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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)
MARGUERITE R. KAHN, ESQ.
PAUL, HASTINGS, JANOFSKY & WALKER
399 PARK AVENUE
NEW YORK, NEW YORK 10022
(212) 318-6070
---------------------------------------------
(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/.
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SCHEDULE 13D
CUSIP No. 023650 302, 023650 203, 023650 112
- ---------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GPA Group plc
- ---------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) /x/
(b) / /
- ---------------------------------------------------------------
3. SEC USE ONLY
- ---------------------------------------------------------------
4. SOURCE OF FUNDS
00
- ---------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
/ /
- ---------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
IRELAND
- ---------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF CLASS A COMMON STOCK 0
SHARES CLASS B COMMON STOCK 900,000
BENEFICIALLY WARRANTS 1,384,615
OWNED BY EACH
EACH REPORTING
PERSON WITH
- ---------------------------------------------------------------
8. SHARED VOTING POWER
CLASS A COMMON STOCK 1,200,000
CLASS B COMMON STOCK 14,501,967
WARRANTS 4,897,538
- ---------------------------------------------------------------
9. SOLE DISPOSITIVE POWER
CLASS A COMMON STOCK 0
CLASS B COMMON STOCK 900,000
WARRANTS 1,384,615
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- ---------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
CLASS A COMMON STOCK 0
CLASS B COMMON STOCK 0
WARRANTS 0
- ---------------------------------------------------------------
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
CO
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Item 1. Security and Issues.
This Statement relates to 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"), with its principal executive offices 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 Statement is filed by GPA Group plc, an Irish public
limited company ("GPA"), with principal executive offices at GPA House,
Shannon, County Clare, Ireland. The principal business of GPA is the leasing
of aircraft to a wide range of airlines throughout the world.
Pursuant to General Instruction "C" for Schedule 13D, set
forth on Schedule A to this Statement is information concerning the name,
residence or business address, principal occupation or employment and
citizenship of each director and executive officer of GPA, which information is
incorporated herein by reference.
During the last five years, GPA and, to the best knowledge of
GPA, none of the directors or executive officers of GPA (named on Schedule A to
this Statement) has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors).
During the last five years, GPA and, to the best knowledge of
GPA, none of the directors or executive officers of GPA (named on Schedule A to
this Statement) 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
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state securities laws or finding any violations with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
Pursuant to the Plan and a Restructuring Agreement, dated as
of August 25, 1994, between the Company and GPA, and in sole consideration of
the termination and cancellation of certain contractual rights of GPA to
require the Company to lease certain aircraft and certain contractual
obligations of the Company (assumed by the Company pursuant to the United
States Bankruptcy Code with the approval of the Bankruptcy Court) to take and
lease such aircraft, the Company issued to GPA 900,000 shares of Class B Common
and Warrants to purchase up to an additional 1,384,615 shares of Class B Common
(and made a cash payment to GPA and provided to GPA the contractual right to
require the Company to lease certain other aircraft).
Other than as set forth in this Item 3 and in Item 6 below,
neither GPA nor, to the best knowledge of GPA, any of the directors or
executive officers of GPA (named on Schedule A to this Statement) has any
arrangements for the borrowing or otherwise obtaining of funds for the purpose
of acquiring, holding, trading or voting the Class A Common, the Class B Common
or the Warrants.
Item 4. Purpose of Transaction.
GPA acquired its Class B Common and its Warrants for general
investment purposes.
GPA intends to review continuously its 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,
GPA may determine to increase or decrease its equity interest in the Company by
acquiring shares of Class A Common or additional shares of Class B Common or
additional 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
restrictions on its ability to do so.
Other than as set forth in this Item 4 and in Item 6 below,
neither GPA nor, to the best knowledge of GPA, any
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of the directors or executive officers of GPA (named on Schedule A to this
Statement) has any present plans or proposals which relate to or would 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
Company 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.
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Item 5. Interest in Securities of the Issuer.
(a) - (b) At the date hereof, GPA has the sole power
to vote and dispose of 900,000 shares of the Class B Common and 1,384,615
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 B Common held by GPA represents approximately 2.04% 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 GPA represent
approximately 13.3% 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 GPA represent approximately
5.04% of the 45,309,615 shares of Class B Common which would be assumed to be
outstanding upon such exercise.
As set forth in Item 6, GPA has certain
understandings and agreements regarding the voting of the securities of the
Company held by it with TPG Partners, L.P. ("TPG"), TPG Parallel I, L.P. ("TPG
Parallel"), Air Partners II, L.P. ("Air Partners II"), Continental Airlines,
Inc., a Delaware corporation ("Continental") and Mesa Airlines, Inc., a New
Mexico corporation ("Mesa"). (Collectively, TPG, TPG Parallel and Air Partners
II are herein called the "TPG Parties".) As a result of these agreements and
understandings, each of GPA, the TPG Parties, Continental and Mesa comprise a
group within the meaning of Section 13(d)(3) of the Exchange Act, and such
group is deemed to beneficially own the securities of the Company owned by each
of such persons. Information concerning the ownership of Class A Common, Class
B Common and Warrants by each of the TPG Parties, Continental and Mesa is
contained in separate Schedules 13D being filed by each of the TPG Parties,
Continental and Mesa. As a group, such parties are deemed to beneficially own
1,200,000 shares of Class A Common, 9,604,429 shares of Class B Common, and
4,897,538 Warrants. The aggregate amount of Class A Common deemed to be
beneficially owned by such 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 deemed to be
beneficially owned by such 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
deemed to be beneficially owned
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by such 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 deemed to be beneficially owned by such 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 set forth above in this Item or in Item 6,
neither GPA nor, to the best knowledge of GPA, any of the directors or
executive officers of GPA (named on Schedule A to this Statement) has the sole
or shared power to vote or the sole or shared power to dispose of any shares of
Class A Common or Class B Common, or of any Warrants.
(c) Except as stated herein, no transactions in shares of
Class A Common or Class B Common, or in Warrants were effected during the past
60 days by GPA or, to the best of its knowledge, any of the directors or
executive officers of GPA (named on Schedule A to this Statement).
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings
or Relationships With Respect to Securities
of the Issuer
On August 25, 1994, the Company and GPA 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 covering the shares of Class B
Common and the Warrants issued to GPA pursuant to the Plan and the shares of
Class B Common issuable pursuant to such Warrants 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, GPA (or an
affiliate assignee) may provide the Company with a notice of demand to register
under the Securities Act of 1933, for disposition in
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accordance with the terms of such notice of demand, such securities as are
included in such notice of demand or otherwise includable pursuant to the
Registration Rights Agreement. The Registration Rights Agreement also provides
that GPA and its affiliates and assignees may include securities held by them
in any registration of equity securities by the Company (whether or not on its
own behalf), subject 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.
On August 25, 1994, GPA, AmWest Partners, L.P. ("AmWest"), 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
at least two percent 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'
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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).
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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 a exhibit hereto and incorporated
herein by reference.
The GPA Voting Agreement provides that GPA shall vote for the
nominees of AmWest or its designated assignees 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
at least five percent of the voting equity securities of the Company and GPA
owns at least two percent 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.
To the best knowledge of GPA, on August 25, 1994, AmWest and
each of TPG, TPG Parallel, Air Partners II, Mesa and Continental entered into
certain individual Assignment and Assumption Agreements, pursuant to which
AmWest assigned certain of its rights under the Stockholders' Agreement and the
GPA Voting Agreement with respect to certain securities of the Company to each
of TPG, TPG Parallel, Air Partners II, Mesa and Continental and such parties
assumed the concomitant obligations of AmWest under such agreements with
respect to such securities.
There are no other contracts, understandings or agreements
with respect to the securities of the Company between GPA or, to the best
knowledge of GPA, any of the directors or executive officers of GPA (named on
Schedule A to this Statement) and any other persons.
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Item 7. Material to be Filed as Exhibits.
Exhibit 1 -- Registration Rights Agreement
Exhibit 2 -- Stockholders' Agreement
Exhibit 3 -- GPA Voting Agreement
[SIGNATURE PAGE FOLLOWS.]
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SIGNATURE
After reasonable inquiry and to the best of its knowledge and
belief the undersigned certifies that the information set forth in this
statement is true, complete and correct.
GPA Group plc
By: /s/ Patrick H. Blaney
------------------------
Patrick H. Blaney
Chief Executive Officer
Dated: September 6, 1994
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SCHEDULE A
INFORMATION REGARDING DIRECTORS AND
OFFICERS OF GPA Group plc ("GPA")
I. DIRECTORS OF GPA
1. Name
Dennis Stevenson, C.B.E.
Business Address
SRU Limited
78-80 St. John Street
London EC1M 4HR
England
Present Principal Occupation or
Employment and Name, Principal
Business and Address or Organization
at Which Carried on (hereinafter
"Present Occupation")
Director of SRU Limited (consulting company) and
various other companies.
Citizenship
British
2. Name
Patrick H. Blaney
Business Address
GPA House
Shannon, County Clare
Ireland
Present Occupation
Chief Executive Officer of GPA
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Citizenship
Ireland
3. Name
John F. Tierney
Business Address
GPA House
Shannon, County Clare
Ireland
Present Occupation
Assistant Chief Executive Officer and Finance
Director of GPA
Citizenship
Ireland
4. Name
Michael Davies
Residence Address
Little Woolpit
Ewhurst, Cranleigh
Surrey GU6 7NP
Ireland
Present Occupation
Deputy Chairman of GPA and Director of various
other companies.
Citizenship
British
5. Name
Maurice A. Foley
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Residence Address
Castlelough, Portroe
Nenagh Co., Tipperary
Ireland
Present Occupation
Director of GPA
Citizenship
Ireland
6. Name
William F. Houstoun
Residence Address
"Rhubeg"
Strone, Holy Loch
Argyl PA23 8RX
Scotland
Present Occupation
Business Consultant
Citizenship
British
7. Name
Gerald B. Scanlan
Residence Address
"Aclare"
8 Marborough Road
Glenageary Co., Dublin
Ireland
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Present Occupation
Director of GPA
Citizenship
Ireland
II. OFFICERS OF GPA
1. Name
Brian F. McLoghlin
Business Address
GPA House
Shannon, County Clare
Ireland
Present Occupation
Chief Legal Officer and Secretary of GPA
Citizenship
Ireland
2. Name
Edward Hansom
Business Address
GPA House
Shannon, County Clare
Ireland
Present Occupation
General Manager (Treasury) of GPA
Citizenship
British
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3. Name
Richard Pierce
Business Address
GPA House
Shannon, County Clare
Ireland
Present Occupation
Chief Accountant of GPA
Citizenship
Ireland
4. Name
Declan Treacy
Business Address
GPA House
Shannon, County Clare
Ireland
Present Occupation
General Manager (Corporate Finance) of GPA
Citizenship
Ireland
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EXHIBIT INDEX
Exhibit 1 -- Registration Rights Agreement
Exhibit 2 -- Stockholders' Agreement
Exhibit 3 -- GPA Voting Agreement
<PAGE> 1
================================================================================
REGISTRATION RIGHTS AGREEMENT
BETWEEN
AMERICA WEST AIRLINES, INC.,
AND
GPA GROUP PLC
DATED AS OF AUGUST 25, 1994
================================================================================
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TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
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
</TABLE>
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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,
<PAGE> 4
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.
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<PAGE> 5
"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).
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<PAGE> 6
"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.
4
<PAGE> 7
"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
5
<PAGE> 8
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
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<PAGE> 9
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
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<PAGE> 10
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
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<PAGE> 11
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
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<PAGE> 12
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
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<PAGE> 13
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;
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<PAGE> 14
(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;
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<PAGE> 15
(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;
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<PAGE> 16
(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
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<PAGE> 17
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
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<PAGE> 18
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
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<PAGE> 19
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
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<PAGE> 20
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.
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(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
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<PAGE> 22
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.
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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
21
<PAGE> 24
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
22
<PAGE> 25
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
23
<PAGE> 26
(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.
<TABLE>
<S> <C>
AMERICA WEST AIRLINES, INC.
By:/s/ Martin Whalen
--------------------------------
Name: Martin Whalen
------------------------
Title: Senior Vice President
----------------------
GPA GROUP plc
By: /s/ Michael Walsh
-------------------------------
Name: Michael Walsh
------------------------
Title: Vice President-Legal
-----------------------
</TABLE>
<PAGE> 1
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
<PAGE> 2
- 2 -
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.
<PAGE> 3
- 3 -
"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).
<PAGE> 4
- 4 -
"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
<PAGE> 5
- 5 -
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
<PAGE> 6
- 6 -
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
<PAGE> 7
- 7 -
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.
<PAGE> 8
- 8 -
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
<PAGE> 9
- 9 -
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
<PAGE> 10
- 10 -
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
<PAGE> 11
- 11 -
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:
<PAGE> 12
- 12 -
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
<PAGE> 13
- 13 -
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.
<PAGE> 14
- 14 -
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.
<PAGE> 15
- 15 -
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
<PAGE> 16
- 16 -
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.
<PAGE> 17
- 17 -
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.
<PAGE> 18
- 18 -
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
<PAGE> 19
- 19 -
AMERICA WEST AIRLINES, INC.
By: /s/ M.J. Whalen
-----------------------
Name: M.J. Whalen
Title: Senior Vice President
<PAGE> 20
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> 1
------------------------------------------------------------
VOTING AGREEMENT
Dated as of August 25, 1994
Between
GPA Group plc
and
AmWest Partners, L.P.
------------------------------------------------------------
<PAGE> 2
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:
<PAGE> 3
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.
-2-
<PAGE> 4
"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.
-3-
<PAGE> 5
"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
-4-
<PAGE> 6
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
-5-
<PAGE> 7
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
-6-
<PAGE> 8
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).
-7-
<PAGE> 9
(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
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<PAGE> 10
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
AmWest 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.
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<PAGE> 11
(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
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<PAGE> 12
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.
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<PAGE> 13
(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.
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<PAGE> 14
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
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