan, TPG Parallel
received (i) 15,786 shares of Class B Common and 43,714 Warrants in exchange
for shares of common stock of Old America West and (ii) 11,505 shares of Class
B Common upon its payment to the Company of $102,268 in connection with the
equity subscription rights provided to holders of Old America West securities
under the Plan. All funds used by TPG Parallel to purchase the Class A
Common, the Class B Common and the Warrants were obtained from the working
capital of TPG Parallel, by means of contributions made by the partners of TPG
Parallel in response to non-discretionary calls made by TPG GenPar on the
capital committed to TPG Parallel by such partners in connection with their
subscription to TPG Parallel and no part of the purchase price for the Class A
Common, Class B Common or Warrants consisted of borrowed funds.
The aggregate amount of funds required by Air Partners to purchase the
Class A Common, the Class B Common and the Warrants was $3,192,986. Of this
amount, $3,085,945 was paid to the Company in exercise of rights to purchase
securities of the Company under the Investment Agreement (as defined and
described in Item 4). In addition, pursuant to the Plan, Air Partners
received (i) 16,522 shares of Class B Common and 45,755 Warrants in exchange
for shares of common stock of Old America West and (ii) 12,042 shares of Class
B Common upon its payment to the Company of $107,041 in connection with the
equity subscription rights provided to holders of Old America West securities
under the Plan. All funds used by Air Partners II to purchase the Class A
Common, the Class B Common and the Warrants were obtained from the working
capital of Air Partners II, by means of contributions made by the partners of
Air Partners II in response to non-discretionary calls made by TPG GenPar on
the capital committed to Air Partners II by such partners in connection with
their subscription to Air Partners II and no part of the purchase price for
the Class A Common, Class B Common or Warrants consisted of borrowed funds.
Item 4. Purpose of Transaction.
The purposes for the purchase of the Class A Common, Class B Common and
Warrants by the Filing Parties are to acquire a controlling interest in the
Company and for general investment purposes.
The Filing Parties intend to review continuously their equity position in
the Company. Depending upon future evaluations of the business prospects of
the Company and upon other developments, including, but not limited to,
general economic and business conditions and money market and stock market
conditions, each of the Filing Parties may determine to increase or decrease
its equity interest in the Company by acquiring additional shares of Class A
Common, Class B Common or Warrants or by disposing of all or a portion of its
holdings of Class A Common, Class B Common or Warrants, subject to any
applicable legal and contractual restrictions on its ability to do so.
The Filing Parties have acquired their respective interests in the Class
A Common, Class B Common and Warrants as a result of the assignment by AmWest
Partners, L.P. ("AmWest") of certain rights granted to AmWest under the Third
Revised Investment Agreement (the "Investment Agreement") between AmWest and
America West Airlines, Inc., prior to its reorganization ("Old America West"),
including AmWest's right to purchase Class A Common, Class B Common and the
Warrants from the Company on the Effective Date and as a result of the
distribution, pursuant to the Plan, of securities of the Company in respect of
the common stock of Old America West.
AmWest and Old America West entered into the Investment Agreement on
April 21, 1994. Pursuant to the Investment Agreement, AmWest agreed, in
connection with and as part of the Plan, to acquire certain voting securities,
debt securities and warrants of the Company. In addition, pursuant to the
Investment Agreement, the Company, AmWest, the Official Creditors' Committee
and the Official Equity Committee agreed to appoint a new Board of Directors
for the Company, to amend the charter and by-laws of the Company and to enter
into certain other agreements described in Item 6 below. Following the
successful completion of the transactions contemplated by the Investment
Agreement on August 25, 1994 (including the assignment by AmWest of its rights
under the Investment Agreement to certain parties, including the Filing
Parties), the Filing Parties own a controlling interest in the Company. A
copy of the Investment Agreement is filed as an exhibit hereto and
incorporated herein by reference.
Except as set forth herein, the Filing Parties do not have any plans or
proposals which would relate to or result in:
(a) The acquisition of additional securities of the Company, or the
disposition of securities of the Company;
(b) An extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Company or any of its
subsidiaries;
(c) A sale or transfer of a material amount of assets of the Company or
of any of its subsidiaries;
(d) Any change in the present board of directors or management of the
Company, including any plans or proposals to change the number or
term of directors or to fill any existing vacancies on the board;
(e) Any material change in the present capitalization or dividend policy
of the Company;
(f) Any other material change in the Company's business or corporate
structure;
(g) Changes in the Company's charter, bylaws or instruments
corresponding thereto or other actions which may impede the
acquisition of control of the issuer by any person;
(h) Causing a class of securities of the Company to be delisted from a
national securities exchange or to cease to be authorized to be
quoted in an inter-dealer quotation system of a registered national
securities association;
(i) A class of equity securities of the Company becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the
Securities Exchange Act of 1934 (the "Exchange Act"); or
(j) Any action similar to any of those enumerated above.
Item 5. Interest in Securities of the Issuer
(a) - (b) At the date hereof, TPG has the sole power to vote and dispose
of 642,078 shares of the Class A Common, 4,155,792 shares of the Class B
Common, and 1,583,688 Warrants. The Warrants entitle holders to purchase one
share of the Class B Common at a price of $12.74 per share, subject to
confirmation of such price by the Bankruptcy Court pursuant to a final order
and to certain adjustments. The Class A Common held by TPG
represents approximately 53.5% of the 1,200,000 shares of Class A Common
outstanding as of August 31, 1994, based on information provided by the
Company. The Class B Common held by TPG represents approximately 9.5% of the
43,925,000 shares of Class B Common outstanding as of August 31, 1994, based
on information provided by the Company. The Warrants held by TPG represent
approximately 15.3% of the 10,384,615 Warrants outstanding as of August 31,
1994, based on information provided by the Company. Assuming exercise of the
Warrants, the Class B Common and Warrants held by TPG represent approximately
12.6% of the 45,508,688 shares of Class B Common which would be assumed to be
outstanding upon such exercise.
At the date hereof, TPG Parallel has the sole power to vote and dispose
of 64,699 shares of the Class A Common, 418,758 shares of the Class B Common,
and 159,580 Warrants. The Class A Common held by TPG Parallel represents
approximately 5.4% of the 1,200,000 shares of Class A Common outstanding as of
August 31, 1994, based on information provided by the Company. The Class B
Common held by TPG Parallel represents approximately 1.0% of the 43,925,000
shares of Class B Common outstanding as of August 31, 1994, based on
information provided by the Company. The Warrants held by TPG Parallel
represent approximately 1.5% of the 10,384,615 Warrants outstanding as of
August 31, 1994, based on information provided by the Company. Assuming
exercise of the Warrants, the Class B Common and Warrants held by TPG Parallel
represent approximately 1.3% of the 44,084,580 shares of Class B Common which
would be assumed to be outstanding upon such exercise.
At the date hereof, Air Partners II has the sole power to vote and
dispose of 67,718 shares of the Class A Common, 438,302 shares of the Class B
Common, and 167,028 Warrants. The Class A Common held by Air Partners II
represents approximately 5.6% of the 1,200,000 shares of Class A Common
outstanding as of August 31, 1994, based on information provided by the
Company. The Class B Common held by Air Partners II represents approximately
1.0% of the 43,925,000 shares of Class B Common outstanding as of August 31,
1994, based on information provided by the Company. The Warrants held by Air
Partners II represent approximately 1.6% of the 10,384,615 Warrants
outstanding as of August 31, 1994, based on information provided by the
Company. Assuming exercise of the Warrants, the Class B Common and Warrants
held by Air Partners II represent approximately 1.4% of the 44,092,028 shares
of Class B Common which would be assumed to be outstanding upon such exercise.
As set forth in Items 5(d) and 6, the Filing Parties have certain
understandings and agreements regarding the voting and disposition of the
securities of the Company held by them with GPA Group plc, an Irish public
limited company ("GPA"), Continental Airlines, Inc., a Delaware corporation
("Continental") and Mesa Airlines, Inc., a New Mexico corporation ("Mesa").
As a result of these agreements and understandings, the Filing Parties,
together with each of GPA, Continental and Mesa, comprise a group with the
meaning of Section 13(d)(3) of the Exchange Act, and each may be deemed to
beneficially own the securities of the Company owned by the other.
Information concerning the ownership of Class A Common, Class B Common and
Warrants by each of GPA, Continental and Mesa is contained in separate
Schedules 13D being filed by each of GPA, Continental and Mesa. As a group,
such parties beneficially own 1,200,000 shares of the Class A Common,
9,604,429 shares of the Class B Common, and 4,897,538 Warrants. The
aggregate amount of Class A Common beneficially owned by the group represents
100% of the 1,200,000 shares of Class A Common outstanding as of August 31,
1994, based on information provided by the Company. The aggregate amount of
Class B Common beneficially owned by the group represents approximately
21.9% of the 43,925,000 shares of Class B Common outstanding as of August 31,
1994, based on information provided by the Company. The aggregate amount
of Warrants beneficially owned by the group represents approximately 47.2%
of the 10,384,615 Warrants outstanding as of August 31, 1994, based on
information provided by the Company. Assuming exercise of the Warrants,
the aggregate amount of Class B Common and Warrants beneficially owned by
the group represents approximately 29.7% of the 48,822,538 shares of Class B
Common which would be assumed to be outstanding upon such exercise.
Except as described herein, none of the Filing Parties has the sole or
shared voting power to vote or the sole or shared power to dispose of any
shares of Class A Common, Class B Common or any of the Warrants.
To the knowledge of the Filing Parties, none of the individuals named in
Item 2 has the sole or shared power to vote or the sole or shared power to
dispose of any shares of Class A Common, Class B Common, or of any Warrants.
(c) Except as stated herein, no transactions in shares of Class A
Common, Class B Common or Warrants were effected during the past 60 days by
any Filing Party or to the best of their knowledge, any of the individuals
identified in Item 2.
(d) On August 25, 1994, the Filing Parties and Continental entered into
a Priority Distribution Agreement (the "Priority Distribution Agreement").
The following is a brief description of the Priority Distribution Agreement,
and is qualified in its entirety by reference to such agreement, a copy of
which is filed as an exhibit hereto and incorporated herein by reference.
The Priority Distribution Agreement provides that the Filing Parties will
share with Continental certain of the proceeds from their sale or disposition
of the securities of the Company covered by such agreement (including
certain shares of Class A Common and Class B Common), if such sharing of
proceeds is necessary to ensure that Continental receives a specified rate
of return on its investment in the securities of the Company. Pursuant to
the Priority Distribution Agreement, the Filing Parties have also granted
Continental a right of first refusal with regard to the sale by any of the
Filing Parties of any of the securities covered by such agreement.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer
On August 25, 1994, AmWest Genpar, Inc., a Texas corporation ("AmWest
Genpar"), Apcal, L.P., a Texas limited partnership ("Apcal"), and Mesa entered
into an agreement (the "Termination Agreement"), pursuant to which AmWest was
dissolved. Apcal and Mesa were limited partners of AmWest; AmWest Genpar was
its General Partner. The limited partners of Apcal included TPG and
Continental, and TPG and Continental have agreed to and acknowledged certain
provisions of the Termination Agreement and have (together with the other
Filing Parties and Mesa) additionally entered into certain related assignment
and assumption agreements with AmWest (copies of which agreements are attached
as an exhibit hereto and incorporated herein by this reference). The following
is a brief description of the Termination Agreement and is qualified in its
entirety by reference to such agreement, a copy of which is filed as an
exhibit hereto and incorporated herein by reference.
The Termination Agreement provides that AmWest assign to each of AmWest
Genpar, Apcal and Mesa its rights and obligations under the Investment
Agreement to purchase from the Company on the Effective Date certain shares of
Class A Common, Class B Common and Warrants and that each of AmWest Genpar and
Apcal assign such rights and obligations to certain of their affiliates
(including the Filing Parties and Continental) in accordance with certain
agreements entered into between such affiliates and AmWest. The Termination
Agreement further provides that each of AmWest Genpar, Apcal and Mesa (and
each of their respective affiliates to which rights to acquire securities have
been assigned) assume all obligations of AmWest under the Investment Agreement
in connection with the purchase of such securities. As described below, the
Termination Agreement also contains certain provisions concerning the
assignment and assumption of certain rights of AmWest under the Stockholders'
Agreement and the Registration Rights Agreement (each as defined below).
Pursuant to the Termination Agreement, AmWest has assigned to TPG its
right under the Stockholders' Agreement to designate certain directors of the
Company and their replacements, if any, provided that for as long as Mesa
owns securities representing at least 2% of the aggregate voting power of
the outstanding voting equity securities of the Company, TPG has agreed with
Mesa to cause one person identified by Mesa, who shall be reasonably
acceptable to TPG, to be included among TPG's designated directors. In
addition, each of the parties to the Termination Agreement a their
respective partners and affiliates have agreed to assume the obligations
of AmWest under the Stockholders' Agreement concerning the voting and
disposition of Class A Common and Class B Common and to be bound by the terms
of the Stockholders' Agreement as they relate to such actions. The
Termination Agreement also provides that AmWest assign to TPG certain of its
rights under the Registration Rights Agreement (including the right to issue a
notice of demand), subject to certain notice and consent requirements.
On August 25, 1994, AmWest, the Company, Lehman Brothers Inc., a Delaware
corporation ("Lehman"), Belmont Fund L.P., a Delaware limited partnership
("Belmont"), Fidelity Copernicus Fund, L.P., a Delaware limited partnership
("Copernicus"), and Belmont Capital Partners II, L.P., a Delaware limited
partnership ("Belmont II"), entered into a Registration Rights Agreement (the
"Registration Rights Agreement"). The following is a brief description of the
Registration Rights Agreement, and is qualified in its entirety by reference
to such agreement, a copy of which is filed as an exhibit hereto and
incorporated herein by reference.
Pursuant to the Registration Rights Agreement, the Company has agreed to
file a shelf registration statement with respect to the securities issued or
issuable to each of the parties thereto and their respective affiliates and to
maintain effective such shelf registration statement for a period of three
years from the Effective Date (the "Shelf Period"). After the Shelf Period,
AmWest (or its designated assignee) may provide the Company with a notice of
demand to register under the Securities Act of 1933 such securities as are
included in such notice of demand or otherwise includable pursuant to the
Registration Rights Agreement, for disposition in accordance with the terms of
such notice of demand. The Registration Rights Agreement also provides that
the parties to such agreement and their respective affiliates and assignees
(including the Filing Parties) may include securities held by them in any
registration of equity securities by the Company (whether or not for its own
behalf), pursuant to certain limitations on such inclusion in the event that
the managing underwriter of any such registration informs the Company of its
belief that the amount of securities requested to be included in such
registration exceeds the amount which can be sold in an acceptable price
range. The Registration Rights Agreement also provides that the Company shall
undertake certain specified actions with regard to the registration and
offering of any securities covered by the Registration Rights Agreement and,
pay stated amounts of liquidated damages to holders of registrable securities
in the event of the suspension or ineffectiveness of the shelf registration
statement covering such securities.
On August 25, 1994, AmWest, GPA the Company and certain other parties
entered into a Stockholders' Agreement (the "Stockholders' Agreement"). The
following is a brief description of the Stockholders' Agreement, and is
qualified in its entirety by reference to such agreement, a copy of which is
filed as an exhibit hereto and incorporated herein by reference.
The Stockholders' Agreement has a term of approximately three years,
commencing on August 25, 1994 and ending on the date of the first annual
meeting of the Company occurring after August 25, 1997. Pursuant to the
Stockholders' Agreement, the parties have agreed that the Board of Directors
of the Company shall consist of up to 15 members to be designated as follows:
nine members to be designated by AmWest or its designated assignees; three
members to be designated by the Official Creditors' Committee, provided that
each such member be reasonably acceptable to AmWest or its designated
assignees; one member to be designated by the Official Equity Committee,
provided that such member be reasonably acceptable to AmWest or its designated
assignees; one member to be designated by the Board of Directors of Old
America West, provided that such member be reasonably acceptable to AmWest or
its designated assignees; and one member to be designated by GPA for so long
as GPA shall own 2% of the voting equity securities of the Company, provided
that such member be reasonably acceptable to AmWest or its designated
assignees. The Board of Directors of the Company has been designated in
accordance with these provisions of the Stockholders' Agreement. The parties
to the Stockholders' Agreement have agreed to vote, or recommend the voting
of, the shares of Class A Common and Class B Common held by each of them in a
manner such that the provisions of the Stockholders' Agreement will be given
effect during its term and in order that both the election and removal of
directors will be consistent with its provisions.
The Stockholders' Agreement also provides that, during its term, the
affirmative vote of a majority of the voting power of the outstanding shares
of each of the Class A Common and Class B Common entitled to vote (excluding
any shares owned by AmWest or any of its 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: (i) any merger or
consolidation of the Company with or into AmWest or any affiliate of AmWest,
(ii) any sale, lease, exchange, transfer or other disposition of all or any
substantial part of the assets of the Company to AmWest or any affiliate of
AmWest, (iii) any transaction as a result of which AmWest or any affiliate of
AmWest will, as a result of the issuance of voting securities of the Company
(or securities convertible or exchangeable for such voting securities) acquire
an increased percentage of the Company's voting securities, subject to certain
exceptions and (iv) any related series or combination of transactions having
the same direct or indirect effect as any of the foregoing. In addition, the
Stockholders' Agreement obligates AmWest, its partners and affiliates not to
(a) sell or otherwise transfer any shares of Class A Common or Class B Common,
if, after such transaction, the total number of shares of Class B Common
beneficially owned by the transferor is less than twice the number of shares
of Class A Common beneficially owned by the transferor (unless such
transaction results in the sale or transfer of all of such party's Class A
Common and Class B Common); and (b) sell or transfer, in a single transaction
or related series of transactions, shares of Class A Common and Class B Common
representing 51% or more of the combined voting power of all shares of Common
Stock of the Company then outstanding without the consent of the Company,
pursuant to an affirmative vote of not less than 75% of its directors and
subject to certain enumerated exclusions (including, without limitation,
transfers to affiliates and sales in connection with a public offering or
tender 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 and on the same
economic terms).
On August 25, 1994, AmWest and GPA entered into a Voting Agreement (the
"GPA Voting Agreement"). The following is a brief description of the GPA
Voting Agreement, and is qualified in its entirety by reference to such
agreement, a copy of which is filed as an exhibit hereto and incorporated
herein by reference.
The GPA Voting Agreement provides that GPA shall vote for the nominees of
AmWest or its designated assignee to the Company's Board of Directors and that
AmWest (and its affiliates or assignees who receive Class A Common or Class B
Common as a result of an assignment by Amwest, subject to certain enumerated
exceptions) shall vote for GPA's nominees to the Company's Board of Directors,
in each case, for so long as AmWest or its affiliates own 5% of the voting
equity securities of the Company and GPA owns at least 2% of the voting equity
securities of the Company or until August 25, 2004, whichever comes first. In
addition, the GPA Voting Agreement provides that AmWest shall not transfer or
assign any voting equity securities of the Company to Mesa, if after giving
effect to any such transfer or assignment, Mesa shall hold 7% or more of the
combined voting power of all such securities then outstanding.
On August 25, 1994, the Filing Parties and Continental entered into a
Priority Distribution Agreement, which is described in Item 5(d) above.
There are no other contracts, understandings or agreements with respect
to the securities of the Company between the Filing Parties and the other
persons identified in Item 2 and any other parties.
Item 7. Material to be Filed as Exhibits.
Exhibit 1 -- Joint Filing Agreement
Exhibit 2 -- Investment Agreement
Exhibit 3 -- Priority Distribution Agreement
Exhibit 4 -- Termination Agreement
Exhibit 5 -- Assignment and Assumption Agreements
Exhibit 6 -- Registration Rights Agreement
Exhibit 7 -- Stockholders' Agreement
Exhibit 8 -- GPA Voting Agreement
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
accurate.
Dated: September 6, 1994
TPG PARTNERS, L.P.
By: TPG GenPar, L.P.
General Partner
By: TPG Advisors, Inc.
General Partner
By: /s/ James O'Brien
Name: James O'Brien
Title: Vice President
TPG PARALLEL I, L.P.
By: TPG GenPar, L.P.
General Partner
By: TPG Advisors, Inc.
General Partner
By: /s/ James O'Brien
Name: James O'Brien
Title: Vice President
AIR PARTNERS II, L.P.
By: TPG GenPar, L.P.
General Partner
By: TPG Advisors, Inc.
General Partner
By: /s/ James O'Brien
Name: James O'Brien
Title: Vice President
<PAGE>
JOINT FILING AGREEMENT
JOINT FILING AGREEMENT, (this "Agreement"), dated as of September 1, 1994
among TPG PARTNERS, L.P., a Delaware limited partnership ("TPG"), TPG PARALLEL
I, L.P., a Delaware limited partenrship ("TPG Parallel") and AIR PARTNERS II,
L.P., a Texas limited partnership ("Air Partners II").
W I T N E S S T H
WHEREAS, as of the date hereof, each of TPG, TPG Parallel and Air
Partners II is filing a Schedule 13D under the Securities Exchange Act of 1934
(the "Exchange Act") with respect to the securities of America West, Inc., a
Delaware corporation (the "Schedule 13D";
WHEREAS, each of TPG, TPG Parallel and Air Partners II is individually
eligible to file the Schedule 13D;
WHEREAS, each of TPG, TPG Parallel and Air Partners II wishes to file the
Schedule 13D and any amendments thereto jointly and on behalf of each of TPG
and AmWest, pursuant to Rule 13d-1(f)(1) under the Exchange Act;
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the parties hereto agree as follows:
1. TPG, TPG Parallel and Air Partners II hereby agree that the Schedule
13D is, and any amendments thereto will be, filed on behalf of each of TPG,
TPG Parallel and Air Partners II pursuant to Rule 13d-1(f)(1)(iii) under the
Exchange Act.
2. TPG hereby acknowledges that, pursuant to Rule 13d-1(f)(1)(i) under
the Exchange Act, TPG is responsible for the timely filing of the Schedule 13D
and any amendments thereto, and for the completeness and accuracy of the
information concerning TPG contained therein, and is not responsible for the
completeness and accuracy of the information concerning TPG Parallel or Air
Partners II contained therein, unless TPG knows or has reason to know that
such information is inaccurate.
3. TPG Parallel hereby acknowledges that, pursuant to Rule 13d-
1(f)(1)(i) under the Exchange Act, TPG Parallel is responsible for the timely
filing of the Schedule 13D and any amendments thereto, and for the
completeness and accuracy of the information concerning TPG Paralllel
contained therein, and is not responsible for the completeness and accuracy of
the information concerning TPG or Air Partners II contained therein, unless
TPG Parallel knows or has reason to know that such information is inaccurate.
4. Air Partners II hereby acknowledges that, pursuant to Rule 13d-
1(f)(1)(i) under the Exchange Act, Air Partners II is responsible for the
timely filing of the Schedule 13D and any amendments thereto, and for the
completeness and accuracy of the information concerning Air Partners II
contained therein, and is not responsible for the completeness and accuracy of
the information concerning TPG or TPG Parallel contained therein, unless Air
Partners II knows or has reason to know that such information is inaccurate.
5. Each of TPG, TPG Parallel and Air Partners II hereby agree that this
Agreement shall be filed as an exhibit to the Schedule 13D, pursuant to Rule
13D-1(f)(1)(iii) under the Exchange Act.
IN WITNESS WHEREOF, the parties have caused this Agreement to executed
individually or by their respective directors hereunto duly authorized as of
the day and year first above written.
TPG PARTNERS, L.P.
By: TPG GenPar, L.P.
General Partner
By: TPG Advisors, Inc.
General Partner
By: /s/ James O'Brien
Name: James O'Brien
Title: Vice President
TPG PARALLEL I, L.P.
By: TPG GenPar, L.P.
General Partner
By: TPG Advisors, Inc.
General Partner
By: /s/ James O'Brien
Name: James O'Brien
Title: Vice President
AIR PARTNERS II, L.P.
By: TPG GenPar, L.P.
General Partner
By: TPG Advisors, Inc.
General Partner
By: /s/ James O'Brien
Name: James O'Brien
Title: Vice President
<PAGE>
THIRD REVISED INVESTMENT AGREEMENT
April 21, 1994
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Attention: William A. Franke
Chairman of the Board
Gentlemen:
This letter agreement (this "Agreement") sets forth the agreement
between America West Airlines, Inc., a Delaware corporation (including, on or
after the effective date of the Plan, as defined herein, its successors, as
reorganized pursuant to the Bankruptcy Code, as defined herein) (the
"Company"), and AmWest Partners, L.P., a Texas limited partnership
("Investor").
The Company will issue and sell to Investor, and Investor hereby
agrees and commits to purchase from the Company, a package of securities of
the Company for $244,857,000 in cash (subject to adjustment as herein
provided), consisting of (i) shares of Class A Common Stock of the Company
("Class A Common"), (ii) shares of Class B Common Stock of the Company ("Class
B Common" and, together with the Class A Common, "Common Stock"), (iii) senior
unsecured notes of the Company ("Notes") and (iv) warrants to purchase shares
of Class B Common ("Warrants"), all on the terms and subject to the terms and
conditions hereinafter set forth.
Investor's purchase of the securities referred to above (the
"Investment") will be made in connection with and as part of the transactions
to be consummated pursuant to a joint Plan of Reorganization of the Company
(the "Plan") and an order (the "Confirmation Order") confirming the Plan
issued by the Bankruptcy Court, as defined herein. The Plan will contain
provisions called for by, or otherwise consistent with, this Agreement.
In consideration of the agreements of Investor hereunder, and as a
precondition and inducement to the execution of this Agreement by Investor,
the Company has entered into the Third Revised Interim Procedures Agreement
with Investor, dated the date hereof (the "Procedures Agreement").
SECTION 1. Definitions. For purposes of this Agreement, except as
expressly provided herein or unless the context otherwise requires, the
following terms shall have the following respective meanings:
"Affiliate" shall mean (i) when used with reference to any
partnership, any Person that, directly or indirectly, owns or controls
10% or more of either the capital or profit interests of such partnership
or is a partner of such partnership or is a Person in which such
partnership has a 10% or greater direct or indirect equity interest and
(ii) when used with reference to any corporation, any Person that,
directly or indirectly, owns or controls 10% or more of the outstanding
voting securities of such corporation or is a Person in which such
corporation has a 10% or greater direct or indirect equity interest. In
addition, the term "Affiliate," when used with reference to any Person,
shall also mean any other Person that, directly or indirectly, controls
or is controlled by or is under common control with such Person. 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, the Company will be deemed not
to be an Affiliate of Investor or any of its partners or assignees.
"Alliance Agreements" shall have the meaning specified in Section 5.
"Approvals" shall have the meaning specified in Section 8(b).
"Bankruptcy Code" shall mean Chapter 11 of the United States
Bankruptcy Code.
"Bankruptcy Court" shall mean the United States Bankruptcy Court for
the District of Arizona.
"Business Combination" means:
(i) any merger or consolidation of the Company with or into
Investor or any Affiliate of Investor;
(ii) any sale, lease, exchange, transfer or other disposition
of all or any substantial part of the assets of the Company to
Investor or any Affiliate of Investor;
(iii) any transaction with or involving the Company as a
result of which Investor or any of Investor's 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 pursuant to a transaction open on a pro
rata basis to all holders of Class B Common; or
(iv) any related series or combination of transactions having
or which will have, directly or indirectly, the same effect as any
of the foregoing.
"Class A Common" shall have the meaning specified in the second
paragraph of this Agreement.
"Class B Common" shall have the meaning specified in the second
paragraph of this Agreement.
"Common Stock" shall have the meaning specified in the second
paragraph of this Agreement.
"Company" shall have the meaning specified in the first paragraph of
this Agreement.
"Confirmation Date" shall mean the date on which the Confirmation
Order is entered by the Bankruptcy Court.
"Confirmation Order" shall have the meaning specified in the third
paragraph of this Agreement.
"Continental" shall mean Continental Airlines, Inc.
"Creditors' Committee" shall mean the Official Committee of the
Unsecured Creditors of America West Airlines, Inc. appointed in the
Company's Chapter 11 case pending in the Bankruptcy Court.
"Disclosure Statement" shall mean a disclosure statement with
respect to the Plan.
"Effective Date" shall mean the effective date of the Plan; provided
that in no event shall the Effective Date be (a) earlier than 11 days
after the Bankruptcy Court approves and enters the Confirmation Order
providing for the confirmation of the Plan or (b) before all material
Approvals are obtained.
"Electing Party" shall have the meaning specified in Section
4(a)(2)(ii).
"Equity Committee" shall mean the Official Committee of Equity
Holders of America West Airlines, Inc. appointed in the Company's Chapter
11 case pending in the Bankruptcy Court.
"Equity Holders" shall mean the Company's equity security holders
(including holders of common stock and preferred stock) of record as of
the applicable record date fixed by the Bankruptcy Court.
"Governance Agreements" shall have the meaning specified in Section
6.
"GPA" shall mean GPA Group plc or, if applicable, any direct or
indirect subsidiary thereof.
"GPA Put Agreement" shall have the meaning specified in Section
7(j).
"Independent Directors" shall have the meaning specified in Section
6(a)).
"Initial Order" shall have the meaning specified in Section 8(a).
"Investment" shall have the meaning specified in the third paragraph
of this Agreement.
"Investor" shall have the meaning specified in the first paragraph
of this Agreement.
"Mesa" shall mean Mesa Airlines, Inc.
"Monthly Targets" shall mean the amounts specified in the Monthly
Targets Schedule.
"Monthly Targets Schedule" shall mean the letter agreement between
the Company and Investor dated the date hereof.
"Notes" shall have the meaning specified in the second paragraph of
this Agreement. The Notes shall be subject to the terms and conditions
set forth in Exhibit B hereto.
"Outside Date" shall mean August 31, 1994; provided that Investor
shall have the right from time to time to irrevocably extend the Outside
Date to a date not later than November 30, 1994, but only if Investor
gives the Company prior written notice of its election to extend the then
current Outside Date (which notice shall specify the new Outside Date)
and then only if, at the time of the giving of such notice, Investor is
not in breach of any of its representations, warranties, covenants or
obligations under this Agreement, the Procedures Agreement or any Related
Agreement (excluding any breach by Investor which is not willful or
intentional and which is capable of being cured on or before the new
Outside Date). Unless waived by the Company, any notice given pursuant
to this definition shall be delivered to the Company not less than 15
days prior to the then current Outside Date except that, in the event the
Effective Date has not occurred for any reason arising within such
15-day period not due to a breach by Investor of any of its
representations, warranties, covenants or agreements hereunder, such
notice shall be given as soon as practicable but in no event later than
the then current Outside Date.
"Person" means a natural person, a corporation, a partnership, a
trust, a joint venture, any Regulatory Authority or any other entity or
organization.
"Plan" shall have the meaning specified in the third paragraph of
this Agreement.
"Plan 9" means the Company's Plan Revision No. 9 which consists of
the Summary Pro Forma Financial Statements: June 1993 Through December
1994, dated July 15, 1993.
"Plan R-2" shall mean the Company's Summary Pro Forma Financial
Statements, 5 Year Plan: 1994 Through 1998, Plan No. R-2, dated January
13, 1994.
"Procedures Agreement" shall have the meaning specified in the
fourth paragraph of this Agreement.
"Projections" shall mean the projections set forth in Plan 9 on
pages 15 and 18 of Tab E and pages 7 and 8 of Tab F.
"Purchase Price" shall have the meaning specified in Section 2.
"Regulatory Approvals" shall mean all approvals, permits,
authorizations, consents, licenses, rulings, exemptions and agreements
required to be obtained from, or notices to or registrations or filings
with, any Regulatory Authority (including the expiration of all
applicable waiting periods, if any, under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended) that are necessary or reasonably
appropriate to permit the Investment and the other transactions
contemplated hereby and by the Related Agreements and to permit the
Company to carry on its business after the Investment in a manner
consistent in all material respects with the manner in which it was
carried on prior to the Effective Date or proposed to be carried on by
the reorganized Company.
"Regulatory Authority" shall mean any authority, agency, commission,
official or other instrumentality of the United States, any foreign
country or any domestic or foreign state, county, city or other political
subdivision.
"Related Agreements" shall have the meaning specified in Section 3.
"Securities" shall mean the securities of the Company issued to the
Unsecured Parties, Investor and its assigns and GPA under this
Agreement. The Securities are described in Section 4.
"Unsecured Creditors" shall mean, as of any date, the Persons
holding of record as of such date the allowed or allowable prepetition
unsecured claims without priority of the Company.
"Unsecured Parties" shall mean the Equity Holders and the Unsecured
Creditors.
"Warrants" shall have the meaning specified in the second paragraph
of this Agreement.
SECTION 2. Commitment to Make Investment. Subject to the terms and
conditions of this Agreement and the Procedures Agreement, on the Effective
Date, the Company shall issue and sell and Investor shall purchase Securities
in accordance with this Agreement and the Plan. Such Securities shall be
issued, sold and delivered to Investor, its designees and/or one or more third
party investors, and the $244,857,000 purchase price therefor, as such
purchase price may be adjusted pursuant hereto (the "Purchase Price"), shall
be paid by wire transfer of immediately available funds on the Effective Date.
SECTION 3. Related Agreements. The
agreements necessary to effect the Investment (the "Related Agreements", such
term to include the Alliance Agreements and the Governance Agreements) shall
be in form and substance reasonably satisfactory to Investor and the Company,
and shall contain terms and provisions, including representations, warranties,
covenants, warranty termination periods, materiality exceptions, cure
opportunities, conditions precedent, anti-dilution provisions (as
appropriate), and indemnities, as are in form and substance reasonably
satisfactory to such parties; provided, however, that the Related Agreements
shall contain provisions called for by, or otherwise consistent with, this
Agreement.
SECTION 4. Capitalization. (a) Upon consummation of the Plan, the
capitalization of the Company shall be as follows:
(1) Class A Common. There shall be 1,200,000 shares of Class A
Common, all of which shares shall, in accordance with the Plan, be issued
to Investor. Investor shall pay $8,960,400 for the Class A Common. At
the option of the holders thereof, shares of Class A Common shall be
convertible into shares of Class B Common on a share for share basis.
(2) Class B Common. There shall be 43,800,000 shares of Class B
Common, all of which shares shall, in accordance with the Plan, be
issued as follows:
(i) Investor. Investor shall be issued 13,875,000 shares plus
the number of shares (if any) to be acquired by Investor pursuant to
clause (ii) below minus the number of shares, if any, purchased by
the Equity Holders pursuant to the second sentence of clause (iii)
below. For each share of Class B Common issued to it, Investor shall
pay $7.467; provided that (A) for each share acquired by Investor
pursuant to clause (ii) below and (B) for each share not purchased by
the Equity Holders pursuant to clause (iii) below, Investor shall pay
$8.889.
(ii) Unsecured Creditors. The Unsecured Creditors (or a trust
created for their benefit) shall be issued 26,775,000 shares.
Notwithstanding the foregoing, each Unsecured Creditor shall have the
right to elect to receive cash equal to $8.889 for each share of
Class B Common otherwise allocable to it under this clause (ii). The
election of each such Person (the "Electing Party") must be made on
or before the date fixed by the Bankruptcy Court for voting with
respect to the Plan; provided, however, that in the event that such
elections of all Electing Parties aggregate to more than $100
million, then (A) the amount of cash so paid shall be limited to $100
million and (B) the Electing Parties shall each receive proportionate
amounts of cash and Class B Common in accordance with the Plan.
Subject to the foregoing proviso, Investor shall increase the
Investment by the amount necessary to pay all Electing Parties the
cash amounts payable to them under this clause (ii) in respect of the
shares of Class B Common specified in their elections and, upon
payment of such amounts, such shares shall be issued to Investor
without further consideration. Notwithstanding the foregoing,
Investor's acquisition of shares of Class B Common pursuant to this
clause (ii) shall, if permitted by applicable securities and other
laws, be consummated immediately after the issuance of such shares to
the Electing Parties on the Effective Date. If such shares are not
so acquired post-consummation of the Plan, all shares of Class B
Common acquired by Investor pursuant to this clause (ii) shall, for
all purposes hereof, be deemed to be part of the Securities acquired
by Investor hereunder.
(iii) Equity Holders. The Equity Holders (or a trust created
for their benefit) shall be issued 2,250,000 shares. In addition,
the Equity Holders shall have the right to purchase up to 1,615,179
shares allocable to Investor pursuant to clause (i) above at $8.889
per share. Such election must be made by each Equity Holder
on or before the date fixed by the Bankruptcy Court for voting with
respect to the Plan. The Plan shall set forth the terms and
conditions on which the foregoing rights may be exercised.
(iv) GPA. 900,000 shares shall be issued to GPA.
(3) Warrants. There shall be Warrants to purchase 10,384,615 shares
of Class B Common at the exercise price as specified in and subject to
the terms of Exhibit A hereto, and such Warrants shall, in accordance
with the Plan, be issued as follows:
(i) Warrants to purchase up to 2,769,231 shares of Class B Common
shall be issued to Investor; and
(ii) Warrants to purchase up to 6,230,769 shares of Class B
Common shall be issued to the Equity Holders or a trust or trusts
created for their benefit; and
(iii) Warrants to purchase up to 1,384,615 shares of Class B
Common shall be issued to GPA.
(4) Senior Unsecured Notes. Investor shall, in accordance with the
Plan and subject to the terms of Exhibit B hereto, be issued $100 million
principal amount of Notes against payment in cash of not less than 100%
of the principal amount thereof to the Company; provided, however, that
the Company shall have the right, exercised at any time prior to the date
fixed by the Bankruptcy Court for voting with respect to the Plan, to
increase the principal amount of the Notes to be so purchased by Investor
to up to $130 million. GPA shall, in accordance with the Plan, be issued
$30,525,000 principal amount of Notes; provided, however, that GPA shall
have the right to elect to receive cash in lieu of all or any portion of
the Notes otherwise issuable to it under this paragraph (4), such
election to be made on or before the date fixed by the Bankruptcy Court
for voting with respect to the Plan.
(b) Holders of the Class A Common shall have fifty votes per
share. Holders of Class B Common shall have one vote per share. Holders of
Class A Common and holders of Class B Common shall vote together as a single
class except as otherwise required by law or the provisions of this Agreement.
Investor may elect, with respect to any shares of Class B Common held by it,
to suspend the voting rights relating to such shares by giving prior written
notice to the Company, which notice shall describe such shares in reasonable
detail and state whether or not the voting suspension is permanent or
temporary and, if temporary, specify the period thereof.
(c) Neither Investor nor any Affiliate of Investor or of any
partner of Investor will transfer or otherwise dispose of any Common Stock
(other than to an Affiliate of the transferor) if, after giving effect thereto
and to any concurrent transaction, the total number of shares of Class B
Common beneficially owned by the transferor is less than 200% of the total
number of shares of Class A Common beneficially owned by the transferor;
provided, however, than nothing in this paragraph (c) shall prohibit any
Person from transferring or otherwise disposing, in a single transaction or a
series of concurrent transactions, of all shares of Common Stock owned by
such Person.
SECTION 5. Business Alliance Agreements. Continental and the
Company shall enter into mutually acceptable business alliance agreements on
the Effective Date, which agreements may include, but shall not be limited to,
agreements to share ticket counter space, ground handling agreements,
agreements to link frequent flier programs, and combined purchasing
agreements, and schedule coordination and code sharing agreements. On the
Effective Date, Mesa shall enter into agreements with the Company extending
the existing contractual arrangements between the Company and Mesa for five
years from the Effective Date and modifying the termination provisions thereof
consistent with such extension. Such agreements with Continental and Mesa are
herein collectively referred to as the "Alliance Agreements".
SECTION 6. Governance Agreements. On the Effective Date, the
Company, Investor and Investor's partners (other than any such partner holding
shares of Class B Common the voting rights with respect to which have been
suspended as contemplated by Section 4(b)) shall enter into one or more
written agreements (the "Governance Agreements") effectively providing as
follows:
(a) At all times during the three-year period commencing on the
Effective Date, the Company's board of directors shall consist of 15
members designated as follows:
(i) nine members (at least 8 of whom are U.S. citizens) shall be
designated by Investor, with certain of the partners of Investor
having the right to designate certain of Investor's designated
directors;
(ii) three members (at least two of whom are U.S. citizens)
shall be designated by the Creditors' Committee; provided that each
such member shall be reasonably acceptable to Investor at the time of
his or her initial designation;
(iii) one member shall be designated by the Equity Committee;
provided that such member shall be a U.S. citizen reasonably
acceptable to Investor at the time of his or her initial designation;
(iv) one member shall be designated by the Company's board of
directors as constituted on the date preceding the Effective Date;
provided that such member shall be a U.S. citizen reasonably
acceptable to Investor at the time of his or her initial designation;
and
(v) one member shall be designated by GPA for so long as GPA
shall own at least 2% of the voting equity securities of the Company;
provided that such member shall be reasonably acceptable to Investor
at the time of his or her initial designation.
The directors (and their successors) referred to in clauses (ii), (iii)
and (iv) above are hereinafter referred to collectively as the
"Independent Directors".
(b) In the case of the death, resignation, removal or disability of
an Independent Director after the Effective Date, his or her successor
shall be designated by the Stockholder Representatives, except that if
such Independent Director was initially designated by the Creditors'
Committee or the Equity Committee and if, at the time of such Independent
Director's death, resignation, removal or disability (as the case may
be), the Creditors' Committee or the Equity Committee (as the case may
be) remains in effect, the successor to such Independent Director shall
be designated by the Creditors' Committee or the Equity Committee (as the
case may be). As used herein, "Stockholder Representatives" shall mean,
collectively, (A) one individual who, on the date hereof, is serving as a
director of the Company, (B) one individualwho, on the date hereof, is
serving as a member of the Creditors' Committee and (C) one individual
who, on the date hereof, is serving as a member of the Equity Committee.
The initial Stockholder Representatives shall be selected on or before
the Effective Date (x) by the Company's board of directors in the case of
the individual referred to in clause (A) above, (y) by the Creditors'
Committee in the case of the individual referred to in clause (B) above
and (z) by the Equity Committee in the case of the individual referred to
in clause (C) above. In case of the death, resignation, removal or
disability of a Stockholder Representative after the Effective Date, his
or her successor shall be designated by the remaining Stockholder
Representatives.
(c) Until the third anniversary of the Effective Date, Investor will
vote and cause to be voted all shares of Common Stock (other than those
the voting rights of which have been suspended) owned by Investor or any
of its partners or by the assignees or transferees of all or
substantially all of the Common Stock owned by Investor or any of its
partners (other than a Person who acquires such stock pursuant to a
tender or exchange offer open to all stockholders of the Company) in
favor of the election as directors of any and all individuals designated
for such election as contemplated by clauses (ii), (iii), (iv) and (v) of
paragraph (a) above.
(d) No director nominated by Investor shall be an officer or employee
of Continental. All Company directors, if any, who are selected by, or
who are directors of, Continental shall recuse themselves from voting on,
or otherwise receiving any confidential Company information regarding,
matters in connection with negotiations between Continental and the
Company (including, without limitation, those relating to the Alliance
Agreements) and matters in connection with any action involving direct
competition between Continental and the Company. All Company directors,
if any, who are selected by, or who are directors, officers or employees
of, Mesa shall recuse themselves from voting on, or otherwise receiving
any confidential Company information regarding, matters in connection
with negotiations between Mesa and the Company (including, without
limitation, those relating to the Alliance Agreements) and matters in
connection with any action involving direct competition between Mesa and
the Company.
(e) During the three-year period commencing on the Effective Date,
the Company will not consummate any Business Combination unless such
transaction shall be approved in advance by at least three Independent
Directors or by a majority of the stock voted at the meeting held to
consider such transaction which is owned by stockholders of the Company
other than Investor or any of its Affiliates; provided, however, that
neither Mesa nor any fund or account managed or advised by Fidelity
Management Trust Company or its Affiliates (or any of their
non-Affiliated transferees) will be deemed an Affiliate of Investor for
purposes of voting on any Business Combination involving Continental.
SECTION 7. Plan of Reorganization. The Plan shall (i) be proposed
jointly by the Company and Investor, (ii) contain terms and conditions
reasonably satisfactory to Investor and the Company, and (iii) include the
following provisions; provided that Investor and the Company may, by mutual
agreement, modify the Plan or otherwise restructure the Investment in a manner
consistent with the contemplated economic consequences to the Company,
Investor, the Unsecured Parties and GPA in order to enable the Company, as
reorganized, to more fully utilize its existing tax attributes:
(a) Debtor-in-Possession Financing. The Company's
debtor-in-possession financing shall be repaid in full in cash on the
Effective Date.
(b) Administrative Claims. All allowed administrative claims shall
be paid as required pursuant to Section 1129(a) of the Bankruptcy Code,
provided that such claims do not exceed the amount set forth in Plan R-2
plus $15 million, and provided further that payment of such claims in
excess of those set forth in Plan R-2 would not, if payment was to be
made in the month immediately preceding the Effective Date, cause the
Company to fail to meet any of the Monthly Targets for such month.
(c) Tax Claims. All priority tax claims shall be paid over the
maximum term permitted by the Bankruptcy Code, as determined by the
Bankruptcy Court, with interest accruing at a rate determined by the
Bankruptcy Court, provided that such claims do not exceed the amounts set
forth in Plan R-2 plus $8.5 million, and provided further that payment of
such claims in excess of those set forth in Plan R-2 would not, if
payment was to be made in the month immediately preceding the Effective
Date, cause the Company to fail to meet any of the Monthly Targets for
such month.
(d) Nontax Priority Claims. All nontax priority claims shall be paid
as required pursuant to Section 507 of the Bankruptcy Code, provided that
such claims do not exceed the amounts set forth in Plan R-2.
(e) Secured Claims. Secured debt claims shall be treated as provided
in Plan R-2 subject to (i) modification based on updated appraisals of
collateral values to be conducted by the Company and consistent with the
applicable provisions of the Bankruptcy Code, or (ii) such other terms as
shall be reasonably satisfactory to the Company and Investor.
(f) Unsecured Creditors. In consideration for the shares and cash
issued or paid, as the case may be, to the Unsecured Creditors pursuant
to Section 4(a)(2)(ii), the unsecured claims of the Unsecured Creditors
shall be cancelled as specified in the Plan.
(g) Equity Holders. In consideration for (A) the right to purchase
shares pursuant to Section 4(a)(2)(iii), (B) the shares issued to the
Equity Holders pursuant to Section 4(a)(2)(iii), and (C) the Warrants
issued to the Equity Holders pursuant to Section 4(a)(3)(ii), the equity
interests of the Equity Holders shall be cancelled as specified in the
Plan.
(h) Leases. All aircraft leases which have been assumed prior to the
date hereof will be honored by the Company in accordance with their terms
and without reduction of rentals thereunder, provided that with the
consent of the Company, Investor and any applicable lessor, any such
lease may be amended to reduce the rentals payable thereunder, it being
understood that, in consideration of any such amendment and with the
consent of the Creditors' Committee, securities of the Company may be
issued to such lessors from securities otherwise allocable to the
Unsecured Parties to the extent consistent with any agreement in writing
entered into by Investor and the Equity Committee on or before the date
hereof.
(i) Kawasaki. The contractual right of Kawasaki Leasing
International Inc. ("Kawasaki") to require the Company to lease certain
aircraft and aircraft engines shall be modified on terms satisfactory to
the Company, Investor and Kawasaki or, in the absence of such
modification, honored.
(j) GPA. In consideration for (A) the shares issued to GPA pursuant
to Section 4(a)(2)(iv), (B) the Warrants issued to GPA pursuant to
Section 4(a)(3)(iii), (C) the Notes and cash issued or paid, as the case
may be, to GPA pursuant to Section 4(a)(4) and (D) the granting to GPA on
the Effective Date of the right (the "New GPA Put") to require the
Company to lease from GPA on or prior to June 30, 1999, up to eight
aircraft of types consistent with the fleet currently operated by the
Company, GPA shall, as specified in the Plan, cancel and waive all rights
to put any aircraft to the Company which it may have pursuant to the Put
Agreement between GPA and the Company, dated as of June 25, 1991 (the
"GPA Put Agreement") and/or the related Agreement Regarding Rights of
First Refusal for A320 Aircraft, dated as of September 1, 1992 (the
"First Refusal Agreement") and all other claims of any kind or nature
arising out of or in connection with the GPA Put Agreement and/or the
First Refusal Agreement (other than claims for reimbursement of expenses
incurred by GPA in connection therewith). Each such lease shall provide
for the payment by the Company of a fair market rental (determined at or
about the time of delivery of the related aircraft to the Company on the
basis of rentals then prevailing in the marketplace for comparable leases
of comparable aircraft to lessees of comparable creditworthiness); and
each such lease shall have such other terms and provisions and be in such
form as is agreed upon by the Company and GPA with the approval of
Investor (which approval shall not be unreasonably withheld or delayed)
and attached to the agreement pursuant to which GPA is granted the New
GPA Put.
(k) Prepetition Aircraft Purchase Contracts. The prepetition
contract for the purchase of aircraft between the Company and The Boeing
Company shall either be modified on terms satisfactory to Investor, the
Company and The Boeing Company or, in the absence of such agreement,
rejected. The Company's aircraft purchase contract with AVSA, S.A.R.L.
("Airbus") shall be amended on terms consistent with the provisions of
the AmWest - A320 Term Sheet, dated as of February 23, 1994 by and
between Investor and Airbus.
(l) Employees. The Company shall have the right to release employees
from all currently existing obligations to the Company in respect of
shares of Company stock purchased by such employees pursuant to the
Company's stock purchase plan, such release to be in consideration for
the cancellation of such shares.
(m) Exculpation. The Plan will contain customary exculpation
provisions for the benefit of the Creditors' Committee and the Equity
Committee and their respective professionals.
SECTION 8. Conditions to Investor's Obligations Relating to the
Investment. The obligations of Investor to consummate the Investment and the
other transactions contemplated herein shall be subject to the satisfaction,
or the written waiver by Investor, of the following conditions:
(a) an initial order approving the Procedures Agreement, which order
shall be in form and substance reasonably satisfactory to Investor (the
"Initial Order"), shall have been entered by the Bankruptcy Court on or
prior to May 6, 1994 and, once entered, shall be in effect and shall not
be modified in any material respect or stayed;
(b) subject to Section 10(b), the Company and Investor,
as applicable, shall have received all Regulatory Approvals, which shall have
become final and nonappealable or any period of objection by Regulatory
Authorities shall have expired, as applicable, and all other material
approvals, permits, authorizations, consents, licenses and agreements from
other third parties that are necessary or appropriate to permit the Investment
and the other transactions contemplated hereby and by the Related Agreements
and to permit the Company to carry on its business after the Effective Date in
a manner consistent in all material respects with the manner in which it was
carried on prior to the Effective Date (collectively with Regulatory
Approvals, the "Approvals"), which Approvals shall not contain any condition
or restriction that, in Investor's reasonable judgment, materially impairs the
Company's ability to carry on its business in a manner consistent in all
material respects with prior practice or as proposed to be carried on by the
reorganized Company;
(c) the certificate of incorporation and bylaws of the Company shall
contain the terms contemplated by this Agreement and shall otherwise be
reasonably satisfactory to Investor;
(d) there shall be in effect no injunction, stay, restraining order
or decree issued by any court of competent jurisdiction, whether foreign
or domestic, staying the effectiveness of any of the Approvals, the
Initial Order or the Confirmation Order, and there shall not be pending
any request or motion for any such injunction, stay, restraining order or
decree; provided, however, that the foregoing condition shall not apply
to any such injunction, stay, order or decree requested, initiated or
supported by Investor or any of its partners or other Affiliates or to
any such request or motion made, initiated or supported by Investor or
any its partners or other Affiliates;
(e) there shall not be threatened or pending any suit, action,
investigation, inquiry or other proceeding (collectively, "Proceedings")
by or before any court of competent jurisdiction or Regulatory Authority
(excluding the Company's bankruptcy case, but including adversary
proceedings and contested matters in such bankruptcy case, and excluding
any such Proceedings fully and accurately disclosed by the Company in
Schedule I hereto), or any adverse development occurring since December
31, 1993 in any such Proceedings, which Proceedings or development,
singly or in the aggregate, in the good faith judgment of Investor, are
reasonably likely to have a material adverse effect on the Company's
ability to carry on its business in a manner consistent in all material
respects with prior practices or are reasonably likely to impair in any
material respect Investor's ability to realize the intended benefits and
value of this Agreement, the Procedures Agreement or any Related
Agreement; provided, however, that the foregoing condition shall not
apply to any such Proceeding or development requested, initiated or
supported by Investor or any of its partners or other Affiliates;
(f) the Company shall have delivered to Investor appropriate closing
documents, including the instruments evidencing the Securities being
issued to Investor, certifications of the Company officers (including,
but not limited to, incumbency certificates, and certificates as to the
truth and correctness of statements made in the Disclosure Statement or
any other offering document distributed in connection with any securities
issued in respect of this Agreement or the Related Agreements) and
opinions of legal counsel, all of which shall be reasonably satisfactory
to Investor;
(g) by no later than March 31, 1994, the Company shall have delivered
to Investor audited financial statements as of December 31, 1993, and for
the year then ended, which statements shall reflect a financial
performance and a financial position of the Company consistent in all
material respects with the unaudited results previously announced by the
Company for such year, and, if requested by Investor, the Company shall
have discussed such financial statements with Investor and provided an
opportunity for Investor to discuss such financial statements with the
Company's auditors;
(h) since December 31, 1993, except for the matters disclosed in
Schedule I hereto, no material adverse change in the Company's condition
(financial or otherwise), business, assets, properties, operations or
relations with employees or labor unions shall have occurred and no
matter (except for the matters disclosed in Schedule I hereto) shall have
occurred or come to the attention of Investor that, in the reasonable
judgment of Investor, is likely to have any such material adverse effect;
(i) the following shall be true in all material respects (in each
case based on the Company's actual monthly or daily financial statements,
which shall be prepared by the Company in a manner consistent in all
material respects with its historical monthly and daily financial
statements previously furnished to Investor): (A) the Company's actual
monthly Operating Cash Flow (as defined on the Monthly Targets Schedule)
shall not, in any month, be less than the minimum amount therefor
established as part of the Monthly Targets, (B) the Company's actual 4
month Rolling Cash Flow (as defined on the Monthly Targets Schedule)
shall not be less, as of the end of any four calendar month period, than
the minimum amount therefor established as part of the Monthly Targets,
(C) the Company's actual end of month Reported Cash Balance (as defined
in the Monthly Targets Schedule) shall not, as of the end of any calendar
month, be less than the minimum amount therefor established as part of
the Monthly Targets, (D) the Company's actual five-day average Minimum
Cash Balance (as defined in the Monthly Targets Schedule) shall not be,
as of the end of any five day period, less than the minimum amount
therefor established as part of the Monthly Targets; (E) the Company
shall not have taken any actions which the Company knew or reasonably
should have known would likely impair or hinder in any material respect
the Company's ability to achieve the Projections; (F) the amount and
nature of the obligations and liabilities (including, without limitation,
tax liabilities and administrative expense claims) required to be
paid by the Company on the Effective Date or to be paid by the Company
following the Effective Date pursuant to obligations assumed by the Company
during the course of its bankruptcy proceedings shall not be in excess of
the amounts reflected in Plan R-2 plus any additional allowances provided
in Section 7 (as reduced by any repayments of the existing debtor-in-
possession loan made on or prior to the Effective Date) and shall not be
materially different in nature than those specified in Plan R-2 (except
with respect to administrative claims not known to the Company when Plan
R-2 was developed); and (G) the Company shall have paid all fees and
expenses due Investor under the Procedures Agreement;
(j) since the date hereof, there shall have occurred no outbreak or
escalation of hostilities or other international or domestic calamity,
crisis or change in political, financial or economic conditions or other
adverse change in the financial markets that impairs (or could reasonably
be expected to impair) in any material respect the Company's ability to
carry on its business in a manner consistent in all material respects
with prior practice or impairs (or could reasonably be expected to
impair) in any material respect Investor's ability to realize the
intended benefits and value of this Agreement or any Related Agreement;
(k) the Related Agreements, including all Alliance Agreements, to be
executed by the Company shall have been executed by the Company on or
before the Effective Date and, once executed, shall not have been
modified without the consent of Investor, shall be in effect and shall
not have been stayed;
(l) the Company shall have performed in all material respects all
obligations on its part required to be performed on or before the
Effective Date under this Agreement, the Procedures Agreement and the
Related Agreements and all orders of the Bankruptcy Court in respect
thereof that are consistent with the provisions of such intruments;
(m) all representations and warranties of the Company under this
Agreement, the Procedures Agreement and the Related Agreements shall be
true in all material respects as of the Effective Date;
(n) the Plan and Disclosure Statement each shall have been filed by
the Company on or prior to May 15, 1994, and, once filed, shall have been
served by the Company on all appropriate parties and, once served, shall
not have been modified in any material respect without the prior consent
of Investor (which consent shall not be unreasonably withheld), withdrawn
by the Company or dismissed;
(o) the Disclosure Statement (in the form approved by the Bankruptcy
Court and as amended or supplemented, if applicable) shall have been true
and correct in all material respects as of the date first mailed to
Unsecured Parties and as of the date fixed by the Bankruptcy Court for
voting on the Plan and such Disclosure Statement shall not contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein (taken as a
whole), in light of the circumstances under which they were made, not
misleading; provided, however, that the foregoing condition shall not
apply to statements or other information furnished or provided by
Investor or any of its Affiliates for use in the Disclosure Statement;
(p) the order approving the Disclosure Statement shall have been
entered by the Bankruptcy Court on or prior to June 30, 1994, and, once
entered, shall not have been modified in any material respect, shall be
in effect and shall not have been stayed;
(q) the Plan (including all securities of the Company to be issued
pursuant thereto and all contracts, instruments, agreements and other
documents to be entered into in connection therewith), the Disclosure
Statement and the Confirmation Order shall be consistent with the terms
of this Agreement and otherwise reasonably satisfactory in form and
substance to Investor;
(r) the Confirmation Order shall have been entered by the Bankruptcy
Court in form reasonably satisfactory to Investor on or before August 15,
1994, and, once entered, shall not have been modified in any material
respect, shall be in effect and shall not have been stayed and shall not
be subject to any appeal;
(s) the Effective Date shall have occurred on or prior to the Outside
Date unless the reason therefor shall be attributable to the breach by
Investor or its Affiliates of any of their respective representations,
warranties, covenants or obligations contained herein or in the
Procedures Agreement or any Related Agreement;.
(t) either pursuant to the Confirmation Order or otherwise, the
Bankruptcy Court shall have established one or more bar dates for
administrative expense claims pursuant to an order reasonably acceptable
to Investor, which bar date or dates shall occur on or before dates
reasonably acceptable to Investor; and
(u) the Securities and Exchange Commission shall have declared
effective a shelf registration statement with respect to the Securities
issuable to Investor.
In the event any of the conditions set forth in clause (a) (n), (p) or (r) is
not satisfied by the date specified in such clause (the "Deadline"), then, on
the 15th day following the then current Deadline, the Deadline shall be
automatically extended on a day-to-day basis unless the Company and Investor
otherwise agree in writing or unless Investor gives a notice of termination to
the Company pursuant to Section 20(b) of the Procedures Agreement within such
15-day period. If any Deadline is automatically extended as aforesaid,
Investor may thereafter establish a new Deadline by giving notice to the
Company specifying the new Deadline, provided that the new Deadline may not be
sooner than 30 days after the date of such notice.
SECTION 9. Conditions to Company's Obligations Relating to
Investment. The Company's obligations to consummate or to cause the
consummation of the issuance and sale of the Securities and the other
transactions contemplated by this Agreement shall be subject to the
satisfaction, or to the effective written waiver by the Company, of the
condition described in Section 8(b) and the following additional conditions:
(a) payment of the Purchase Price;
(b) Investor shall have delivered to the Company appropriate closing
documents, including, but not limited to, executed counterparts of the
Related Agreements and certifications of officers, and opinions of legal
counsel, all of which shall be reasonably satisfactory to the Company;
(c) there shall be in effect no injunction, stay, restraining order
or decree issued by any court of competent jurisdiction, whether foreign
or domestic, staying the effectiveness of any of the Approvals, the
Initial Order or the Confirmation Order, and there shall not be pending
any request or motion for any such injunction, stay, restraining order or
decree; provided, however, that the foregoing condition shall not apply
to any such injunction, stay, order or decree requested, initiated or
supported by the Company or to any such request or motion made, initiated
or supported by the Company;
(d) the Related Agreements to be executed by Investor or any of its
partners shall have been executed by such parties on or before the
Effective Date and, once executed, shall not have been modified without
the consent of the Company, shall be in effect and shall not have been
stayed;
(e) Investor, Continental and Mesa shall have performed in all
material respects all obligations on their part required to be performed
on or before the Effective Date under this Agreement, the Procedures
Agreement and the Related Agreements and all orders of the Bankruptcy
Court in respect thereof that are consistent with the provisions of such
instruments;
(f) all representations and warranties of Investor, Continental and
Mesa under this Agreement, the Procedures Agreement and the Related
Agreements shall be true and correct in all material respects as of the
Effective Date;
(g) the Company shall be reasonably satisfied that the Alliance
Agreements, when fully implemented, shall result in an increase to the
Company's pretax income of not less than $40 million per year; provided,
however, that Investor shall have no liability for any failure of the
Company to achieve any such increase in net income except to the extent
such failure results from a default by Investor or its partners pursuant
to the terms of such Alliance Agreements;
(h) since the date hereof, there shall have occurred (A) no outbreak
or escalation of hostilities or other international or domestic calamity,
crisis or change in political, financial or economic conditions or other
adverse change in the financial markets or (B) any adverse change in the
condition (financial or otherwise), business, assets, properties or
prospects of Continental or Mesa, in each case that materially
impairs the ability of either Continental or Mesa to perform its
obligations under the Alliance Agreements or the Company's ability to
realize the intended benefits and value of this Agreement, the Alliance
Agreements (as contemplated by clause (g) above) or the other Related
Agreements;
(i) since the time of their initial filing by the Company, neither
the Plan nor the Disclosure Statement shall have been modified in any
material respect without the prior consent of the Company (which consent
shall not be unreasonably withheld or delayed), withdrawn by Investor or
dismissed;
(j) the certificate of incorporation and bylaws of the Company shall
contain the terms contemplated by this Agreement and shall otherwise be
reasonably satisfactory to the Company;
(k) the Plan (including all Securities to be issued pursuant thereto
and all contracts, instruments, agreements and other documents to be
entered into in connection therewith), the Disclosure Statement and the
Confirmation Order shall be consistent with the terms of this Agreement
and otherwise reasonably satisfactory in form and substance to the
Company;
(l) the Confirmation Order shall have been entered by the Bankruptcy
Court in form reasonably acceptable to the Company and, once entered,
shall not have been modified in any material respect, shall be in effect
and shall not have been stayed and shall not be subject to any appeal;
and
(m) the Effective Date shall have occurred on or prior to the Outside
Date unless the reason therefor shall be attributable to the breach by
the Company of any of its representations, warranties, covenants or
obligations contained herein or in the Procedures Agreement or any
Related Agreement.
SECTION 10. Cooperation. (a) The Company and Investor will
cooperate in a commercially reasonable manner, and will use their respective
commercially reasonable efforts, to consummate the transactions contemplated
hereby, including all commercially reasonable efforts to satisfy the
conditions specified in this Agreement. The Company will use commercially
reasonable efforts, and Investor will cooperate in a commercially reasonable
manner in seeking, to obtain all Approvals.
(b) Notwithstanding anything in Section 8 or 9 to
the contrary, if prior to the Outside Date, the Department of Justice or any
other Regulatory Authority raises any antitrust objection to the consummation
of the Investment or the implementation of any Alliance Agreement, which
objection has not been resolved on or before the Outside Date, Investor
nevertheless shall be required to consummate the Investment and, to that end,
agrees to timely make such adjustment to the composition of its partnership
and to the Alliance Agreements as required to resolve such antitrust
objection; provided, however, that nothing in this paragraph (b) shall affect
the rights of the Company under Section 9(g) or obligate the Company to enter
into or approve any adjustment or modification of the Alliance Agreements
which, in the Company's reasonable judgment, is prejudicial to the Company or
the Unsecured Parties in any material respect and which, if entered into or
approved, would materially impair the Company's ability to realize the
reasonably anticipated benefits of such Alliance Agreements.
SECTION 11. Registration Rights Agreement. Investor and the
Company will enter into a registration rights agreement on terms acceptable to
Investor and the Company. The registration rights agreement will reflect the
understanding of the parties with respect to their registration rights and
obligations and will provide that Investor, its partners and any assignees and
transferees, shall have the right to cause the Company to (i) include the
Securities issuable to Investor pursuant to the Plan (including any such
Securities issued or issuable in respect of the Warrants or by way of any
stock dividend or stock split or in connection with any combination of shares,
merger, consolidation or similar transaction), on customary terms, in
"piggyback" underwritings and registrations and (ii) to effect, on customary
terms, one demand registration under the Securities Act for the public
offering and sale of the Securities issued to Investor under the Plan at any
time after the third anniversary of the Effective Date.
SECTION 12. Applicable Provisions of Law and Regulations. It is
understood and agreed that this Agreement shall not create any obligation of,
or restriction upon, the Company or Investor or the partners of Investor that
would violate applicable provisions of law or regulation relating to ownership
or control of a U.S. air carrier. At all times after the Effective Date, the
certificate of incorporation of the Company shall provide that, in the event
persons who are not U.S. citizens shall own (beneficially or of record) or
have voting control over shares of Common Stock, the voting rights of such
persons shall be subject to automatic suspension as required to ensure that
the Company is in compliance with applicable provisions of law or regulation
relating to ownership or control of a U.S. air carrier.
SECTION 13. Representations and Warranties of the Company. The
Company represents and warrants to Investor as follows:
(a) The Company has complied in all material respects with the terms
of all orders of the Bankruptcy Court in respect of the Investment, this
Agreement and the Procedures Agreement.
(b) The Company has delivered to Investor copies of the audited
balance sheets of the Company as of December 31, 1992 and the statements
of income, stockholders' equity and cash flows for the years then ended,
together with the notes thereto. Such financial statements, and when
delivered to Investor the financial statements of the Company referred to
in Section 8(g) will, present fairly, in accordance with generally
accepted accounting principles (applied on a consistent basis except as
disclosed in the footnotes thereto), the financial position and results
of operations of the Company as of the dates and for the periods therein
set forth.
(c) When delivered to Investor, the unaudited financial statements of
the Company referred to in Section 15(b)(ii) will (i) present fairly, in
accordance with generally accepted accounting principles (applied on a
consistent basis except as disclosed therein and subject to normal
year-end audit adjustments), the financial position and results of
operations of the Company as of the date and for the period therein set
forth, it being understood and agreed, however, that the foregoing
representation relating to conformity with generally accepted accounting
principles is being made only to the extent such principles are
applicable to interim unaudited reports and (ii) reflect a financial
position and results of operations not materially worse than those set
forth in the pro forma financial statements contained in Plan 9.
(d) The Projections and the Monthly Targets were prepared in good
faith on a reasonable basis, and when prepared represented the Company's
best judgment as to the matters set forth therein, taking into account
all relevant facts and circumstances known to the Company. Nothing has
come to the Company's attention since the dates on which the Projections
and the Monthly Targets, respectively, were prepared which causes the
Company to believe that any of the projections and other information
contained therein were misleading or inaccurate in any material respect
as of such dates. It is specifically understood and agreed that the
delivery of the Projections and the Monthly Targets shall not be regarded
as a representation, warranty or guarantee that the particular results
reflected therein will in fact be achieved or are likely to be achieved.
(e) No written statement, memorandum, certificate, schedule or other
written information provided (or to be provided) to Investor or any of
its representatives by or on behalf of the Company in connection with the
transactions contemplated hereby, when viewed together with all other
written statements and information provided to Investor and its
representatives by or on behalf of the Company, in light of the
circumstances under which they were made, (i) contains or will contain
any materially misleading statement or (ii) omits or will omit to state
any material fact necessary to make the statements therein not
misleading.
(f) The board of directors of the Company has approved the Investment
and Investor's acquisition of Securities hereunder for purposes of, and
in accordance with the provisions and requirements of, Section 203(a)(1)
of the General Corporation Law of the State of Delaware and, as a
consequence, Investor will not be subject to the provisions of such
Section with respect to any "business combination" between Investor and
the Company (as such term is defined in said Section 203).
SECTION 14. Representations and Warranties of Investor. Investor
represents and warrants to the Company as follows:
(a) The general and limited partners of Investor (other than one such
partner which will elect to suspend the voting rights of its Securities
as contemplated by Section 4(b)) are U.S. citizens within the meaning of
Section 101(16) of the Federal Aviation Act of 1958, as amended.
(b) Investor has, or has commitments for, sufficient funds to pay the
Purchase Price and otherwise perform its obligations under this
Agreement.
(c) No written statement, memorandum, certificate, schedule or other
written information provided (or to be provided) to the Company or any of
its representatives by or on behalf of Investor in connection with the
transactions contemplated by the Alliance Agreements, when viewed
together with all other written statements and information provided to
the Company and its representatives by or on behalf of Investor, in light
of the circumstances under which they were made, (i) contains or will
contain any materially misleading statement or (ii) omits or will omit to
state any material fact necessary to make the statements therein not
misleading.
SECTION 15. Covenants. (a) Investor covenants (i) to support,
subject to management's recommendation, increases in employee compensation
through 1995 at least equal to those set forth in Plan R-2 and (ii) after the
Effective Date, to cause the board of directors of the Company to consider
implementation of a broad based employee incentive compensation plan and a
management stock incentive plan.
(b) The Company covenants (i) to use commercially reasonable
efforts to cause the shelf registration statement referred to in Section 8(u)
to remain effective for three years following its effective date and (ii) as
soon as available, to deliver to Investor a copy of the unaudited balance
sheet of the Company as of the end of each fiscal quarter of the Company prior
to the Effective Date and the unaudited statements of income and cash flows
for the periods then ended.
SECTION 16. Certain Taxes. The Company shall bear and pay all
transfer, stamp or other similar taxes (if any are not exempted under Section
1146 of the Bankruptcy Code) imposed in connection with the issuance and sale
of the Securities.
SECTION 17. Administrative Expense. All amounts owed to Investor
or its assignees by the Company under this Agreement, the Related Agreements,
the Procedures Agreement and all orders of the Bankruptcy Court in respect
thereof shall be treated as an allowed administrative expense priority claim
under Section 507(a)(1) of the Bankruptcy Code.
SECTION 18. Incorporation by Reference. The provisions set forth
in the Procedures Agreement, including, but not limited to, the provisions
regarding confidentiality, liability indemnity and termination, are hereby
incorporated by reference and such provisions shall have the same force and
effect herein as if they were expressly set forth herein in full.
SECTION 19. 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 to the parties at
the following addresses or facsimile numbers:
If to the Company: America West Airlines, Inc. 4000 East Sky
Harbor Boulevard Phoenix, Arizona 85034
Attention: William A. Franke and
Martin J. Whalen Fax Number: (602) 693-5904
with a copy to: LeBoeuf, Lamb, Greene & MacRae
633 17th Street, Suite 2800 Denver, Colorado
80202
Attention: Carl A. Eklund Fax Number: (303)
297-0422
and a copy to: Andrews & Kurth L.L.P. 4200 Texas Commerce Tower
Houston, Texas 77002 Attention: David G.
Elkins Fax Number: (713) 220-4285
and a copy to: Murphy, Weir & Butler
101 California Street, 39th Floor
San Francisco, California 94111
Attention: Patrick A. Murphy
Fax Number: (415) 421-7879
and a copy to: Lord, Bissell and Brook 115 South LaSalle Street
Chicago, IL 60603
Attention: Benjamin Waisbren
Fax Number: (312) 443-0336
If to Investor: AmWest Partners, L.P. 201 Main Street, Suite
2420 Fort Worth, Texas 76102 Attention:
James G. Coulter Fax Number: (817) 871-4010
with a copy to: Arnold & Porter
1200 New Hampshire Ave., N.W. Washington, D.C.
20036
Attention: Richard P. Schifter
Fax Number: (202) 872-6720
and a copy to: Jones, Day, Reavis & Pogue
North Point 901 Lakeside Avenue
Cleveland, Ohio 44114
Attention: Lyle G. Ganske
Fax Number: (216) 586-7864
and a copy to: Goodwin, Procter &Hoar
Exchange Place
Boston, MA 02109
Attention: Laura Hodges Taylor, P.C.
Fax Number: (617) 523-1231
and a copy to: Murphy, Weir & Butler
101 California Street, 39th Floor
San Francisco, California 94111
Attention: Patrick A. Murphy
Fax Number: (415) 421-7879
and a copy to: Lord, Bissell and Brook 115 South LaSalle Street
Chicago, IL 60603
Attention: Benjamin Waisbren
Fax Number: (312) 443-0336
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number
as provided in this Section, be deemed given upon receipt, and (iii) if
delivered by mail or by express courier in the manner described above to the
address as provided in this Section, be deemed given upon receipt (in each
case regardless of whether such notice is received by any other person to whom
a copy of such notice, request or other communication is to be delivered
pursuant to this Section). Either 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 specifying such change to the other party hereto.
SECTION 20. Governing Law. Except to the extent inconsistent with
the Bankruptcy Code, this Agreement shall in all respects be governed by and
construed in accordance with the laws of the State of Arizona, without
reference to principles of conflicts or choice of law under which the law of
any other jurisdiction would apply.
SECTION 21. Amendment. This Agreement may only be amended,
waived, supplemented or modified by a written instrument signed by authorized
representatives of Investor and the Company. Investor may extend the time for
satisfaction of the conditions set forth in Section 8 (prior to or after the
relevant date) by notifying the Company in writing. The Company may extend
the time for satisfaction of the conditions set forth in Section 9 (prior to
or after the relevant date) by notifying Investor in writing.
SECTION 22. No Third Party Beneficiary. This Agreement and the
Procedures Agreement are made solely for the benefit of the Company and
Investor and their respective permitted assigns, and no other Person
(including, without limitation, employees, stockholders and creditors of the
Company) shall have any right, claim or cause of action under or by virtue of
this Agreement or the Procedures Agreement, except to the extent such Person
is entitled to protection as contemplated by Section 28(b) or to expense
reimbursement pursuant to the Procedures Agreement or may assert a claim for
indemnity pursuant to the Procedures Agreement.
SECTION 23. Assignment. Except as otherwise provided herein,
Investor may assign all or part of its rights under this Agreement to any of
its partners (each of whom may assign all or part to its Affiliates) or to any
fund or account managed or advised by Fidelity Management Trust Company or any
of its Affiliates and may assign any Securities (or the right to purchase any
Securities) to any lawfully qualified Person or Persons, and the Company may
assign this Agreement to any Person with which it may be merged or
consolidated or to whom substantially all of its assets may be transferred in
facilitation of the consummation of the Plan and the effectuation of the
issuance and sale of the Securities as contemplated hereby or by the Related
Agreements. None of such assignments shall relieve the Company or Investor of
any obligations hereunder, under the Procedures Agreement or under the Related
Agreements.
SECTION 24. 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. With respect to signatures transmitted by telecopy, upon
request by either party to the other party, an original signature of such
other party shall promptly be substituted for its facsimile.
SECTION 25. Invalid Provisions. If any provision of this
Agreement is held to be illegal, invalid or unenforceable under any present or
future laws, rules or regulations, and if the rights or obligations of
Investor and the Company under this Agreement will not be materially and
adversely affected thereby, (a) such provision will be fully severable, (b)
this Agreement will be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof, (c) the remaining
provisions of this Agreement will remain in full force and effect and will not
be affected by the illegal, invalid or unenforceable provision or by its
severance herefrom, and (d) in lieu of such illegal, invalid or unenforceable
provision, there will be added automatically as a part of this Agreement a
legal, valid and enforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible. If the rights and
obligations of Investor or the Company will be materially and adversely
affected by any such provision held to be illegal, invalid or unenforceable,
then unless such provision is waived in writing by the affected party
in its sole discretion, this Agreement shall be null and void.
SECTION 26. Tagalong Rights. On the Effective Date, Investor shall
enter into a written agreement for the benefit of all holders of Class B
Common (other than Investor and its Affiliates) whereby Investor shall agree,
for a period of three years after the Effective Date, not to sell, in a single
transaction or 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 unless such holders shall have been given a reasonable
opportunity to participate therein on a pro rata basis and at the same price
per share and on the same economic terms and conditions applicable to
Investor; provided, however, that such obligation of Investor shall not apply
to any sale of shares of Common Stock made by Investor (i) to any Affiliate of
Investor, (ii) to any Affiliate of Investor's partners, (iii) pursuant to a
bankruptcy or insolvency proceeding, (iv) pursuant to judicial order, legal
process, execution or attachment, (v) in a widespread distribution registered
under the Securities Act of 1933, as amended ("Securities Act") or (vi) in
compliance with the volume limitations of Rule 144 (or any successor to such
Rule) under the Securities Act.
SECTION 27. Stock Legend. All securities issued to Investor
pursuant to the Plan shall be conspicuously endorsed with an appropriate
legend to the effect that such securities may not be sold, transferred or
otherwise disposed of except in compliance with (i) Section 26 and (ii)
applicable securities laws.
SECTION 28. Directors' Liability and Indemnification. (a) Upon,
and at all times after, consummation of the Plan, the certificate of
incorporation of the Company shall contain provisions which (i) eliminate the
personal liability of the Company's former, present and future directors for
monetary damages resulting from breaches of their fiduciary duties to the
fullest extent permitted by applicable law and (ii) require the Company,
subject to appropriate procedures, to indemnify the Company's former, present
and future directors and executive officers to the fullest extent permitted by
applicable law. In addition, upon consummation of the Plan, the Company shall
enter into written agreements with each person who is a director or executive
officer of the Company on the date hereof providing for similar
indemnification of such person and providing that no recourse or liability
whatsoever with respect to this Agreement, the Procedures Agreement, the
Related Agreements, the Plan or the consummation of the transactions
contemplated hereby or thereby shall be had, directly or indirectly, by or in
the right of the Company against such person. Notwithstanding anything
contained herein to the contrary, the provisions of this Section 28(a) shall
not be applicable to any person who ceased being a director of the Company at
any time prior to March 1, 1994.
(b) Investor agrees, on behalf of itself and its partners, that
no recourse or liability whatsoever (except as provided by applicable law for
intentional fraud, bad faith or willful misconduct) shall be had, directly or
indirectly, against any person who is a director or executive officer of the
Company on the date hereof with respect to this Agreement, the Procedures
Agreement, the Related Agreements, the Plan or the consummation of the
transactions contemplated hereby or thereby, such recourse and liability, if
any, being expressly waived and released by Investor and its partners as a
condition of, and in consideration for, the execution and delivery of this
Agreement.
SECTION 29. Jurisdiction of Bankruptcy Court. The parties agree
that the Bankruptcy Court shall have and retain exclusive jurisdiction to
enforce and construe the provisions of this Agreement.
SECTION 30. Interpretation. In this Agreement, unless a contrary
intention appears, (i) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Section or other subdivision and (ii) reference to any Section
means such Section hereof. The Section headings herein are for convenience
only and shall not affect the construction hereof. No provision of this
Agreement shall be interpreted or construed against either party solely
because such party or its legal representative drafted such provision.
SECTION 31. Termination. This Agreement shall terminate
concurrently with the termination of the Procedures Agreement.
SECTION 32. Entire Agreement. The Agreement supersedes any and
all other agreements (oral or written) between the parties in respect to the
subject matter hereof other than the Procedures Agreement.
AMWEST PARTNERS, L.P.
By: AmWest Genpar, Inc.,
its General Partner
By: /s/ James G. Coulter
Title: President
Accepted and Agreed to
this 21th day of April, 1994.
AMERICA WEST AIRLINES, INC.
as Debtor and Debtor-in-Possession
By: /s/ William A. Franke
Title: Chairman
<PAGE>
PRIORITY DISTRIBUTION AGREEMENT
PRIORITY DISTRIBUTION AGREEMENT, dated as of August 25, 1994, by and
among TPG Partners, L.P., a Delaware limited partnership ("TPG Partners"), TPG
Parallel I, L.P., a Delaware limited partnership ("Parallel"), Air Partners
II, L.P., a Texas limited partnership ("APII", and, collectively with TPG
Partners and Parallel, "TPG") and Continental Airlines, Inc., a Delaware
corporation ("Continental", and collectively, the "Parties").
WHEREAS, each of the Parties owns the amounts, set forth on Exhibit "A"
attached hereto, of shares of Class A and Class B Common Stock issued by
America West Airlines, Inc. or its successor as reorganized pursuant to
Chapter 11 of the United States Bankruptcy Code;
WHEREAS, each of the Parties desires to share with the other Parties, in
the manner set forth in this Agreement, certain of the proceeds of the shares
of Class A and Class B Common Stock set forth on the attached Exhibit "A".
NOW, THEREFORE, in consideration of the premises and the mutual
representations, covenants and agreements set forth in this Agreement, the
parties agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the following meanings:
(a) "Basic Threshold Amount" shall mean the amount necessary to ensure
that Continental, from all Deemed Proceeds or actual proceeds, as the case may
be, and nonrefunded payments to Continental by TPG hereunder, has been
returned its Cost Basis in all of its Securities plus its 10% Return.
(b) "Class A Common Stock" and "Class B Common Stock" and "Warrants"
shall mean the shares of Class A common stock, Class B common stock and
warrants to acquire Class B common stock issued by America West Airlines, Inc.
(or its successor as reorganized pursuant to Chapter 11 of the United States
Bankruptcy Code, "AWA") that are reflected on Exhibit "A", as adjusted for any
sales or conversions thereof or any stock dividends or splits with respect
thereto. Any shares of Class A or Class B common stock or warrants of AWA
acquired by any of the Parties after the date of this Agreement (other than
shares of Class B common stock acquired pursuant to the exercise of Warrants)
shall not constitute shares of Class A Common Stock, Class B Common Stock or
Warrants subject to this Agreement.
(c) "Cost Basis" shall mean the per Security price set forth on Exhibit
A hereto.
(d) "Securities" shall mean collectively, the Class A Common Stock, the
Class B Common Stock and the Warrants.
(e) "Specified Percentage" shall mean 200%, provided that if the
Securities owned by Continental and TPG are either (i) covered by a currently
effective registration statement filed with the Securities and Exchange
Commission (the "SEC"), under the Securities Act of 1933 (the "Securities
Act") or (ii) all able to be sold promptly pursuant to Rule 144 promulgated by
the SEC under the Securities Act, then the Specified Percentage shall be 150%.
(f) "10% Return" shall mean the amount required to return (with either
Deemed Proceeds or actual proceeds, as the case may be) to Continental or TPG,
as the case may be, a 10% per year return (compounded annually) on the
unreturned (either with Deemed Proceeds or actual proceeds as the case may be)
Cost Basis of the Securities in question.
(g) "Value" shall mean:
(A) if Securities are listed on a national securities exchange or
on the National Market System Quotations, or are traded in the
over-the-counter market and reported in the National Association of Securities
Dealers' Automated Quotation System, the last sales price of the Securities,
on the valuation date, or in the absence of a sale on such date, the last bid
price on the valuation date; and
(B) if Securities are not listed or traded in the manner specified
in clause (A) above, the fair market value, as reasonably determined by TPG of
the Securities.
2. Proceeds from TPG Sales.
Each time that TPG sells all or any portion of its Securities ("Actually
Sold Securities"), Continental shall be deemed to sell a corresponding portion
(on a percentage basis) of its similar type of Securities ("Deemed Sold
Securities") for the same price per share as received by TPG ("Deemed
Proceeds") (with the understanding that Continental's 10% Return shall be
deemed to have continued to accrue on the Deemed Sold Securities through the
date of the deemed sale for purposes of such determination). TPG agrees to
utilize the proceeds from its Actually Sold Securities as follows:
(i) First, to pay Continental any 10% Return accrued with respect to all
of its Deemed Sold Securities and not previously returned with
Deemed Proceeds or actual sale proceeds (as applicable) or
nonrefunded prior payments by TPG hereunder;
(ii) Second, to retain amounts sufficient to receive a 10% Return accrued
with respect to all of its Actually Sold Securities and not
previously retained by TPG in connection with previous actual sales
or refunded to TPG by Continental hereunder;
(iii) Third, to pay Continental amounts, if any, necessary to ensure that
Continental has received from Deemed Proceeds or actual sale
proceeds (as applicable) and nonrefunded prior payments by TPG
hereunder both its 10% Return and its Cost Basis with respect to its
Deemed Sold Securities; and
(iv) Finally, to retain any excess.
Notwithstanding anything contained herein to the contrary, the proceeds
and timing of any actual sales of Securities by Continental shall be utilized
instead of the Deemed Proceeds and timing of the deemed sale of the
corresponding Deemed Sold Securities (i.e., the first Securities actually sold
shall be matched against the first Securities deemed sold) to the extent both
(i) actual sales preceded the deemed sales and (ii) utilization of actual
sales would reduce the amount owed by TPG hereunder or increase the amounts
refundable by Continental to TPG hereunder.
For example, assume (i) the Parties acquired their Securities on 1/1/94,
(ii) TPG acquired twice the amount of Securities as did Continental, (iii)
each Party had a Cost Basis of $10 per share and (iv) the Parties actually
sold Securities as follows:
Seller Shares Date Price per Share
1. Continental 100,000 1/1/95 $ 10
2. Continental 100,000 1/1/96 20
3. Continental 100,000 1/1/97 30
4. Continental 100,000 7/1/97 40
5. TPG 1,000,000 1/1/98 30
6. Continental 100,000 7/1/98 40
For purposes of this Agreement, Continental would be deemed to have sold the
above Securities on the sale dates and for the amounts as follows with
Continental's 10% Return accruing through the sale date utilized for purposes
of this Agreement (either actual or deemed, as the case may be) and continuing
with respect to any portion of its Cost Basis not returned with Deemed
Proceeds or actual proceeds as the case may be:
Price
Seller Shares Sale Date per Share
1. Continental 100,000 1/1/98 $30
2. Continental 100,000 1/1/98 30
3. Continental 100,000 1/1/97 30
4. Continental 100,000 7/1/97 40
5. Continental 100,000 1/1/98 30
At any time that an actual sale by TPG of its remaining Securities for
their Value would net Continental Deemed Proceeds and required payments by TPG
to Continental hereunder of less than the Specified Percentage of
Continental's Basic Threshold Amount, then Continental shall have the right to
require TPG (by written notice to TPG) to pay (and TPG shall pay) in cash,
within fifteen (15) business days, the amount which TPG would have been
required to pay pursuant to this Section 2 if TPG actually sold all of its
remaining Securities for their Value as of the date TPG receives such notice;
provided, however, that the provisions of the last sentence of this paragraph
will continue to apply if, thereafter, TPG retains any Securities. If any
amounts are paid by TPG to Continental hereunder and, upon the deemed sale of
Continental Securities, Continental has received Deemed Proceeds and payments
from TPG hereunder in excess of its 10% Return and its Cost Basis with respect
to its Deemed Sold Securities, then Continental shall within five business
days of such deemed sale repay TPG amounts paid to it to the extent of such
excess. For purposes of this Agreement, proceeds from the sale of Class B
Common Stock acquired by Continental or TPG pursuant to the exercise of
Warrants shall be determined by deducting any exercise price paid therefor and
TPG shall be entitled to first recover any such exercise price prior to any
such proceeds being subject to this Agreement.
3. Certain Rights of First Refusal. TPG shall not sell shares without
first notifying Continental. Continental shall have the right of first
refusal to purchase all (but not less than all) of the Securities ("Offered
Shares") owned by TPG that TPG has notified Continental it desires to sell
("Sale Notice"). Continental shall have the right to purchase the Offered
Shares for either (i) if such Offered Shares are not proposed to be sold on a
public exchange, on the same terms and conditions that the Offered Shares
would have been sold, or (ii) if such Offered Shares are proposed to be sold
on a public exchange, for the last sales price per share on the date on which
Continental issued its written notice described in the following sentence (or
if there were no sales on such date, the last sales price per share preceding
such date). Continental may exercise this right only if (x) it provides
written notice to each of the other Parties of its intention to do so within
five (5) business days after its receipt of the Sale Notice, and (y) it
purchases all of such Offered Shares on or before the tenth (10th) business
day following such written notice.
4. Notice.
(a) All notices, demands or requests provided for or permitted to be
given pursuant to this Agreement must be in writing.
(b) All notices, demands and requests to be sent to a Party pursuant to
this Agreement shall be deemed to have been properly given or served if: (i)
personally delivered, (ii) deposited for next day delivery by Federal Express,
or other similar, overnight courier services, addressed to such Party, (iii)
deposited in the United States mail, addressed to such Party, prepaid and
registered or certified with return receipt requested or (iv) transmitted via
telecopier or other similar device to the attention of such Party.
(c) All notices, demands and requests so given shall be deemed received:
(i) when personally delivered, (ii) twenty-four (24) hours after being
deposited for next day delivery with an overnight courier, (iii) forty-eight
(48) hours after being deposited in the United States mail or (iv) three (3)
hours after being telecopied or otherwise transmitted and receipt has been
confirmed.
(d) The Parties shall have the right from time to time, and at any time,
during the term of this Agreement, to change their respective addresses and
each shall have the right to specify as his or its address any other address
by giving to the other parties at least thirty (30) days written notice
thereof, in the manner prescribed in Section 11(b); provided, that to be
effective, any such notice must be actually received (as evidenced by a return
receipt).
5. GOVERNING LAW. THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL BE
INTERPRETED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF TEXAS.
6. Entire Agreement. This Agreement, including all exhibits to this
Agreement and, if any, exhibits to such exhibits, contains the entire
agreement among the Parties relative to the matters contained in this
Agreement.
7. Waiver. No consent or waiver by any Party to or for any breach or
default by any other party in the performance by such other party of his or
its obligations under this Agreement shall be effective unless expressly set
forth in writing or be deemed or construed to be a consent or waiver to or of
any other breach or default in the performance by such other party of the same
or any other obligations of such other party under this Agreement.
Failure on the part of any party to complain of any act or failure to act of
any of the other Parties or to declare the other Parties in default,
regardless of how long such failure continues, shall not constitute a waiver
by such Party of his or its rights hereunder.
8. Severability. If any provision of this Agreement or the application
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Agreement and the application of such provisions
to other persons or circumstances shall not be affected thereby, and the
intent of this Agreement shall be enforced to the greatest extent permitted by
law.
9. Binding Agreement. Subject to the restrictions on transfers and
encumbrances set forth in this Agreement, this Agreement shall inure to the
benefit of and be binding upon the undersigned Parties and their respective
legal representatives, successors and assigns. Whenever, in this Agreement, a
reference to any Party is made, such reference shall be deemed to include a
reference to the legal representatives, successors and assigns of such Party.
10. Captions. Captions are included solely for convenience of reference
and if there is any conflict between captions and the text of this Agreement,
the text shall control.
11. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original for all purposes and
all of which when taken together shall constitute a single counterpart
instrument. Executed signature pages to any counterpart instrument may be
detached and affixed to a single counterpart, which single counterpart with
multiple executed signature pages affixed thereto shall constitute the
original counterpart instrument. All of those counterpart pages shall be read
as though one, and they shall have the same force and effect as if all of the
Parties had executed a single signature page.
Executed to be effective as of the 25th day of August, 1994.
TPG PARTNERS, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By: /s/ Richard Ekleberry
Title: Vice President
TPG PARALLEL I, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By: /s/ Richard Ekleberry
Title: Vice President
AIR PARTNERS II, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By: /s/ Richard Ekleberry
Title: Vice President
CONTINENTAL AIRLINES, INC.
By: /s/ Barry Simon
Title: Senior Vice President
<PAGE>
<TABLE>
EXHIBIT "A"
<CAPTION>
Shares of Shares of
Class A Per Share Class B Per Share Per Warrant
Party Common Stock Cost Basis Common Stock Cost Basis Warrants Cost Basis
<S> <C> <C> <C> <C> <C> <C>
TPG 774,495 $7.01 5,012,852 $7.01 1,910,295 $2.00
Continental 325,505 $9.36 1,508,234 $9.36 802,860 $2.00
</TABLE>
8
<PAGE>
<PAGE>
TERMINATION AGREEMENT
This Termination Agreement (this "Agreement") is made
and entered into effective and dated as of August 25, 1994, by and among
AmWest Genpar, Inc., a Texas corporation ("Genpar"), Apcal, L.P., a Texas
limited partnership ("Apcal"), and Mesa Airlines, Inc., a New Mexico
corporation ("Mesa"). All capitalized terms used in this Agreement without
definition shall have the meanings assigned to them in the Limited Partnership
Agreement of AmWest Partners, L.P., dated as of March 16, 1994, as amended
(the "Partnership Agreement").
WITNESSETH:
WHEREAS, each of the parties hereto is a Partner in
AmWest Partners, L.P. (the "Partnership"), a Texas limited partnership, formed
for the purpose of investing in Securities of America West Airlines, Inc.,
including its successor as reorganized pursuant to Chapter 11 of the United
States Bankruptcy Code ("AWA");
WHEREAS, the Partnership previously has assigned to the
Partners the Partnership's rights and obligations to purchase the Securities
pursuant to notices dated August 23, 1994 and which rights and obligations
have been assumed by the Partners as provided for in such notices;
WHEREAS, the parties desire to terminate and dissolve
the Partnership and to assign to the Partners and certain affiliates of the
Partners the Securities and certain rights and obligations of the Partnership
under the Securities Agreements and certain related agreements as provided
herein; and
WHEREAS, the parties desire to delegate to Genpar the
obligations specified herein requiring Genpar to serve as agent for the
Partners for the mutual benefit of each of them.
NOW THEREFORE, in consideration of the mutual covenants
set forth herein and for other good and valuable consideration, the adequacy,
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
SECTION 1. Dissolution of the Partnership.
(a) Pursuant to Section 6.02(c) of the Partnership
Agreement, the Partnership is hereby dissolved. The execution and delivery of
this Agreement shall constitute the written consent of each Partner to the
dissolution of the Partnership pursuant to said Section 6.02(c). The rights
and obligations of
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each Partner relating to dissolution of the Partnership set forth in this
Agreement shall control any contrary provision in the Partnership Agreement.
Genpar is authorized to take all actions necessary or advisable for the
dissolution and termination of the Partnership, and each Limited Partner
constitutes and appoints Genpar, with full power of substitution, as its true
and lawful attorney-in-fact for the limited purpose of dissolution of the
Partnership and the specific obligations contemplated by this Agreement and
empowers and authorizes such attorney, in the name, place and stead of such
Limited Partner, to make, execute, sign, swear to, acknowledge and file in all
necessary or appropriate places all documents necessary or appropriate in the
dissolution of the Partnership.
(b) In connection with the dissolution of the
Partnership, Genpar shall prepare and file a final federal income tax return
for the 1994 taxable year, as well as any other reports required to be
prepared and filed under Section 4.04 of the Partnership Agreement on behalf
of the Partnership and shall exercise on behalf of the Partnership and the
Partners the responsibilities set forth in Section 2.08 of the Partnership
Agreement. In connection with an audit of the Partnership by the U.S.
Internal Revenue Service, each Partner shall have all rights under Sections
6221-6233 of the Code to have notice of and participate in any such audit.
Genpar shall not extend the statute of limitations nor enter into a settlement
agreement with respect to any issue raised in an audit of the Partnership
without the prior written consent of each Partner. Any direct, out-of-pocket
expense incurred by Genpar in carrying out its responsibilities and duties
under this Section 1(b) shall be allocated and charged to the Partners as an
Expense under Section 3(b) of this Agreement.
SECTION 2. Distribution of Securities. Pursuant to
Section 23 of the Investment Agreement, the Partnership has notified AWA of
its assignment of the right and obligation to purchase Securities thereunder
to the Partners or their Affiliates (as such term is defined in the Investment
Agreement, hereinafter "Affiliates") and other third parties. Pursuant to
prior notice, the Partnership has assigned to each Partner, and each Partner
has assumed, the following rights and obligations of the Partnership under the
Investment Agreement to purchase Securities:
Name of Class A Class B
Partner Common Common Warrants Price
Genpar 12,000 83,328 26,357 $ 727,639
Apcal 1,088,000 6,066,067 1,806,619 53,337,272
Mesa 100,000 2,183,343 799,767 18,698,983
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Genpar and Apcal's rights and obligations to purchase Securities have been
assigned to their Affiliates in accordance with Subscription Agreements, as
amended, entered into between such Affiliates and the Partnership. Each
Partner (and/or such Affiliates) has been notified by Genpar of its
assignment of rights and obligations under the Investment Agreement to
purchase Securities and agrees to remit, or cause its Affiliates to remit,
cash to AWA, via wire transfer or otherwise, in consideration of such right in
the amount and manner set forth in the notices received by each Partner
(and/or Affiliate). Notwithstanding anything to the contrary in the
Partnership Agreement, each Partner, or its Affiliates or designees, shall
receive its Securities directly from AWA and will not acquire any Indirect
Shares under the Partnership Agreement.
SECTION 3. Expenses.
(a) Any Expenses of any Partner not heretofore
reimbursed by or submitted to Genpar under Section 2.05(b) of the Partnership
Agreement shall be submitted to Genpar. Upon receipt of appropriate
documentation, setting forth in reasonable detail the amount for which
reimbursement is sought and the basis on which the charges were incurred,
Genpar shall reimburse such expenses to the requesting Partner. Each Partner
agrees that it (or, in the case of Apcal, its constituent partners) shall
contribute to Genpar its respective percentage (as set forth below) of all
Expenses and of all similar expenses of Fidelity not reimbursed by AWA;
provided, however, that Genpar shall first seek reimbursement of all Expenses
and all similar expenses of Fidelity from AWA in accordance with Section 2 of
the Third Revised Interim Procedures Agreement dated as of April 21, 1994, by
and between AWA and the Partnership (the "Procedures Agreement"). As soon as
practicable following the Effective Date, Genpar shall seek reimbursement from
AWA of all Expenses incurred on or after March 1, 1994 by or on behalf of each
Partner and of all similar expenses of Fidelity, without regard to the
limitations set forth in Section 2(a) of the Procedures Agreement. Genpar
shall notify each Partner of any sums due Genpar pursuant to the third
sentence of this Section 3(a) and may set off from any amounts due any Partner
any amount owing from such Partner under this Section 3(a).
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For Unreimbursed Expenses as to Which
Fidelity is Obligated to Contribute
Name of Partner or Affiliate Reimbursement Percentage
Genpar 1.00%
TPG Partners, L.P. 37.10%
Continental Airlines, Inc. 19.05%
Mesa 19.05%
For Unreimbursed Expenses as to Which
Fidelity is Not Obligated to Contribute
Name of Partner or Affiliate Reimbursement Percentage
Genpar 1.32%
TPG Partners, L.P. 48.68%
Continental Airlines, Inc. 25.00%
Mesa 25.00%
(b) Attached hereto as Schedule A is a summary of all
Expenses which have been submitted to the Partnership for reimbursement as of
the date hereof. Each Partner (or, in the case of Apcal, its constituent
partners) shall have the right, from time to time and upon reasonable request
to Genpar, to receive information concerning the amount of any reimbursement
for Expenses sought on behalf of each Partner or the Partnership or for
similar expenses sought on behalf of Fidelity, the amount of Expenses
previously paid to or on behalf of each Partner or the Partnership and of
similar expenses previously paid to or on behalf of Fidelity, and the amount
of Expenses owing to or on behalf of each Partner or the Partnership and of
similar expenses previously paid to or on behalf of Fidelity.
(c) Each Partner (or Affiliate) shall pay or reimburse
Genpar and the Tax Matters Partner its respective percentage (based on the
percentages set forth in the second table under Section 3(a) hereof) of all
direct, out-of-pocket expenses incurred by such parties with respect to the
formation, operation and dissolution of the Partnership, including, without
limitation, third-party accounting expenses, legal fees and other direct costs
associated with the formation, operation and dissolution of the Partnership.
All payments or reimbursements of such expenses shall not exceed $12,500 in
any calendar quarter or $50,000 in the aggregate.
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SECTION 4. Indemnification and Confidentiality.
(a) Rights and Obligations Regarding Indemnification
and Liability of the Partnership Pursuant to the Interim Procedures Agreement.
(i) Genpar hereby assigns to each Partner the rights of
the Partnership pursuant to Section 8 of the Procedures Agreement, with
respect to elimination of the Partnership's liability to AWA.
(ii) Genpar hereby assigns to each Partner the rights
of the Partnership pursuant to Section 9 of the Procedures Agreement, with
respect to any claim that such Partner may have against AWA as an Investor
Indemnified Party (as such term is defined in the Procedures Agreement,
hereinafter, an "Investor Indemnified Party").
(iii) Each Partner (or, in the case of Apcal, its
constituent partners) agrees that to the extent that the Partnership is found
to be liable to AWA under the Investment Agreement or under Section 8 or
Section 9 of the Procedures Agreement as a result solely of any action or
omission of a particular Partner or any of its Affiliates, such Partner (or
such Affiliate, as the case may be) shall indemnify and hold harmless the
Partnership and each other Partner (and its Affiliates, if any) against any
and all claims or liabilities of any nature whatsoever, including reasonable
legal fees and other expenses reasonably incurred, arising out of or in
connection with any such liability; provided, however, that no Partner or
Affiliate shall have any obligation to indemnify the Partnership and each
other Partner (and its Affiliates, if any) in an amount, singly or in the
aggregate, in excess of the lesser of (i) the purchase price of the Securities
acquired by such Partner (or its Affiliates) on the Effective Date (as such
term is defined in the Investment Agreement, hereinafter, the "Effective
Date") from AWA or (ii) the Value (as defined without regard to the definition
of "Valuation Date" as set forth in the Partnership Agreement) of any such
Securities held by such Partner (or such Affiliate(s)) at the time that such
Partner (or such Affiliate(s)) becomes obligated to indemnify the Partnership
and each other Partner (and its Affiliates, if any) pursuant to this Section
4(a)(iii). In addition, in the event that the Partnership shall be found in a
final judgment by a court of competent jurisdiction to be liable for any
breach of the Investment Agreement or the Procedures Agreement for any action
or omission not solely the responsibility of a particular Partner (or its
Affiliates), each Partner (or its Affiliate(s) which purchased Securities
pursuant to any assignment by a Partner of its right to purchase Securities
under the Investment Agreement) shall contribute to any judgment owed by the
Partnership in the respective percentage set forth opposite its name (or, in
the case of Apcal, its constituent partners' name) in
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the second table under Section 3(a) hereof; provided, however, that such
contribution shall in no event exceed, singly or in the aggregate, the lesser
of (i) the purchase price of the Securities acquired by such Partner (or such
Affiliates) on the Effective Date from AWA or (ii) the Value of any such
Securities held by such Partner (or such Affiliate(s)) at the time that such
Partner (or such Affiliate(s)) becomes obligated to contribute to any such
judgment.
(b) Rights and Obligations Regarding Indemnification
and Liability of the Partners. Each Partner (or, in the case of Apcal, its
constituent partners) shall, to the fullest extent permitted by law, indemnify
and hold harmless (in such capacity, an "Indemnifying Partner") the
Partnership and each other Partner, its directors, officers, shareholders,
employees, agents and Affiliates (each, an "Indemnified Party") from and
against any and all claims or liabilities of any nature whatsoever, including
reasonable legal fees and other expenses reasonably incurred, arising out of,
or in connection with the registration and or sale of all or any portion of
the Indemnifying Partner's Securities if, and only to the extent that, such
claims and liabilities arise out of or in connection with any information
provided by such Indemnifying Partner in writing for use in any registration
statement utilized by AWA in connection with any such registration or sale;
provided, however, that no Partner (or, in the case of Apcal, its constituent
partners) shall have any obligation to indemnify the Partnership and each
other Partner (or, in the case of Apcal, its constituent partners) in an
amount, singly or in the aggregate, in excess of the lesser of (i) the
purchase price of the Securities acquired by such Partner (or its Affiliates)
on the Effective Date from AWA or (ii) the Value of any such Securities held
by such Partner (or such Affiliate(s)) at the time that such Partner (or such
Affiliate(s)) becomes obligated to indemnify an Indemnified Party pursuant to
this Section 4(b). If an Indemnified Party becomes involved in any capacity
in any suit, action, proceeding, or investigation in connection with any
matter which an Indemnifying Partner is required to provide indemnification
pursuant to this Section 4(b), the Indemnifying Partner periodically shall,
upon the request of such Indemnified Party and receipt of invoices and such
supporting documentation as the Indemnifying Partner reasonably may request,
reimburse such Indemnified Party for its reasonable legal and other expenses
(including the cost of any investigation and preparation) incurred in
connection therewith; provided, however, that prior to any such advancement of
expenses (i) such Indemnified Party shall provide the Indemnifying Partner
with an undertaking in form and substance satisfactory to the Indemnifying
Partner to repay promptly the amount of any such expenses paid to it if it
shall ultimately be determined by a court or arbitrator of competent
jurisdiction that such Indemnified Party is not entitled to be indemnified by
the Indemnifying Partner as herein provided in connection with such suit,
action, proceeding, or investigation; and provided further that the
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failure for any reason of the Indemnifying Partner to advance funds to any
Indemnified Party shall in no way affect such Indemnified Party's right to
reimbursement of such costs if it is ultimately determined that such
Indemnified Party is entitled to indemnification pursuant to the terms hereof.
(c) Genpar hereby assigns to each Partner the rights of
the Partnership pursuant to Section 7 of the Procedures Agreement, with
respect to the retention and protection of Confidential Information (as
defined in the Procedures Agreement, hereafter "Confidential Information").
Each of the Partners hereby agrees to be bound by the provisions of said
Section 7 with respect to any Confidential Information obtained from any other
Partner.
(d) Genpar hereby assigns to each Partner the rights of
the Partnership pursuant to Section 21 of the Procedures Agreement, with
respect to the sharing of certain attorney-client privileged communications.
Each of the Partners hereby agrees to be bound by the provisions of said
Section 21 with respect to any confidential communications received from any
other Partner.
SECTION 5. Stockholders' Agreement. Pursuant to
Section 6 of the Investment Agreement, the Partnership, AWA and certain other
parties on the Effective Date shall enter into a Stockholders' Agreement
relating to certain matters concerning the composition and voting of the board
of directors of AWA and the transfer of Securities by certain shareholders of
AWA. The Partnership hereby assigns to the Partners (and, in the case of
Apcal, to its constituent partners), and such Partners (and, in the case of
Apcal, its constituent Partners) hereby assume the Partnership's rights and
obligations under the Stockholders' Agreement as follows:
(a) The Partnership hereby assigns to TPG Partners,
L.P. ("TPG"), an Affiliate of Genpar, the Partnership's right under the
Stockholders' Agreement to designate the AmWest Directors (as such term is
defined in the Stockholders' Agreement, hereinafter, "AmWest Directors") and
any replacement of any AmWest Director; provided, however, that for so long as
Mesa owns, directly or indirectly, securities representing at least 2% of the
aggregate voting power of the outstanding voting equity securities of AWA, TPG
shall cause one person identified by Mesa, who shall be reasonably
satisfactory to TPG (the "Mesa Director"), to be included among the
Partnership's or TPG's, as the case may be, designees to the AWA board of
directors. Mesa agrees that the Mesa Director shall be a "Citizen of the
United States," as such term is defined in accordance with Section 40102,
Title 49, United States Code, as now in effect or as it may hereafter from
time to time be amended. For so long as Mesa owns, directly or indirectly,
securities
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representing at least 2% of the aggregate voting power of the outstanding
voting equity securities of AWA and provided that TPG complies with its
obligation to cause one person identified by Mesa to be included among the
Partnership's or TPG's designees to the AWA board of directors, Mesa hereby
agrees to vote its Securities in favor of the Partnership's or TPG's
designees, as the case may be, to the board of directors of AWA. Each of TPG
and Mesa, to the extent that it shall be entitled hereunder to identify a
person to be designated to the AWA board of directors, agrees to nominate or
cause the nomination of such directors in accordance with the Bylaws of AWA.
(b) For so long as the Stockholders' Agreement is in
effect, each of the Partners (and, in the case of Apcal, its constituent
partners) agrees to vote the Securities held and controlled by such Partner
(or, in the case of Apcal, its constituent partners) and to cause any
directors of AWA designated by such Partner (or, in the case of Apcal, its
constituent partners) to vote or provide written consents in favor of each
Independent Director (as such term is defined in the Stockholders' Agreement,
hereinafter, an "Independent Director") and to take any other action necessary
to elect such Independent Directors.
(c) For so long as the Stockholders' Agreement or the
GPA Voting Agreement dated as of August 25, 1994 by and between GPA Group plc
and the Partnership is in effect, subject to the conditions set forth in
Section 2.1(c) of the Stockholders' Agreement, each of the Partners agrees
(and, in the case of Apcal, its constituent partners) to vote the Securities
held and controlled by such Partner (or, in the case of Apcal, its constituent
partners) and to cause any directors of AWA designated by such Partner (or, in
the case of Apcal, its constituent partners) to vote or provide written
consents in favor of the GPA Director (as such term is defined in the
Stockholders' Agreement, hereinafter, the "GPA Director") and to take any
other action necessary to elect such GPA Director; provided, however, that the
obligation of Mesa to so vote its Securities in such fashion shall exist only
for so long as the Stockholders' Agreement is in effect. To the extent that
GPA is obligated to vote its Securities in favor of the Partnership's or
TPG's, as the case may be, designees to the AWA board of directors, TPG shall
enforce its rights against GPA equally on behalf of each TPG designee to the
AWA board of directors including, without limitation, the Mesa Director.
(d) For so long as the Stockholders' Agreement is in
effect, none of the Partners nor any of their constituent partners or
Affiliates shall sell or otherwise transfer any common stock of AWA owned by
them (other than to an Affiliate of the transferror) if, after giving effect
thereto and to any related transaction by such person, the total number of
shares of Class B Common Stock of AWA beneficially owned by the transferor
will be less than twice the total number of Class A Common Stock of AWA
beneficially owned by the
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transferor; provided, however, that nothing contained in this Section 5(d)
shall prohibit any owner of common stock of AWA from selling or otherwise
transferring, in a single transaction or related series of transactions, all
shares of common stock of AWA owned by it, subject to the remaining provisions
of the Stockholders' Agreement.
(e) For so long as the Stockholders' Agreement is in
effect, each of the Partners (and, in the case of Apcal, its constituent
partners) agrees to be bound by Section 4.2 of the Stockholders' Agreement.
Each of the Partners (and, in the case of Apcal, its constituent partners)
agrees to be bound by Section 4.3 of the Stockholders' Agreement and to cause
any Affiliates that may own Securities to agree to be bound by said Section
4.3. TPG further agrees that it shall not transfer or assign all or
substantially all of the shares of AWA held by it in a single transaction or
related series of transactions unless the transferee (including any Affiliate
of TPG) agrees in writing to be bound by the terms of Section 5(a) hereof.
(f) For so long as the Stockholders' Agreement is in
effect, each of the Partners (and, in the case of Apcal, its constituent
partners) agrees to vote the Securities held and controlled by such Partner
(or, in the case of Apcal, its constituent partners) in compliance with
Section 2.1(h) of the Stockholders' Agreement.
SECTION 6. Registration Rights Agreement. Pursuant to
Section 11 of the Investment Agreement, the Partnership and AWA shall enter
into a registration rights agreement (the "Rights Agreement") on the Effective
Date pursuant to which the Partnership, its Affiliates (including the
Partners) and transferees and assignees shall have the right to cause AWA to
register the Securities issued or issuable to the Partnership under the
Investment Agreement and such other Persons under the Securities Laws. The
Partnership hereby assigns the rights of the Partnership under the Rights
Agreement to the Partners as follows:
(a) Pursuant to Section 11 of the Rights Agreement, the
Partnership hereby assigns to TPG the right and authority to exercise any
notice and consent rights on the part of the Partnership under the Rights
Agreement including, without limitation, the issuance of any Notice of Demand
(as such term is defined in the Rights Agreement, hereinafter, a "Notice of
Demand"); provided, however, that during the Shelf Period (as such term is
defined in the Rights Agreement, hereinafter, the "Shelf Period"), TPG shall
provide prior written notice to each other Partner (or Affiliate of each other
Partner known to it) of any intention of TPG to provide AWA with a Notice of
Demand and thereafter shall not provide AWA with such Notice of Demand unless
Mesa
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shall consent to such action, which consent shall not be unreasonably
withheld; and provided further, that after the Shelf Period, TPG shall provide
prior written notice to each other Partner (or Affiliate of each other Partner
known to it) of any intention of TPG to provide AWA with a Notice of Demand
and thereafter, for so long as Mesa shall be an "affiliate" of AWA within the
meaning of Rule 144 under the U.S. Securities Act of 1933, as amended, shall
not provide AWA with such Notice of Demand unless Mesa shall consent to such
action, which consent shall not be unreasonably withheld.
(b) With regard to any notice, demand, request, action
or consent effected by TPG under the Rights Agreement (other than a Notice of
Demand) that TPG effects as the designated transferee Affiliate of the
Partnership pursuant to Section 11 of the Rights Agreement, TPG agrees, if and
to the extent that the consent of or notice to Fidelity or Lehman (as such
terms are defined in the Rights Agreement) is required by the Rights Agreement
with regard to such notice, demand, request, action or consent, then TPG,
acting on behalf of the Partnership, shall provide notice to and consult with
Mesa prior to effecting any such notice, demand, request, action or consent,
and shall not effect such notice, demand, request, action or consent without
the consent of Mesa. Subject to the limitation contained in the preceding two
sentences, if, and to the extent that, any Partner is entitled to receive
notice pursuant to the provisions of any Securities Agreement, including,
without limitation, the GPA Registration Rights Agreement (as such term is
defined in the Rights Agreement), and an equivalent notice is not required to
be provided to each of the other Partners by virtue of such Securities
Agreement, each Partner who receives such notice shall use its best efforts to
provide such notice pursuant to Section 7(a) of this Agreement to each other
Partner who holds Securities and does not receive such equivalent notice .
(c) As soon as reasonably practicable following the
Effective Date, but in no event later than ten days following the Effective
Date, each of the Partners shall use its reasonable efforts to prepare jointly
and file, as necessary, a Schedule 13D with the Securities and Exchange
Commission, and to amend such filing as required by Regulation 13D-G under the
Securities Act of 1934, as amended. Each of the Partners (or, in the case of
Apcal, its constituent partners) agrees to provide promptly all necessary
information pertaining to such Partner (or, in the case of Apcal, its
constituent partners) necessary to make such amendments. Each of the Partners
(and, in the case of Apcal, its constituent partners) of any changes in facts
or circumstances that would require the filing of any such amendments.
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SECTION 7. Miscellaneous.
(a) Notice. All notices, demands, or requests provided
for or permitted to be given pursuant to this Agreement must be in writing.
All notices, demands, and requests to be sent to a Partner or any assignee of
a Partner pursuant to this Agreement shall be deemed to have been properly
given or served if: (i) personally delivered; (ii) deposited prepaid for next
day delivery by a nationally recognized overnight courier service, addressed
to such Partner; (iii) deposited in the United States mail, addressed to such
Partner, prepaid and registered or certified with return receipt requested; or
(iv) transmitted via telecopier or other similar device to the attention of
such Partner. All notices, demands, and requests so given shall be deemed
received: (i) when personally delivered; (ii) twenty-four (24) hours after
being deposited for next day delivery with an overnight courier; (iii) forty-
eight (48) hours after being deposited in the United States mail; or
(iv) twelve (12) hours after being telecopied or otherwise transmitted and
receipt has been confirmed. The Partners and their respective assignees shall
have the right from time to time, and at any time during the term of this
Agreement, to change their respective addresses and each shall have the right
to specify as his or its address any other address within the United States of
America by giving to the other parties at least thirty (30) days' written
notice thereof; provided, however, that to be effective, any such notice must
be actually received (as evidenced by a return receipt).
(b) Amendments. Amendments and supplements to this
Agreement shall require the written consent of each Partner.
(c) Governing Law. Except to the extent that any
agreement of the Partners to vote Securities owned by them may be governed by
Delaware law, this Agreement is made under, and the rights and obligations of
the Partners hereunder shall be interpreted, construed, and enforced in
accordance with, the laws of the State of Texas, without reference to its
conflicts of laws provisions.
(d) Rules of Construction. The general rule of
construction for interpreting a contract, which provides that the provisions
of a contract should be construed against the party preparing the contract, is
waived by the parties. Each party acknowledges that it was represented by
separate legal counsel in this matter who participated in the preparation of
this Agreement or it had the opportunity to retain counsel to participate in
the preparation of this Agreement but chose not to do so.
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(e) Gender, Etc. Unless the context clearly indicates
otherwise, the singular shall include the plural and vice versa. Whenever the
masculine, feminine, or neuter gender is used inappropriately in this
Agreement, this Agreement shall be read as if the appropriate gender was used.
(f) Captions. Captions are included solely for
convenience of reference and if there is any conflict between captions and the
text of this Agreement, the text shall control. Unless otherwise specifically
stated, references to Sections refer to the Sections of this Agreement.
(g) Entire Agreement. This Agreement contains the
entire agreement among the parties relative to the matters contained in this
Agreement.
(h) Waiver. No consent or waiver, express or implied,
by any Partner to or for any breach or default by any other Partner in the
performance by such other Partner of its obligations under this Agreement
shall be deemed or construed to be a consent or waiver to or of any other
breach or default in the performance by such other Partner of the same or any
other obligations of such other Partner under this Agreement. Failure on the
part of any Partner to complain of any act or failure to act of any of the
other Partners or to declare any of the other Partners in default, regardless
of how long such failure continues, shall not constitute a waiver by such
Partner of its rights hereunder.
(i) Severability. If any provision of this Agreement
or the application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the
application of such provisions to other persons or circumstances shall not be
affected thereby, and the intent of this Agreement shall be enforced to the
greatest extent permitted by law.
(j) Binding Agreement. Subject to the restrictions on
transfers and encumbrances set forth in this Agreement, this Agreement shall
inure to the benefit of and be binding upon the undersigned Partners and their
respective legal representatives, successors, and assigns. This Agreement
shall be binding upon, and enforceable by the other parties hereto (including,
without limitation, by Mesa) against, TPG or Continental only to the extent
that (i) as of the date of this Agreement, TPG or Continental have any
obligations to the Partnership including, without limitation, pursuant to
Subscription Agreements entered into by the Partnership with TPG and
Continental, or (ii) TPG or Continental has specifically assumed obligations
to the Partnership or to Mesa pursuant to this Agreement.
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(k) Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original for all
purposes and all of which when taken together shall constitute a single
counterpart instrument. Executed signature pages to any counterpart
instrument may be detached and affixed to a single counterpart, which single
counterpart with multiple executed signature pages affixed thereto constitutes
the original counterpart instrument. All of these counterpart pages shall be
read as though one and they shall have the same force and effect as if all of
the parties had executed a single signature page.
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Each of the undersigned has executed and delivered or
caused this Agreement to be executed and delivered as of the date set forth
above.
AMWEST GENPAR, INC., individually and in its capacity as General Partner of
the Partnership
By: /s/ Richard Ekleberry
Name: Richared Ekleberry
Title: Vice President
Address: 201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James J. O'Brien
Telecopier: (817) 871-4010
APCAL, L.P.
By: AMWEST GENPAR, INC.,
a Texas corporation
By: /s/ Richard Ekleberry
Name: Richard Ekleberry
Title: Vice President
Address: 201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James J. O'Brien
Telecopier: (817) 871-4010
MESA AIRLINES, INC.
By: /s/ Gary E. Risley
Name: Gary E. Risley
Title: Vice President
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Address: 2325 30th Street
Farmington, New Mexico 87401
Attention: Gary E. Risley, Esq.
Telecopier: (505) 326-4485
ACKNOWLEDGED AND AGREED
AS TO SECTIONS 3, 4, 5, 6 and 7(j):
TPG PARTNERS, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By: /s/ Richard Ekleberry
Name: Richard Ekleberry
Title: Vice President
Address: 201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James J. O'Brien
Telecopier: (817) 871-4010
CONTINENTAL AIRLINES, INC.
By: /s/ Cynthia R. Creager-Jones
Name: Cynthia R. Creager-Jones
Title: Vice President
Address: 2929 Allen Parkway, Suite 1466
Houston, Texas 77019
Attention: Charles Goolsbee
Telecopier: (713) 834-5161
<PAGE>
- 16 -
<PAGE>
<TABLE>
EXPENSES SUBMITTED TO DATE RELATED TO AMERICAN WEST SECURITIES ACQUISITION
<CAPTION>
Name of Thru February
Professional 28, 1994 March, 1994 April, 1994 May, 1994 June, 1994 Total
<S> <C> <C> <C> <C> <C> <C>
TPG PARTNERS, L.P. $ 58,773.66 $ 35,738.72 $ 27,147.35 $ 14,888.04 pending $ 136,547.77
ARNOLD & PORTER $339,228.06 $269,054.18 $280,562.14 $256,462.21 $232,143.08 $1,377,449.67
MERRILL LYNCH $116,834.00 $ 58,152.36 $ 63,272.12 $ 65,677.29 $ 54,191.23 $ 358,127.00
JONES, DAY $ 64,002.72 $ 75,889.72 $ 61,388.53 $113,715.61 $ 39,001.46 $ 353,998.04
CLEARY, GOTTLIEB -- $ 53,495.00 $ 80,982.86 $ 92,722.05 $ 27,575.91 $ 254,775.82
CONTINENTAL
AIRLINES, INC. $ 11,451.53 pending pending pending pending $ 11,451.53
BEAR STEARNS & CO. -- $ 165.31 $ 95.44 $ 33,338.82 pending $ 3,599.57
GOODWIN, PROCTOR -- $ 42,985.25 $ 89,231.07 $112,854.5 $ 50,013.26 $ 295,084.10
KELLY, HART -- -- -- $ 2,375.98 pending $ 2,375.98
TOTAL $590,289.97 $535,480.54 $602,679.51 $662,034.52 $402,924.94 $2,793,409.48
Reimbursed 550,000.00 300,000.00 300,000.00 300,000.00 300,000.00 1,750,000.00
Balance 40,289.97 235,480.54 302,679.51 362,034.52 102,924.94 1,043,409.48
</TABLE>
<PAGE>
August 24, 1994
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J. Whalen
RE: AmWest Partners, L.P.
Dear Sirs:
Reference is made to Section 23 of the Third Revised
Investment Agreement dated April 21, 1994 by and between America West
Airlines, Inc. and AmWest Partners, L.P. (the "Investment Agreement").
Capitalized terms used herein and not otherwise defined herein are used herein
as defined in the Investment Agreement.
Pursuant to Section 23 of the Investment Agreement, the
Investor hereby notifies the Company of its assignment of its rights and
obligations to purchase certain Securities under Section 4(a) of the
Investment Agreement.
Under Section 4(a) of the Investment Agreement, the
Investor is obligated to purchase 1,200,000 shares of Class A Common plus
certain additional shares of Class B Common as contemplated by Section
4(a)(2)(i) and (ii) of the Investment Agreement minus certain shares of Class
B Common which may be subscribed for under Section 4(a)(iii) by the Equity
Holders. You have informed us that the number of shares of Class B Common to
be purchased by the Investor pursuant to Section 4(a)(2)(ii) is 721,815, and
we understand that the Equity Holders will purchase 1,615,179 shares of Class
B Common under said Section 4(a)(2)(iii). Accordingly, the Investor is
obligated to purchase 12,981,636 shares of Class B Common. In addition, the
Investor is entitled to receive Warrants to purchase 2,769,231 shares of Class
B Common.
The Investor hereby notifies the Company of the
following assignments of the Investor's right to purchase Securities under the
Investment Agreement:
1. Mesa Airlines, Inc. The Investor has assigned to
Mesa Airlines, Inc. ("Mesa") the following of the Investor's rights and
obligations under the Investment Agreement:
<PAGE>
America West Airlines, Inc.
August 24, 1994
Page 2
(i) The Investor has assigned to Mesa the right to
purchase 100,000 shares of Class A Common;
(ii) The Investor has assigned to Mesa the right to
purchase 2,183,343 shares of Class B Common; and
(iii) The Investor has assigned to Mesa the right to be
issued Warrants to purchase 799,767 shares of Class B Common.
The address of Mesa is Mesa Airlines, Inc., 2325 30th
Street, Farmington, New Mexico 87401, Attention: Gary E. Risley.
Please issue the above-described shares of Class A
Common, Class B Common and Warrants in the name of Mesa.
2. Continental Airlines, Inc. The Investor has
assigned to Continental Airlines, Inc. ("Continental") the following of the
Investor's rights and obligations under the Investment Agreement:
(i) The Investor has assigned to Continental the right
to purchase 325,505 shares of Class A Common;
(ii) The Investor has assigned to Continental the right
to purchase 1,508,234 shares of Class B Common; and
(iii) The Investor has assigned to Continental the
right to be issued Warrants to purchase 802,860 shares of Class B Common.
The address of Continental is Continental Airlines,
Inc., 2929 Allen Parkway, Suite 1466, Houston, Texas 77019., Attention:
Charles Goolsbee, Esq.
Please issue the above-described shares of Class A
Common, Class B Common and Warrants in the name of Continental.
3. TPG Partners, L.P. The Investor has assigned to TPG
Partners, L.P. ("TPG") the following of the Investor's rights and obligations
under the Investment Agreement:
<PAGE>
America West Airlines, Inc.
August 24, 1994
Page 3
(i) The Investor has assigned to TPG the right to
purchase 642,078 shares of Class A Common;
(ii) The Investor has assigned to TPG the right to
purchase 3,829,101 shares of Class B Common; and
(iii) The Investor has assigned to TPG the right to be
issued Warrants to purchase 706,508 shares of Class B Common.
The address of TPG is TPG Partners, L.P., 201 Main
Street, Suite 2420, Forth Worth, Texas 76102, Attention: James J. O'Brien.
Please issue the above-described shares of Class A
Common, Class B Common and Warrants in the name of TPG.
4. TPG Parallel I, L.P. The Investor has assigned to
TPG Parallel I, L.P. ("Parallel") the following of the Investor's rights and
obligations under the Investment Agreement:
(i) The Investor has assigned to Parallel the right to
purchase 64,699 shares of Class A Common;
(ii) The Investor has assigned to Parallel the right to
purchase 418,758 shares of Class B Common; and
(iii) The Investor has assigned to Parallel the right
to be issued Warrants to purchase 159,580 shares of Class B Common.
The address of Parallel is TPG Parallel I, L.P., 201
Main Street, Suite 2420, Forth Worth, Texas 76102, Attention: James J.
O'Brien.
Please issue the above-described shares of Class A
Common, Class B Common and Warrants in the name of Parallel.
5. Air Partners II, L.P. The Investor has assigned to
Air Partners II, L.P. ("APII") the following of the Investor's rights and
obligations under the Investment Agreement:
<PAGE>
America West Airlines, Inc.
August 24, 1994
Page 4
(i) The Investor has assigned to APII the right to
purchase 67,718 shares of Class A Common;
(ii) The Investor has assigned to APII the right to
purchase 438,302 shares of Class B Common; and
(iii) The Investor has assigned to APII the right to be
issued Warrants to purchase 167,028 shares of Class B Common.
The address of APII is Air Partners II, L.P., 201 Main
Street, Suite 2420, Forth Worth, Texas 76102, Attention: James J. O'Brien.
Please issue the above-described shares of Class A
Common, Class B Common and Warrants in the name of APII.
6. Belmont Fund, L.P. The Investor has assigned to
Belmont Fund, L.P. ("Belmont") the following of the Investor's rights and
obligations under the Investment Agreement:
(i) The Investor has assigned to Belmont the right to
purchase 637,124 shares of Class B Common;
(ii) The Investor has assigned to Belmont the right to
be issued Warrants to purchase 33,372 shares of Class B Common;
(iii) The Investor has assigned to Belmont the right to
acquire $25,000,000 principal amount in Notes; and
(iv) The Investor has assigned to Belmont the right to
purchase 180,454 shares of Class B Common pursuant to Section 4(a)(2)(ii) of
the Investment Agreement.
The address of Belmont is Belmont Fund, L.P., c/o
Fidelity Management Trust Company, 82 Devonshire Street, MS C7A, Boston,
Massachusetts 02109, Attention: Daniel J. Harmetz, with a copy to Wendy
Schnipper Clayton, Esq., Fidelity Management Trust Company, 82 Devonshire
Street, MS F7D, Boston, Massachusetts 02109.
Please issue the above-described shares of Class B
Common and Warrants in the following name and address: Dol & Co., Brown
Brothers Harriman & Co., Securities
<PAGE>
America West Airlines, Inc.
August 24, 1994
Page 5
Department, 3 Hanover Street, Ground Floor, New York, New York, 10005, Account
No. 8118572, for the account of Belmont Fund, L.P., Attention: Dan Zibinskas.
7. Fidelity Copernicus Fund, L.P. The Investor has
assigned to Fidelity Copernicus Fund, L.P. ("Copernicus") the following of the
Investor's rights and obligations under the Investment Agreement:
(i) The Investor has assigned to Copernicus the right
to purchase 1,911,372 shares of Class B Common;
(ii) The Investor has assigned to Copernicus the right
to be issued Warrants to purchase 100,116 shares of Class B Common;
(iii) The Investor has assigned to Copernicus the right
to acquire $75,000,000 principal amount in Notes; and
(iv) The Investor has assigned to Copernicus the right
to purchase 541,361 shares of Class B Common pursuant to Section 4(a)(2)(ii)
of the Investment Agreement.
The address of Copernicus is Fidelity Copernicus Fund,
L.P., c/o Fidelity Management Trust Company, 82 Devonshire Street, MS C7A,
Boston, Massachusetts 02109, Attention: Daniel J. Harmetz, with a copy to
Wendy Schnipper Clayton, Esq., Fidelity Management Trust Company, 82
Devonshire Street, MS F7D, Boston, Massachusetts 02109.
Please issue the above-described shares of Class B
Common and Warrants in the following name and address: Dol & Co., Brown
Brothers Harriman & Co., Securities Department, 3 Hanover Street, Ground
Floor, New York, New York, 10005, Account No. 8136715, for the account of
Fidelity Copernicus Fund, L.P., Attention: Dan Zibinskas.
8. Lehman Brothers, Inc. The Investor has assigned to
Lehman Brothers, Inc. ("Lehman") the following of the Investor's rights and
obligations under the Investment Agreement:
(i) The Investor has assigned to Lehman the right to
purchase 1,333,587 shares of Class B Common.
The address of Lehman is Lehman Brothers Inc., 3 World
Financial Center, New York, New York 10285, Attention: John Sweeney.
<PAGE>
America West Airlines, Inc.
August 24, 1994
Page 6
Please issue the above-described shares of Class B
Common in the name of Smith Barney Inc., 388 Greenwich Street, New York, New
York, Attention: Bob Fannon, Reorganization Department, 17th Floor.
With regards.
Sincerely,
AMWEST PARTNERS, L.P.
By: AmWest Genpar, Inc.
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
cc: LeBoeuf, Lamb, Greene & MacRae
Andrews & Kurth L.L.P.
Murphy, Weir & Butler
Lord, Bissell and Brook
<PAGE>
August 25, 1994
America West Airlines, Inc.
and the others parties to the
Stockholder's Agreement referred to below
c/o America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J. Whalen
RE: AmWest Partners, L.P.
Dear Sirs:
Reference is made to that certain Stockholders'
Agreement dated as of August 25, 1994, by and among AmWest Partners, L.P., GPA
Group plc, America West Airlines, Inc., and the other parties thereto (the
"Agreement"). Capitalized terms not otherwise defined herein shall have the
respective meanings ascribed to them in the Agreement.
Pursuant to separate instrument of assignment, which
assignment has been notified to the Company by AmWest, the undersigned has
purchased certain shares of Common Stock, which shares are subject to the
Agreement. As a condition to such assignment, the undersigned is obligated
under Section 4.2 of the Agreement to provide a written acknowledgment to the
other parties to the Agreement that it accepts and is bound by and subject to
the terms of the Agreement.
The undersigned hereby assumes and agrees to be bound by
the terms of the Agreement and subject to the terms of the Agreement. This
agreement shall be binding on the undersigned, and the undersigned
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 2
acknowledges and agrees that this covenant and agreement is made for the
benefit of, and may be enforced by, the other parties to the Agreement.
Sincerely,
TPG PARTNERS, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 1
August 25, 1994
America West Airlines, Inc.
and the others parties to the
Stockholder's Agreement referred to below
c/o America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J. Whalen
RE: AmWest Partners, L.P.
Dear Sirs:
Reference is made to that certain Stockholders'
Agreement dated as of August 25, 1994, by and among AmWest Partners, L.P., GPA
Group plc, America West Airlines, Inc., and the other parties thereto (the
"Agreement"). Capitalized terms not otherwise defined herein shall have the
respective meanings ascribed to them in the Agreement.
Pursuant to separate instrument of assignment, which
assignment has been notified to the Company by AmWest, the undersigned has
purchased certain shares of Common Stock, which shares are subject to the
Agreement. As a condition to such assignment, the undersigned is obligated
under Section 4.2 of the Agreement to provide a written acknowledgment to the
other parties to the Agreement that it accepts and is bound by and subject to
the terms of the Agreement.
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 2
The undersigned hereby assumes and agrees to be bound by
the terms of the Agreement and subject to the terms of the Agreement. This
agreement shall be binding on the undersigned, and the undersigned
acknowledges and agrees that this covenant and agreement is made for the
benefit of, and may be enforced by, the other parties to the Agreement.
Sincerely,
TPG PARALLEL I, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 1
August 25, 1994
America West Airlines, Inc.
and the others parties to the
Stockholder's Agreement referred to below
c/o America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J. Whalen
RE: AmWest Partners, L.P.
Dear Sirs:
Reference is made to that certain Stockholders'
Agreement dated as of August 25, 1994, by and among AmWest Partners, L.P., GPA
Group plc, America West Airlines, Inc., and the other parties thereto (the
"Agreement"). Capitalized terms not otherwise defined herein shall have the
respective meanings ascribed to them in the Agreement.
Pursuant to separate instrument of assignment, which
assignment has been notified to the Company by AmWest, the undersigned has
purchased certain shares of Common Stock, which shares are subject to the
Agreement. As a condition to such assignment, the undersigned is obligated
under Section 4.2 of the Agreement to provide a written acknowledgment to the
other parties to the Agreement that it accepts and is bound by and subject to
the terms of the Agreement.
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 2
The undersigned hereby assumes and agrees to be bound by
the terms of the Agreement and subject to the terms of the Agreement. This
agreement shall be binding on the undersigned, and the undersigned
acknowledges and agrees that this covenant and agreement is made for the
benefit of, and may be enforced by, the other parties to the Agreement.
Sincerely,
AIR PARTNERS II, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 1
August 25, 1994
America West Airlines, Inc.
and the others parties to the
Stockholder's Agreement referred to below
c/o America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J. Whalen
RE: AmWest Partners, L.P.
Dear Sirs:
Reference is made to that certain Stockholders'
Agreement dated as of August 25, 1994, by and among AmWest Partners, L.P., GPA
Group plc, America West Airlines, Inc., and the other parties thereto (the
"Agreement"). Capitalized terms not otherwise defined herein shall have the
respective meanings ascribed to them in the Agreement.
Pursuant to separate instrument of assignment, which
assignment has been notified to the Company by AmWest, the undersigned has
purchased certain shares of Common Stock, which shares are subject to the
Agreement. As a condition to such assignment, the undersigned is obligated
under Section 4.2 of the Agreement to provide a written acknowledgment to the
other parties to the Agreement that it accepts and is bound by and subject to
the terms of the Agreement.
The undersigned hereby assumes and agrees to be bound by
the terms of the Agreement and subject to the terms of the Agreement. This
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 2
agreement shall be binding on the undersigned, and the undersigned
acknowledges and agrees that this covenant and agreement is made for the
benefit of, and may be enforced by, the other parties to
the Agreement.
Sincerely,
CONTINENTAL AIRLINES, INC.
By: /s/ Cynthia R. Creager-Jones
Name: Cynthia R. Creager-Jones
Title: Vice President
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 1
August 25, 1994
America West Airlines, Inc.
and the others parties to the
Stockholder's Agreement referred to below
c/o America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J. Whalen
RE: AmWest Partners, L.P.
Dear Sirs:
Reference is made to that certain Stockholders'
Agreement dated as of August 25, 1994, by and among AmWest Partners, L.P., GPA
Group plc, America West Airlines, Inc., and the other parties thereto (the
"Agreement"). Capitalized terms not otherwise defined herein shall have the
respective meanings ascribed to them in the Agreement.
Pursuant to separate instrument of assignment, which
assignment has been notified to the Company by AmWest, the undersigned has
purchased certain shares of Common Stock, which shares are subject to the
Agreement. As a condition to such assignment, the undersigned is obligated
under Section 4.2 of the Agreement to provide a written acknowledgment to the
other parties to the Agreement that it accepts and is bound by and subject to
the terms of the Agreement.
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 2
The undersigned hereby assumes and agrees to be bound by
the terms of the Agreement and subject to the terms of the Agreement. This
agreement shall be binding on the undersigned, and the undersigned
acknowledges and agrees that this covenant and agreement is made for the
benefit of, and may be enforced by, the other parties to the Agreement.
Sincerely,
MESA AIRLINES, INC.
By: /s/ Gary Risley
Name: Gary Risley
Title: V.P. Legal Affairs
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 3
ASSIGNMENT AND ASSUMPTION
Reference is made to that certain Registration Rights
Agreement ("Agreement") dated as of August 25, 1994, among America West
Airlines, Inc. (the "Company"), AmWest Partners, L.P. ("AmWest") and the other
Holders named therein. Capitalized terms used but not defined in this
instrument shall have the meanings set forth in the Agreement.
By this instrument of Assignment and Assumption (this
"Instrument") and as permitted by Section 11 of the Agreement, AmWest hereby
assigns and transfers to the Person whose name and address are shown in the
space below provided for such purpose (the "Assignee") those of its rights
under the Agreement which relate to the Registrable Securities of the Company
described below, which Registrable Securities are issuable to or have been
issued to AmWest:
Class A Common 642,078 Shares
Class B Common 3,829,101 Shares
Warrants 706,508 Shares
The Assignee hereby assumes and agrees to fully and
promptly perform, discharge and satisfy all covenants and obligations on the
part of AmWest under the Agreement to the extent that such convenants and
obligations relate to the Registrable Securities of the Company acquired by
Assignee from AmWest pursuant to this Instrument.
By acknowledging this Instrument in the space provided
below, the Company hereby acknowledges the assignment and assumption of rights
and obligations effected hereby.
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 4
This Instrument is binding upon Assignor, Assignee and
the Company, and their respective Successors and assigns, and shall inure to
the benefit of, and may be enforced by each such party and its respective
Successors and assigns.
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 5
This Instrument may be executed in any number of
counterparts, each of which shall be an original and all of which shall
together constitute one instrument.
Executed this 25th day of August, 1994
AMWEST PARTNERS, L.P.
Assignor
By: AmWest Genpar, Inc.
its General Partner
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
TPG PARTNERS, L.P.
Assignee
By: TPG GenPar, L.P.
By: TPG Advisors, Inc.
its General Partner
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
Address of Assignee:
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 6
201 Main Street
Suite 2420
Fort Worth, Texas 76102
Telecopy No: (817) 871-4010
Acknowledged and Agreed by the Company Date: August 25, 1994
AMERICA WEST AIRLINES, INC.
By: /s/ Martin J. Whalen
Name: Martin J. Whalen
Title: Senior Vice President
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 7
ASSIGNMENT AND ASSUMPTION
Reference is made to that certain Registration Rights
Agreement ("Agreement") dated as of August 25, 1994, among America West
Airlines, Inc. (the "Company"), AmWest Partners, L.P. ("AmWest") and the other
Holders named therein. Capitalized terms used but not defined in this
instrument shall have the meanings set forth in the Agreement.
By this instrument of Assignment and Assumption (this
"Instrument") and as permitted by Section 11 of the Agreement, AmWest hereby
assigns and transfers to the Person whose name and address are shown in the
space below provided for such purpose (the "Assignee") those of its rights
under the Agreement which relate to the Registrable Securities of the Company
described below, which Registrable Securities are issuable to or have been
issued to AmWest:
Class A Common 64,699 Shares
Class B Common 418,758 Shares
Warrants 159,580 Shares
The Assignee hereby assumes and agrees to fully and
promptly perform, discharge and satisfy all covenants and obligations on the
part of AmWest under the Agreement to the extent that such convenants and
obligations relate to the Registrable Securities of the Company acquired by
Assignee from AmWest pursuant to this Instrument.
By acknowledging this Instrument in the space provided
below, the Company hereby acknowledges the assignment and assumption of rights
and obligations effected hereby.
This Instrument is binding upon Assignor, Assignee and
the Company, and their respective Successors and assigns, and shall inure to
the benefit of, and may be enforced by each such party and its respective
Successors and assigns.
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 8
This Instrument may be executed in any number of
counterparts, each of which shall be an original and all of which shall
together constitute one instrument.
Executed this 25th day of August, 1994
AMWEST PARTNERS, L.P.
Assignor
By: AmWest Genpar, Inc.
its General Partner
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
TPG PARALLEL I, L.P.
Assignee
By: TPG GenPar, L.P.
By: TPG Advisors, Inc.
its General Partner
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
Address of Assignee:
201 Main Street
Suite 2420
Fort Worth, Texas 76102
Telecopy No: (817) 871-4010
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 9
Acknowledged and Agreed by the Company Date: August 25, 1994
AMERICA WEST AIRLINES, INC.
By: /s/ Martin J. Whalen
Name: Martin J. Whalen
Title: Senior Vice President
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 10
ASSIGNMENT AND ASSUMPTION
Reference is made to that certain Registration Rights
Agreement ("Agreement") dated as of August 25, 1994, among America West
Airlines, Inc. (the "Company"), AmWest Partners, L.P. ("AmWest") and the other
Holders named therein. Capitalized terms used but not defined in this
instrument shall have the meanings set forth in the Agreement.
By this instrument of Assignment and Assumption (this
"Instrument") and as permitted by Section 11 of the Agreement, AmWest hereby
assigns and transfers to the Person whose name and address are shown in the
space below provided for such purpose (the "Assignee") those of its rights
under the Agreement which relate to the Registrable Securities of the Company
described below, which Registrable Securities are issuable to or have been
issued to AmWest:
Class A Common 67,718 Shares
Class B Common 438,302 Shares
Warrants 167,028 Shares
The Assignee hereby assumes and agrees to fully and
promptly perform, discharge and satisfy all covenants and obligations on the
part of AmWest under the Agreement to the extent that such convenants and
obligations relate to the Registrable Securities of the Company acquired by
Assignee from AmWest pursuant to this Instrument.
By acknowledging this Instrument in the space provided
below, the Company hereby acknowledges the assignment and assumption of rights
and obligations effected hereby.
This Instrument is binding upon Assignor, Assignee and
the Company, and their respective Successors and assigns, and shall inure to
the benefit of, and may be enforced by each such party and its respective
Successors and assigns.
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 11
This Instrument may be executed in any number of
counterparts, each of which shall be an original and all of which shall
together constitute one instrument.
Executed this 25th day of August, 1994
AMWEST PARTNERS, L.P.
Assignor
By: AmWest Genpar, Inc.
its General Partner
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
AIR PARTNERS II, L.P.
Assignee
By: TPG GenPar, L.P.
By: TPG Advisors, Inc.
its General Partner
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
Address of Assignee:
201 Main Street
Suite 2420
Fort Worth, Texas 76102
Telecopy No: (817) 871-4010
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 12
Acknowledged and Agreed by the Company Date: August 25, 1994
AMERICA WEST AIRLINES, INC.
By: /s/ Martin J. Whalen
Name: Martin J. Whalen
Title: Senior Vice President
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 13
ASSIGNMENT AND ASSUMPTION
Reference is made to that certain Registration Rights
Agreement ("Agreement") dated as of August 25, 1994, among America West
Airlines, Inc. (the "Company"), AmWest Partners, L.P. ("AmWest") and the other
Holders named therein. Capitalized terms used but not defined in this
instrument shall have the meanings set forth in the Agreement.
By this instrument of Assignment and Assumption (this
"Instrument") and as permitted by Section 11 of the Agreement, AmWest hereby
assigns and transfers to the Person whose name and address are shown in the
space below provided for such purpose (the "Assignee") those of its rights
under the Agreement which relate to the Registrable Securities of the Company
described below, which Registrable Securities are issuable to or have been
issued to AmWest:
Class A Common 100,000 Shares
Class B Common 2,183,343 Shares
Warrants 799,967 Shares
The Assignee hereby assumes and agrees to fully and
promptly perform, discharge and satisfy all covenants and obligations on the
part of AmWest under the Agreement to the extent that such convenants and
obligations relate to the Registrable Securities of the Company acquired by
Assignee from AmWest pursuant to this Instrument.
By acknowledging this Instrument in the space provided
below, the Company hereby acknowledges the assignment and assumption of rights
and obligations effected hereby.
This Instrument is binding upon Assignor, Assignee and
the Company, and their respective Successors and assigns, and shall inure to
the benefit of, and may be enforced by each such party and its respective
Successors and assigns.
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 14
<PAGE>
This Instrument may be executed in any number of
counterparts, each of which shall be an original and all of which shall
together constitute one instrument.
Executed this 25th day of August, 1994
AMWEST PARTNERS, L.P.
Assignor
By: AmWest Genpar, Inc.
its General Partner
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
MESA AIRLINES, INC.
Assignee
By: /s/ Gary Risley
Name: Gary Risley
Title: V.P. Legal Affairs
Address of Assignee:
2325 30th Street
Farmington, New Mexico 87401
Telecopy No.: (505) 326-4402
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 15
Acknowledged and Agreed by the Company Date: August 25, 1994
AMERICA WEST AIRLINES, INC.
By: /s/ Martin J. Whalen
Name: Martin J. Whalen
Title: Senior Vice President
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 16
ASSIGNMENT AND ASSUMPTION
Reference is made to that certain Registration Rights
Agreement ("Agreement") dated as of August 25, 1994, among America West
Airlines, Inc. (the "Company"), AmWest Partners, L.P. ("AmWest") and the other
Holders named therein. Capitalized terms used but not defined in this
instrument shall have the meanings set forth in the Agreement.
By this instrument of Assignment and Assumption (this
"Instrument") and as permitted by Section 11 of the Agreement, AmWest hereby
assigns and transfers to the Person whose name and address are shown in the
space below provided for such purpose (the "Assignee") those of its rights
under the Agreement which relate to the Registrable Securities of the Company
described below, which Registrable Securities are issuable to or have been
issued to AmWest:
Class A Common 325,505 Shares
Class B Common 1,508,234 Shares
Warrants 802,860 Shares
The Assignee hereby assumes and agrees to fully and
promptly perform, discharge and satisfy all covenants and obligations on the
part of AmWest under the Agreement to the extent that such convenants and
obligations relate to the Registrable Securities of the Company acquired by
Assignee from AmWest pursuant to this Instrument.
By acknowledging this Instrument in the space provided
below, the Company hereby acknowledges the assignment and assumption of rights
and obligations effected hereby.
This Instrument is binding upon Assignor, Assignee and
the Company, and their respective Successors and assigns, and shall inure to
the benefit of, and may be enforced by each such party and its respective
Successors and assigns.
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 17
This Instrument may be executed in any number of
counterparts, each of which shall be an original and all of which shall
together constitute one instrument.
Executed this 25th day of August, 1994
AMWEST PARTNERS, L.P.
Assignor
By: AmWest Genpar, Inc.
its General Partner
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
CONTINENTAL AIRLINES, INC.
Assignee
By: /s/ Cynthia R. Creager-Jones
Name: Cynthia R. Creager-Jones
Title: Vice President
Address of Assignee:
2929 Allen Parkway
Suite 1466
Houston, Texas 77019
Telecopy No.: (713) 834-2448
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 18
Acknowledged and Agreed by the Company Date: August 25, 1994
AMERICA WEST AIRLINES, INC.
By: /s/ Martin J. Whalen
Name: Martin J. Whalen
Title: Senior Vice President
<PAGE>
Execution Copy
___________________________________________________
REGISTRATION RIGHTS AGREEMENT
among
AMERICA WEST AIRLINES, INC.,
AMWEST PARTNERS, L.P.
and
THE OTHER HOLDERS NAMED HEREIN
Dated as of August 25, 1994
<PAGE>
TABLE OF CONTENTS
Page
1. Definitions.......................................... 2
2. Registration under the Securities Act................ 8
2.1 Shelf Registration Statements................... 8
2.2 Demand Registration............................. 10
2.3 Piggyback Registration.......................... 12
2.4 Trust Indenture Act Qualification; Rating....... 15
2.5 Registration Terms and Procedures............... 15
2.6 Underwritten Offerings.......................... 22
2.7 Preparation; Reasonable Investigation........... 23
2.8 Indemnification................................. 24
2.9 Liquidated Damages.............................. 28
3. Rule 144 and Rule 144A............................... 31
4. Term................................................. 31
5. Amendments and Waivers............................... 31
6. Entire Agreement..................................... 32
7. No Third-Party Beneficiary........................... 32
8. Invalid Provisions................................... 32
9. Nominees for Beneficial Owners....................... 32
10. Notices.............................................. 33
11. Assignment........................................... 35
12. Descriptive Headings................................. 35
13. Specific Performance................................. 36
14. Governing Law........................................ 36
15. Registration Rights to Others........................ 36
16. Attorneys' Fees...................................... 36
17. Limitation of Liability.............................. 37
18. Termination of Certain Rights........................ 37
19. No Inconsistent Agreements........................... 37
20. Requisite Holders.................................... 37
21. Counterparts......................................... 37
22. Repurchase Arrangement............................... 38
SCHEDULES
Schedule 1 - GPA Registration Rights Agreement
<PAGE>
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of August 25,
1994 among AMERICA WEST AIRLINES, INC., a Delaware corporation
(including its successor, as reorganized pursuant to Chapter 11,
Title 11 of the United States Bankruptcy Code (the "Bankruptcy
Code"), the "Company"), AMWEST PARTNERS, L.P., a Texas limited
partnership ("Investor"), LEHMAN BROTHERS INC., a Delaware
corporation ("Lehman"), and the funds or accounts managed or
advised by Fidelity Management Trust Company or its affiliates
listed on the signature pages hereto (each, a "Fidelity Fund" and
collectively, "Fidelity").
W I T N E S S E T H :
WHEREAS, the Company is a Debtor and
Debtor-in-Possession in the case (the "Chapter 11 Case") filed in
the United States Bankruptcy Court for the District of Arizona
(the "Bankruptcy Court"), entitled "In re America West Airlines,
Inc., Debtor," Chapter 11 Case No. 91-07505-PHX-RGM, under the
Bankruptcy Code;
WHEREAS, the Company and Investor have entered into
that certain Third Revised Investment Agreement dated as of April
21, 1994 (as it may be further amended, modified or supplemented
from time to time, the "Investment Agreement") and the Company
and Fidelity have entered into a Note Purchase Agreement dated as
of August 25, 1994 (as amended, modified or supplemented from
time to time, the "Note Purchase Agreement"), which agreements
among other things provide for the purchase of the Securities (as
defined in the Investment Agreement) in connection with and as
part of the transactions to be consummated pursuant to the
confirmation of a Plan of Reorganization (as amended, modified or
supplemented from time to time) of the Company in the Chapter 11
Case (the "Plan");
WHEREAS, the Company has filed with the SEC (as
hereinafter defined) a shelf registration statement with respect
to the Securities issued or issuable to Investor, Lehman,
Fidelity and their respective Affiliates, among others, and the
SEC has declared such shelf registration statement effective;
WHEREAS, by Order dated August 10, 1994, the Bankruptcy
Court confirmed the Plan and
WHEREAS, the Investment Agreement, the Note Purchase
Agreement and the Plan contemplate that the Company, Investor,
Lehman and Fidelity will enter into certain agreements,
including, without limitation, this Registration Rights
Agreement;
NOW THEREFORE, the parties hereby agree as follows:
1. Definitions. Capitalized terms used herein that
are not otherwise defined herein shall have the meanings ascribed
to them in the Investment Agreement. In addition, the following
terms, as used herein, have the following meanings (all terms
defined herein in the singular to have the correlative meanings
when used in the plural and vice versa):
"Affiliate" means (i) when used with reference to any
partnership, any Person that, directly or indirectly, owns or
controls 10% or more of either the capital or profit interests of
such partnership or is a partner of such partnership or is a
Person in which such partnership has a 10% or greater direct or
indirect equity interest and (ii) when used with reference to any
corporation, any Person that, directly or indirectly owns or
controls 10% or more of the outstanding voting securities of such
corporation or is a Person in which such corporation has a 10% or
greater direct or indirect equity interest. In addition, the
term "Affiliate," when used with reference to any Person, shall
also mean any other Person that, direct or indirectly, controls
or is controlled by or is under common control with such Person.
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, the Company will be deemed not to
be an Affiliate of AmWest or any of its partners and each of
AmWest GenPar, Inc., Continental Airlines, Inc., Mesa Airlines,
Inc. ("Mesa"), TPG Partners, L.P., TPG Parallel I, L.P. and Air
Partners II, L.P. shall be deemed to be an Affiliate of AmWest.
"Agreement" means this Registration Rights Agreement,
as the same shall be amended, modified or supplemented from time
to time.
"Business Day" means any day, other than a Saturday or
Sunday, that is not a day on which banking institutions are
authorized or required by law or regulation to be closed in (a)
New York, New York or (b) Phoenix, Arizona.
"Chapter 11 Case" has the meaning ascribed to it in the
preamble.
"Class A Common" means the Class A Common Stock of the
Company, par value $.01 per share, of the Company.
"Class B Common" means the Class B Common Stock of the
Company, par value $.01 per share, of the Company.
"Commercially Reasonable Efforts", when used with
respect to any obligation to be performed or term or provision to
be observed hereunder, means such efforts as a prudent Person
seeking the benefits of such performance or action would make,
use, apply or exercise to preserve, protect or advance its rights
or interests, provided, that such efforts do not require such
Person to incur a material financial cost or a substantial risk
of material liability unless such cost or liability (i) would
customarily be incurred in the course of performance or
observance of the relevant obligation, term or provision, (ii) is
caused by or results from the wrongful act or negligence of the
Person whose performance or observance is required hereunder or
(iii) is not excessive or unreasonable in view of the rights or
interests to be preserved, protected or advanced. Such efforts
may include, without limitation, the expenditure of such funds
and retention by such Person of such accountants, attorneys or
other experts or advisors as may be necessary or appropriate to
effect the relevant action; the undertaking of any special audit
or internal investigation that may be necessary or appropriate to
effect the relevant action; and the commencement, termination or
settlement of any action, suit or proceeding involving such
Person to the extent necessary or appropriate to effect the
relevant action.
"Demand Registration" means any registration of
Registrable Securities under the Securities Act effected in
accordance with Section 2.2.
"Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, or any successor statute, and
the rules and regulations promulgated thereunder.
"Fidelity" has the meaning ascribed to it in the
preamble. With respect to any action, demand or election as to
which "Fidelity" has the right or obligation to take action
pursuant to this Agreement, such action shall be valid if taken
by the Holders of a majority in interest of the Registrable
Equity Securities and/or a majority in principal amount of the
Registrable Debt Securities, as the case may be, held by the
Fidelity Funds as of the date of such action.
"Fidelity Fund" has the meaning ascribed to it in the
preamble.
"GPA" means GPA Group plc and any legal successor
thereto, and includes GPA's permitted assigns pursuant to the GPA
Registration Rights Agreement.
"GPA Demand" has the meaning ascribed to it in Section
2.2(c).
"GPA Registration Rights Agreement" means the
Registration Rights Agreement of even date herewith between the
Company and GPA attached hereto as Schedule 1, as amended from
time to time in accordance with the provisions thereof and
hereof.
"Holders" means, subject to Section 9 hereof, the
holders of record of Registrable Securities, or, in the case of
references to holders of securities of the Company other than
Registrable Securities, the record holders of such securities.
"Indemnified Party" has the meaning ascribed to it in
Section 2.8(a).
"Indenture" means that certain Indenture between the
Company and American Bank National Association, as Trustee, dated
as of August 25, 1994 and relating to up to $130 million
principal amount of the Notes.
"Initial Effective Date" means the date upon which the
Restated Certificate of Incorporation becomes effective in
accordance with the Plan and the General Corporation Law of the
State of Delaware.
"Initial Registrable Debt Securities" means the $100
million principal amount of the Notes issued on the date of this
Agreement and held by any Fidelity Fund or any of their
respective assignees or Affiliates or any transferee (direct or
indirect) of such Persons.
"Initial Shelf Registration Statement" has the meaning
ascribed to it in Section 2.1(a).
"Loss" has the meaning ascribed to it in Section
2.8(a).
"Material Adverse Change" means (i) any general
suspension of trading in, or limitation on prices for, securities
on any national securities exchange or in the over-the-counter
market in the United States of America, (ii) the declaration of a
banking moratorium or any suspension of payments in respect of
banks in the United States of America, (iii) the commencement of
a war, armed hostilities or other international or national
calamity involving the United States of America, (iv) any
limitation (whether or not mandatory) by any governmental
authority on, or any other event which materially affects the
extension of credit by banks or other financial institutions, (v)
any material adverse change in the Company's business, condition
(financial or otherwise) or prospects or (vi) a 15% or more
decline in the Dow Jones Industrial average or the Standard and
Poor's Index of 400 Industrial Companies, in each case from the
date a Notice of Demand is made.
"Notes" has the meaning ascribed to it in the Note
Purchase Agreement.
"Notice of Demand" means a request by Investor or
Fidelity, as the case may be, pursuant to Section 2.2 that the
Company effect the registration under the Securities Act of all
or part of the Registrable Securities held by it and its
Affiliates and, at its option, any direct or indirect transferee
of Registrable Securities held by it, and any other Holder that
requests to have its Registrable Securities included in such
registration pursuant to Section 2.2(d). A Notice of Demand
shall specify (i) the type and amount of Registrable Securities
proposed to be registered, (ii) the intended method or methods
and plan of disposition thereof and (iii) whether or not such
requested registration is to be an underwritten offering.
"Participating Holders" means, with respect to any
registration of Registrable Securities by the Company pursuant to
this Agreement, the Requesting Holder and any other Holders that
are entitled to participate in, and are participating in or
seeking to participate in, such registration.
"Person" means a natural person, a corporation, a
partnership, a trust, a joint venture, any regulatory authority
or any other entity or organization.
"Piggyback Registration" means any registration of
Registrable Equity Securities under the Securities Act effected
in accordance with Section 2.3.
"Piggyback Registration Notice" has the meaning
ascribed to it in Section 2.3(a).
"Plan" has the meaning ascribed to it in the preamble.
"Registrable Debt Securities" means, collectively, the
Initial Registrable Debt Securities and the Secondary Registrable
Debt Securities. As to any particular Registrable Debt
Securities, once issued such securities shall cease to be
Registrable Debt Securities when (a) such securities shall have
been distributed pursuant to the Plan without registration or
qualification under the Securities Act or any similar state law
then in force pursuant to Section 1145 of the Bankruptcy Code,
(b) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act
and such securities shall have been disposed of in accordance
with the plan of distribution set forth in such registration
statement, (c) such securities shall have been distributed in
accordance with Rule 144 or (d) such securities shall have been
otherwise transferred, new certificates therefor not bearing a
legend restricting further transfer shall have been delivered in
exchange therefor by the Company and subsequent disposition of
such securities shall not require registration or qualification
under the Securities Act or any similar state law then in force.
"Registrable Equity Securities" means the equity
securities acquired by Investor, Lehman, any Fidelity Fund or any
of their respective assignees or Affiliates pursuant to the Plan
or held by any transferee (direct or indirect) of such Persons,
including, without limitation, (a) any shares of Class A Common
or Class B Common issued or issuable on the Effective Date, (b)
any Warrant, (c) any shares of Class B Common issued or issuable
upon the exercise of a Warrant and (d) any securities issued or
issuable with respect to any such Class A Common, Class B Common
or Warrants by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization or otherwise. As
to any particular Registrable Equity Securities, once issued such
securities shall cease to be Registrable Equity Securities when
(i) such securities shall have been distributed pursuant to the
Plan without registration or qualification under the Securities
Act or any similar state law then in force pursuant to Section
1145 of the Bankruptcy Code, (ii) a registration statement with
respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have
been disposed of in accordance with the plan of distribution set
forth in such registration statement, (iii) such securities shall
have been distributed in accordance with Rule 144 or (iv) such
securities shall have been otherwise transferred, new
certificates therefor not bearing a legend restricting further
transfer shall have been delivered in exchange therefor by the
Company and subsequent disposition of such shares shall not
require registration or qualification under the Securities Act or
any similar state law then in force.
"Registrable Securities" means the Registrable Debt
Securities and the Registrable Equity Securities.
"Registration Expenses" means all expenses incident to
the Company's performance of or compliance with this Agreement,
including, without limitation, (a) all registration, filing,
securities exchange listing, rating agency and National
Association of Securities Dealers fees, (b) all registration,
filing, qualification and other fees and expenses of complying
with securities or blue sky laws of all jurisdictions in which
the securities are to be registered and any legal fees and
expenses incurred in connection with the blue sky qualifications
of the Registrable Securities and the determination of their
eligibility for investment under the laws of all such
jurisdictions, (c) all word processing, duplicating, printing,
messenger and delivery expenses, (d) the fees and disbursements
of counsel for the Company and of its independent public
accountants, including, without limitation, the expenses of any
special audits or "cold comfort" letters required by or incident
to such performance and compliance, (e) the reasonable fees and
disbursements incurred by the Holders of the Registrable
Securities being registered (including, without limitation, the
reasonable fees and disbursements for one counsel or firm of
counsel selected by the Requisite Holders of Registrable Debt
Securities and Registrable Equity Securities acting together),
(f) premiums and other costs of policies of insurance against
liabilities arising out of the public offering of the Registrable
Securities being registered to the extent the Company elects to
obtain such insurance, (g) any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities
(but excluding underwriting discounts and commissions and
transfer taxes, if any, relating to the Registrable Securities
being registered) and (h) fees and expenses of other Persons
retained or employed by the Company.
"Requesting Holder" means the party providing a Notice
of Demand to the Company pursuant to Section 2.2(a).
"Requisite Holders" means (a) with respect to any
Registrable Equity Securities, any Holder or Holders of a
majority in interest of the Registrable Equity Securities
included or to be included in a registration or other relevant
action, as the case may be, and (b) with respect to any
Registrable Debt Securities, any Holder or Holders of a majority
of the aggregate principal amount of the Registrable Debt
Securities included or to be included in a registration or other
relevant action, as the case may be.
"Restated Certificate of Incorporation" means the
restated Certificate of Incorporation adopted by the Company
pursuant to the Plan in accordance with Section 303 of the
General Corporation Law of the State of Delaware.
"Rule 144" means Rule 144 promulgated by the SEC under
the Securities Act, and any successor provision thereto.
"Rule 144A" means Rule 144A promulgated by the SEC
under the Securities Act, and any successor provision thereto.
"SEC" means the United States Securities and Exchange
Commission, or any successor governmental agency or authority
thereto.
"Secondary Effective Date" means the date upon which
the Secondary Registrable Debt Securities are issued by the
Company.
"Secondary Registrable Debt Securities" means the
Notes, if any, issued subsequent to the date of this Agreement
and held by any Fidelity Fund, Lehman or any of their respective
assignees or Affiliates or any transferee (direct or indirect) of
such Persons.
"Secondary Shelf Registration Statement" has the
meaning ascribed to it in Section 2.1(b).
"Securities Act" means the Securities Act of 1933, as
amended from time to time, or any successor statute, and the
rules and regulations promulgated thereunder.
"Shelf Period" has the meaning ascribed to it in
Section 2.1(c).
"Shelf Registration Statements" shall mean,
collectively, the Initial Shelf Registration Statement and the
Secondary Shelf Registration Statement, and in singular form
shall mean either the Initial Shelf Registration Statement or the
Secondary Shelf Registration Statement.
"Successor" means, with respect to any Person, a
successor to such Person by merger, consolidation, liquidation or
other similar transaction.
"Suspension Notice" has the meaning ascribed to it in
Section 2.5(h).
"Suspension Period" has the meaning ascribed to it in
Section 2.5(h).
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended from time to time, or any successor statute, and
the rules and regulations promulgated thereunder.
"Warrant" means a Warrant to Purchase Class B Common
Stock of America West Airlines, Inc. issued pursuant to the
Warrant Agreement dated as of even date herewith between the
Company and First Interstate Bank of California, as Warrant
Agent, and any warrant issued in substitution or exchange
therefor.
2. Registration under the Securities Act.
2.1 Shelf Registration Statements.
(a) Filing of Initial Shelf Registration Statement.
If, as of the Initial Effective Date, (i) the effectiveness of
the shelf registration statement covering all of the Registrable
Equity Securities and the Initial Registrable Debt Securities
(the "Initial Shelf Registration Statement") has been suspended
or the Initial Shelf Registration Statement is otherwise not
effective or (ii) the securities covered under the Initial Shelf
Registration Statement shall not qualify under all blue sky or
other securities laws, the Company shall use Commercially
Reasonable Efforts to cause such Initial Shelf Registration
Statement to be effective as soon as practicable and to qualify
such securities under all blue sky and other securities laws as
soon as practicable.
(b) Filing of Secondary Shelf Registration Statement.
If, as of the Secondary Effective Date, (i) the effectiveness of
the shelf registration statement covering all of the Secondary
Registrable Debt Securities (the "Secondary Shelf Registration
Statement") has been suspended or the Secondary Shelf
Registration Statement is otherwise not effective or (ii) the
securities covered under the Secondary Shelf Registration
Statement shall not qualify under all blue sky or other
securities laws, the Company shall use Commercially Reasonable
Efforts to cause such Secondary Shelf Registration Statement to
be effective as soon as practicable and to qualify such
securities under all blue sky and other securities laws as soon
as practicable.
(c) Continuous Effectiveness of Shelf Registration
Statements. Once a Shelf Registration Statement is effective
pursuant to Section 2.1(a) or 2.1(b), the Company shall use
Commercially Reasonable Efforts to cause such Shelf Registration
Statement to remain continuously effective until the earlier of
(i) the third (3rd) anniversary of (A) in the case of the Initial
Shelf Registration Statement, the Initial Effective Date or (B)
in the case of the Secondary Shelf Registration Statement, the
Secondary Effective Date and (ii) in either case, the date on
which all of the Registrable Securities covered by such Shelf
Registration Statement have been sold, but in no event prior to
the expiration of the applicable period referred to in Section
4(3) of the Securities Act and Rule 174 thereunder (such period
with respect to the Initial Shelf Registration Statement or the
Secondary Shelf Registration being defined as the "Shelf Period"
with respect to such Shelf Registration Statement); provided,
however, that with respect to each such Shelf Registration
Statement (x) the Company may (no more than twice during any
twelve (12) month period and for a period not to exceed forty-
five (45) days on any one occasion, and not in any event to
exceed sixty (60) days in the aggregate) suspend use of such
Shelf Registration Statement at any time if the continued
effectiveness thereof would require the Company to disclose a
material financing, acquisition or other corporate transaction,
which disclosure the Board of Directors of the Company shall have
determined in good faith is not in the best interests of the
Company and its stockholders and (y) the Company may suspend use
of each such Shelf Registration Statement during any period (not
to exceed forty-five (45) days in the aggregate) if each of the
Company and the Requisite Holders of each of the Registrable
Equity Securities, if any, and the Registrable Debt Securities
covered by such Shelf Registration Statement consents in writing
to such suspension for such period, provided, further, that
Investor and any of its Affiliates (other than Mesa) shall not
participate in any such consent and that any Registrable Equity
Securities or Registrable Debt Securities held by such parties
shall not be taken into account for the purpose of such consent.
(d) Underwritten Offering. If the Requisite Holders
of each of the Registrable Equity Securities and the Registrable
Debt Securities covered by the Initial Shelf Registration
Statement and the Secondary Shelf Registration Statement, if any,
acting together, so elect, the offering of Registrable Securities
pursuant to such Shelf Registration Statements shall be in the
form of an underwritten offering, with such book-running managing
underwriter or underwriters as they shall jointly select with the
approval of the Company, such approval not to be unreasonably
withheld.
2.2 Demand Registration.
(a) Registration on Request. Except as provided in
subsection (b) below,
(i) at any time after the Shelf Period applicable
to the Initial Shelf Registration Statement, Investor
may provide the Company with a Notice of Demand (with a
copy to GPA); and
(ii) if at any time during the Shelf Period the
Initial Shelf Registration Statement is not effective
during a continuous period of ten (10) days for any
reason (other than under the circumstances and during
the periods permitted by the first proviso in Section
2.1(c)), each of Investor and Fidelity may, at any time
prior to the renewed effectiveness of such Initial
Shelf Registration Statement or any replacement Shelf
Registration Statement for such Initial Shelf
Registration Statement, provide the Company with a
Notice of Demand (with a copy to GPA) (which, in the
case of Investor, shall be in addition to its right to
provide the Company with a Notice of Demand pursuant to
clause (i) above).
Upon receipt of a Notice of Demand, the Company shall use
Commercially Reasonable Efforts to effect at the earliest
practicable date the registration under the Securities Act of the
Registrable Securities that the Company has been so requested to
register (whether pursuant to the Notice of Demand or pursuant to
notice provided under Section 2.2(d)), for disposition in
accordance with the intended method or methods of disposition
specified in the Notice of Demand or such other notice.
(b) Limitations on Demand Registration. The Company
shall not be obligated to take any action to effect any
registration pursuant to this Section 2.2: (i) after the Company
has, in accordance with the provisions of Section 2.5(c),
effected (A) one (1) registration of Registrable Securities with
respect to a registration requested pursuant to Section 2.2(a)(i)
and (B) two (2) registrations of Registrable Securities with
respect to a registration requested pursuant to Section
2.2(a)(ii); and (ii) in any period during which the Company has
suspended registration pursuant to the first proviso in Section
2.1(c).
(c) GPA Demand Registration. If GPA exercises its
right to a demand registration (the "GPA Demand") pursuant to
Section 2.2 of the GPA Registration Rights Agreement, then the
Company shall provide Investor and each of its Affiliates which
have been designated by Investor by notice to the Company to be
given notice of the GPA Demand (pursuant to the proviso to
Section 11 or otherwise), with a copy of such demand within five
(5) Business Days of its receipt thereof, and Investor may (but
shall not be obligated to) provide the Company with a Notice of
Demand pursuant to Section 2.2(a) within twenty-one (21) days of
Investor's receipt of a copy of the GPA Demand and thereby void
the GPA Demand and obligate the Company to effect a registration
of Registrable Securities pursuant to Section 2.2(a).
(d) Notice to certain non-Requesting Holders. Upon
receipt of any Notice of Demand from a Requesting Holder or any
GPA Demand, the Company will give prompt (but in any event within
fifteen (15) days after such receipt) notice to all Holders of
Registrable Securities of such Notice of Demand or GPA Demand and
of such Holders' rights under this Section 2.2. Upon the request
of any such Holder made within fifteen (15) days after the
receipt by such Holder of any such notice (which request shall
specify the Registrable Securities intended to be disposed of by
such Holder and the intended method or methods of disposition
thereof), the Company will use Commercially Reasonable Efforts to
effect the registration of all Registrable Securities which the
Company has been so requested to register pursuant to the Notice
of Demand or GPA Demand. The participation of Investor, any
Fidelity Fund, Lehman or any of their respective Affiliates or
transferees, direct or indirect, in a GPA Demand pursuant to this
Section 2.2(d) shall (i) be subject to the provisions of Section
2.3(a) and 2.3(c) hereof and (ii) with respect to Investor, or
Fidelity shall not be considered a Notice of Demand pursuant to
Section 2.2(a) and shall have no effect on such parties' right to
provide the Company with a Notice of Demand pursuant thereto.
(e) Priority in Demand Registrations. If (i) a
registration pursuant to this Section 2.2 involves an
underwritten offering of the securities being registered to be
distributed (on a firm commitment basis) by or through one or
more underwriters of recognized standing under underwriting terms
appropriate for such a transaction and (ii) the managing
underwriter of such underwritten offering shall inform the
Company and the Requesting Holder by letter of its belief that
the amount of securities requested to be included in such
registration exceeds the amount which can be sold in (or during
the time of) such offering within a price range acceptable to the
Requesting Holder, then the Company will include in such
registration such amount of securities which the Company is so
advised can be sold in (or during the time of) such offering as
follows: first, such Registrable Securities requested to be
included in such registration by each of Investor, any Fidelity
Fund, Lehman or their respective Affiliates pro rata on the basis
of the amount of such securities so proposed to be sold and so
requested to be included by such parties; second, such
Registrable Securities requested to be included in such
registration by the direct or indirect transferees of Registrable
Securities held by Investor, any Fidelity Fund, Lehman, or their
respective Affiliates pro rata on the basis of the amount of such
securities so proposed to be sold and so requested to be included
by such parties; third, such securities requested to be included
in such registration by GPA or any of its Affiliates, pursuant to
the GPA Registration Rights Agreement, pro rata on the basis of
the amount of such securities so proposed to be sold and so
included by such parties; fourth, such securities requested to be
included in such registration by the direct or indirect
transferees of securities held by GPA or any of its Affiliates,
pursuant to the GPA Registration Rights Agreement, pro rata on
the basis of the amount of such securities so proposed to be sold
and so included by such parties, and fifth, such Registrable
Securities requested to be included in such registration by all
other Holders pro rata on the basis of the amount of such
securities so proposed to be sold and so requested to be included
by such parties.
2.3 Piggyback Registration.
(a) Right to Include Registrable Securities. If the
Company at any time proposes to register any of its equity
securities under the Securities Act (other than by a registration
on Form S-4 or Form S-8 or any successor or similar form then in
effect and other than pursuant to Section 2.1 or 2.2, with the
exception of a registration pursuant to a GPA Demand) in a form
and in a manner that would permit registration of the Registrable
Equity Securities, whether or not for sale for its own account,
it will give prompt (but in no event less than thirty (30) days
prior to the proposed date of filing the registration statement
relating to such registration) notice to all Holders of
Registrable Equity Securities of the Company's intention to do so
and of such Holders' rights under this Section 2.3. Upon the
request of any such Holder made within twenty (20) days after the
receipt by such Holder of any such notice (which request shall
specify the Registrable Equity Securities intended to be disposed
of by such Holder and the intended method or methods of
disposition thereof) (the "Piggyback Registration Notice"), the
Company will use Commercially Reasonable Efforts to effect the
registration under the Securities Act of all Registrable Equity
Securities which the Company has been so requested to register by
the Holders thereof, to the extent required to permit the
disposition (in accordance with the intended method or methods
thereof as aforesaid) of the Registrable Equity Securities so to
be registered, provided that if, at any time after giving notice
of its intention to register any equity securities and prior to
the effective date of the registration statement filed in
connection with such registration, the Company shall determine
for any reason not to register or to delay registration of such
equity securities, the Company may, at its election, give notice
of such determination to each such Holder and, thereupon, (i) in
the case of a determination not to register, shall be relieved of
its obligation to register any Registrable Equity Securities in
connection with such registration (but not from its obligation to
pay all Registration Expenses in connection therewith as provided
in Section 2.5(b)), without prejudice, however, to the right of
Investor to request that such registration be effected as a
registration under Section 2.2, and (ii) in the case of a
determination to delay registering, shall be permitted to delay
registering any Registrable Equity Securities for the same period
as the delay in registering such other equity securities. No
registration effected under this Section 2.3 shall be deemed to
have been effected pursuant to Section 2.1 or 2.2 (except for any
right to demand registration which may be exercised pursuant to
the last clause of subsection (i) of the preceding sentence) or
shall relieve the Company of its obligation to effect any
registration under such Sections.
(b) Priority in Piggyback Registrations. If (i) a
registration pursuant to this Section 2.3 (other than a
registration made pursuant to a GPA Demand) involves an
underwritten offering of the securities being registered, whether
or not for sale for the account of the Company, to be distributed
(on a firm commitment basis) by or through one or more
underwriters of recognized standing under underwriting terms
appropriate for such a transaction and (ii) the managing
underwriter of such underwritten offering shall inform the
Company and the Holders requesting such registration by letter of
its belief that the amount of securities requested to be included
in such registration exceeds the amount which can be sold in (or
during the time of) such offering within a price range acceptable
to the Company, then the Company will include in such
registration such amount of securities which the Company is so
advised can be sold in (or during the time of) such offering as
follows: first, all securities proposed by the Company to be
sold for its own account; second, such Registrable Equity
Securities requested to be included in such registration by
Investor, Lehman, any Fidelity Fund or any of their respective
Affiliates pro rata on the basis of the amount of such securities
so proposed to be sold and so requested to be included by such
parties; third, such Registrable Equity Securities requested to
be included in such registration by the direct or indirect
transferees of Registrable Equity Securities held by Investor,
Lehman, any Fidelity Fund or any of their respective Affiliates
pro rata on the basis of the amount of such securities so
proposed to be sold and so requested to be included by such
parties; fourth, such securities requested to be included in such
registration by GPA or any of its Affiliates pro rata on the
basis of the amount of such securities so proposed to be sold and
so requested to be included by such parties; fifth, such
securities requested to be included in such registration by the
direct and indirect transferees of such securities held by GPA or
any of its Affiliates pro rata on the basis of the amount of such
securities so proposed to be sold and so requested to be included
by such parties; and sixth, all other securities of the Company
requested to be included in such registration pro rata on the
basis of the amount of such securities so proposed to be sold and
so requested to be included.
(c) Priority in Piggyback Registrations Pursuant to a
GPA Demand. If (i) a registration pursuant to this Section 2.3
is made pursuant to a GPA Demand and involves an underwritten
offering of the securities being registered to be distributed (on
a firm commitment basis) by or through one or more underwriters
of recognized standing under underwriting terms appropriate for
such a transaction and (ii) the managing underwriter of such
underwritten offering shall inform the Company and the Holders
requesting such registration by letter of its belief that the
amount of securities requested to be included in such
registration exceeds the amount which can be sold in (or during
the time of) such offering within a price range acceptable to the
Company, then the Company will include in such registration such
amount of securities which the Company is so advised can be sold
in (or during the time of) such offering as follows: first, such
securities requested to be included in such registration by GPA
or any of its Affiliates pro rata on the basis of the amount of
such securities so proposed to be sold and so requested to be
included by such parties; second, such securities requested to be
included in such registration by the direct and indirect
transferees of such securities held by GPA or any of its
Affiliates pro rata on the basis of the amount of such securities
so proposed to be sold and so requested to be included by such
parties; third, such Registrable Equity Securities requested to
be included in such registration by Investor, Lehman, any
Fidelity Fund or any of their respective Affiliates pro rata on
the basis of the amount of such securities so proposed to be sold
and so requested to be included by such parties; fourth, such
Registrable Equity Securities requested to be included in such
registration by the direct or indirect transferees of Registrable
Equity Securities held by Investor, Lehman, any Fidelity Fund or
any of their respective Affiliates pro rata on the basis of the
amount of such securities so proposed to be sold and so requested
to be included by such parties; and fifth, all other securities
of the Company requested to be included in such registration pro
rata on the basis of the amount of such securities so proposed to
be sold and so requested to be included.
2.4 Trust Indenture Act Qualification; Rating. At or
prior to the date the SEC declares the Initial Shelf Registration
Statement to be effective, the Company shall qualify the
Indenture under the Trust Indenture Act, and shall use
Commercially Reasonable Efforts to effect such registration to
permit the sale of the Notes thereunder in accordance with the
intended method or methods of disposition thereof. If notified
by a nationally recognized rating agency that the Notes are being
rated, the Company shall cooperate in providing information and
making a presentation to such agency in connection therewith.
2.5 Registration Terms and Procedures.
(a) Registration Statement Form. Registrations under
Section 2.2 shall be on such appropriate registration forms of
the SEC (i) as shall be acceptable to the Requesting Holder (such
acceptance not to be unreasonably withheld) and (ii) as shall
permit the disposition of such Registrable Securities in
accordance with the intended method or methods of disposition.
The Company agrees to include in any such registration statement
all information that any Participating Holder shall reasonably
request (to the extent such information relates to such
Participating Holder).
(b) Registration Expenses. Subject to Section 2.5(f),
the Company will pay all Registration Expenses incurred in
connection with a registration to be effected (whether or not
effected or deemed effected pursuant to subsection (c) below)
pursuant to Sections 2.1, 2.2 or 2.3.
(c) Effectiveness of Demand Registration. A
registration will not be deemed to have been effected under
Section 2.2 unless the registration statement with respect
thereto has been declared effective by the SEC and, subject to
the first proviso in Section 2.1(c) hereof and to Section
2.5(g)(vii) hereof, remains effective for the earlier of six (6)
months (subject to extension as contemplated by the last sentence
of Section 2.5(h)(ii)) or the distribution of the securities
covered by such registration statement; provided, however, that
if (i) after such registration statement has been declared
effective, the marketing of Registrable Securities offered
pursuant to such registration statement is materially disrupted
or adversely affected as a result of any stop order, injunction
or other order or requirement of the SEC or any other
governmental agency or court (for reasons other than a
misrepresentation or omission by the Requesting Holder or any
Participating Holder) or (ii) the conditions to closing specified
in the purchase agreement or underwriting agreement entered into
in connection with such registration have not been satisfied (for
reasons other than a wrongful or bad faith act, omission or
misrepresentation by the Requesting Holder or any Participating
Holder), such registration statement will be deemed not to have
become effective. If a registration pursuant to Section 2.2 is
deemed not to have been effected hereunder, then the Company
shall continue to be obligated to effect a registration pursuant
to such Section.
(d) Selection of Underwriter. If, in connection with
a registration effected pursuant to Section 2.2, the Requesting
Holder so elects, the offering of Registrable Securities pursuant
to such Section shall be in the form of an underwritten offering.
If the Requesting Holder so elects, it shall select one or more
nationally recognized firms of investment bankers to act as the
book-running managing underwriter or underwriters in connection
with such offering, provided that such selection shall be subject
to the consent of the Company, which consent shall not be
unreasonably withheld.
(e) Registration of Securities. Participating Holders
may seek to register different types of Registrable Securities
and/or different classes of the same type of Registrable
Securities simultaneously and the Company shall use its, and in
the case of an underwritten offering, shall cause the managing
underwriter or underwriters to use Commercially Reasonable
Efforts to effect such registration and sale in accordance with
the intended method or methods of disposition specified by such
Holders.
(f) Withdrawal. Any Holder participating in a
registration pursuant to this Agreement shall be permitted to
withdraw all or part of its Registrable Securities from such
registration at any time prior to the effective date of the
registration statement covering such securities; provided that,
in the event of a withdrawal from a registration effected
pursuant to Section 2.2, such registration shall be deemed to
have been effected for purposes of Section 2.5(c) unless (i) the
Requesting Holder and any Participating Holders shall have paid
or reimbursed the Company for fifty percent (50)% of the
reasonable out-of-pocket fees and expenses paid by the Company
hereunder or (ii) the Requesting Holder elects to terminate such
registration due to the occurrence of a Material Adverse Change;
provided, however, that during the term of this Agreement only
one such withdrawal shall be permitted pursuant to the preceding
proviso.
(g) Registration Procedures. In connection with the
Company's obligations to register Registrable Securities pursuant
to this Agreement, the Company will use Commercially Reasonable
Efforts to effect such registration so as to permit the sale of
any Registrable Securities included in such registration in
accordance with the intended method or methods of distribution
thereof, and pursuant thereto the Company will as expeditiously
as possible:
(i) prepare and (as soon thereafter as practicable)
file with the SEC the requisite registration statement
containing all information required thereby to effect such
registration and thereafter use Commercially Reasonable
Efforts to cause such registration statement to become and
remain effective in accordance with the terms of this
Agreement, provided that as far in advance as practicable
before filing such registration statement or any amendment,
supplement or exhibit thereto (but, with respect to the
filing of such registration statement, in no event later
than seven (7) days prior to such filing), the Company will
furnish to the Participating Holders or their counsel copies
of reasonably complete drafts of all such documents proposed
to be filed (excluding exhibits, which shall be made
available upon request by any Participating Holder), and any
such Holder shall have the opportunity to object to any
information contained therein and the Company will make the
corrections reasonably requested by such Holder with respect
to information relating to such Holder or the plan of
distribution of the Registrable Securities prior to filing
any such registration statement, amendment, supplement or
exhibit;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the
prospectus used in connection therewith (A) as reasonably
requested by any Participating Holder to which such
registration statement relates (but only to the extent such
request relates to information with respect to such Holder)
and (B) as may be necessary to keep such registration
statement effective for the applicable Shelf Period in the
case of a Shelf Registration Statement or six (6) months in
the case of a registration effected pursuant to Section 2.2
or 2.3 (or such shorter period as shall be necessary to
complete the distribution of the securities covered thereby,
but not before the expiration of the applicable period
referred to in Section 4(3) of the Securities Act and Rule
174 thereunder), and comply with the provisions of the
Securities Act with respect to the sale or other disposition
of all securities covered by such registration statement
during such period in accordance with the intended method or
methods of disposition by the seller or sellers thereof set
forth in such registration statement;
(iii) furnish to each Holder covered by, and each
underwriter or agent participating in the disposition of
securities under, such registration statement such number of
conformed copies of such registration statement and of each
such amendment and supplement thereto (in each case
excluding all exhibits and documents incorporated by
reference, which exhibits and documents shall be furnished
to any such Person upon request), such number of copies of
the prospectus (which in the case of Shelf Registration
Statements, shall be substantially the same prospectus for
both such Shelf Registration Statements) contained in such
registration statement (including each preliminary
prospectus and any summary prospectus) and any other
prospectus filed under Rule 424 under the Securities Act
relating to such Holder's Registrable Securities, in
conformity with the requirements of the Securities Act, and
such other documents as such Holder, underwriter or agent
may reasonably request to facilitate the disposition of such
Registrable Securities;
(iv) use Commercially Reasonable Efforts to register
or qualify all Registrable Securities and other securities
covered by such registration statement under (A) with
respect to the Shelf Registration Statements, all blue sky
and other securities laws and (B) with respect to a
registration effected pursuant to Section 2.2, all
applicable blue sky and other securities laws, and to keep
such registration or qualification in effect for so long as
such registration statement remains in effect, and take any
other action which may be reasonably necessary or advisable
to enable such Holder to consummate the disposition of the
securities owned by such Holder, except that the Company
shall not for any such purpose be required to (a) qualify
generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements
of this clause (iv) be obligated to be so qualified, (b)
subject itself to taxation in any such jurisdiction or (c)
consent to general service of process in any jurisdiction;
(v) use Commercially Reasonable Efforts to cause all
Registrable Securities covered by such registration
statement to be registered with or approved by such other
governmental agencies or authorities applicable to the
Company as may be reasonably necessary to enable the seller
or sellers thereof (or underwriter or agent, if any) to
consummate the disposition of such Registrable Securities in
accordance with the plan of distribution set forth in such
registration statement;
(vi) furnish to each Holder of Registrable Equity
Securities or Registrable Debt Securities covered by such
registration statement a signed counterpart, addressed to
such Holder (and underwriter or agent, if any) of:
(A) an opinion of counsel to the Company, dated
the effective date of such registration statement (and,
if such registration includes an underwritten public
offering, dated the date of the closing under the
underwriting agreement), and
(B) unless otherwise precluded under applicable
accounting rules, a "comfort" letter, dated the
effective date of such registration statement (and, if
such registration includes an underwritten public
offering, dated the date of the closing under the
underwriting agreement), signed by the independent
public accountants who have certified the Company's
financial statements included in such registration
statement,
in each case, reasonably satisfactory in form and substance
to such Holder (and underwriter or agent and their
respective counsel) and covering substantially the same
matters with respect to such registration statement (and the
prospectus included therein) and, in the case of the
accountants' letter, with respect to events subsequent to
the date of such financial statements, as are customarily
covered in opinions of issuer's counsel and in accountants'
letters delivered to the underwriter or agent in
underwritten public offerings of securities;
(vii) promptly notify each Holder and any underwriter
or agent participating in the disposition of Registrable
Securities covered by such registration statement, at any
time when a prospectus relating thereto is required to be
delivered under the Securities Act, upon discovery that, or
upon the happening of any event known to the Company as a
result of which, the prospectus included in such
registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances under which they were made, and promptly
prepare and furnish to such Holder (or underwriter or agent,
if any) a reasonable number of copies of a supplement to or
an amendment of such prospectus as may be necessary so that,
as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading in light of the
circumstances under which they were made;
(viii) otherwise use Commercially Reasonable Efforts to
comply with all applicable rules and regulations of the SEC,
and make available to its security holders, as soon as
reasonably practicable (but not more than fifteen (15)
months) after the effective date of the registration
statement, an earnings statement satisfying the provisions
of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder, and furnish to each Holder covered
by such registration statement or any participating
underwriter or agent at least five (5) business days prior
to the filing a copy of any amendment or supplement to such
registration statement or prospectus;
(ix) provide and cause to be maintained a transfer
agent and registrar for all Registrable Securities covered
by such registration statement from and after a date not
later than the effective date of such registration
statement;
(x) use Commercially Reasonable Efforts to (A) list,
on or prior to the effective date of such registration
statement, all Registrable Equity Securities covered by such
registration statement on any securities exchange on which
any of the Registrable Equity Securities is then listed, if
any or (B) have authorized for quotation and/or listing, as
applicable, on the National Association of Securities
Dealers, Inc. Automated Quotation ("NASDAQ") of the National
Market System of NASDAQ if the Registrable Equity Securities
so qualify; in each case subject to the applicable listing
requirements of the respective securities exchange or
NASDAQ;
(xi) cooperate with each seller of Registrable
Securities and each underwriter or agent participating in
the disposition of such Registrable Securities and their
respective counsel in connection with any filings required
to be made with the National Association of Securities
Dealers;
(xii) use Commercially Reasonable Efforts to prevent
the issuance by the SEC or any other governmental agency or
court of a stop order, injunction or other order suspending
the effectiveness of such registration statement and, if
such an order is issued, use Commercially Reasonable Efforts
to cause such order to be lifted as promptly as practicable;
(xiii) take such other actions as the Requisite Holders
of such Registrable Securities shall reasonably request in
order to expedite or facilitate the disposition of such
Registrable Securities;
(xiv) promptly notify each seller and the underwriter
or agent, if any:
(A) when such registration statement or any
prospectus used in connection therewith, or any
amendment or supplement thereto, has been filed and,
with respect to such registration statement or any
post-effective amendment thereto, when the same has
become effective;
(B) of any written comments from the SEC with
respect to any filing referred to in clause (A) and of
any written request by the SEC for amendments or
supplements to such registration statement or
prospectus;
(C) of the notification to the Company by the SEC
of its initiation of any proceeding with respect to, or
of the issuance by the SEC of, any stop order
suspending the effectiveness of such registration
statement; and
(D) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of any Registrable Securities for sale
under the applicable securities or blue sky laws of any
jurisdiction;
(xv) cooperate with each seller of Registrable
Securities and each underwriter or agent participating in
the distribution of such Registrable Securities to
facilitate the timely preparation and delivery of
certificates (which shall not bear any restrictive legends,
other than as required by applicable law, the Investment
Agreement or the Note Purchase Agreement or the agreement
pursuant to which the Secondary Registrable Debt Securities
are acquired on an initial issue by any Fidelity Fund or
Lehman) representing securities sold under a registration
statement hereunder, and enable such securities to be in
such denominations and registered in such names as such
seller, underwriter or agent may request and keep available
and make available to the Company's transfer agent, prior to
the effectiveness of such registration statement, an
adequate supply of such certificates;
(xvi) not later than the effective date of such
registration statement, provide a CUSIP number for all
Registrable Securities covered by a registration statement
hereunder;
(xvii) incorporate in the registration statement or any
amendment, supplement or post-effective amendment thereto
such information as each Holder, the underwriter or agent
(if any) or their respective counsel may reasonably request
to be included therein with respect to any Registrable
Securities being sold by such Holder to such underwriter or
agent, the purchase price being paid therefor by such
underwriter or agent and any other terms of the offering of
such Registrable Securities;
(xviii) during any period when a prospectus is required
to be delivered under the Securities Act, make periodic
filings with the SEC pursuant to and containing the
information required by the Exchange Act (whether or not the
Company is required to make such filings pursuant to such
Act); and
(xix) in connection with an underwritten offering,
participate, to the extent reasonably requested by the
Requisite Holders of the securities included in the offering
or the managing underwriter for the offering, in customary
efforts to sell the securities under the offering.
(h) Agreements of Certain Holders. (i) Each Holder
of Registrable Securities as to which any registration is being
effected shall furnish to the Company such information regarding
such Holder, the Registrable Securities held by such Holder and
the intended plan of distribution of such securities as the
Company may from time to time reasonably request in writing in
connection with such registration. If any registration statement
refers to Investor, Lehman, any Fidelity Fund or any of their
respective Affiliates by name or otherwise as the holder of any
securities of the Company, then such Holder shall have the right
to require that such reference be in a form reasonably
satisfactory to such Holder or in the event that such reference
to such Holder by name or otherwise is not required by the
Securities Act or any similar federal or state blue sky statute
and the rules and regulations thereunder then in force, the
deletion of the reference to such Holder.
(ii) Each Holder of Registrable Securities as to which
any registration is being effected agrees, by acquisition of such
Registrable Securities, that upon receipt of any notice (a
"Suspension Notice") from the Company of the happening of any
event of the kind described in clause (vii) of Section 2.5(g),
such Holder will forthwith discontinue such Holder's disposition
of Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until such Holder's
receipt of the copies of the supplemented or amended prospectus
contemplated by clause (vii) of Section 2.5(g) (the period from
the date on which such Holder receives a Suspension Notice to the
date on which such Holder receives copies of the supplemental or
amended prospectus being herein called the "Suspension Period").
The Company shall take such actions as are necessary to end the
Suspension Period as promptly as practicable. In the event the
Company shall give any such notice, the periods referred to in
Section 2.5(c) and clause (ii) of Section 2.5(g) shall be
extended by a number of days equal to the number of days of the
Suspension Period.
2.6 Underwritten Offerings.
(a) Underwritten Offerings in Connection with a Shelf
or a Demand Registration. If requested by the underwriters for
any underwritten offering in connection with a registration
pursuant to Section 2.1 or 2.2, the Company will enter into an
underwriting agreement with such underwriters for such offering,
such agreement (i) to be satisfactory in substance and form to
(A) the Company and (B) to the Requisite Holders of each of the
Registrable Equity Securities and the Registrable Debt Securities
included in such offering, acting together, (provided that the
Company shall not be required to have in effect more than one
underwriting agreement at any one time in connection with the
Shelf Registration Statements) and (ii) to contain such
representations and warranties by the Company and such Holders
and such other terms as are generally prevailing in agreements of
such type, including, without limitation, indemnities to the
effect and to the extent provided in Section 2.8. Each of
Investor, Lehman and each Fidelity Fund (so long as it or any of
its Affiliates holds Registrable Securities to be included in
such registration) shall be a party to such underwriting
agreement and may, at its option, require that any or all of the
representations and warranties by, and the other agreements on
the part of, the Company to and for the benefit of such
underwriters shall also be made to and for its benefit and that
any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions
precedent to its obligations thereunder.
(b) Underwritten Offerings in Connection with
Piggyback Registrations. If the Company at any time proposes to
register any of its equity securities under the Securities Act as
contemplated by Section 2.3 and such securities are to be
distributed by or through one or more underwriters, the Company
will, if requested by any Participating Holder and subject to
Sections 2.3(b) and 2.3(c), arrange for such underwriters to
include all of the Registrable Equity Securities to be offered
and sold by such Holder or Holders among the securities to be
distributed by such underwriters. The Holders of Registrable
Equity Securities to be distributed by such underwriters shall be
parties to the underwriting agreement between the Company and
such underwriters, provided that such agreement is reasonably
satisfactory in substance and form to the Company and the
Requisite Holders of each of the Registrable Equity Securities
included in such offering, and may, at their option, require that
any or all of the representations and warranties by, and the
other agreements on the part of, the Company to and for the
benefit of such underwriters shall also be made to and for the
benefit of such Holders and that any or all of the conditions
precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations
of such Holders thereunder.
2.7 Preparation; Reasonable Investigation. In
connection with the preparation and filing of each registration
statement under the Securities Act pursuant to this Agreement,
the Company will give the Holders of Registrable Securities to be
registered under such registration statement, their underwriters
or agents, if any, and their respective counsel and accountants
reasonable access to its books and records and such opportunities
to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial
statements as shall be necessary, in the opinion of such Holders'
and such underwriters' or agents' respective counsel, to conduct
a reasonable investigation within the meaning of the Securities
Act.
2.8 Indemnification.
(a) Indemnification by the Company. The Company
agrees to indemnify and hold harmless, to the full extent
permitted by law, each Holder participating in an offering of
securities provided for as described herein (including, without
limitation, under a Shelf Registration Statement or any
replacement Shelf Registration Statement), its directors,
officers, shareholders, employees, investment advisers, agents
and Affiliates, either direct or indirect (and each such
Affiliate's directors, officers, shareholders, employees,
investment advisers and agents), and each other Person, if any,
who controls such Persons within the meaning of the Securities
Act (each such Person, an "Indemnified Party"), from and against
any losses, claims, damages, liabilities or expenses, joint or
several (each a "Loss" and collectively, "Losses"), to which such
Indemnified Party may become subject under the Securities Act or
otherwise, to the extent that such Losses (or actions or
proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any
registration statement under which such securities were
registered under the Securities Act (including all documents
incorporated therein by reference), any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and the Company will reimburse such Indemnified Party
for any legal or any other expenses reasonably incurred by it in
connection with investigating or defending against any such Loss,
action or proceeding; provided that in any such case the Company
shall not be liable to any particular Indemnified Party to the
extent that such Loss (or action or proceeding in respect
thereof) arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in
such registration statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information
furnished to the Company by such Indemnified Party specifically
for inclusion therein; and provided, further, that the Company
shall not be liable in any such case to the extent it is finally
determined by a court of competent jurisdiction that any such
Loss (or action or proceeding in respect thereof) arises out of
or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made
(i) in any such preliminary prospectus, if (A) it was
the responsibility of such Indemnified Party to provide the
Person asserting such Loss with a current copy of the
prospectus and such Indemnified Party failed to deliver or
cause to be delivered a copy of the prospectus to such
Person after the Company had furnished such Indemnified
Party with a sufficient number of copies of the same prior
to the sale of Registrable Securities to the Person
asserting such Loss and (B) the prospectus corrected such
untrue statement or omission; or
(ii) in such prospectus, if such untrue statement or
omission is corrected in an amendment or supplement to such
prospectus and such amendment or supplement has been
delivered to the Indemnified Party prior to the sale of
Registrable Securities to the Person asserting such Loss and
the Indemnified Party thereafter fails to deliver the
prospectus as so amended or supplemented prior to or
concurrently with such sale after the Company had furnished
such Indemnified Party (in accordance with the notice
provisions contained in Section 10 for Persons who are
parties to this Agreement) with a sufficient number of
copies of the same for delivery to purchasers of securities.
Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of such Indemnified
Party and shall survive the transfer of such securities by such
Indemnified Party. The Company shall also indemnify each other
Person who participates (including as an underwriter) in the
offering or sale of Registrable Securities hereunder, their
officers and directors and each other Person, if any, who
controls any such participating Person within the meaning of the
Securities Act to the same extent as provided above with respect
to Indemnified Parties.
(b) Indemnification by the Sellers. Each Holder
participating in a Shelf Registration Statement filed pursuant to
Section 2.1 agrees to (and the Company may require, as a
condition to including any Registrable Securities in any
registration statement filed pursuant to Sections 2.2 or 2.3 and
as a condition to indemnifying such sellers pursuant to this
Section 2.8, that the Company shall have received an undertaking
reasonably satisfactory to it from each prospective seller of
securities included in any such offering regarding its agreement
to) indemnify and hold harmless and reimburse (in the same manner
and to the same extent as set forth in paragraph (a) of this
Section 2.8) the Company, each director, officer, employee and
agent of the Company, and each other Person, if any, who controls
the Company within the meaning of the Securities Act, from and
against any Losses (or actions or proceedings, whether commenced
or threatened, in respect thereof) arising out of or based upon
any untrue statement or alleged untrue statement of a material
fact contained in any such Shelf Registration Statement or other
registration statement pursuant to which securities of such
Holder are registered under the Securities Act (including all
documents incorporated therein by reference), any preliminary
prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission
or alleged omission from such registration statement, preliminary
prospectus, final prospectus or summary prospectus, or any
amendment or supplement thereto required to be stated therein or
necessary to make the statements therein not misleading, if (but
only if) such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by
such prospective seller specifically for inclusion therein;
provided, however, that such prospective seller shall not be
obligated to provide such indemnity to the extent that such
Losses result, directly or indirectly, from the failure of the
Company to promptly amend or take action to correct or supplement
any such registration statement, prospectus, amendment or
supplement based on corrected or supplemental information
provided in writing by such prospective seller to the Company
expressly for such purpose; and provided further, that the
obligation to provide indemnification pursuant to this Section
2.8(b) shall be several, and not joint and several, among such
indemnifying parties. Notwithstanding anything in this Section
2.8(b) to the contrary, in no event shall the liability of any
prospective seller under such indemnity be greater in amount than
the amount of the proceeds received by such seller upon the sale
of its Registrable Securities in the offering to which the Losses
relate. Such indemnity shall remain in full force and effect,
regardless of any investigation made by or on behalf of the
Company or any such director, officer, employee, agent or
participating or controlling Person and shall survive the
transfer of such securities by such prospective seller.
(c) Notices of Claims, etc. Promptly after receipt by
an indemnified party of notice of the commencement of any action
or proceeding involving a claim referred to in paragraph (a) or
(b) of this Section 2.8, such indemnified party will, if a claim
in respect thereof is to be made against an indemnifying party,
give prompt written notice to the latter of the commencement of
such action, provided that the failure of any indemnified party
to give notice as provided herein shall not relieve the
indemnifying party of its obligations under this Section 2.8,
except to the extent that the indemnifying party is actually and
materially prejudiced by such failure to give notice. In case
any such action is brought against an indemnified party, the
indemnifying party shall be entitled to participate in and to
assume the defense thereof (such assumption to constitute its
acknowledgement of its agreement to indemnify the indemnified
party with respect to such matters), jointly with any other
indemnifying party similarly notified to the extent that it may
wish, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such
indemnified party for any legal fees or other expenses
subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation;
provided, however, that if, in such indemnified party's
reasonable judgment, a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such
claim, such indemnified party shall be entitled to separate
counsel at the expense of the indemnifying party; and provided,
further, that, unless there exists a conflict of interest among
indemnified parties, all indemnified parties in respect of such
claim shall be entitled to only one counsel or firm of counsel
for all such indemnified parties. In the event an indemnifying
party shall not be entitled, or elects not, to assume the defense
of a claim, such indemnifying party shall not be obligated to pay
the fees and expenses of more than one counsel or firm of counsel
for all parties indemnified by such indemnifying party in respect
of such claim, unless in the reasonable judgment of any such
indemnified party a conflict of interest exists between such
indemnified party and any other of such indemnified parties in
respect of such claim, in which event the indemnifying party
shall be obligated to pay the fees and expenses of one additional
counsel or firm of counsel for such indemnified parties. No
indemnifying party shall, without the consent of the indemnified
party, consent to entry of any judgment or enter into any
settlement that (i) does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all Losses in respect of such
claim or litigation or (ii) would impose injunctive relief on
such indemnified party. No indemnifying party shall be subject
to any Losses for any settlement made without its consent, which
consent shall not be unreasonably withheld.
(d) Other Indemnification. The provisions of this
Section 2.8 shall be in addition to any other rights to
indemnification or contribution which an indemnified party may
have pursuant to law, equity, contract or otherwise.
(e) Indemnification Payments. The indemnification
required by this Section 2.8 shall be made by periodic payments
of the amount thereof during the course of the investigation or
defense, promptly as and when bills are received or Losses are
incurred.
(f) Contribution. If for any reason the foregoing
indemnity and reimbursement is unavailable or is insufficient to
hold harmless an indemnified party under paragraph (a) or (b) of
this Section 2.8, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a
result of any Loss (or actions or proceedings, whether commenced
or threatened, in respect thereof), including, without
limitation, any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such Loss,
action or proceeding, in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one
hand and the indemnified party on the other. The relative fault
shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party or the indemnified
party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue
statement or omission. Notwithstanding anything in this Section
2.8(f) to the contrary, no indemnifying party (other than the
Company) shall be required pursuant to this Section 2.8(f) to
contribute any amount in excess of the amount by which the net
proceeds received by such indemnifying party from the sale of
Registrable Securities in the offering to which the Losses of the
indemnified parties relate exceeds the amount of any damages
which such indemnifying party has otherwise been required to pay
by reason of such untrue statement or omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution
from any Person who was not guilty of such fraudulent
misrepresentation.
2.9 Liquidated Damages.
(a) If, (i) as of the Initial Effective Date, the
Initial Shelf Registration Statement has been suspended or is not
otherwise effective or (ii) as of the Secondary Effective Date,
the Secondary Shelf Registration Statement has been suspended or
is not otherwise effective, the Company shall pay liquidated
damages to each Holder covered or to be covered by each such
suspended or ineffective Shelf Registration Statement in an
amount equal to (A) in the case of Registrable Debt Securities,
$.10 per $1,000 outstanding principal amount of such Registrable
Debt Securities and (B) in the case of Registrable Equity
Securities, $.40 per 1,000 shares (or, in the case of any
Warrant, $.40 per 1,000 shares based on the number of shares
issuable upon exercise of such Warrant), for each week specified
in subsection (g) below.
(b) If the suspension or ineffectiveness referred to
in clause (a) above shall not have been cured within ninety (90)
days after the Initial Effective Date or the Secondary Effective
Date, as the case may be, the daily liquidated damages set forth
in clause (a) above shall increase to an amount equal to (i) in
the case of Registrable Debt Securities, $.15 per $1,000
outstanding principal amount of such Registrable Debt Securities
and (ii) in the case of Registrable Equity Securities, $.65 per
1,000 shares (or in the case of any Warrant, $.65 per 1,000
shares based on the number of shares issuable upon exercise of
the Warrant), for each week specified in subsection (g) below.
(c) If the suspension or ineffectiveness referred to
in clause (a) above shall not have been cured within one hundred
and eighty (180) days after the Initial Effective Date or the
Secondary Effective Date, as the case may be, the daily
liquidated damages set forth in clause (a) above shall increase
to an amount equal to (i) in the case of Registrable Debt
Securities, $.20 per $1,000 outstanding principal amount of such
Registrable Debt Securities and (ii) in the case of Registrable
Equity Securities, $.90 per 1,000 shares (or in the case of any
Warrant, $.90 per 1,000 shares based on the number of shares
issuable upon exercise of the Warrant), for each week specified
in subsection (g) below.
(d) If a stop order is imposed or if for any other
reason the effectiveness of a Shelf Registration Statement is
suspended during the Shelf Period applicable to such Shelf
Registration Statement, the Company shall pay liquidated damages
to each Holder covered or to be covered by such Shelf
Registration Statement in an amount equal to (i) in the case of
Registrable Debt Securities, $.10 per $1,000 outstanding
principal amount of such Registrable Debt Securities and (ii) in
the case of Registrable Equity Securities, $.40 per 1,000 shares
(or in the case of any Warrant, $.40 per 1,000 shares based on
the number of shares issuable upon exercise of the Warrant), for
each week specified in subsection (g) below.
(e) If the stop order or other suspension of
effectiveness of a Shelf Registration Statement referred to in
clause (d) above shall not have been cured within ninety (90)
days after such stop order was imposed or the effectiveness of
such Shelf Registration Statement was otherwise suspended, the
daily liquidated damages set forth in clause (d) above shall
increase to an amount equal to (i) in the case of Registrable
Debt Securities, $.15 per $1,000 outstanding principal amount of
such Registrable Debt Securities and (ii) in the case of
Registrable Equity Securities, $.65 per 1,000 shares (or in the
case of any Warrant, $.65 per 1,000 shares based on the number of
shares issuable upon exercise of the Warrant), for each week
specified in subsection (g) below.
(f) If the stop order or other suspension of
effectiveness of a Shelf Registration Statement referred to in
clause (d) above shall not have been cured within one hundred and
eighty (180) days after such stop order was imposed or the
effectiveness of such Shelf Registration Statement was otherwise
suspended, the daily liquidated damages set forth in clause (d)
above shall increase to an amount equal to (i) in the case of
Registrable Debt Securities, $.20 per $1,000 outstanding
principal amount of such Registrable Debt Securities and (ii) in
the case of Registrable Equity Securities, $.90 per 1,000 shares
(or in the case of any Warrant, $.90 per 1,000 shares based on
the number of shares issuable upon exercise of the Warrant), for
each week specified in subsection (g) below.
(g) The liquidated damages payable to any Holder set
forth in this Section 2.9 shall begin accruing on the date on
which the event triggering such liquidated damages occurs and
shall cease to accrue on the earlier of the date after the SEC
reinstates the effectiveness of the relevant Shelf Registration
Statement or otherwise declares such Shelf Registration Statement
to be effective and the date after the SEC declares effective a
registration statement effected pursuant to Section 2.2 covering
such Holder's Registrable Securities. The Company will pay the
liquidated damages due with respect to any Registrable Securities
at the end of each month during which such damages accrue.
Liquidated damages shall be paid in immediately available funds
by wire transfer to each Holder of at least ten percent (10%) of
Registrable Equity Securities (but not less than an aggregate of
2,000,000 shares of Class A Common, Class B Common and shares
issuable upon exercise of Warrants) or at least ten percent (10%)
of the aggregate principal amount of Registrable Debt Securities
(but not less than $10 Million of aggregate principal amount of
Registrable Debt Securities) entitled to receive such liquidated
damages to the accounts designated by such Holders, and all other
Holders entitled to receive such funds, shall be paid by check
mailed to such other Holders at the address shown in the records
of the Company for such Holders; provided that for purposes of
this Section 2.9(g), all Fidelity Funds shall be considered a
single Holder.
(h) Notwithstanding any of the provisions of this
Section 2.9, no liquidated damages shall be payable (i) during
any period of time that (A) a Shelf Registration Statement or any
replacement Shelf Registration Statement is suspended by the
Company pursuant to the first proviso in Section 2.1(c), or (B)
the Company is precluded from using or qualifying a Shelf
Registration Statement as a result of a change to the rules or
regulations of the SEC applicable thereto with which the Company
is unable to comply after exercising Commercially Reasonable
Efforts to so comply; and (ii) to any party, if, as a result of
such party's acts or omissions, the Company is precluded from
using or qualifying a Shelf Registration Statement.
(i) The parties hereto agree that (i) the liquidated
damages provided for in this Section 2.9 constitute a reasonable
estimate of the damages that will be suffered by each Holder
covered or to be covered by a Shelf Registration Statement by
reason of the failure of such Shelf Registration Statement to be
declared effective and to remain effective in accordance with
this Agreement and (ii) such liquidated damages shall be the sole
remedy of each such Holder with respect to the matters set forth
in this Section 2.9.
3. Rule 144 and Rule 144A. (a) The Company will file
the reports required to be filed by it under the Securities Act
and the Exchange Act and the rules and regulations adopted by the
SEC thereunder and will take such further action as Investor,
Lehman and/or any Fidelity Fund may reasonably request, all to
the extent required from time to time to enable Investor, Lehman
and/or such Fidelity Fund to sell Registrable Securities without
registration under the Securities Act within the limitation of
the exemptions provided by (i) Rule 144, (ii) Rule 144A or (iii)
any similar rule or regulation hereafter adopted by the SEC.
Upon the request of Investor, Lehman and/or any Fidelity Fund,
the Company will deliver to Investor, Lehman and/or such Fidelity
Fund a written statement as to whether it has complied with such
requirements and will, at its expense, forthwith upon the request
of Investor, Lehman and/or such Fidelity Fund, deliver to
Investor, Lehman and/or such Fidelity Fund a certificate, signed
by the Company's principal financial officer, stating (A) the
Company's name, address and telephone number (including area
code), (B) the Company's Internal Revenue Service identification
number, (C) the Company's SEC file number, (D) the amount of
shares of each class of capital stock outstanding as shown by the
most recent report or statement published by the Company, and (E)
whether the Company has filed the reports required to be filed
under the Exchange Act for a period of at least ninety (90) days
prior to the date of such certificate and in addition has filed
the most recent annual report required to be filed thereunder.
(b) If at any time the Company is not required to file
reports in compliance with either Section 13 or Section 15(d) of
the Exchange Act, the Company at its expense will, forthwith upon
the request of Investor, Lehman and/or any Fidelity Fund, (i)
make available adequate current public information with respect
to the Company within the meaning of paragraph (c)(2) of Rule 144
and (ii) deliver the information required by Section (d) of Rule
144A (such information to be "reasonably current" within the
meaning of Section (d)(4)(ii) of Rule 144A).
4. Term. This Agreement shall enter into force on the
date hereof and shall continue in full force and effect, subject
to Section 18 hereof, until the eighth (8th) anniversary of the
date hereof.
5. Amendments and Waivers. This Agreement may be
amended, supplemented or modified at any time; provided that each
of (i) the Requisite Holders of each of the Registrable Equity
Securities and the Registrable Debt Securities then outstanding
and (ii) the Company has provided its written consent to such
amendment, supplement or modification; provided, however, that no
such amendment, supplement or modification which would prejudice
the rights expressly granted to Fidelity or any Fidelity Fund as
a named party hereto shall be effective without the written
consent of Fidelity or such Fidelity Fund, as the case may be;
and provided further, that no such amendment, supplement or
modification which would prejudice the rights expressly granted
to Lehman as a named party hereto shall be effective without the
written consent of Lehman. Any term or condition of this
Agreement may be waived at any time by the party that is entitled
to the benefit thereof, but no such waiver shall be effective
unless set forth in a written instrument duly executed by or on
behalf of the party waiving such term or condition. No waiver by
any party of any term or condition of this Agreement, in any one
or more instances, shall be deemed to be or construed as a waiver
of the same term or condition of this Agreement on any future
occasion.
6. Entire Agreement. This Agreement supersedes all
prior discussions and agreements between the parties with respect
to the subject matter hereof (including, without limitation,
Section 11 of the Investment Agreement) and contains the sole and
entire agreement between the parties hereto with respect to the
subject matter hereof.
7. No Third-Party Beneficiary. The terms and
provisions of this Agreement are intended solely for the benefit
of each party, their respective Successors or permitted assigns
and it is not the intention of the parties to confer third-party
beneficiary rights upon any other Person other than (i) any
Affiliate of Investor, Lehman, any Fidelity Fund, (ii) any
transferee, direct or indirect, of any of the Registrable
Securities held by Investor, Lehman, any Fidelity Fund or any of
their respective Affiliates, or (iii) any other Person entitled
to notice of the registration of Registrable Securities under
Sections 2.2(d) or 2.3(a), to indemnity under Section 2.8 or to
liquidated damages under Section 2.9.
8. Invalid Provisions. If any provision of this
Agreement is held to be illegal, invalid or unenforceable under
any present or future law, (i) such provision will be fully
severable, (ii) this Agreement will be construed and enforced as
if such illegal, invalid or unenforceable provision had never
comprised a part hereof, (iii) the remaining provisions of this
Agreement will remain in full force and effect and will not be
affected by the illegal, invalid or unenforceable provision or by
its severance herefrom and (iv) in lieu of such illegal, invalid
or unenforceable provision, there will be added automatically as
a part of this Agreement a legal, valid and enforceable provision
as similar in terms to such illegal, invalid or unenforceable
provision as may be possible.
9. Nominees for Beneficial Owners. In the event that
any Registrable Securities are held by a nominee for the
beneficial owner thereof, the beneficial owner thereof may, at
its election, be treated as the holder of such Registrable
Securities for purposes of request or other action by any Holder
or Holders pursuant to this Agreement or any determination of any
amount of shares of Registrable Securities held by any Holder or
Holders of Registrable Securities contemplated by this Agreement.
If the beneficial owner of any Registrable Securities so elects,
the Company may require assurances reasonably satisfactory to it
of such owner's beneficial ownership of such Registrable
Securities. For purposes of this Agreement, "beneficial
ownership" and "beneficial owner" refer to beneficial ownership
as defined in Rule 13d-3 (without regard to the 60-day provision
in paragraph (d)(1)(i) thereof) under the Exchange Act.
10. Notices. All notices, requests and other
communications hereunder must be in writing and will be deemed to
have been duly given only if (i) delivered personally, (ii) by
facsimile transmission, (iii) by Federal Express or other
nationally recognized courier service or (iv) mailed (first class
postage prepaid) to the parties at the following addresses or
facsimile numbers:
If to the Company, to:
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J.
Whalen, Esq.
Fax No.: (602) 693-5904
with a copy to:
Andrews & Kurth L.L.P.
4200 Texas Commerce Tower
Houston, Texas 77002
Attention: David G. Elkins, Esq.
If to Investor, to:
AmWest Partners, L.P.
201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James G. Coulter
Fax No.: (817) 871-4010
and to:
Mesa Airlines, Inc.
2325 30th Street
Farmington, New Mexico 87401
Attention: Gary E. Risley, Esq.
with a copy to:
Jones, Day, Reavis & Pogue
901 Lakeside Avenue
Cleveland, Ohio 44114
Attention: Lyle G. Ganske, Esq.
Fax No: (216) 586-7864
If to Lehman, to:
Lehman Brothers Inc.
Three World Financial Center
New York, NY 10285
Attention: John K. Sweeney
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10023
Attention: John R. Cannell, Esq.
Fax No: (212) 455-2502
If to Fidelity, to:
Fidelity Management Trust Company
82 Devonshire Street, MS F7E
Boston, Massachusetts 02109
Attention: Daniel S. Harmetz
Fax No.: (617) 227-2536
and to:
Fidelity Management Trust Company
82 Devonshire Street, MS F7D
Boston, Massachusetts 02109
Attention: Wendy Schnipper-Clayton, Esq.
Fax No.: (617) 570-7688
with a copy to:
Goodwin, Procter & Hoar
Exchange Place
Boston, Massachusetts 02109-2881
Attention: Laura C. Hodges Taylor, P.C.
Fax No.: (617) 523-1231
With respect to any other holder of Registrable
Securities entitled to receive notice, requests or other
communications hereunder, such notices, requests and other
communications shall be sent to the addresses and telecopy
numbers provided to the Company and the other parties hereto by
notice as herein provided and referencing this Agreement. All
such notices, requests and other communications will (i) if
delivered personally to the address as provided in this Section
10, be deemed given upon delivery, (ii) if delivered by facsimile
transmission to the facsimile number as provided in this Section
10, be deemed given upon receipt, and (iii) if delivered by
courier service or by mail in the manner described above to the
address as provided in this Section 10, be deemed given upon
receipt (in each case regardless of whether such notice, request
or other communication is received by any other Person to whom a
copy of such notice is to be delivered pursuant to this Section
10). Any Person from time to time may change its address,
facsimile number or other information for the purpose of notices
to that Person by giving notice in accordance with this Section
10 specifying such change to each of the other parties executing
this Agreement.
11. Assignment. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties and
their respective Successors (including, in the case of the
Company, the Company as reorganized pursuant to the Plan) and
permitted assigns. In addition, each of Investor, Lehman, any
Fidelity Fund, and each of their respective Affiliates may assign
any of its rights hereunder (in whole or in part) to one or more
Affiliates or to one or more direct or indirect transferees of
its Registrable Securities, provided, however, that any such
assignment by Investor to one or more of its Affiliates which
results in the liquidation of its entire interest in the
Registrable Securities, either upon dissolution or otherwise,
shall include a designation of the transferee Affiliate or
Affiliates who shall thereafter have the right and authority to
exercise any notice or consent rights on the part of Investor set
forth in this Agreement, and each other holder of Registrable
Securities by means of an assignment by Investor shall be bound
by the actions taken by such designated Affiliate(s), and
provided further that any assignee which accepts the benefits of
this Agreement shall be deemed to have accepted and be bound by
all obligations on the part of the assignor hereunder. No such
assignment shall be binding upon or obligate the Company to any
such assignee unless and until (A) the Company shall have
received notice of such assignment as herein provided, which
notice shall (i) reference this Agreement and (ii) set forth the
name and address of any assignee for the purpose of any notices
hereunder or (B) such assignee can establish its beneficial or
record ownership of any Registrable Securities and shall have
provided the Company with the information called for by clause
(A)(ii) of this Section 11.
12. Descriptive Headings. The descriptive headings of
the several sections and paragraphs of this Agreement are
inserted for convenience of reference only and do not define or
limit the provisions hereof or otherwise affect the meaning
hereof.
13. Specific Performance. Except with respect to the
matters set forth in Section 2.9, the parties agree that, to the
extent permitted by law, (i) the obligations imposed on them in
this Agreement are special, unique and of an extraordinary
character, and that in the event of a breach by any such party
damages would not be an adequate remedy; and (ii) each of the
other parties shall be entitled to specific performance and
injunctive and other equitable relief in addition to any other
remedy to which it may be entitled at law or in equity.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REFERENCE TO THE CONFLICTS OF LAW PRINCIPLES
THEREOF.
15. Registration Rights to Others. Except for
registration rights granted by the Company to GPA under that
certain Registration Rights Agreement of even date herewith (the
"GPA Registration Rights Agreement"), the Company shall not
provide to any other holder of its securities rights with respect
to the registration of such securities under the Securities Act
without the prior written consent of the Requisite Holders of
each of the Registrable Equity Securities and the Registrable
Debt Securities then outstanding, which consent shall not be
unreasonably withheld; provided, however, that the foregoing
restriction shall not be applicable (i) to the grant by the
Company of "piggyback" registration rights which are subordinate
in priority to the rights of Holders of Registrable Securities
pursuant to Sections 2.2(d) and 2.3(b), and (ii) to any grant of
any demand registration rights by the Company after exercise or
termination of all demand registration rights set forth in
Section 2.2, provided, however, that in regard to any such grant
of demand registration rights each of Investor, each Fidelity
Fund, Lehman and each of their respective Affiliates shall have
the right during the term of this Agreement to subscribe to or
otherwise participate in such rights on equal terms, and on a pro
rata basis, with the parties granted such rights. The Company
represents and warrants that, other than as provided herein, it
has not granted to any other Person rights with respect to the
registration of any Registrable Securities or any other
securities issued or to be issued by it.
16. Attorneys' Fees. In any action or proceeding
brought to enforce any provision of this Agreement or where any
provision hereof is validly asserted as a defense, the successful
party shall, to the extent permitted by applicable law, be
entitled to recover reasonable attorneys' fees in addition to any
other available remedy.
17. Limitation of Liability. Each party to this
Agreement acknowledges and agrees that (i) this Agreement is not
executed on behalf of or binding upon any of the trustees,
officers, directors, partners or shareholders of any Fidelity
Fund individually, but is binding only upon the assets and
property of each Fidelity Fund and (ii) the obligations of each
Fidelity Fund hereunder are several and not joint. With respect
to the obligations of any Fidelity Fund arising out of this
Agreement, each party to this Agreement shall look for payment or
satisfaction of any claim solely to the assets and property of
such Fidelity Fund.
18. Termination of Certain Rights. The rights and
obligations hereunder of each of Investor, Lehman and each
Fidelity Fund shall terminate with respect to such party at such
time when neither it nor any of its respective Affiliates holds
Registrable Securities, provided that the provisions of Section
2.8 hereof, the rights of any party hereto with respect to the
breach of any provision hereof, and any obligation accrued as of
the date of termination (including any obligation accrued under
Section 2.9 hereof) shall survive termination of this Agreement.
19. No Inconsistent Agreements. The Company will not
hereafter enter into, modify, amend or waive any agreement with
respect to its securities if such agreement, modification,
amendment or waiver would conflict with the rights granted
pursuant to this Agreement to the Holders of Registrable
Securities. Without limiting the generality of the foregoing and
subject to Section 18 hereof, the Company will not amend, modify
or waive, or permit the amendment, modification or waiver of
Sections 2.1, 2.2 or 2.3 of the GPA Registration Rights Agreement
without the prior written consent of the Requisite Holders of
each of the Registrable Equity Securities and the Registrable
Debt Securities then outstanding, provided, however, that
Investor and any of its Affiliates (other than Mesa) shall not
participate in any such consent and that any Registrable Equity
Securities or Registrable Debt Securities held by such parties
shall not be taken into account for the purpose of such consent.
20. Requisite Holders. Each of the parties hereto
agrees that the Company may, in connection with the taking of any
action permitted to be taken hereunder with the consent or
approval of the Requisite Holders of the Registrable Equity
Securities or Registrable Debt Securities, rely in good faith on
a certificate from any such holder or holders stating that it
holds or is acting on behalf of a majority in interest of the
Registrable Equity Securities or a majority in principal amount
of the Registrable Debt Securities, as the case may be.
21. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall
be deemed an original, but all of which shall together constitute
one and the same instrument.
22. Repurchase Arrangement. Notwithstanding anything
contained in this Agreement to the contrary, the parties hereto
agree and acknowledge that all rights of Fidelity Copernicus
Fund, L.P. ("Copernicus") under this Agreement in respect of
Registrable Debt Securities held by Copernicus shall inure to the
benefit of and be enforceable by Copernicus, Lehman Government
Securities Inc. or any other transferee (including any
counterparty) of such Registrable Debt Securities, in each case
as contemplated by the repurchase arrangement described under
"Plan of Distribution" as set forth in the Company's S-1
Registration Statement filed with the SEC on June 26, 1994, as
amended, provided that the Company shall have no obligations
under this Agreement with respect to any such Person other than
Copernicus unless and until it shall have been provided the
notice of assignment or information regarding ownership as set
forth in Section 11 of this Agreement.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed and delivered by their respective
officers thereunto duly authorized as of the date first above
written.
AMERICA WEST AIRLINES, INC.
By: /s/ Martin J. Whelan
Name: Martin J. Whelan
Title: Senior Vice President
AMWEST PARTNERS, L.P.
By AmWest GenPar Inc.,
its General Partner
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
LEHMAN BROTHERS INC.
By: /s/ John K. Sweeney
Name: John K. Sweeney
Title: Managing Director
BELMONT CAPITAL PARTNERS II, L.P.
By: Fidelity Capital Partners
II Corp., its general
partner
By: /s/ Daniel G. Harmetz
Name: Daniel G. Harmetz
Title: Sr. Vice President
BELMONT FUND, L.P.
By: Fidelity Managment Trust
Company, pursuant to a
Power of Attorney for
Fidelity International
Services Limited, its
managing general partner
By: /s/ Daniel G. Harmetz
Name: Daniel G. Harmetz
Title: Sr. Vice President
FIDELITY COPERNICUS FUND, L.P.
By: Fidelity Copernicus
Corp., its general
partner
By: /s/ Daniel G. Harmetz
Name: Daniel G. Harmetz
Title: Sr. Vice President
<PAGE>
-------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
between
AMERICA WEST AIRLINES, INC.,
and
GPA GROUP plc
Dated as of August 25, 1994
-------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
1. Definitions........................................... 1
2. Registration under the Securities Act................. 5
2.1. Shelf Registration Statement................. 5
2.3. Piggyback Registration....................... 8
2.4. Registration Terms and Procedures............ 10
2.5. Underwritten Offerings....................... 16
2.6. Preparation; Reasonable Investigation........ 16
2.7. Indemnification.............................. 17
3. Rule 144 and Rule 144A................................ 20
4. Term.................................................. 21
5. Amendments and Waivers................................ 21
6. Entire Agreement...................................... 21
7. No Third-Party Beneficiary............................ 21
8. Invalid Provisions.................................... 21
9. Notices............................................... 21
10. Assignment............................................ 23
11. Descriptive Headings.................................. 23
12. GOVERNING LAW......................................... 23
13. Registration Rights to Others......................... 23
14. Attorneys' Fees....................................... 23
15. Termination of Certain Rights and Obligations......... 23
16. No Inconsistent Agreements............................ 24
17. Specific Performance.................................. 24
18. Requisite Holders..................................... 24
19. Counterparts.......................................... 24
<PAGE>
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of August 25,
1994 between AMERICA WEST AIRLINES, INC., a Delaware corporation
(including its successor, as reorganized pursuant to Chapter 11,
Title 11 of the United States Bankruptcy Code (the "Bankruptcy
Code") (the "Company"), and GPA Group plc, an Irish public
limited company ("GPA").
W I T N E S S E T H :
WHEREAS, the Company is a Debtor and
Debtor-in-Possession in the case (the "Chapter 11 Case") filed in
the United States Bankruptcy Court for the District of Arizona
(the "Bankruptcy Court"), entitled In re America West Airlines,
Inc., Debtor," Chapter 11 Case No. 91-07505-PHX-RGM, under the
Bankruptcy Code;
WHEREAS, in connection with and as part of the
transactions to be consummated pursuant to the confirmation of a
Plan of Reorganization (as amended, modified or supplemented from
time to time) of the Company in the Chapter 11 Case (the "Plan of
Reorganization"), the Company will issue to GPA and its
respective Affiliates (as defined herein) (i) 900,000 shares of
Class B Common Stock of the Company and (ii) 1,384,615 Warrants
to purchase Class B Common Stock of the Company (collectively,
the "GPA Securities");
WHEREAS, as a condition to GPA's participation in the
transactions contemplated by the Plan of Reorganization, the
Company has filed with the SEC (as hereinafter defined) a shelf
registration statement that includes the GPA Securities and is
undertaking to have such shelf registration statement declared
effective;
WHEREAS, by Order dated August 10, 1994, the Bankruptcy
Court confirmed the Plan of Reorganization; and
WHEREAS, the Plan of Reorganization contemplates that
the Company and GPA will enter into certain agreements,
including, without limitation, this Registration Rights
Agreement;
NOW THEREFORE, the parties hereby agree as follows:
1. Definitions. The following terms, as used herein,
have the following meanings (all terms defined herein in the
singular to have the correlative meanings when used in the plural
and vice versa):
"Affiliate" means (i) when used with reference to any
partnership, any Person that, directly or indirectly, owns or
controls 10% or more of either the capital or profit interests of
such partnership or is a partner of such partnership or is a
Person in which such partnership has a 10% or greater direct or
indirect equity interest and (ii) when used with reference to any
corporation, any Person that, directly or indirectly, owns or
controls 10% or more of the outstanding voting securities of such
corporation or is a Person in which such corporation has a 10% or
greater direct or indirect equity interest. In addition, the
term "Affiliate," when used with reference to any Person, shall
also mean any other Person that, directly or indirectly, controls
or is controlled by or is under common control with such Person.
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, the Company will be deemed not to
be an Affiliate of GPA or any of its Affiliates and each of
AmWest GenPar, Inc., Continental Airlines, Inc., Mesa Airlines,
Inc., TPG Partners, L.P., TPG Parallel I, L.P. and Air Partners
II, L.P. shall be deemed to be an Affiliate of AmWest.
"Agreement" means this Registration Rights Agreement,
as the same shall be amended, modified or supplemented from time
to time.
"AmWest" means AmWest Partners, L.P., a Texas limited
partnership or, if applicable, any partner, Affiliate, direct or
indirect subsidiary or any Successor thereof.
"AmWest Registration Rights Agreement" means the
Registration Rights Agreement of even date herewith among the
Company, AmWest and the other holders named therein, as amended
from time to time in accordance with the provisions thereof and
hereof.
"Chapter 11 Case" has the meaning ascribed to it in the
preamble.
"Class B Common" means the class B Common Stock, par
value $.01 per share, of the Company.
"Commercially Reasonable Efforts", when used with
respect to any obligation to be performed or term or provision to
be observed hereunder, means such efforts as a prudent Person
seeking the benefits of such performance or action would make,
use, apply or exercise to preserve, protect or advance its rights
or interests, provided, that such efforts do not require such
Person to incur a material financial cost or a substantial risk
of material liability unless such cost or liability (i) would
customarily be incurred in the course of performance or
observance of the relevant obligation, term or provision, (ii) is
caused by or results from the wrongful act or negligence of the
Person whose performance or observance is required hereunder or
(iii) is not excessive or unreasonable in view of the rights or
interests to be preserved, protected or advanced. Such efforts
may include, without limitation, the expenditure of such funds
and retention by such Person of such accountants, attorneys or
other experts or advisors as may be necessary or appropriate to
effect the relevant action; the undertaking of any special audit
or internal investigation that may be necessary or appropriate to
effect the relevant action; and the commencement, termination or
settlement of any action, suit or proceeding involving such
Person to the extent necessary or appropriate to effect the
relevant action.
"Demand Registration" means any registration of
Registrable Securities under the Securities Act effected in
accordance with Section 2.2.
"Effective Date" means the date upon which the Restated
Certificate of Incorporation becomes effective in accordance with
the Plan of Reorganization and the General Corporation Law of the
State of Delaware.
"Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, or any successor statute, and
the rules and regulations promulgated thereunder.
"Fidelity" and "Fidelity Fund" shall have the meanings
given such terms in the AmWest Registration Rights Agreement.
"Holders" means the holders of record of Registrable
Securities, or, in the case of references to holders of
securities of the Company other than Registrable Securities, the
record holders of such securities.
"Indemnified Party" has the meaning ascribed to it in
Section 2.7(a).
"Loss" has the meaning ascribed to it in Section
2.7(a).
"Material Adverse Change" means (i) any general
suspension of trading in, or limitation on prices for, securities
on any national securities exchange or in the over-the-counter
market in the United States of America, (ii) the declaration of a
banking moratorium or any suspension of payments in respect of
banks in the United States of America, (iii) the commencement of
a war, armed hostilities or other international or national
calamity involving the United States of America, (iv) any
limitation (whether or not mandatory) by any governmental
authority on, or any other event which materially affects the
extension of credit by banks or other financial institutions, (v)
any material adverse change in the Company's business, condition
(financial or otherwise) or prospects or (vi) a 15% or more
decline in the Dow Jones Industrial average or the Standard and
Poor's Index of 400 Industrial Companies, in each case from the
date a Notice of Demand is made.
"Notice of Demand" means a request by GPA pursuant to
Section 2.2 that the Company effect the registration under the
Securities Act of all or part of the Registrable Securities held
by it and its Affiliates and at its option, any direct or
indirect transferee of Registrable Securities held by it, and any
other Holder that requests to have its securities included in
such registration pursuant to Section 2.2(d). A Notice of Demand
shall specify (i) the type and amount of Registrable Securities
proposed to be registered, (ii) the intended method or methods
and plan of disposition thereof and (iii) whether or not such
requested registration is to be an underwritten offering.
"Participating Holders" means, with respect to any
registration of securities by the Company pursuant to this
Agreement, GPA and any other Holders that are entitled to
participate in, and are participating in or seeking to
participate in, such registration.
"Person" means a natural person, a corporation, a
partnership, a trust, a joint venture, any regulatory authority
or any other entity or organization.
"Piggyback Registration" means any registration of
Registrable Securities under the Securities Act effected in
accordance with Section 2.3.
"Piggyback Registration Notice" has the meaning
ascribed to it in Section 2.3(a).
"Registrable Equity Securities" shall have the meaning
given such term in the AmWest Registration Rights Agreement.
"Registrable Securities" means the equity securities
acquired by GPA or any of its Affiliates pursuant to the Plan of
Reorganization or subsequently acquired by any transferee (direct
or indirect) of such Person, including, without limitation, (a)
any shares of Class B Common issued or issuable on the Effective
Date, (b) any Warrant, (c) any shares of Class B Common issued or
issuable upon the exercise of a Warrant and (d) any securities
issued or issuable with respect to any such Class B Common or
Warrants by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise. As to any
particular Registrable Securities, once issued such securities
shall cease to be Registrable Securities when (i) a registration
statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities
shall have been disposed of in accordance with the plan of
distribution set forth in such registration statement, (ii) such
securities shall have been distributed in accordance with Rule
144, (iii) the Company has caused to be delivered an opinion of
counsel in accordance with Section 2.2(b) that such securities
are distributable (without volume limitation) in accordance with
Rule 144 or (iv) such securities shall have been otherwise
transferred, new certificates therefor not bearing a legend
restricting further transfer shall have been delivered in
exchange therefor by the Company and subsequent disposition of
such securities shall not require registration or qualification
under the Securities Act or any similar state law then in force.
"Registration Expenses" means all expenses incident to
the Company's performance of or compliance with this Agreement,
including, without limitation, (a) all registration, filing,
securities exchange listing, rating agency and National
Association of Securities Dealers fees, (b) all registration,
filing, qualification and other fees and expenses of complying
with securities or blue sky laws of all jurisdictions in which
the securities are to be registered and any legal fees and
expenses incurred in connection with the blue sky qualifications
of the Registrable Securities and the determination of their
eligibility for investment under the laws of all such
jurisdictions, (c) all word processing, duplicating, printing,
messenger and delivery expenses, (d) the fees and disbursements
of counsel for the Company and of its independent public
accountants, including, without limitation, the expenses of any
special audits or "cold comfort" letters required by or incident
to such performance and compliance, (e) the reasonable fees and
disbursements incurred by the Holders of the Registrable
Securities being registered (including, without limitation, the
reasonable fees and disbursements for one counsel or firm of
counsel selected by the Requisite Holders of Registrable
Securities), (f) premiums and other costs of policies of
insurance against liabilities arising out of the public offering
of the Registrable Securities being registered to the extent the
Company elects to obtain such insurance, (g) any fees and
disbursements of underwriters customarily paid by issuers or
sellers of securities (but excluding underwriting discounts and
commissions and transfer taxes, if any, relating to the
Registrable Securities being registered) and (h) fees and
expenses of other Persons retained or employed by the Company.
"Requisite Holders" means any Holder or Holders of a
majority in interest of the securities to be included in the
relevant registration or, in the case of a registration pursuant
to Section 2.2(a) hereof, a majority in interest of Registrable
Securities.
"Restated Certificate of Incorporation" means the
restated Certificate of Incorporation adopted by the Company
pursuant to the Plan of Reorganization in accordance with Section
303 of the General Corporation Law of the State of Delaware.
"Rule 144" means Rule 144 promulgated by the SEC under
the Securities Act, and any successor provision thereto.
"Rule 144A" means Rule 144A promulgated by the SEC
under the Securities Act, and any successor provision thereto.
"SEC" means the United States Securities and Exchange
Commission, or any successor governmental agency or authority
thereto.
"Securities Act" means the Securities Act of 1933, as
amended from time to time, or any successor statute, and the
rules and regulations promulgated thereunder.
"Shelf Period" has the meaning ascribed to it in
Section 2.1(b).
"Shelf Registration Statement" has the meaning ascribed
to it in Section 2.1(a).
"Successor" means, with respect to any Person, a
successor to such Person by merger, consolidation, liquidation or
other similar transaction.
"Suspension Notice" has the meaning ascribed to it in
Section 2.4(h).
"Suspension Period" has the meaning ascribed to it in
Section 2.4(h).
"Warrant" means a Warrant to Purchase Class B Common
Stock of America West Airlines, Inc. issued pursuant to the
Warrant Agreement dated as of even date herewith between the
Company and First Interstate Bank of California, as Warrant
Agent, and any warrant issued in substitution or exchange
therefor.
2. Registration under the Securities Act.
2.1. Shelf Registration Statement.
(a) Filing of Shelf Registration Statement. If, as of
the Effective Date, (i) the effectiveness of the shelf
registration statement covering all of the Registrable Securities
(the "Shelf Registration Statement") has been suspended or the
Shelf Registration Statement is otherwise not effective or (ii)
the securities covered under the Shelf Registration Statement
shall not qualify under all blue sky or other securities laws,
the Company shall use Commercially Reasonable Efforts to cause
such Shelf Registration Statement to be effective as soon as
practicable and to qualify such securities under all blue sky and
other securities laws as soon as practicable.
(b) Continuous Effectiveness of Shelf Registration
Statement. Once the Shelf Registration Statement is effective
pursuant to Section 2.1(a), the Company shall use Commercially
Reasonable Efforts to cause the Shelf Registration Statement to
remain continuously effective until the earlier of (i) the third
(3rd) anniversary of the Effective Date and (ii) the date on
which all of the securities covered by such Shelf Registration
Statement have been sold, but in no event prior to the expiration
of the applicable period referred to in Section 4(3) of the
Securities Act and Rule 174 thereunder (the "Shelf Period");
provided, however, that (x) the Company may (no more than twice
during any twelve (12) month period and for a period not to
exceed forty-five (45) days on any one occasion, and not in any
event to exceed sixty (60) days in the aggregate) suspend use of
the Shelf Registration Statement at any time if the continued
effectiveness thereof would require the Company to disclose a
material financing, acquisition or other corporate transaction,
which disclosure the Board of Directors of the Company shall have
determined in good faith is not in the best interests of the
Company and its stockholders and (y) the Company may suspend use
of the Shelf Registration Statement during any period in
accordance with the provisions of Section 2.1(b)(y) of the AmWest
Registration Rights Agreement.
(c) Underwritten Offering. If GPA so elects, the
offering of Registrable Securities pursuant to the Shelf
Registration Statement shall be in the form of an underwritten
offering, with such book-running managing underwriter or
underwriters as it shall select with the approval of the Company,
such approval not to be unreasonably withheld.
2.2. Demand Registration.
(a) Registration on Request. Except as provided in
subsections (b) and (c) below,
(i) at any time after the Shelf Period, GPA may
(so long as it or any of its Affiliates holds
Registrable Securities to be included in the
registration) provide the Company with a Notice of
Demand (with a copy to AmWest); and
(ii) if at any time during the Shelf Period the
Shelf Registration Statement is not effective during a
continuous period of 10 days for any reason (other than
under the circumstances and during the periods
permitted by the proviso to Section 2.1(b)), GPA may,
at any time prior to renewed effectiveness of such
Shelf Registration Statement, provide the Company with
a Notice of Demand (which shall be in addition to its
right to provide the Company with a Notice of Demand
(with a copy to AmWest) pursuant to clause (i) above).
Upon receipt of a Notice of Demand, the Company shall, subject to
the provisions of Sections 2.2(b) and 2.2(c), use Commercially
Reasonable Efforts to effect at the earliest practicable date the
registration under the Securities Act of the Registrable
Securities that the Company has been so requested to register
pursuant to the Notice of Demand, for disposition in accordance
with the intended method or methods of disposition specified in
the Notice of Demand.
(b) Limitations on Demand Registration. The Company
shall not be obligated to take any action to effect any
registration pursuant to this Section 2.2: (i) after the Company
has, in accordance with the provisions of Section 2.4(c),
effected (A) one (1) registration of Registrable Securities with
respect to a registration requested pursuant to Section 2.2(a)(i)
or (B) one (1) registration of Registrable Securities with
respect to a registration requested pursuant to Section
2.2(a)(ii); (ii) during any period in which the Company would be
permitted to suspend registration pursuant to the proviso in
Section 2.1(b); (iii) during any period if the Company and GPA
agree in writing to suspend such registration for such period; or
(iv) if (A) within fourteen (14) days after the giving of a
Notice of Demand, the Company causes to be delivered to GPA and
each transfer agent for the Registrable Securities an opinion of
counsel in form and substance reasonably acceptable to GPA, and
acceptable to each such transfer agent for the purpose of
permitting the transfer by GPA of securities proposed to be sold
without registration under the Securities Act or the legending of
such securities, to the effect that the proposed disposition of
such securities by GPA will not require registration or
qualification under the Securities Act; provided, however that
GPA will promptly furnish to the Company and such counsel all
information such counsel may reasonably request in order to
enable such counsel to determine whether it would be able to
render such an opinion and (B) promptly (and in any event within
a further fourteen (14) days thereafter) the Company causes to be
delivered to GPA, in exchange for all of GPA's Registrable
Securities, new certificates therefor duly issued and not bearing
any legend restricting further transfer.
(c) AmWest Demand Registration Rights. If the
Company is unable to furnish the opinion of counsel pursuant to
Section 2.1(b)(iv) and if within twenty-one (21) days after
AmWest's receipt of a Notice of Demand by GPA, AmWest (or any
successor or other holder of such right) exercises its right to a
demand registration pursuant to Section 2.2(a) of the AmWest
Registration Rights Agreement, then GPA's Notice of Demand shall
be deemed revoked; provided, however that GPA shall have the
right to request that the Company include Registrable Securities
held by GPA in the demand registration requested by AmWest in
accordance with and subject to Section 2.3 hereof and Section 2.2
of the AmWest Registration Rights Agreement. If a Notice of
Demand made by GPA is deemed revoked pursuant to this Section
2.2(c), the Company shall continue to be obligated to effect a
registration requested by GPA pursuant to Section 2.2(a).
(d) Notice to certain non-Requesting Holders. Upon
receipt of any Notice of Demand from GPA, the Company will give
prompt (but in any event within fifteen (15) days after such
receipt) notice to all Holders of Registrable Securities and all
other Holders of securities entitled to participate in such
registration including holders of Registrable Equity Securities
under the AmWest Registration Rights Agreement, of such Notice of
Demand and of such Holders' rights to have securities included in
such registration (subject to priorities in registration rights
set forth in this Agreement and the AmWest Registration Rights
Agreement). Upon the request of any such Holder made within
fifteen (15) days after the receipt by such Holder of any such
notice (which request shall specify the securities intended to be
disposed of by such Holder and the intended method or methods of
disposition thereof), the Company will (subject to any priorities
in registration rights among the various Holders) use
Commercially Reasonable Efforts to effect the registration of all
securities which the Company has been so requested to register
pursuant to the Notice of Demand.
(e) Priority in Demand Registrations. If (i) a
registration pursuant to this Section 2.2 involves an
underwritten offering of the securities being registered to be
distributed (on a firm commitment basis) by or through one or
more underwriters of recognized standing under underwriting terms
appropriate for such a transaction and (ii) the managing
underwriter of such underwritten offering shall inform the
Company and GPA by letter of its belief that the amount of
securities requested to be included in such registration exceeds
the amount which can be sold in (or during the time of) such
offering within a price range acceptable to GPA, then the Company
will include in such registration such amount of securities which
the Company is so advised can be sold in (or during the time of)
such offering as follows: first, such Registrable Securities
requested to be included in such registration by GPA and its
Affiliates; pro rata on the basis of the amount of such
securities so proposed to be sold and so requested to be included
by such parties; second, such Registrable Securities requested to
be included in such registration by all other Holders of
Registrable Securities pro rata on the basis of the amounts of
such securities to be sold and so proposed to be sold and so
requested to be included by such Holders; third such Registrable
Equity Securities requested to be included in such registration
by AmWest, Fidelity, Lehman Brothers Inc. ("Lehman") or any of
their respective Affiliates under the AmWest Registration Rights
Agreement pro rata on the basis of the amount of such securities
so proposed to be sold and so requested to be included by such
parties; and fourth, such Registrable Equity Securities requested
to be included in such registration by other Holders of
Registrable Equity Securities under the AmWest Registration
Rights Agreement pro rata on the basis of the amounts of such
securities so proposed to be sold and so requested to be included
by such parties, and fifth, such other securities of the Company
whose holders have registration rights which would permit
inclusion in such offering and which are requested to be included
in such registration by all other holders pro rata on the basis
of the amount of such securities so proposed to be sold and so
requested to be included by such holders.
2.3. Piggyback Registration.
(a) Right to Include Registrable Securities. If the
Company at any time proposes to register any of its equity
securities under the Securities Act (other than by a registration
on Form S-4 or Form S-8 or any successor or similar form then in
effect and other than pursuant to Section 2.1 or 2.2) in a form
and in a manner that would permit registration of the Registrable
Securities, whether or not for sale for its own account, it will
give prompt (but in no event less than thirty (30) days prior to
the proposed date of filing the registration statement relating
to such registration) notice to all Holders of Registrable
Securities of the Company's intention to do so and of such
Holders' rights under this Section 2.3. Upon the request of any
such Holder made within twenty (20) days after the receipt by
such Holder of any such notice (which request shall specify the
Registrable Securities intended to be disposed of by such Holder
and the intended method or methods of disposition thereof) (the
"Piggyback Registration Notice"), the Company will use
Commercially Reasonable Efforts to effect the registration under
the Securities Act of all Registrable Securities which the
Company has been so requested to register by the Holders thereof,
to the extent required to permit the disposition (in accordance
with the intended method or methods thereof as aforesaid) of the
Registrable Securities so to be registered, provided that if, at
any time after giving notice of its intention to register any
equity securities and prior to the effective date of the
registration statement filed in connection with such
registration, the Company shall determine for any reason not to
register or to delay registration of such equity securities, the
Company may, at its election, give notice of such determination
to each such Holder and, thereupon, (i) in the case of a
determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection
with such registration (but not from its obligation to pay all
Registration Expenses in connection therewith as provided in
Section 2.5(b)), without prejudice, however, to the right of GPA
to request that such registration be effected as a registration
under Section 2.2, and (ii) in the case of a determination to
delay registering, shall be permitted to delay registering any
Registrable Securities for the same period as the delay in
registering such other equity securities. No registration
effected under this Section 2.3 shall be deemed to have been
effected pursuant to Section 2.1 or 2.2 (except for any right to
demand registration which may be exercised pursuant to the last
clause of subsection (i) of the preceding sentence) or shall
relieve the Company of its obligation to effect any registration
under such Sections.
(b) Priority in Primary Piggyback Registrations. If
(i) a registration pursuant to this Section 2.3 involves an
underwritten offering of the securities being registered for sale
for the account of the Company to be distributed (on a firm
commitment basis) by or through one or more underwriters of
recognized standing under underwriting terms appropriate for such
a transaction and (ii) the managing underwriter of such
underwritten offering shall inform the Company and the Holders
requesting such registration by letter of its belief that the
amount of securities requested to be included in such
registration exceeds the amount which can be sold in (or during
the time of) such offering within a price range acceptable to the
Company, then the Company will include in such registration such
amount of securities which the Company is so advised can be sold
in (or during the time of) such offering as follows: first, all
securities proposed by the Company to be sold for its own
account; second, such Registrable Equity Securities requested to
be included in such registration by AmWest, Lehman, or any
Fidelity Fund or any of their respective Affiliates under the
AmWest Registration Rights Agreement pro rata on the basis of the
amount of such securities so proposed to be sold and so requested
to be included by such parties; third, such Registrable Equity
Securities requested to be included in such registration by other
holders of such securities under the AmWest Registration Rights
Agreement pro rata on the basis of the amount of such securities
so proposed to be sold and so requested to be included by such
parties; fourth, such Registrable Securities requested to be
included in such registration by GPA or any of its Affiliates pro
rata on the basis of the amount of such securities so proposed to
be sold and so requested to be included by such parties; fifth
such Registrable Securities requested to be included in such
registration by all other Holders pro rata on the basis of the
amount of such securities so proposed to be sold and so requested
to be included by such holders; and sixth, all other securities
of the Company requested to be included in such registration pro
rata on the basis of the amount of such securities so proposed to
be sold and so requested to be included.
(c) Priority in Secondary Piggyback Registrations. If
(i) a registration pursuant to this Section 2.3 involves an
underwritten secondary offering of the securities being
registered for sale for the account of AmWest, Fidelity or any of
their respective Affiliates or transferees pursuant to the AmWest
Registration Rights Agreement, to be distributed (on a firm
commitment basis) by or through one or more underwriters of
recognized standing under underwriting terms appropriate for such
a transaction and (ii) the managing underwriter of such
underwritten offering shall inform the Company and Persons
requesting such registration by letter of its belief that the
amount of securities requested to be included in such
registration exceeds the amount which can be sold in (or during
the time of) such offering within a price range acceptable to
such Persons, then the Company will include in such registration
such amount of securities which the Company is so advised can be
sold in (or during the time of) such offering as follows: first,
such securities proposed to be sold for the account of AmWest,
Lehman, any Fidelity Fund or any of their respective Affiliates
under the AmWest Registration Rights Agreement pro rata on the
basis of the amount of such securities so proposed to be sold and
so requested to be included by such parties; second, such
Registrable Equity Securities requested to be included in such
registration by other holders of such securities under the AmWest
Registration Rights Agreement pro rata on the basis of the amount
of such securities so proposed to be sold and so requested to be
included by such parties; third, such Registrable Securities
requested to be included in such registration by GPA or any of
its Affiliates pro rata on the basis of the amount of such
securities so proposed to be sold and so requested to be included
by such parties; fourth, such Registrable Securities requested to
be included in such registration by all other Holders pro rata on
the basis of the amount of such securities so proposed to be sold
and so requested to be included by such Holders, and fifth, all
other securities of the Company requested to be included in such
registration pro rata on the basis of the amount of such
securities so proposed to be sold and so requested to be
included.
2.4. Registration Terms and Procedures.
(a) Registration Statement Form. Registrations under
Section 2.2 shall be on such appropriate registration forms of
the SEC (i) as shall be acceptable to GPA (such acceptance not to
be unreasonably withheld) and (ii) as shall permit the
disposition of such Registrable Securities in accordance with the
intended method or methods of disposition. The Company agrees to
include in any such registration statement all information that
any Participating Holder shall reasonably request (to the extent
such information relates to such Participating Holder).
(b) Registration Expenses. Subject to Section 2.4(f),
the Company will pay all Registration Expenses incurred in
connection with a registration to be effected (whether or not
effected or deemed effected pursuant to subsection (c) below)
pursuant to Sections 2.1, 2.2 or 2.3.
(c) Effectiveness of Demand Registration. A
registration will not be deemed to have been effected under
Section 2.2 unless the registration statement with respect
thereto has been declared effective by the SEC and, subject to
the proviso in Section 2.1(b) and to Section 2.5(g)(vii) hereof,
remains effective for the earlier of six (6) months or the
distribution of the securities covered by such registration
statement; provided, however, that if (i) after such registration
statement has been declared effective, the marketing of
Registrable Securities offered pursuant to such registration
statement is materially disrupted or adversely affected as a
result of any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court
(for reasons other than a misrepresentation or omission by GPA or
any Participating Holder) or (ii) the conditions to closing
specified in the purchase agreement or underwriting agreement
entered into in connection with such registration have not been
satisfied (for reasons other than a wrongful or bad faith act,
omission or misrepresentation by GPA or any Participating
Holder), such registration statement will be deemed not to have
become effective. If a registration pursuant to Section 2.2 is
deemed not to have been effected hereunder, then the Company
shall continue to be obligated to effect a registration pursuant
to such Section.
(d) Selection of Underwriter. If, in connection with
a registration effected pursuant to Section 2.2, GPA so elects,
the offering of Registrable Securities pursuant to such Section
shall be in the form of an underwritten offering. If GPA so
elects, it shall select one or more nationally recognized firms
of investment bankers to act as the book-running managing
underwriter or underwriters in connection with such offering,
provided that such selection shall be subject to the consent of
the Company, which consent shall not be unreasonably withheld.
(e) Registration of Securities. Participating Holders
may seek to register different types of Registrable Securities
and/or different classes of the same type of Registrable
Securities simultaneously and the Company shall use its, and in
the case of an underwritten offering, shall cause the managing
underwriter or underwriters to use Commercially Reasonable
Efforts to effect such registration and sale in accordance with
the intended method or methods of disposition specified by such
Holders.
(f) Withdrawal. Any Holder participating in a
registration pursuant to this Agreement shall be permitted to
withdraw all or part of its Registrable Securities from such
registration at any time prior to the effective date of the
registration statement covering such securities; provided that,
in the event of a withdrawal from a registration effected
pursuant to Section 2.2, such registration shall be deemed to
have been effected for purposes of Section 2.4(c) unless (i) GPA
and any Participating Holders shall have paid or reimbursed the
Company for fifty percent (50)% of the reasonable out-of-pocket
fees and expenses paid by the Company hereunder or (ii) GPA
elects to terminate such registration due to the occurrence of a
Material Adverse Change; provided, however, that during the term
of this Agreement only one such withdrawal shall be permitted
pursuant to the preceding proviso.
(g) Registration Procedures. In connection with the
Company's obligations to register Registrable Securities pursuant
to this Agreement, the Company will use Commercially Reasonable
Efforts to effect such registration so as to permit the sale of
any Registrable Securities included in such registration in
accordance with the intended method or methods of distribution
thereof, and pursuant thereto the Company will as expeditiously
as possible:
(i) prepare and (as soon thereafter as practicable)
file with the SEC the requisite registration statement
containing all information required thereby to effect such
registration and thereafter use Commercially Reasonable
Efforts to cause such registration statement to become and
remain effective in accordance with the terms of this
Agreement, provided that as far in advance as practicable
before filing such registration statement or any amendment,
supplement or exhibit thereto (but, with respect to the
filing of such registration statement, in no event later
than seven (7) days prior to such filing), the Company will
furnish to the Participating Holders or their counsel copies
of reasonably complete drafts of all such documents proposed
to be filed (excluding exhibits, which shall be made
available upon request by any Participating Holder), and any
such Holder shall have the opportunity to object to any
information contained therein and the Company will make the
corrections reasonably requested by such Holder with respect
to information relating to such Holder or the plan of
distribution of the Registrable Securities prior to filing
any such registration statement, amendment, supplement or
exhibit;
(ii) prepare and file with the SEC such amendments
and supplements to such registration statement and the
prospectus used in connection therewith (A) as reasonably
requested by any Participating Holder to which such
registration statement relates (but only to the extent such
request relates to information with respect to such Holder)
and (B) as may be necessary to keep such registration
statement effective for the period referred to in Section
2.1(b) in the case of a Shelf Registration Statement or six
(6) months in the case of a registration effected pursuant
to Section 2.2 or 2.3 (or such shorter period as shall be
necessary to complete the distribution of the securities
covered thereby, but not before the expiration of the
applicable period referred to in Section 4(3) of the
Securities Act and Rule 174 thereunder), and comply with the
provisions of the Securities Act with respect to the sale or
other disposition of all securities covered by such
registration statement during such period in accordance with
the intended method or methods of disposition by the seller
or sellers thereof set forth in such registration statement;
(iii) furnish to each Holder covered by, and each
underwriter or agent participating in the disposition of
securities under, such registration statement such number of
conformed copies of such registration statement and of each
such amendment and supplement thereto (in each case
excluding all exhibits and documents incorporated by
reference, which exhibits and documents shall be furnished
to any such Person upon request), such number of copies of
the prospectus contained in such registration statement
(including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule 424
under the Securities Act relating to such Holder's
Registrable Securities, in conformity with the requirements
of the Securities Act, and such other documents as such
Holder, underwriter or agent may reasonably request to
facilitate the disposition of such Registrable Securities;
(iv) use Commercially Reasonable Efforts to register
or qualify all Registrable Securities and other securities
covered by such registration statement under (A) with
respect to the Shelf Registration Statement, all blue sky
and other securities laws and (B) with respect to a
registration effected pursuant to Section 2.2, all
applicable blue sky and other securities laws, and to keep
such registration or qualification in effect for so long as
such registration statement remains in effect, and take any
other action which may be reasonably necessary or advisable
to enable such Holder to consummate the disposition of the
securities owned by such Holder, except that the Company
shall not for any such purpose be required to (a) qualify
generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements
of this clause (iv) be obligated to be so qualified, (b)
subject itself to taxation in any such jurisdiction or (c)
consent to general service of process in any jurisdiction;
(v) use Commercially Reasonable Efforts to cause
all Registrable Securities covered by such registration
statement to be registered with or approved by such other
governmental agencies or authorities applicable to the
Company as may be reasonably necessary to enable the seller
or sellers thereof (or underwriter or agent, if any) to
consummate the disposition of such Registrable Securities in
accordance with the plan of distribution set forth in such
registration statement;
(vi) furnish to each Holder of Registrable
Securities covered by such registration statement a signed
counterpart, addressed to such Holder (and underwriter or
agent, if any) of:
(A) an opinion of counsel to the Company, dated
the effective date of such registration statement
(and, if such registration includes an underwritten
public offering, dated the date of the closing under
the underwriting agreement), and
(B) unless otherwise precluded under applicable
accounting rules, a "comfort" letter, dated the
effective date of such registration statement (and, if
such registration includes an underwritten public
offering, dated the date of the closing under the
underwriting agreement), signed by the independent
public accountants who have certified the Company's
financial statements included in such registration
statement,
in each case, reasonably satisfactory in form and substance
to such Holder (and underwriter or agent and their
respective counsel) and covering substantially the same
matters with respect to such registration statement (and the
prospectus included therein) and, in the case of the
accountants' letter, with respect to events subsequent to
the date of such financial statements, as are customarily
covered in opinions of issuer's counsel and in accountants'
letters delivered to the underwriter or agent in
underwritten public offerings of securities;
(vii) promptly notify each Holder and any underwriter
or agent participating in the disposition of Registrable
Securities covered by such registration statement, at any
time when a prospectus relating thereto is required to be
delivered under the Securities Act, upon discovery that, or
upon the happening of any event known to the Company as a
result of which, the prospectus included in such
registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances under which they were made, and promptly
prepare and furnish to such Holder (or underwriter or agent,
if any) a reasonable number of copies of a supplement to or
an amendment of such prospectus as may be necessary so that,
as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading in light of the
circumstances under which they were made;
(viii) otherwise use Commercially Reasonable Efforts
to comply with all applicable rules and regulations of the
SEC, and make available to its security holders, as soon as
reasonably practicable (but not more than fifteen (15)
months) after the effective date of the registration
statement, an earnings statement satisfying the provisions
of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder, and furnish to each Holder covered
by such registration statement or any participating
underwriter or agent at least five (5) business days prior
to the filing a copy of any amendment or supplement to such
registration statement or prospectus;
(ix) provide and cause to be maintained a transfer
agent and registrar for all Registrable Securities covered
by such registration statement from and after a date not
later than the effective date of such registration
statement;
(x) use Commercially Reasonable Efforts to (A) list,
on or prior to the effective date of such registration
statement, all Registrable Securities covered by such
registration statement on any securities exchange on which
any of the Registrable Securities is then listed, if any or
(B) have authorized for quotation and/or listing, as
applicable, on the National Association of Securities
Dealers, Inc. Automated Quotation ("NASDAQ") of the National
Market System of NASDAQ if the Registrable Securities so
qualify;
(xi) cooperate with each seller of Registrable
Securities and each underwriter or agent participating in
the disposition of such Registrable Securities and their
respective counsel in connection with any filings required
to be made with the National Association of Securities
Dealers;
(xii) use Commercially Reasonable Efforts to prevent
the issuance by the SEC or any other governmental agency or
court of a stop order, injunction or other order suspending
the effectiveness of such registration statement and, if
such an order is issued, use Commercially Reasonable Efforts
to cause such order to be lifted as promptly as practicable;
(xiii) take such other actions as the Requisite
Holders of such Registrable Securities shall reasonably
request in order to expedite or facilitate the disposition
of such Registrable Securities;
(xiv) promptly notify each seller and the underwriter
or agent, if any:
(A) when such registration statement or any
prospectus used in connection therewith, or any
amendment or supplement thereto, has been filed and,
with respect to such registration statement or any
post-effective amendment thereto, when the same has
become effective;
(B) of any written comments from the SEC with
respect to any filing referred to in clause (A) and of
any written request by the SEC for amendments or
supplements to such registration statement or
prospectus;
(C) of the notification to the Company by the SEC
of its initiation of any proceeding with respect to, or
of the issuance by the SEC of, any stop order
suspending the effectiveness of such registration
statement; and
(D) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of any Registrable Securities for sale
under the applicable securities or blue sky laws of any
jurisdiction;
(xv) cooperate with each seller of Registrable
Securities and each underwriter or agent participating in
the distribution of such Registrable Securities to
facilitate the timely preparation and delivery of
certificates (which shall not bear any restrictive legends,
other than as required by applicable law) representing
securities sold under a registration statement hereunder,
and enable such securities to be in such denominations and
registered in such names as such seller, underwriter or
agent may request and keep available and make available to
the Company's transfer agent, prior to the effectiveness of
such registration statement, an adequate supply of such
certificates;
(xvi) not later than the effective date of such
registration statement, provide a CUSIP number for all
Registrable Securities covered by a registration statement
hereunder;
(xvii) incorporate in the registration statement or
any amendment, supplement or post-effective amendment
thereto such information as each Holder, the underwriter or
agent (if any) or their respective counsel may reasonably
request to be included therein with respect to any
Registrable Securities being sold by such Holder to such
underwriter or agent, the purchase price being paid therefor
by such underwriter or agent and any other terms of the
offering of such Registrable Securities;
(xviii) during any period when a prospectus is required
to be delivered under the Securities Act, make periodic
filings with the SEC pursuant to and containing the
information required by the Exchange Act (whether or not the
Company is required to make such filings pursuant to such
Act); and
(xix) in connection with an underwritten offering,
participate, to the extent reasonably requested by the
Requisite Holders or the managing underwriter for the
offering, in customary efforts to sell the securities under
the offering.
(h) Agreements of Certain Holders. (i) Each Holder
of Registrable Securities as to which any registration is being
effected shall furnish to the Company such information regarding
such Holder, the Registrable Securities held by such Holder and
the intended plan of distribution of such securities as the
Company may from time to time reasonably request in writing in
connection with such registration. If any registration statement
refers to GPA or any of its Affiliates by name or otherwise as
the holder of any securities of the Company, then such Holder
shall have the right to require that such reference be in a form
reasonably satisfactory to such Holder or in the event that such
reference to such Holder by name or otherwise is not required by
the Securities Act or any similar federal or state blue sky
statute and the rules and regulations thereunder then in force,
the deletion of the reference to such Holder.
(ii) Each Holder of Registrable Securities as to which
any registration is being effected agrees, by acquisition of such
Registrable Securities, that upon receipt of any notice (a
"Suspension Notice") from the Company of the happening of any
event of the kind described in clause (vii) of Section 2.5(g),
such Holder will forthwith discontinue such Holder's disposition
of Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until such Holder's
receipt of the copies of the supplemented or amended prospectus
contemplated by clause (vii) of Section 2.5(g) (the period from
the date on which such Holder receives a Suspension Notice to the
date on which such Holder receives copies of the supplemented or
amended prospectus being herein called the "Suspension Period").
The Company shall take such actions as are necessary to end the
Suspension Period as promptly as practicable. In the event the
Company shall give any such notice, the periods referred to in
Section 2.5(c) and clause (ii) of Section 2.5(g) shall be
extended by a number of days equal to the number of days of the
Suspension Period.
2.5. Underwritten Offerings.
(a) Underwritten Offerings in Connection with a Shelf
or a Demand Registration. If requested by the underwriters for
any underwritten offering in connection with a registration
pursuant to Section 2.1 or 2.2, the Company will enter into an
underwriting agreement with such underwriters for such offering,
such agreement (i) to be satisfactory in substance and form to
the Company and to GPA (so long as it or any of its Affiliates
holds Registrable Securities to be included in such registration)
and (ii) to contain such representations and warranties by the
Company and such Holders and such other terms as are generally
prevailing in agreements of such type, including, without
limitation, indemnities to the effect and to the extent provided
in Section 2.7. GPA (so long as it or any of its Affiliates
holds Registrable Securities to be included in such registration)
shall be a party to such underwriting agreement and may, at its
option, require that any or all of the representations and
warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be
made to and for its benefit and that any or all of the conditions
precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to its obligations
thereunder.
(b) Underwritten Offerings in Connection with
Piggyback Registrations. If the Company at any time proposes to
register any of its equity securities under the Securities Act as
contemplated by Section 2.3 and such securities are to be
distributed by or through one or more underwriters, the Company
will, if requested by any Participating Holder and subject to
Sections 2.3(b) and (c), arrange for such underwriters to include
all of the Registrable Securities to be offered and sold by such
Holder or Holders among the securities to be distributed by such
underwriters. The Holders of Registrable Securities to be
distributed by such underwriters shall be parties to the
underwriting agreement between the Company and such underwriters,
provided that such agreement is reasonably satisfactory in
substance and form to the Company and the Requisite Holders, and
the Requisite Holders may, at their option, require that any or
all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of
such underwriters shall also be made to and for the benefit of
such Holders and that any or all of the conditions precedent to
the obligations of such underwriters under such underwriting
agreement be conditions precedent to the obligations of such
Holders thereunder.
2.6. Preparation; Reasonable Investigation. In
connection with the preparation and filing of each registration
statement under the Securities Act pursuant to this Agreement,
the Company will give the Holders of Registrable Securities to be
registered under such registration statement, their underwriters
or agents, if any, and their respective counsel and accountants
reasonable access to its books and records and such opportunities
to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial
statements as shall be necessary, in the opinion of such Holders'
and such underwriter s' or agents' respective counsel, to conduct
a reasonable investigation within the meaning of the Securities
Act.
2.7. Indemnification.
(a) Indemnification by the Company. The Company agrees
to indemnify and hold harmless, to the full extent permitted by
law, each Holder participating in an offering provided for as
described herein (including, without limitation, under the Shelf
Registration Statement or any replacement Shelf Registration
Statement), its directors, officers, shareholders, employees,
investment advisers, agents and Affiliates, either direct or
indirect (and each such Affiliate's directors, officers,
shareholders, employees, investment advisers and agents), and
each other Person, if any, who controls such Persons within the
meaning of the Securities Act (each such Person, an "Indemnified
Party"), from and against any losses, claims, damages,
liabilities or expenses, joint or several (each a "Loss" and
collectively, "Losses"), to which such Indemnified Party may
become subject under the Securities Act or otherwise, to the
extent that such Losses (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of
any material fact contained in any registration statement under
which such securities were registered under the Securities Act
(including all documents incorporated therein by reference), any
preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and the Company will reimburse such
Indemnified Party for any legal or any other expenses reasonably
incurred by it in connection with investigating or defending
against any such Loss, action or proceeding; provided that in any
such case the Company shall not be liable to any particular
Indemnified Party to the extent that such Loss (or action or
proceeding in respect thereof) arises out of or is based upon an
untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Indemnified
Party specifically for inclusion therein; and provided, further,
that the Company shall not be liable in any such case to the
extent it is finally determined by a court of competent
jurisdiction that any such Loss (or action or proceeding in
respect thereof) arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged
omission made
(i) in any such preliminary prospectus, if (A) it was
the responsibility of such Indemnified Party to provide the
Person asserting such Loss with a current copy of the
prospectus and such Indemnified Party failed to deliver or
cause to be delivered a copy of the prospectus to such
Person after the Company had furnished such Indemnified
Party with a sufficient number of copies of the same prior
to the sale of Registrable Securities to the Person
asserting such Loss and (B) the prospectus corrected such
untrue statement or omission; or
(ii) in such prospectus, if such untrue statement or
omission is corrected in an amendment or supplement to such
prospectus and such amendment or supplement has been
delivered to the Indemnified Party prior to the sale of
Registrable Securities to the Person asserting such Loss and
the Indemnified Party thereafter fails to deliver the
prospectus as so amended or supplemented prior to or
concurrently with such sale after the Company had furnished
such Indemnified Party (in accordance with the notice
provisions contained in Section 10 for Persons who are
parties to this Agreement) with a sufficient number of
copies of the same for delivery to purchasers of securities.
Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of such Indemnified
Party and shall survive the transfer of such securities by such
Indemnified Party. The Company shall also indemnify each other
Person who participates (including as an underwriter) in the
offering or sale of Registrable Securities hereunder, their
officers and directors and each other Person, if any, who
controls any such participating Person within the meaning of the
Securities Act to the same extent as provided above with respect
to Indemnified Parties.
(b) Indemnification by the Sellers. i) The Company
may require, as a condition to including any Registrable
Securities in any registration statement filed pursuant to
Sections 2.1, 2.2 or 2.3 and as a condition to indemnifying such
sellers pursuant to this Section 2.7, that the Company shall have
received an undertaking reasonably satisfactory to it from each
prospective seller of such securities, and (ii) each Holder
participating in the Shelf Registration Statement or any
replacement Shelf Registration Statement agrees, to indemnify and
hold harmless and reimburse (in the same manner and to the same
extent as set forth in paragraph (a) of this Section 2.7) the
Company, each director, officer, employee and agent of the
Company, and each other Person, if any, who controls the Company
within the meaning of the Securities Act, from and against any
Losses (or actions or proceedings, whether commenced or
threatened, in respect thereof) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact
contained in any registration statement under which such
securities were registered under the Securities Act (including
all documents incorporated therein by reference), any preliminary
prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission
or alleged omission from such registration statement, preliminary
prospectus, final prospectus or summary prospectus, or any
amendment or supplement thereto required to be stated therein or
necessary to make the statements therein not misleading, if (but
only if) such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by
such prospective seller specifically for inclusion therein;
provided, however, that such prospective seller shall not be
obligated to provide such indemnity to the extent that such
Losses result, directly or indirectly, from the failure of the
Company to promptly amend or take action to correct or supplement
any such registration statement, prospectus, amendment or
supplement based on corrected or supplemental information
provided in writing by such prospective seller to the Company
expressly for such purpose; and provided further, that the
obligation to provide indemnification pursuant to this Section
2.7(b) shall be several, and not joint and several, among such
indemnifying parties. Notwithstanding anything in this Section
2.7(b) to the contrary, in no event shall the liability of any
prospective seller under such indemnity be greater in amount than
the amount of the proceeds received by such seller upon the sale
of its Registrable Securities in the offering to which the Losses
relate. Such indemnity shall remain in full force and effect,
regardless of any investigation made by or on behalf of the
Company or any such director, officer, employee, agent or
participating or controlling Person and shall survive the
transfer of such securities by such prospective seller.
(c) Notices of Claims, etc. Promptly after receipt by
an indemnified party of notice of the commencement of any action
or proceeding involving a claim referred to in paragraph (a) or
(b) of this Section 2.7, such indemnified party will, if a claim
in respect thereof is to be made against an indemnifying party,
give prompt written notice to the latter of the commencement of
such action, provided that the failure of any indemnified party
to give notice as provided herein shall not relieve the
indemnifying party of its obligations under this Section 2.7,
except to the extent that the indemnifying party is actually and
materially prejudiced by such failure to give notice. In case
any such action is brought against an indemnified party, the
indemnifying party shall be entitled to participate in and to
assume the defense thereof (such assumption to constitute its
acknowledgement of its agreement to indemnify the indemnified
party with respect to such matters), jointly with any other
indemnifying party similarly notified to the extent that it may
wish, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such
indemnified party for any legal fees or other expenses
subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation;
provided, however, that if, in such indemnified party's
reasonable judgment, a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such
claim, such indemnified party shall be entitled to separate
counsel at the expense of the indemnifying party; and provided,
further, that, unless there exists a conflict of interest among
indemnified parties, all indemnified parties in respect of such
claim shall be entitled to only one counsel or firm of counsel
for all such indemnified parties. In the event an indemnifying
party shall not be entitled, or elects not, to assume the defense
of a claim, such indemnifying party shall not be obligated to pay
the fees and expenses of more than one counsel or firm of counsel
for all parties indemnified by such indemnifying party in respect
of such claim, unless in the reasonable judgment of any such
indemnified party a conflict of interest exists between such
indemnified party and any other of such indemnified parties in
respect of such claim, in which event the indemnifying party
shall be obligated to pay the fees and expenses of one additional
counsel or firm of counsel for such indemnified parties. No
indemnifying party shall, without the consent of the indemnified
party, consent to entry of any judgment or enter into any
settlement that (i) does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all Losses in respect of such
claim or litigation or (ii) would impose injunctive relief on
such indemnified party. No indemnifying party shall be subject
to any Losses for any settlement made without its consent, which
consent shall not be unreasonably withheld.
(d) Other Indemnification. The provisions of this
Section 2.7 shall be in addition to any other rights to
indemnification or contribution which an indemnified party may
have pursuant to law, equity, contract or otherwise.
(e) Indemnification Payments. The indemnification
required by this Section 2.7 shall be made by periodic payments
of the amount thereof during the course of the investigation or
defense, promptly as and when bills are received or Losses are
incurred.
(f) Contribution. If for any reason the foregoing
indemnity and reimbursement is unavailable or is insufficient to
hold harmless an indemnified party under paragraph (a) or (b) of
this Section 2.7, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a
result of any Loss (or actions or proceedings, whether commenced
or threatened, in respect thereof), including, without
limitation, any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such Loss,
action or proceeding, in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one
hand and the indemnified party on the other. The relative fault
shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party or the indemnified
party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue
statement or omission. Notwithstanding anything in this Section
2.7(f) to the contrary, no indemnifying party (other than the
Company) shall be required pursuant to this Section 2.7(f) to
contribute any amount in excess of the amount by which the net
proceeds received by such indemnifying party from the sale of
Registrable Securities in the offering to which the Losses of the
indemnified parties relate exceeds the amount of any damages
which such indemnifying party has otherwise been required to pay
by reason of such untrue statement or omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution
from any Person who was not guilty of such fraudulent
misrepresentation.
3. Rule 144 and Rule 144A. (a) The Company will file
the reports required to be filed by it under the Securities Act
and the Exchange Act and the rules and regulations adopted by the
SEC thereunder and will take such further action as GPA may
reasonably request, all to the extent required from time to time
to enable GPA to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144, (ii) Rule 144A or (iii) any similar
rule or regulation hereafter adopted by the SEC. Upon the
request of GPA, the Company will deliver to GPA a written
statement as to whether it has complied with such requirements
and will, at its expense, forthwith upon the request of GPA,
deliver to GPA a certificate, signed by the Company's principal
financial officer, stating (A) the Company's name, address and
telephone number (including area code), (B) the Company's
Internal Revenue Service identification number, (C) the Company's
SEC file number, (D) the amount of shares of each class of
capital stock outstanding as shown by the most recent report or
statement published by the Company, and (E) whether the Company
has filed the reports required to be filed under the Exchange Act
for a period of at least ninety (90) days prior to the date of
such certificate and in addition has filed the most recent annual
report required to be filed thereunder.
(b) If at any time the Company is not required to file
reports in compliance with either Section 13 or Section 15(d) of
the Exchange Act, the Company at its expense will, forthwith upon
the request of GPA, (i) make available adequate current public
information with respect to the Company within the meaning of
paragraph (c)(2) of Rule 144 and (ii) deliver the information
required by Section (d) of Rule 144A (such information to be
"reasonably current" within the meaning of Section (d)(4)(ii) of
Rule 144A).
4. Term. This Agreement shall be effective on the
date hereof and, subject to Section 15 hereof, shall continue in
full force and effect until the eighth (8th) anniversary of the
date hereof.
5. Amendments and Waivers. This Agreement may be
amended, supplemented or modified at any time; provided that each
of (i) GPA (so long as GPA or its Affiliates hold Registrable
Securities), (ii) the Holders (which may include GPA) of at least
fifty-one percent (51%) in interest of Registrable Securities,
and (iii) the Company has provided its written consent to such
amendment, supplement or modification. Any term or condition of
this Agreement may be waived at any time by the party that is
entitled to the benefit thereof, but no such waiver shall be
effective unless set forth in a written instrument duly executed
by or on behalf of the party waiving such term or condition. No
waiver by any party of any term or condition of this Agreement,
in any one or more instances, shall be deemed to be or construed
as a waiver of the same term or condition of this Agreement on
any future occasion.
6. Entire Agreement. This Agreement supersedes all
prior discussions and agreements between the parties with respect
to the subject matter hereof and contains the sole and entire
agreement between the parties hereto with respect to the subject
matter hereof.
7. No Third-Party Beneficiary. The terms and
provisions of this Agreement are intended solely for the benefit
of each party and their respective Successors and it is not the
intention of the parties to confer third-party beneficiary rights
upon any other Person other than (i) any Affiliate of GPA, (ii)
any Holder of Registrable Securities entitled to notice of the
registration of securities under this Agreement and (iii) any
Participating Holder entitled to indemnity under Section 2.7.
8. Invalid Provisions. If any provision of this
Agreement is held to be illegal, invalid or unenforceable under
any present or future law, (i) such provision will be fully
severable, (ii) this Agreement will be construed and enforced as
if such illegal, invalid or unenforceable provision had never
comprised a part hereof, (iii) the remaining provisions of this
Agreement will remain in full force and effect and will not be
affected by the illegal, invalid or unenforceable provision or by
its severance herefrom and (iv) in lieu of such illegal, invalid
or unenforceable provision, there will be added automatically as
a part of this Agreement a legal, valid and enforceable provision
as similar in terms to such illegal, invalid or unenforceable
provision as may be possible.
9. Notices. All notices, requests and other
communications hereunder must be in writing and will be deemed to
have been duly given only (i) if delivered personally (ii) by
facsimile transmission, (iii) by Federal Express or other
nationally recognized courier service or (iv) mailed (first class
postage prepaid) to the parties at the following addresses or
facsimile numbers:
If to the Company, to:
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J. Whalen
Fax No.: (602) 693-5904
With a copy to:
Andrews & Kurth L.L.P.
4200 Texas Commerce Tower
600 Travis
Houston, Texas 77002
Attention: David G. Elkins
If to AmWest, to:
AmWest Partners, L.P.
201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James G. Coulter
Fax No.: (817) 871-4010
If to GPA, to:
GPA Group plc
GPA House
Shannon, County Clare
Ireland
Telecopier: 011-353-61-360503
Attention: Patrick H. Blaney and
Corporate Secretary
With a copy to:
Paul, Hastings, Janofsky & Walker
399 Park Avenue
New York, New York 10022
Telecopier: (212) 319-4090
Attention: Marguerite R. Kahn
With respect to any other Holder of Registrable
Securities or other holder of securities entitled to receive
notice, requests or other communications hereunder, such notices,
requests and other communications shall be sent to the addresses
and facsimile numbers provided to the Company and the other
parties hereto by notice as herein provided and referencing this
Agreement. All such notices, requests and other communications
will (i) if delivered personally to the address as provided in
this Section 10, be deemed given upon delivery, (ii) if delivered
by facsimile transmission to the facsimile number as provided in
this Section 9, be deemed given upon receipt, and (iii) if
delivered by courier service or mail in the manner described
above to the address as provided in this Section 9, be deemed
given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other
Person to whom a copy of such notice is to be delivered pursuant
to this Section 9). Any Person from time to time may change its
address, facsimile number or other information for the purpose of
notices to that Person by giving notice in accordance with this
Section 9 specifying such change to each of the other parties
executing this Agreement.
10. Assignment. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties,
the Holders of Registrable Securities and their respective
Successors (including, in the case of the Company, the Company as
reorganized pursuant to the Plan of Reorganization) and permitted
assigns. GPA may assign (by written instruments in form
reasonably acceptable to the parties) any of its rights hereunder
(in whole or in part) to one or more Affiliates, but otherwise
may not assign any of its rights hereunder to any Person,
provided, however, that each transferee of Registrable Securities
shall be entitled (subject to priorities in registration rights)
to participate in an underwritten offering of securities being
registered pursuant to Sections 2.2(d) and 2.3 hereof and, with
respect to any such participation, to have all of the rights of a
Holder of Registrable Securities provided in this Agreement.
11. Descriptive Headings. The descriptive headings of
the several sections and paragraphs of this Agreement are
inserted for convenience of reference only and do not define or
limit the provisions hereof or otherwise affect the meaning
hereof.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REFERENCE TO THE CONFLICTS OF LAW PRINCIPLES
THEREOF.
13. Registration Rights to Others. As of the date
hereof, the Company has not granted to any other holder of its
securities rights with respect to the registration of securities
of the Company under the Securities Act other than rights granted
pursuant to the AmWest Registration Rights Agreement.
14. Attorneys' Fees. In any action or proceeding
brought to enforce any provision of this Agreement or where any
provision hereof is validly asserted as a defense, the successful
party shall, to the extent permitted by applicable law, be
entitled to recover reasonable attorneys' fees in addition to any
other available remedy.
15. Termination of Certain Rights and Obligations.
The rights and obligations hereunder of GPA shall terminate with
respect to GPA at such time as neither GPA nor any of its
Affiliates holds Registrable Securities, provided that the
provisions of Section 2.7, the rights of any party hereto with
respect to the breach of any provision hereof and any obligation
accrued as of the date of termination shall survive termination
of this Agreement.
16. No Inconsistent Agreements. The Company will not
hereafter enter into, modify, amend or waive any agreement with
respect to its securities if such agreement, modification or
waiver would conflict with the rights granted pursuant to this
Agreement to the Holders of Registrable Securities.
Specifically, and subject to Section 15 hereof, the Company (i)
will not amend, or modify or permit the amendment or modification
of provisions contained in Sections 2.2 or 2.3 of the AmWest
Registration Rights Agreement and dealing with priority of
participation in registrations without the prior written consent
of GPA, and (ii) the Company will give prompt notice to GPA of
any demand registration rights hereafter granted by the Company
to any Person during the term of this Agreement.
17. Specific Performance. The parties agree that, to
the extent permitted by law, (i) the obligations imposed on them
in this Agreement are special, unique and of an extraordinary
character, and that in the event of a breach by any such party
damages would not be an adequate remedy and (ii) each of the
other parties shall be entitled to specific performance and
injunctive and other equitable relief in addition to any other
remedy to which it may be entitled at law or in equity.
18. Requisite Holders. Each of the parties hereto
agrees that the Company may, in connection with the taking of any
action permitted to be taken hereunder with the consent or
approval of the Requisite Holders of the securities to be
included in the relevant registration, rely in good faith on a
certificate from such holder or holders stating that it holds or
is acting on behalf of a majority in interest of such securities.
19. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall
be deemed an original, but all of which shall together constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed and delivered by their respective
officers thereunto duly authorized as of the date first above
written.
AMERICA WEST AIRLINES, INC.
By: /s/ Martin J. Whalen
Name: Martin J. Whalen
Title: Senior Vice President
GPA GROUP plc
By: /s/ Michael Walsh
Name: Michael Walsh
Title: Vice President-Legal
<PAGE>
STOCKHOLDERS' AGREEMENT FOR
AMERICA WEST AIRLINES, INC.
THIS STOCKHOLDERS' AGREEMENT FOR AMERICA WEST AIRLINES,
INC. (this "Agreement") is entered into as of this 25th day of August, 1994 by
and among AmWest Partners, L.P., a Texas limited partnership, GPA Group plc, a
corporation organized under the laws of Ireland ("GPA"), Robert A. Ewert,
David T. Obergfell and William A. Franke (collectively, the "Stockholder
Representatives"), and America West Airlines, Inc., a Delaware corporation
(the "Company").
RECITALS:
WHEREAS, on June 27, 1991, the Company 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"); and
WHEREAS, on December 8, 1993, the Bankruptcy Court entered
an Order on Motion to Establish Procedures for Submission of Investment
Proposals (the "Procedures Order"); and
WHEREAS, pursuant to the Procedures Order, AmWest and the
Company have entered into that certain Third Revised Investment Agreement
dated April 21, 1994 (the "Investment Agreement"), contemplating an investment
by AmWest in the Company (the "Investment") and providing for the consummation
of the Company's Plan of Reorganization (the "Plan"); and
WHEREAS, on August 10, 1994, the Bankruptcy Court entered
an order confirming the Plan; and
WHEREAS, in consideration of the Investment, the Company
has issued common stock of the Company ("Common Stock") consisting of Class A
Common Stock ("Class A Common") and Class B Common Stock ("Class B Common")
and warrants to purchase Class B Common to AmWest and others; and
WHEREAS, in exchange for the release and modification of
certain agreements and claims, the Company has issued shares of Class B Common
and warrants to purchase Class B Common to GPA; and
WHEREAS, pursuant to Section 6(b) of the Investment
Agreement, the Official Committee of Equity Holders of America West Airlines,
Inc., appointed in the Company's Chapter 11 case (the "Equity Committee") has
appointed Robert A. Ewert as a Stockholder Representative; and
WHEREAS, pursuant to Section 6(b) of the Investment
Agreement, the Official Committee of Unsecured Creditors of America West
Airlines, Inc., appointed in the Company's Chapter 11 case (the "Creditors'
Committee") has appointed David T. Obergfell as a Stockholder Representative;
and
WHEREAS, pursuant to Section 6(b) of the Investment
Agreement, the Board of Directors of the Company, as constituted prior to
consummation of the Plan, has appointed William A. Franke as a Stockholder
Representative; and
WHEREAS, the parties hereto have agreed to enter into this
Agreement pursuant to Section 218(c) of Title 8 of the Delaware Code (the
"General Corporation Law").
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:
1.0 DEFINITIONS.
"Affiliate" shall mean (i) when used with reference to any
partnership, any person or entity that, directly or indirectly, owns or
controls ten percent (10%) 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 (10%) 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 (10%) or more of the outstanding voting securities of such corporation
or is a person or entity in which such corporation has a ten percent (10%) 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 AmWest or any of its partners and each of
AmWest GenPar, Inc., Air Partners II, L.P., Continental, Mesa, TPG Partners,
L.P., and TPG Parallel I, L.P., shall be deemed to be an Affiliate of AmWest.
"Alliance Agreements" shall have the meaning set forth in
the Investment Agreement.
"AmWest" shall mean AmWest Partners, L.P., and in the event
AmWest Partners, L.P., by dissolution or otherwise, designates any or all of
its general and limited partners to receive Common Stock attributable to
AmWest Partners, L.P., "AmWest" shall collectively include all such general
and limited partners. "AmWest Partners, L.P." refers only to such partnership
prior to dissolution.
"AmWest Director" shall mean a director of the Company
designated by AmWest pursuant to Section 2.1(a).
"Annual Meeting" shall mean an annual meeting of the
shareholders of the Company.
"Board" shall mean the Company's Board of Directors.
"Bylaws" shall mean the Restated Bylaws adopted by the
Company in accordance with Section 303 of the General Corporation Law pursuant
to the Plan.
"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.
"Continental" shall mean Continental Airlines, Inc. or any
successor.
"Creditors' Committee Director" shall mean a director of
the Company designated by the Creditors' Committee or otherwise pursuant to
Section 2.1(b).
"Effective Date" shall mean the date upon which the
Restated Certificate of Incorporation becomes effective in accordance with the
Plan and the General Corporation Law.
"Equity Committee Director" shall mean a director of the
Company designated by the Equity Committee or otherwise pursuant to
Section 2.1(b)
"Fidelity Fund" shall mean a fund or account managed or
advised by Fidelity Management Trust Company or any of its Affiliates or
successor(s).
"GPA Director" shall mean a director of the Company
designated by GPA pursuant to Section 2.1(c).
"Independent Company Director" shall mean a director of the
Company designated pursuant to Section 2.1(b).
"Independent Directors" shall mean, collectively, the
Creditors' Committee Directors, the Equity Committee Director, and the
Independent Company Director.
"Lehman" shall mean Lehman Brothers Inc. or any successor.
"Mesa" shall mean Mesa Airlines, Inc. or any successor.
"Public Offering" shall have the meaning set forth in
Section 4.2.
"Restated Certificate of Incorporation" shall mean the
Restated Certificate of Incorporation adopted by the Company in accordance
with Section 303 of the General Corporation Law pursuant to the Plan.
"Stockholder Representatives" shall mean the persons
identified as such in the recitals set forth above; provided 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 2.1(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.
"Third Annual Meeting" shall mean the first Annual Meeting
after the third anniversary of the Effective Date.
2.0 DESIGNATION AND VOTING FOR COMPANY DIRECTORS.
2.1 Until the Third Annual Meeting, subject to the
exception set forth in Section 4.7(a), the Board shall consist of up to
fifteen (15) persons, of whom nine (9) persons shall be AmWest Directors, five
(5) persons shall be Independent Directors and up to one (1) person shall be a
GPA Director, 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 Effective Date
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 thirty (30) days in advance of each Annual Meeting prior to (but not
including) the Third Annual Meeting, and no less than five (5) days in advance
of any other meeting of the Board prior to (but not including) the Third
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, AmWest shall give written notice to the other
parties hereto designating the individual or individuals to serve as AmWest
Directors. For so long as AmWest and/or its Affiliates holds at least five
percent (5%) of the voting equity securities of the Company (on a fully
diluted basis), GPA agrees to vote the Common Stock held and controlled by it
and to cause the GPA Director to vote or provide written consents in favor of
such designees and to take any other action necessary to elect such designees.
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. Upon dissolution,
AmWest Partners, L.P., may assign its rights under this Section 2.1(a) jointly
or severally to any of its general or limited partners.
(b) Three (3) Creditors' Committee Directors, one (1)
Equity Committee Director, and one (1) Independent Company Director, each as
designated on Exhibit A hereto, shall serve until the first Annual Meeting
following the Effective Date 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 Third Annual Meeting, the
Company shall nominate for reelection, and AmWest and GPA shall vote the
Common Stock held and controlled by them 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 (5) days in advance of any meeting of the
Board prior to the Third 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 thirty (30) days in advance of an Annual Meeting
prior to (but not including) the Third 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; except that 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 provided that 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 AmWest and GPA
agrees to vote the Common Stock held and controlled by them and to cause the
AmWest Directors and the GPA Director, respectively, to vote or provide
written consents in favor of such designees and to take any other action
necessary to elect such designees; provided that each Independent Director
shall be reasonably acceptable to AmWest at the time of his or her initial
designation.
(c) The GPA Director designated on Exhibit A hereto
shall serve until the first Annual Meeting following the Effective Date and
until the successor to such director shall be duly elected and qualified or
until his or her death, disability, removal, or resignation. No less than
thirty (30) days in advance of each Annual Meeting prior to (but not
including) the Third Annual Meeting, and no less than five (5) days in advance
of any other meeting of the Board prior to the Third Annual Meeting at which a
director will be elected to sit on the Board in a seat vacated by the GPA
Director because of death, disability, removal, resignation or otherwise, GPA
shall give written notice to the other parties hereto designating the
individual to serve as GPA Director. Unless the rights of GPA hereunder have
been terminated pursuant to Section 6.2, AmWest agrees to vote the Common
Stock held and controlled by it, and to cause the AmWest Directors, and the
Stockholder Representatives agree to recommend to the Independent Directors,
to vote or provide written consents in favor of such designee and to take any
other action necessary to elect such designee; provided that the GPA Director
shall be reasonably acceptable to AmWest at the time of his or her initial
designation.
(d) Except as otherwise provided herein, each of
AmWest, the Stockholder Representatives, and GPA agrees to nominate or cause
the nomination of the AmWest Directors, the Independent Directors, and the GPA
Director, respectively, in accordance with the Bylaws.
(e) 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.
(f) In the event that AmWest, the Creditors'
Committee or Equity Committee (for so long as each is in existence and has the
ability to designate a director as herein provided), the Stockholder
Representatives, or GPA 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.
(g) In the event that the rights and obligations of
GPA with respect to this Agreement are terminated in accordance with
Section 6.2, GPA agrees to cause the resignation of, or provide notice to the
other parties hereto as provided in subsection (h)(i) below requesting removal
of, the GPA Director, at which time the Board shall be reduced to fourteen
(14) persons.
(h) The parties hereto agree (i) to vote the Common
Stock held and controlled by them 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 2.1 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; except that nothing in this agreement shall be construed to
limit or prohibit the removal of any director for cause.
2.2 Until the Third Annual Meeting, 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.
2.3 AmWest agrees that no AmWest Director shall be an
officer or employee of Continental.
3.0 VOTING ON CERTAIN MATTERS.
3.1 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 (including, without
limitation, negotiation between Continental and the Company of the Alliance
Agreements) and matters in connection with any action involving direct
competition between Continental and the Company. 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 (including, without limitation, negotiation between Mesa and the
Company of the Alliance Agreements) and matters in connection with any action
involving direct competition between Mesa and the Company.
3.2 Until the Third Annual Meeting, 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 AmWest or any of its 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 Partners, L.P.), voting
as a single class, shall be required to approve, adopt or authorize:
(a) Any merger or consolidation of the Company with or
into AmWest or any Affiliate of AmWest;
(b) Any sale, lease, exchange, transfer, or other
disposition by the Company of all or any substantial part of the assets of the
Company to AmWest or any Affiliate of AmWest;
(c) Any transaction with or involving the Company as a
result of which AmWest or any of AmWest's 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 Warrants issued under the Plan, (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. 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.
4.0 FURTHER COVENANTS.
4.1 Neither AmWest nor any partner or Affiliate of AmWest
or of any partner of AmWest 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 4.1 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.
4.2 AmWest Partners, L.P., agrees that its constituent
documents shall at all times require that this Agreement be binding upon all
general and limited partners of AmWest Partners, L.P., and any Affiliate of
AmWest Partners, L.P., or such partners who hold or receive shares of the
Company or direct the voting of any shares held by AmWest, 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 AmWest
or any of its partners or Affiliates of AmWest or any of their partners;
except that this Agreement shall not be binding (x) upon any Fidelity Fund or
Lehman with respect to Class B Common and warrants to purchase Class B Common
acquired by them contemporaneous with the consummation of the Plan pursuant to
an assignment or transfer from AmWest, or (y) upon any assignee or transferee
who acquires such Common Stock pursuant to (i) 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, (ii) 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 (as hereinafter defined), (a "Public Offering"),
or (iii) a transfer made pursuant to Rule 144 (as amended, "Rule 144") under
the Securities Act. AmWest shall not sell or transfer (including upon
dissolution of AmWest Partners, L.P.) 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 AmWest or such partners and AmWest shall not 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 (i), (ii)
or (iii), 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.
4.3 AmWest 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, in a single transaction or a related series of
transactions, shares of Common Stock representing fifty one percent (51%) or
more of the combined voting power of all shares of Common Stock then
outstanding, other than (i) 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 the same economic terms, (ii) to any Affiliate of AmWest, (iii) to any
Affiliate of AmWest's partners, (iv) pursuant to a bankruptcy or insolvency
proceeding, (v) pursuant to a judicial order, legal process, execution or
attachment, (vi) in a Public Offering; or (vii) 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 (10) consecutive trading days preceding the
effective date of such transaction). For purposes of the foregoing, a
transaction (the "Primary Transaction") involving any Person 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
any Affiliate of such Person, it being understood that, for purposes of this
clause (i), TPG Partners, L.P., TPG Parallel I, L.P., 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 who
are assignees, direct or indirect, of AmWest and who are acting in concert
with respect thereto, it being understood that, for purposes of this clause
(ii), Persons 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.
4.4 If required by applicable law, within ten (10) days of
the Effective Date, AmWest 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
AmWest all information pertaining to such party and necessary to make such
amendments and to notify AmWest of any changes in facts or circumstances
pertaining to such party that would require any amendments under Regulation
13D-G.
4.5 AmWest agrees that it shall not cause any amendment to
the provisions of the Restated 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.
4.6 (a) Each certificate evidencing shares of Common
Stock issued to AmWest or any of its partners, GPA 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' AGREEMENT DATED AUGUST 25, 1994,
COPIES OF WHICH ARE ON FILE AT THE PRINCIPAL OFFICE OF
AMERICA WEST AIRLINES, INC.
and each such certificate, for so long as such certificate is held by AmWest
or any of its partners and any of their respective Affiliates and 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 of 1933, as amended, 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 the 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 the 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 such
a legend.
4.7 During the term of this Agreement, AmWest shall not
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 2.1 (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, Equity Committee Director, Independent Company Director, or GPA
Director.
5.0 RIGHTS UPON BREACH.
5.1 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.
5.2 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 AmWest or any partner or Affiliate of AmWest 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 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.
6.0 TERMINATION.
6.1 This Agreement shall automatically terminate without
any action by any party on the day immediately preceding the Third Annual
Meeting and shall not be extended except in accordance with Section 7.3. 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 that no such termination shall relieve any person or entity
from liability for breach or default of this Agreement prior to such
termination.
6.2 GPA's rights and obligations under this Agreement
(other than its obligations under Section 2.1(g)) shall terminate immediately
and without notice upon the earlier of (a) termination of this Agreement under
Section 6.1, (b) the sale or transfer by GPA of equity securities of the
Company resulting in the holding by GPA of less than two percent (2%) of the
voting equity securities of the Company (on a fully diluted basis), or (c) any
occurrence, other than as described in clause (b) above, resulting in the
holding by GPA of less than two percent (2%) of the voting equity securities
of the Company (on a fully diluted basis) if (i) the Company files a Form 10-Q
under the Exchange Act, or other written report or statement, that is
delivered to GPA and a copy to the party designated in Section 7.1, reflecting
information as to the Company's total issued and outstanding capital stock as
of a date therein specified (the "Determination Date") from which GPA can
determine whether it holds less than two percent (2%) of the voting equity
securities of the Company (on a fully diluted basis) and (ii) GPA fails to
acquire (by purchase or otherwise) sufficient voting equity securities of the
Company such that it holds at least two percent (2%) of the voting equity
securities of the Company (on a fully diluted basis) determined as of the
Determination Date within thirty-five (35) days after delivery of such Form
10-Q, or provision of such report or statement to GPA, and to give prompt
notice of such acquisition to the Company and a copy to the party designated
in Section 7.1, as herein provided, following the expiration of such 35-day
period. Notwithstanding anything to the contrary herein, GPA acknowledges
that the Company's continuing with its existing procedures for the
distribution of Form-10Qs to GPA constitutes adequate delivery to GPA within
the meaning of this Section 6.2.
7.0 MISCELLANEOUS.
7.1 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 AmWest: AmWest Partners, L.P.
201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James G. Coulter
Fax Number: (817) 871-4010
with a copy to: Arnold & Porter
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036
Attention: Richard P. Schifter
Fax Number: (202) 872-6720
and a copy to: Jones, Day, Reavis & Pogue
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
Attention: Lyle G. Ganske
Fax Number: (216) 586-7864
If to GPA: GPA Group plc
GPA House
Shannon, Ireland
Attention: Patrick H. Blaney
Fax Number: 353 61 360220
with a copy to: Paul, Hastings, Janofsky & Walker
399 Park Avenue, 31st Floor
New York, New York 10022
Attention: Marguerite R. Kahn
Fax Number: (212) 319-4090
If to
Robert A. Ewert: Robert A. Ewert
3819 E. Nowata Drive
Phoenix, Arizona 85044
Fax Number: (602) 893-2239
If to
David T. Obergfell David T. Obergfell
Vice President
Texas Commerce Bank, N.A.
1201 Elm Street, 30th Floor
P.O. Box 2320
Dallas, Texas 75221-2320
Fax Number: (214) 712-3423
If to
William A. Franke: William A. Franke
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Fax Number: (602) 693-5517
If to the Company: America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: General Counsel
Fax Number: (602) 693-5904
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 (i) if delivered
personally to the address as provided in this Section 7.1, be deemed given
upon delivery, (ii) if delivered by facsimile transmission to the facsimile
number as provided in this Section 7.1, be deemed given upon receipt, and
(iii) if delivered by mail or by express courier in the manner described above
to the address as provided in this Section 7.1, be deemed given upon receipt
(in each case regardless of whether such notice is received by any other
person to whom a copy of such notice, request or other communication is to be
delivered pursuant to this Section 7.1). 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 7.1
specifying such change to the other parties hereto. Nothing in this Section
7.1 shall be deemed or construed to alter any notice provisions contained in
the Bylaws.
7.2 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.
7.3 This Agreement may only be amended, waived,
supplemented, modified or extended by a written instrument signed by
authorized representatives of each party hereto.
7.4 This Agreement shall inure to the benefit of and be
binding upon each of the parties hereto and their respective successors and
permitted assigns.
7.5 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.
7.6 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.
7.7 The parties hereto intend that in the case of any
conflict or inconsistency between this Agreement and the Restated Certificate
of Incorporation or the Bylaws, that this Agreement shall control, and
therefore in the event that any term or provision of this Agreement is
rendered invalid, illegal or unenforceable by the Restated Certificate of
Incorporation or the Bylaws, the parties agree to amend the Restated
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.
IN WITNESS WHEREOF, the parties hereto, by their respective
officers thereunto duly authorized, have executed this Agreement as of the
date first written above.
AMWEST PARTNERS, L.P.
By: AmWest Genpar, Inc., its
General Partner
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
GPA GROUP PLC
By: /s/ Michael Walsh
Name: Michael Walsh
Title: Vice President-Legal
/s/ Robert A. Ewert
Robert A. Ewert,
Stockholder Representative
/s/ David T. Obergfell
David T. Obergfell,
Stockholder Representative
/s/ William A. Franke
William A. Franke,
Stockholder Representative
AMERICA WEST AIRLINES, INC.
By: /s/ M.J. Whalen
Name: M.J. Whalen
Title: Senior Vice President
<PAGE>
EXHIBIT A
AmWest Directors
Julia Chang Bloch
Frederick W. Bradley, Jr.
James G. Coulter
John F. Fraser
John L. Goolsby
Richard C. Kraemer
A. Maurice Myers
Larry L. Risley
Richard P. Schifter
GPA Director
John F. Tierney
Independent Company Director
William A. Franke
Creditors' Committee Directors
Harrison J. Goldin
Stephen F. Bollenbach
Raymond S. Troubh
Equity Committee Director
John R. Power
<PAGE>
____________________________________________________________
VOTING AGREEMENT
Dated as of August 25, 1994
Between
GPA Group plc
and
AmWest Partners, L.P.
____________________________________________________________
<PAGE>
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is entered into as of August
25, 1994 between AmWest Partners, L.P., a Texas limited partnership, and GPA
Group plc, an Irish public limited company ("GPA").
RECITALS
WHEREAS, on June 27, 1991, America West Airlines, Inc., a Delaware
corporation ("AWA"), filed a petition in the United States Bankruptcy Court
for the District of Arizona (the "Bankruptcy Court") entitled "In re America
West Airlines, Inc., Debtor" commencing Chapter 11 Case No. 9107505-PHX-RGM
(the "Case") under Chapter 11 of the United States Bankruptcy Code, as amended
from time to time;
WHEREAS, on August 10, 1994, the Bankruptcy Court confirmed that
certain Plan of Reorganization under Chapter 11 of the United States
Bankruptcy Code (the "Plan") with respect to the Case;
WHEREAS, the GPA Term Sheet attached as Exhibit C to the Plan
describes, among other things, the arrangement agreed upon between GPA and
AmWest (as such term is hereinafter defined) whereby (i) GPA shall vote for
AmWest's nominees to the Board of Directors of the reorganized AWA and (ii)
AmWest shall vote for GPA's nominee to the Board of Directors of the
reorganized AWA, in each case, for so long as (x) AmWest owns at least five
percent (5%) of the voting equity securities of AWA (on a fully diluted basis)
and (y) GPA owns at least two percent (2%) of the voting equity securities of
AWA (on a fully diluted basis);
WHEREAS, each of GPA and AmWest desires to give effect to the voting
arrangement described immediately above on the terms and conditions set forth
in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Definitions.
"Affiliate" shall mean (i) with respect to any partnership, any person
or entity that, directly or indirectly, owns or controls ten percent (10%) 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 (10%) or greater direct or indirect equity interest and (ii)
with respect to any corporation, any person or entity that, directly or
indirectly, owns or controls ten percent (10%) or more of the outstanding
voting securities of such corporation or is a person or entity in which such
corporation has a ten percent (10%) or greater direct or indirect equity
interest. In addition, the term "Affiliate" when used with respect 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, (x) 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
(y) the terms "controlling" and "controls" shall have meanings correlative to
the foregoing. Notwithstanding the foregoing, (i) neither AWA nor any
Fidelity Fund will be deemed to be an Affiliate of AmWest or any of its
partners and (ii) Mesa will not be deemed to be an Affiliate of AmWest or any
of the other partners of AmWest and (iii) each of AmWest GenPar, Inc.,
Continental, TPG Partners, L.P., Airpartners II, L.P. and TPG Parallel I,
L.P., shall be deemed to be an Affiliate of AmWest.
"AmWest" shall mean AmWest Partners, L.P., a Texas limited
partnership, and in the event AmWest Partners, L.P., by dissolution or
otherwise, designates any or all of its general and limited partners to
receive Voting Securities attributable to AmWest Partners, L.P., the term
"AmWest" shall collectively include all such general and limited partners
other than Mesa. The reference herein to "AmWest Partners, L.P." shall refer
only to AmWest Partners, L.P., a Texas limited partnership, prior to the
dissolution thereof.
"AmWest Director" shall have the meaning given such term in Section
2(a)(i) of this Agreement.
"Annual Meeting" shall mean an annual meeting of the shareholders of
AWA.
"Board" shall mean the Board of Directors of the reorganized AWA.
"Bylaws" shall mean the Restated Bylaws adopted by the reorganized AWA
in accordance with Section 303 of the General Corporation Law of the State of
Delaware pursuant to the Plan.
"Continental" shall mean Continental Airlines, Inc. or any successor
thereof.
"Effective Date" shall mean the date upon which the Restated
Certificate of Incorporation becomes effective in accordance with the Plan and
the General Corporation Law of the State of Delaware.
"Fidelity Fund" shall mean a fund or account managed or advised by
Fidelity Management Trust Company or any of its Affiliates or successor(s).
"GPA Director" shall mean a director of the Board designated by GPA
pursuant to Section 2(b)(i) of this Agreement.
"Lehman" shall mean Lehman Brothers Inc. or any successor thereof.
"Mesa" shall mean Mesa Airlines, Inc. or any successor thereof.
"Release Date" shall mean the date upon which the Stockholder
Agreement is terminated pursuant to Section 6.1 thereof.
"Restated Certificate of Incorporation" shall mean the Restated
Certificate of Incorporation adopted by the reorganized AWA in accordance with
Section 303 of the General Corporation Law of the State of Delaware pursuant
to the Plan.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stockholder Agreement" shall mean that certain Stockholders'
Agreement for America West Airlines, Inc., dated as of August 25 1994, among
AmWest, GPA, Robert A. Ewert, David T. Obergfell and William A. Franke, as
stockholder representatives, and AWA, as amended, supplemented or otherwise
modified from time to time.
"Voting Securities" shall mean any voting equity security issued by
the reorganized AWA.
The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement.
All defined terms may, unless the context otherwise requires, be used
in the singular or the plural.
Section 2. Voting for Directors.
Subject to the terms and conditions set forth in this Agreement, each
of GPA and AmWest agrees to designate nominees to the Board, and to vote in
favor of nominees to the Board designated by the other party, in accordance
with the following:
(a) AmWest Directors.
(i) AmWest shall give written notice to GPA not less than
(A) thirty (30) days before each Annual Meeting and (B) five (5) days
before any other meeting of the Board at which a director will be elected
to succeed an AmWest Director due to death, disability, removal,
resignation, or otherwise, specifying the individual or individuals
nominated by AmWest to serve as directors on the Board (the "AmWest
Directors").
(ii) GPA agrees that prior to the termination of this
Agreement pursuant to Section 5 hereof, it shall vote the Voting Securities
held and controlled by it, and to cause each of its Affiliates to vote the
Voting Securities held and controlled by each such Affiliate, and to cause
the GPA Director to vote or provide written consents, in favor of such
nominees and to take such other actions as are necessary on the part of GPA
and/or any of its Affiliates to elect such nominees to the Board; provided,
that prior to the Release Date, GPA shall not be obligated to vote or take
any action, or cause any of its Affiliates to vote or take any action, or
cause the GPA Director to vote or provide written consents, in favor of any
such nominee if nine (9) AmWest Directors are then serving on the Board and
such nominee will not be replacing any such serving AmWest Director.
Upon dissolution, AmWest Partners, L.P. may assign its rights hereunder
jointly or severally to any of its general or limited partners other
than Mesa.
(b) GPA Director.
(i) GPA shall give written notice to AmWest not less than
(A) thirty (30) days before each Annual Meeting and (B) five (5) days
before any other meeting of the Board at which a director will be elected
to succeed a GPA Director due to death, disability, removal, resignation or
otherwise, specifying the individual nominated by GPA to serve as director
on the Board (the "GPA Director").
(ii) AmWest agrees that prior to the termination of this
Agreement pursuant to Section 5 hereof, it shall vote the Voting Securities
held and controlled by it, and to cause each of its Affiliates to vote the
Voting Securities held and controlled by each such Affiliate, and to cause
each of the AmWest Directors to vote or provide written consents, in favor
of such nominee and to take, or cause to be taken, such other actions as
are necessary on the part of AmWest and/or any of its Affiliates to elect
such nominee to the Board; provided, that such nominee shall be reasonably
acceptable to AmWest at the time of his or her initial designation; and
provided further that AmWest shall not be obligated to vote or take any
action, or cause any of its Affiliates to vote or take any action, or cause
the AmWest Directors to vote or provide written consents, in favor of any
such nominee if one (1) GPA Director is then serving on the Board and such
nominee will not be replacing such GPA Director.
(c) Conformance with Bylaws. Except as otherwise provided
herein, each of AmWest and GPA agrees to nominate or cause the nomination
of the AmWest Directors and the GPA Director, respectively, in accordance
with the Bylaws.
(d) Suspended Shares. Notwithstanding any provision to the
contrary in this Agreement, neither GPA nor AmWest shall be obligated to
vote any Voting Securities for which the voting rights have been suspended,
whether voluntarily or involuntarily.
(e) Failure to Nominate. In the event that AmWest or GPA shall
fail or refuse to designate a nominee to the Board for a position allocated
to such party, each of AmWest and GPA shall take such action, or cause such
action to be taken, as is necessary to cause such position to remain vacant
unless and until such designation shall be made in accordance with this
Agreement.
(f) Removal. Each of GPA and AmWest agrees:
(i) to vote the Voting Securities held and controlled by
it, and, to its best efforts, cause each of its Affiliates to vote the
Voting Securities held and controlled by each such Affiliate, in favor
of the removal of any director from the Board upon written request by
the party which nominated such director; and
(ii) to vote the Voting Securities held and controlled by
it, and, to its best efforts, cause each of its Affiliates to vote the
Voting Securities held and controlled by each such Affiliate, and to
cause the directors designated by it 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 party who has nominated any director in accordance herewith shall have
the exclusive right to remove or replace such director by written notice as
provided herein; except that nothing in this Agreement shall be construed
to limit or prohibit the removal of any director for cause.
(g) Acceptability of GPA Nominee. AmWest hereby agrees that for
purposes of Section 2(b)(ii) of this Agreement and Section 2.1(c) of the
Stockholder Agreement, each of Patrick Blaney, John Tierney and Declan
Traecy is acceptable to AmWest in all respects as GPA Director.
Section 3. Covenants of AmWest.
(a) AmWest Partners, L.P. hereby covenants and agrees that its
constituent documents shall require that this Agreement be binding at all
times upon all general and limited partners (other than Mesa) of AmWest
Partners, L.P. and any Affiliate of AmWest Partners, L.P. or such partners
(other than Mesa) who hold or receive any Voting Securities or direct the
voting of any Voting Securities held by AmWest, and upon any assignees or
transferees (other than Mesa) in a single transaction or a related series
of transactions consummated prior to the Release Date of all or substantially
all of the Voting Securities owned by AmWest or any of its partners or
Affiliates of AmWest or any of their partners and AmWest agrees that it
shall cause each such assignee and transferee to provide to GPA written
acknowledgement that it accepts and is bound and subject to the terms and
conditions of this Agreement (including, without limitation, the provisions
of Section 6(f) hereof); provided, however, the requirements set forth in
this Section 3(a) shall not apply to:
(i) any Fidelity Fund or Lehman with respect to Class B
Common Stock of AWA and warrants to purchase Class B Common Stock of AWA
acquired by them contemporaneously with the consummation of the Plan
pursuant to an assignment or transfer from AmWest; and
(ii) any assignee or transferee who acquires such Voting
Securities pursuant to (A) a tender or exchange offer open to all
shareholders of AWA on a pro rata basis at the same price per share and on
the same economic terms, (B) a public distribution or sale on the open
market (1) through a "brokers' transaction", as such term is defined in
subsection (g) of Rule 144 under the Securities Act or (2) registered under
the Securities Act, including, without limitation, any shelf registration
contemplated under the Plan, or (C) a transfer made pursuant to Rule 144
under the Securities Act.
(b) AmWest agrees that prior to the Release Date it shall not
sell or transfer (including, without limitation, upon dissolution of AmWest
Partners, L.P.) any Voting Securities held by it to any of its general or
limited partners (other than Mesa), to any Fidelity Fund, or to any Affiliate
of AmWest or such partners and AmWest shall not sell or transfer all or
substantially all of the Voting Securities held by it in a single transaction
or a related series of transactions (except in accordance with clauses (i) or
(ii) of Section 3(a)(2) hereof) unless and until it causes each such assignee
and transferee to provide a written acknowledgement to GPA that it accepts and
is bound and subject to the terms and conditions of this Agreement
(including, without limitation, the provisions of Section 6(f) hereof).
(c) AmWest agrees that it shall not vote its stock in favor of,
or permit the AmWest Directors to vote for, the elimination of the position on
the Board reserved for the GPA Director.
(d) AmWest agrees that it shall not transfer or assign
(including, without limitation, upon dissolution of AmWest Partners, L.P.) any
Voting Security to Mesa if after giving effect to any such transfer or
assignment, Mesa shall hold 7% or more of the combined voting power of all
Voting Securities then outstanding.
Section 4. Rights Upon Breach.
Each of AmWest and GPA recognizes and agrees that a violation of any
term, provision, or condition of this Agreement may cause irreparable damage
to the non-breaching party 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 party. Each of AmWest and GPA therefore agrees that in the event of
any breach of this Agreement, the non-breaching party 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.
Section 5. Termination.
(a) This Agreement shall automatically and immediately terminate
without any action by any party upon:
(i) (A) the sale or transfer by GPA and/or its Affiliates of Voting
Securities which results in the holding by GPA and/or its Affiliates of
less than two percent (2%) of all Voting Securities on a fully diluted
basis or (B) the occurrence of any other event which results in the holding
by GPA and/or its Affiliates of less than two percent (2%) of all Voting
Securities on a fully diluted basis if, and only if, (x) AWA files a Form
10-Q under the Securities Exchange Act of 1934, as amended, or other
written report or statement, that is delivered to GPA and copied to the
party specified herein, which contains information as to AWA's total issued
and outstanding Voting Securities as of a date therein specified (the
"Determination Date") from which GPA can determine whether it holds
less than two percent (2%) of all Voting Securities on a fully diluted
basis and (y) GPA and/or its Affiliates fails to acquire (by purchase or
otherwise) sufficient Voting Securities such that GPA and/or its
Affiliates hold at least two percent (2%) of all Voting Securities on a
fully diluted basis determined as of the Determination Date within
thirty-five (35) days after the delivery of such Form 10-Q, or provision
of such report or statement to GPA (notwithstanding anything to the
contrary in this Agreement, GPA acknowledges that AWA continuing with
its existing procedures for the distribution of Form-10-Qs to GPA
constitutes adequate delivery to GPA within the meaning of this Section
5(a)(i)) and to give prompt notice of such acquisition to
following the expiration of such thirty-five (35) day period;
(ii) the occurrence of any event which results in the holding by
AmWest and/or its Affiliates of less than five percent (5%) of all Voting
Securities on a fully diluted basis; or
(iii) the tenth anniversary of the Effective Date, provided that in
the event Section 218(c) of the General Corporation Law of the State of
Delaware shall have been amended or deleted, the latest date permitted
under such amended section or any successor provision thereto, and provided
further that in the event the laws of the State of Delaware shall cease to
impose a time limit on the effectiveness of voting agreements among
stockholders, this Section 5(a)(iii) shall cease to have any force or
effect.
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 that any such termination shall not relieve any person or
entity from liability for breach or default of this Agreement prior to such
termination; and provided further that GPA agrees that in the event this
Agreement is terminated pursuant to Section 5(a)(i) hereof, GPA shall cause
the resignation of, or provide notice to AmWest requesting that it take such
actions as are necessary to cause the removal of, the GPA Director.
(b) In the event that the Stockholder Agreement is terminated or
becomes unenforceable or invalid, in whole or in part, for any reason, this
Agreement shall remain in full force and effect and the terms and conditions
contained in this Agreement shall not be affected in any manner by any such
termination, unenforceability or invalidity.
(c) Each of the parties bound by this Agreement hereby agrees
that so long as both the Stockholder Agreement and this Agreement are in
effect, nothing contained in this Agreement shall be construed to limit or
otherwise affect the obligations, rights or remedies of any party under the
Stockholder Agreement.
Section 6. Miscellaneous.
(a) Notices. All notices or other communications hereunder
shall be in writing and delivered by registered airmail, return receipt
requested, next-day air courier delivery, personal service or telecopier at
the respective addresses and to the attention of the respective parties set
forth below. All notices hereunder shall be effective when received.
If to GPA: GPA Group plc
GPA House
Shannon, County Clare
Ireland
Telecopier: 011-353-61-360220
Attention: Patrick H. Blaney
With a copy to: GPA Group plc
GPA House
Shannon, County Clare
Ireland
Telecopier: 011-353-61-360503
Attention: Corporate Secretary
With a copy to: Paul, Hastings, Janofsky &
Walker
399 Park Avenue, 31st Floor
New York, New York 10022
Telecopier: (212) 319-4090
Attention: Marguerite R. Kahn
If to AmWest: AmWest Partners, L.P.
201 Main Street, Suite 2420
Fort Worth, Texas 76102
Telecopier: (817) 871-4010
Attention: James G. Coulter
With a copy to: Arnold & Porter
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036
Telecopier: (202) 872-6720
Attention: Richard Schifter
(b) Amendments and Waivers. This Agreement may be waived,
amended, supplemented or otherwise modified only in writing executed and
delivered by each of the parties hereto.
(c) No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the
part of GPA or AmWest, as the case may be, any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof.
No single or partial exercise of any right, remedy, power or
privilege under this Agreement shall preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided
are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law or in any other agreement between the parties
hereto.
(d) Assignments; Binding Effect. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that with respect to
AmWest, this Agreement shall not be binding upon Mesa nor shall Mesa be
entitled to any benefits under this Agreement and AmWest hereby agrees that it
shall not assign any interest under this Agreement to Mesa (including, without
limitation, upon the dissolution of AmWest Partners, L.P.). No person or
entity, other than the parties hereto and their permitted successors and
assigns, shall have any third-party beneficiary rights hereunder or with
respect hereto.
(E) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE INTERNAL LAWS OF THE STATE OF
DELAWARE WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAWS PRINCIPLES.
(F) WAIVER OF JURY TRIAL. EACH OF AMWEST AND GPA HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
(g) Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
(h) Counterparts. This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts, each
of which counterparts shall be deemed to be an original, and all of which
counterparts taken together shall be deemed to constitute one and the same
instrument.
(i) Headings. Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose or be given any substantive effect.
(j) Further Assurances. Each of AmWest and GPA agrees to do
such further acts and things or cause to be performed such further acts and
things, including, without limitation, execute and deliver, or cause to be
executed and delivered, such agreements and other documents, as any other
party hereto shall reasonably require or deem advisable to effectuate the
purposes of this Agreement or to better assure or confirm its rights and
remedies hereunder or thereunder.
(k) Time of the Essence. Time is of the essence with respect to
each provision of this Agreement in which time is a factor.
IN WITNESS WHEREOF, the parties hereto, by their respective officers
thereunto duly authorized, have executed this Agreement as of the date first
written above.
AMWEST PARTNERS, L.P.
By: AmWest Genpar, Inc.,
its General Partner
By:/s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
GPA GROUP PLC
By:/s/ Michael Walsh
Name: Michael Walsh
Title: Vice President - Legal
NY-84309.1 -14-
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