<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
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)
Gary E. Risley, Esq.
Mesa Airlines, Inc.
2325 East 30th Street
Farmington, New Mexico 87401
505-327-0271
(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]. (A fee is not required only if the reporting person: (1)
has a previous statement on file reporting beneficial ownership
of more than five percent of the class of securities described in
Item 1; and (2) has filed no amendment subsequent thereto
reporting beneficial ownership of five percent or less of such
class.) (See Rule 13d-7.)
<PAGE>
NOTE: Six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-1(a) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in
a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18
of the Securities Exchange Act of 1934 ("Act") or otherwise
subject to the liabilities of that section of the Act but shall
be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
<PAGE>
CUSIP Nos. 023650 302, 023650 203, 023650 112 13D
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Mesa Airlines, Inc.
85-0302351
2 CHECK THE APPROPRIATE BOX IF A MEMBER
OF A GROUP* (a) [x]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New Mexico
7 SOLE VOTING POWER
Class A Common Stock 100,000
Class B Common Stock 2,183,343
NUMBER OF Warrants to Purchase
SHARES Class B Common Stock 799,767
BENEFICIALLY
OWNED BY 8 SHARED VOTING POWER
EACH REPORTING
PERSON WITH Class A Common Stock 1,200,000
Class B Common Stock 14,501,967
Warrants to Purchase
Class B Common Stock 4,897,538
9 SOLE DISPOSITIVE POWER
Class A Common Stock 100,000
Class B Common Stock 2,183,343
Warrants to Purchase
Class B Common Stock 799,767
<PAGE>
10 SHARED DISPOSITIVE POWER
Class A Common Stock 1,200,000
Class B Common Stock 14,501,967
Warrants to Purchase
Class B Common Stock 4,897,538
11 AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
Class A Common Stock 1,200,000
Class B Common Stock 14,501,967
Warrants to Purchase
Class B Common Stock 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%
Class B Common Stock 29.7%
Warrants to Purchase
Class B Common Stock 47.2%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
<PAGE>
ITEM 1. SECURITY AND ISSUER.
The securities to which this statement relates are the
Class A Common Stock, $0.01 par value per share (the "Class A
Common"), the Class B Common Stock, $0.01 par value per share
(the "Class B Common"), and the Warrants to Purchase Class B
Common (the "Warrants") of America West Airlines, Inc., a
Delaware corporation (the "Company"). The principal offices of
the Company are located at 4000 East Sky Harbor Boulevard,
Phoenix, Arizona 85034. Pursuant to a Plan of Reorganization
(the "Plan") which was confirmed by the United States Bankruptcy
Court for the District of Arizona (the "Bankruptcy Court") on
August 10, 1994 and which became effective on August 25, 1994
(the "Effective Date"), the Company has emerged from bankruptcy
and is no longer operating as a debtor-in-possession under
Chapter 11 of the United States Bankruptcy Code.
ITEM 2. IDENTITY AND BACKGROUND.
(a)-(c) This Schedule 13D is filed by Mesa Airlines,
Inc., a New Mexico corporation ("Mesa"), whose principal business
is the operation of regional airlines in various parts of the
United States. Mesa's principal executive offices are located at
2325 East 30th Street, Farmington, New Mexico 87401.
Pursuant to General Instruction "C" for Schedule 13D,
set forth below is certain information concerning the executive
officers and directors of Mesa.
<TABLE>
<CAPTION>
Present Principal
Name Title Business Address Occupation
<S> <C> <C> <C>
Larry L. Risley President, Chief Executive 2325 East 30th Street President, Chief
Officer and Chairman of Farmington, New Mexico Executive Officer and
the Board of Directors 87401 Chairman of the Board of
Directors of Mesa
Blaine M. Jones President of Mesa Airlines 2325 East 30th Street President of
Operating Division Farmington, New Mexico Mesa Airlines
and Director 87401 Operating Division
<PAGE>
Gary E. Risley Vice President of Legal 2325 East 30th Street Vice President of
Affairs, General Counsel Farmington, New Mexico Legal Affairs,
and Secretary 87401 General Counsel
and Secretary
of Mesa
W. Stephen Jackson Chief Financial Officer 2325 East 30th Street Chief Financial Officer
and Treasurer Farmington, New Mexico and Treasurer of Mesa
87401
Grady H. Reed, III Vice President of Airline 2325 East 30th Street Vice President of
Operations Farmington, New Mexico Airline Operations
of Mesa
87401
Charles A. Miller Vice President of 2325 East 30th Street Vice President of
Maintenance Farmington, New Mexico Maintenance of Mesa
87401
E. Janie Risley Director 2325 East 30th Street Not employed
Farmington, New Mexico
87401
George W. Pennington Director 401 West Broadway President of Farmer
Bloomfield, New Mexico Family Center, Inc.;
87413 President, REDROX, Inc.;
General Partner,
Pennington Partnerships
401 West Broadway
Bloomfield, New Mexico
87413
Richard C. Poe Director 6501 Montana Ave. President and Chief
El Paso, Texas 79925 Executive Officer of
Dick Poe Motors, Inc.
6501 Montana Ave.
El Paso, Texas 79925
Jack Braly Director P.O. Box 582808 Vice President of
Tulsa, Oklahoma 74158 Aircraft Maintenance
of Rockwell
2201 Seal Beach Boulevard
P.O. Box 4250
Seal Beach, California
90740-8250
<PAGE>
</TABLE>
(d) During the last five years, neither Mesa nor, to
the best of Mesa's knowledge, any of the executive officers or
directors of Mesa has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors).
(e) During the last five years, neither Mesa nor, to
the best of Mesa's knowledge, any of the executive officers or
directors of Mesa has been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as
a result of such proceeding was or is subject to a judgment,
decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state
securities laws or finding any violation with respect to such
laws.
(f) All of the individuals identified in this Item 2
are citizens of the United States.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The aggregate amount of funds required by Mesa to
purchase the Class A Common, Class B Common and Warrants from the
Company was $18,698,983. All funds used by Mesa to purchase the
Class A Common, Class B Common and Warrants were obtained from
the working capital of Mesa and no part of the purchase price for
the Class A Common, Class B Common or Warrants consisted of
borrowed funds.
ITEM 4. PURPOSE OF TRANSACTION.
Mesa purchased the Class A Common, Class B Common and
Warrants for general investment purposes. Mesa 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, without limitation, general
economic and business conditions and money market and stock
market conditions, Mesa may determine to increase or decrease its
equity interest in the Company by acquiring additional shares of
<PAGE>the Class A Common, Class B Common or Warrants or by
disposing of all or a portion of its holdings of the Class A
Common, Class B Common or Warrants, subject to any applicable
legal and contractual restrictions on its ability to do so.
Mesa has acquired its interests in the Class A Common,
Class B Common and Warrants as a result of the assignment by
AmWest Partners, L.P., a Texas limited partnership ("AmWest"), of
certain rights granted to AmWest under the Third Revised
Investment Agreement, dated April 21, 1994 (the "Investment
Agreement"), between AmWest and America West Airlines, Inc.,
prior to its reorganization ("Old America West"), including
AmWest's right to purchase the Class A Common, Class B Common and
Warrants from the Company on the Effective Date.
Pursuant to the Investment Agreement, AmWest agreed, in
connection with and as part of the Plan, to acquire certain
voting securities, debt securities and warrants of the Company.
In addition, pursuant to the Investment Agreement, the Company,
AmWest, the Official Creditors' Committee and the Official Equity
Committee (as appointed by the United States Trustee pursuant to
Section 1102(a) of the United States Bankruptcy Code) agreed to
appoint a new Board of Directors for the Company, to amend the
certificate of incorporation and bylaws of the Company and to
enter into certain other agreements described in Item 6 below.
Following the successful completion of the transactions
contemplated by the Investment Agreement on August 25, 1994
(including the assignment by AmWest of its rights under the
Investment Agreement to certain parties, including Mesa), Mesa
acquired its equity interest in the Company. A copy of the
Investment Agreement is filed as an exhibit hereto and
incorporated herein by reference.
Except as set forth herein, Mesa does not have any
plans or proposals which would relate to or result in:
(a) The acquisition of additional securities of the
Company, or the disposition of securities of the
Company;
(b) An extraordinary corporate transaction, such as a
merger, reorganization or liquidation, involving
the Company or any of its subsidiaries;
<PAGE>
(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.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) - (b) At the date hereof, Mesa has the sole power
to vote and dispose of 100,000 shares of the Class A Common,
2,183,343 shares of the Class B Common, and 799,767 Warrants.
The Warrants entitle holders to purchase one share of the Class B
<PAGE>Common at a price of $12.74 per share, subject to
confirmation of such price by the Bankruptcy Court pursuant to a
final order and to certain adjustments. The Class A Common held
by Mesa represents approximately 8.3% of the 1,200,000 shares of
Class A Common outstanding as of August 31, 1994, based on
information provided by the Company. The Class B Common held by
Mesa represents approximately 5.0% of the 43,925,000 shares of
Class B Common outstanding as of August 31, 1994, based on
information provided by the Company. The Warrants held by Mesa
represent approximately 7.7% 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 the Class B Common held by Mesa would be 2,983,110
shares, representing approximately 6.7% of the 44,724,767 shares
of Class B Common that would be assumed to be outstanding upon
such exercise.
As set forth in Item 6, Mesa has certain understandings
and agreements regarding the voting and disposition of its
securities of the Company with TPG Partners, L.P., a Delaware
limited partnership ("TPG"), TPG Parallel I, L.P., a Delaware
limited partnership ("TPG Parallel"), Air Partners II, L.P., a
Texas limited partnership ("Air Partners II"), Continental
Airlines, Inc., a Delaware corporation ("Continental") and GPA
Group plc, an Irish public limited company ("GPA"). As a result
of these agreements and understandings, Mesa, TPG, TPG Parallel,
Air Partners II, Continental and GPA comprise a group within the
meaning of Section 13(d)(3) of the Exchange Act, and each may be
deemed to beneficially own the securities of the Company owned by
the other. Information concerning the ownership of the Class A
Common, Class B Common and Warrants by each of TPG, TPG Parallel,
Air Partners II, Continental and GPA is contained in separate
Schedules 13D being filed by each of TPG, TPG Parallel, Air
Partners II, Continental and GPA. As a group, such parties would
be deemed to beneficially own 1,200,000 shares of the Class A
Common, 9,604,429 shares of the Class B Common and 4,897,538
Warrants. The aggregate amount of the Class A Common
beneficially owned by the group represents 100% of the 1,200,000
shares of the Class A Common outstanding as of August 31, 1994,
based on information provided by the Company. The aggregate
amount of the Class B Common beneficially owned by the group
represents approximately 21.9% of the 43,925,000 shares of Class
B Common beneficially owned by the group outstanding as of August
31, 1994, based on information provided by the Company. The
aggregate amount of Warrants beneficially owned by the group
<PAGE>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 the Class B Common beneficially owned by the group
would be 14,501,967 shares, representing approximately 29.7% of
the 48,822,538 shares of Class B Common that would be assumed to
be outstanding upon such exercise.
Except as stated in Item 5(c) herein, to the best of
Mesa's knowledge, none of the individuals named in Item 2 has the
sole or shared power to vote or the sole or shared power to
dispose of any shares of the Class A Common, Class B Common or of
any Warrants.
(c) No transactions in shares of the Class A Common,
Class B Common or Warrants were effected during the past 60 days
by Mesa, or to the best of Mesa's knowledge, by any of the
individuals identified in Item 2, except that on August 26, 1994,
Gary E. Risley purchased 2,000 shares of the Class B Common at a
price of $16.25 per share and 1,000 shares of the Class B Common
at a price of $15.00 per share by means of placing orders for the
purchase of such shares with a registered broker on the New York
Stock Exchange.
(d) Except as stated herein, to the best of Mesa's
knowledge, no other person has the right to receive or the power
to direct the receipt of dividends from, or the proceeds from the
sale of, the securities described in response to Item 5(c).
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF
THE ISSUER.
On August 25, 1994, AmWest Genpar Inc., a Texas
corporation ("AmWest Genpar"), Apcal, L.P., a Texas limited
partnership ("Apcal"), and Mesa entered into an agreement (the
"Termination Agreement") pursuant to which AmWest was dissolved.
Apcal and Mesa were limited partners of AmWest; AmWest Genpar was
its General Partner. The limited partners of Apcal included TPG
and Continental, and TPG and Continental have agreed to and
acknowledged certain provisions of the Termination Agreement.
<PAGE>The following is a brief description of the Termination
Agreement and is qualified in its entirety by reference to such
agreement, a copy of which is filed as an exhibit hereto and
incorporated herein by reference.
The Termination Agreement provides that AmWest assign
to each of AmWest Genpar, Apcal and Mesa its rights and
obligations under the Investment Agreement to purchase from the
Company on the Effective Date certain shares of the Class A
Common, Class B Common and Warrants and that each of AmWest
Genpar and Apcal assign such rights and obligations to certain of
their affiliates (including TPG, TPG Parallel, Air Partners II
and Continental) in accordance with certain agreements entered
into between such affiliates and AmWest. The Termination
Agreement further provides that each of AmWest Genpar, Apcal and
Mesa (and certain of their respective affiliates) assume the
obligations of AmWest under the Investment Agreement in
connection with the securities acquired. As described below, the
Termination Agreement also contains certain provisions concerning
the assignment and assumption of certain rights of AmWest under
the Stockholders' Agreement and the Registration Rights Agreement
(each as defined below).
Pursuant to the Termination Agreement, AmWest has
assigned to TPG its right under the Stockholders' Agreement to
designate certain directors of the Company and their
replacements, if any, provided that for as long as Mesa owns
securities representing at least 2% of the aggregate voting power
of the outstanding voting equity securities of the Company, TPG
has agreed to cause one person identified by Mesa, who shall be
reasonably acceptable to TPG, to be included among TPG's
designated directors. In addition, each of the parties to the
Termination Agreement and their respective partners and
affiliates have agreed to assume certain of the obligations of
AmWest under the Stockholders' Agreement concerning the voting
and disposition of the Class A Common and the Class B Common and
to be bound by the terms of the Stockholders' Agreement as they
relate to such actions. The Termination Agreement also provides
that AmWest assign to TPG certain of its rights under the
Registration Rights Agreement (including the right to issue a
notice of demand), subject to Mesa's right to receive notice and
to give consent under certain circumstances.
<PAGE> On August 25, 1994, AmWest, the Company, Lehman
Brothers Inc., a Delaware corporation, Belmont Fund, L.P., a
Delaware limited partnership, Fidelity Copernicus Fund, L.P., a
Delaware limited partnership, and Belmont Capital Partners II,
L.P., a Delaware limited partnership, entered into a Registration
Rights Agreement (the "Registration Rights Agreement"). The
following is a brief description of the Registration Rights
Agreement and is qualified in its entirety by reference to such
agreement, a copy of which is filed as an exhibit hereto and
incorporated herein by reference.
Pursuant to the Registration Rights Agreement, the
Company has agreed to file a shelf registration statement with
respect to the securities issued or issuable to each of the
parties thereto and their respective affiliates and to maintain
effective such shelf registration statement for a period of three
years from the Effective Date (the "Shelf Period"). After the
Shelf Period, AmWest (or TPG acting as AmWest's designee in
accordance with the provisions of the Termination Agreement) may
provide the Company with a notice of demand to register under the
Securities Act of 1933 such securities as are included in such
notice of demand or otherwise includable pursuant to the
Registration Rights Agreement, for disposition in accordance with
the terms of such notice of demand. The Registration Rights
Agreement also provides that the parties to such agreement and
their respective affiliates and assignees (including Mesa) may
include securities held by them in any registration of equity
securities by the Company (whether or not for its own behalf),
pursuant to certain limitations on such inclusion in the event
that the managing underwriter of any such registration informs
the Company of its belief that the amount of securities requested
to be included in such registration exceeds the amount which can
be sold within an acceptable price range. The Registration
Rights Agreement also provides that the Company shall undertake
certain specified actions with regard to the registration and
offering of any securities covered by the Registration Rights
Agreement and pay stated amounts of liquidated damages to holders
of registrable securities in the event of the suspension or
ineffectiveness of the shelf registration statement covering such
securities.
On August 25, 1994, AmWest, GPA, the Company and
certain other parties entered into a Stockholders' Agreement (the
<PAGE>"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 the Effective Date and ending on the
date of the first annual meeting of the Company occurring after
the third anniversary of the Effective Date. 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 must be reasonably acceptable to AmWest or its
designated assignees; one member to be designated by the Official
Equity Committee, provided that such member must 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 must be reasonably acceptable to AmWest
or its designated assignees; and one member to be designated by
GPA for so long as GPA shall own 2% of the voting equity
securities of the Company, provided that such member must be
reasonably acceptable to AmWest or its designated assignees. The
Board of Directors of the Company has been designated in
accordance with the provisions of the Stockholders' Agreement.
The parties to the Stockholders' Agreement have agreed to vote,
or recommend the voting of, the shares of the 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 the
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
<PAGE>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 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 the Class A Common
or the Class B Common, if, after such transaction, the total
number of shares of the Class B Common beneficially owned by the
transferor is less than twice the number of shares of the 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 in a related series of
transactions, shares of the Class A Common and the 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, transfer to affiliates
and sales in connection with a public offering or tender offer
for all shares of common stock of the Company and for the benefit
of all holders of the Class B Common on a pro rata basis at the
same price and on the same economic terms).
On or before August 25, 1994, AmWest and each of Mesa,
TPG, TPG Parallel, Air Partners II and Continental entered into
certain individual assignment and assumption agreements (the
"Assignment and Assumption Agreements") pursuant to which AmWest
assigned certain of its rights under the Investment Agreement,
Stockholders' Agreement and Registration Rights Agreement with
respect to certain securities of the Company to each of Mesa,
TPG, TPG Parallel, Air Partners II and Continental and such
parties assumed the concomitant obligations of AmWest under such
agreements with respect to such securities. Copies of the
Assignment and Assumption Agreements are filed as an exhibit
hereto and incorporated herein by reference.
On August 25, 1994, AmWest and GPA entered into a
Voting Agreement (the "GPA Voting Agreement"). The following is
<PAGE>a brief description of the GPA Voting Agreement and is
qualified in its entirety by reference to such agreement, a copy
of which is filed as an exhibit hereto and incorporated herein by
reference.
The GPA Voting Agreement provides that GPA shall vote
for the nominees of AmWest or its designated assignee to the
Board of Directors of the Company and that AmWest (and its
affiliates or assignees who receive the Class A Common or the
Class B common as a result of an assignment by AmWest, subject to
certain enumerated exceptions) shall vote for GPA's nominees to
the Board of Directors of the Company, in each case, for so long
as AmWest or its affiliates own 5% of the voting equity
securities of the Company and GPA owns at least 2% of the voting
equity securities of the Company or until August 25, 2004,
whichever comes first. In addition, the GPA Voting Agreement
provides that AmWest shall not transfer or assign any voting
equity securities of the Company to Mesa, if after giving effect
to any such transfer or assignment, Mesa shall hold 7% or more of
the combined voting power of all such securities then
outstanding. Mesa is not a party to the GPA Voting Agreement.
There are no other contracts, understandings or
agreements with respect to the securities of the Company between
Mesa or the other persons identified in Item 2 and any other
parties.
<PAGE>
<PAGE>
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 99.1 -- Investment Agreement
Exhibit 99.2 -- Termination Agreement
Exhibit 99.3 -- Registration Rights Agreement
Exhibit 99.4 -- Stockholders' Agreement
Exhibit 99.5 -- Assignment and Assumption Agreements
Exhibit 99.6 -- GPA Voting Agreement
<PAGE>
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set forth in
this statement is true, complete and correct.
Date: September 6, 1994 MESA AIRLINES, INC.
By: /s/ Gary E. Risley
Name: Gary E. Risley
Title: Vice President,
General Counsel
and Secretary
<PAGE>
THIRD REVISED INVESTMENT AGREEMENT
April 21, 1994
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Attention: William A. Franke
Chairman of the Board
Gentlemen:
This letter agreement (this "Agreement") sets forth the
agreement between America West Airlines, Inc., a Delaware
corporation (including, on or after the effective date of the
Plan, as defined herein, its successors, as reorganized pursuant
to the Bankruptcy Code, as defined herein) (the "Company"), and
AmWest Partners, L.P., a Texas limited partnership ("Investor").
The Company will issue and sell to Investor, and
Investor hereby agrees and commits to purchase from the Company,
a package of securities of the Company for $244,857,000 in cash
(subject to adjustment as herein provided), consisting of (i)
shares of Class A Common Stock of the Company ("Class A Common"),
(ii) shares of Class B Common Stock of the Company ("Class B
Common" and, together with the Class A Common, "Common Stock"),
(iii) senior unsecured notes of the Company ("Notes") and (iv)
warrants to purchase shares of Class B Common ("Warrants"), all
on the terms and subject to the terms and conditions hereinafter
set forth.
Investor's purchase of the securities referred to above
(the "Investment") will be made in connection with and as part of
the transactions to be consummated pursuant to a joint Plan of
Reorganization of the Company (the "Plan") and an order (the
"Confirmation Order") confirming the Plan issued by the
Bankruptcy Court, as defined herein. The Plan will contain
provisions called for by, or otherwise consistent with, this
Agreement.
In consideration of the agreements of Investor
hereunder, and as a precondition and inducement to the execution
of this Agreement by Investor, the Company has entered into the
Third Revised Interim Procedures Agreement with Investor, dated
the date hereof (the "Procedures Agreement").
SECTION 1.Definitions. For purposes of this Agreement,
except as expressly provided herein or unless the context
otherwise requires, the following terms shall have the following
respective meanings:
<PAGE> "Affiliate" shall mean (i) when used with reference
to any partnership, any Person that, directly or
indirectly, owns or controls 10% or more of either the
capital or profit interests of such partnership or is a
partner of such partnership or is a Person in which such
partnership has a 10% or greater direct or indirect
equity interest and (ii) when used with reference to any
corporation, any Person that, directly or indirectly,
owns or controls 10% or more of the outstanding voting
securities of such corporation or is a Person in which
such corporation has a 10% or greater direct or indirect
equity interest. In addition, the term "Affiliate,"
when used with reference to any Person, shall also mean
any other Person that, directly or indirectly, controls
or is controlled by or is under common control with such
Person. As used in the preceding sentence, (A) the term
"control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the
management and policies of the entity referred to,
whether through ownership of voting securities, by
contract or otherwise and (B) the terms "controlling"
and "controls" shall have meanings correlative to the
foregoing. Notwithstanding the foregoing, the Company
will be deemed not to be an Affiliate of Investor or any
of its partners or assignees.
"Alliance Agreements" shall have the meaning specified
in Section 5.
"Approvals" shall have the meaning specified in Section
8(b).
"Bankruptcy Code" shall mean Chapter 11 of the United
States Bankruptcy Code.
"Bankruptcy Court" shall mean the United States
Bankruptcy Court for the District of Arizona.
"Business Combination" means:
(i) any merger or consolidation of the Company with
or into Investor or any Affiliate of Investor;
(ii) any sale, lease, exchange, transfer or other
disposition of all or any substantial part of the assets
of the Company to Investor or any Affiliate of Investor;
(iii) any transaction with or involving the Company
as a result of which Investor or any of Investor's
Affiliates will, as a result of issuances of voting
securities by the Company (or any other securities
convertible into or exchangeable for such voting
securities) acquire an increased percentage ownership of
such voting securities, except pursuant to a transaction
<PAGE>open on a pro rata basis to all holders of Class B
Common; or
(iv) any related series or combination of
transactions having or which will have, directly or
indirectly, the same effect as any of the foregoing.
"Class A Common" shall have the meaning specified in the
second paragraph of this Agreement.
"Class B Common" shall have the meaning specified in the
second paragraph of this Agreement.
"Common Stock" shall have the meaning specified in the
second paragraph of this Agreement.
"Company" shall have the meaning specified in the first
paragraph of this Agreement.
"Confirmation Date" shall mean the date on which the
Confirmation Order is entered by the Bankruptcy Court.
"Confirmation Order" shall have the meaning specified in
the third paragraph of this Agreement.
"Continental" shall mean Continental Airlines, Inc.
"Creditors' Committee" shall mean the Official Committee
of the Unsecured Creditors of America West Airlines, Inc.
appointed in the Company's Chapter 11 case pending in the
Bankruptcy Court.
"Disclosure Statement" shall mean a disclosure statement
with respect to the Plan.
"Effective Date" shall mean the effective date of the
Plan; provided that in no event shall the Effective Date be
(a) earlier than 11 days after the Bankruptcy Court approves
and enters the Confirmation Order providing for the
confirmation of the Plan or (b) before all material
Approvals are obtained.
"Electing Party" shall have the meaning specified in
Section 4(a)(2)(ii).
"Equity Committee" shall mean the Official Committee of
Equity Holders of America West Airlines, Inc. appointed in
the Company's Chapter 11 case pending in the Bankruptcy
Court.
"Equity Holders" shall mean the Company's equity
security holders (including holders of common stock and
preferred stock) of record as of the applicable record date
fixed by the Bankruptcy Court.
<PAGE> "Governance Agreements" shall have the meaning
specified in Section 6.
"GPA" shall mean GPA Group plc or, if applicable, any
direct or indirect subsidiary thereof.
"GPA Put Agreement" shall have the meaning specified in
Section 7(j).
"Independent Directors" shall have the meaning specified
in Section 6(a)).
"Initial Order" shall have the meaning specified in
Section 8(a).
"Investment" shall have the meaning specified in the
third paragraph of this Agreement.
"Investor" shall have the meaning specified in the first
paragraph of this Agreement.
"Mesa" shall mean Mesa Airlines, Inc.
"Monthly Targets" shall mean the amounts specified in
the Monthly Targets Schedule.
"Monthly Targets Schedule" shall mean the letter
agreement between the Company and Investor dated the date
hereof.
"Notes" shall have the meaning specified in the second
paragraph of this Agreement. The Notes shall be subject to
the terms and conditions set forth in Exhibit B hereto.
"Outside Date" shall mean August 31, 1994; provided that
Investor shall have the right from time to time to
irrevocably extend the Outside Date to a date not later than
November 30, 1994, but only if Investor gives the Company
prior written notice of its election to extend the then
current Outside Date (which notice shall specify the new
Outside Date) and then only if, at the time of the giving of
such notice, Investor is not in breach of any of its
representations, warranties, covenants or obligations under
this Agreement, the Procedures Agreement or any Related
Agreement (excluding any breach by Investor which is not
willful or intentional and which is capable of being cured
on or before the new Outside Date). Unless waived by the
Company, any notice given pursuant to this definition shall
be delivered to the Company not less than 15 days prior to
the then current Outside Date except that, in the event the
Effective Date has not occurred for any reason arising
within such 15-day period not due to a breach by Investor of
any of its representations, warranties, covenants or
agreements hereunder, such notice shall be given as soon as
practicable but in no event later than the then current
Outside Date.
<PAGE> "Person" means a natural person, a corporation, a
partnership, a trust, a joint venture, any Regulatory
Authority or any other entity or organization.
"Plan" shall have the meaning specified in the third
paragraph of this Agreement.
"Plan 9" means the Company's Plan Revision No. 9 which
consists of the Summary Pro Forma Financial Statements: June
1993 Through December 1994, dated July 15, 1993.
"Plan R-2" shall mean the Company's Summary Pro Forma
Financial Statements, 5 Year Plan: 1994 Through 1998, Plan
No. R-2, dated January 13, 1994.
"Procedures Agreement" shall have the meaning specified
in the fourth paragraph of this Agreement.
"Projections" shall mean the projections set forth in
Plan 9 on pages 15 and 18 of Tab E and pages 7 and 8 of Tab
F.
"Purchase Price" shall have the meaning specified in
Section 2.
"Regulatory Approvals" shall mean all approvals,
permits, authorizations, consents, licenses, rulings,
exemptions and agreements required to be obtained from, or
notices to or registrations or filings with, any Regulatory
Authority (including the expiration of all applicable
waiting periods, if any, under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended) that are
necessary or reasonably appropriate to permit the Investment
and the other transactions contemplated hereby and by the
Related Agreements and to permit the Company to carry on its
business after the Investment in a manner consistent in all
material respects with the manner in which it was carried on
prior to the Effective Date or proposed to be carried on by
the reorganized Company.
"Regulatory Authority" shall mean any authority, agency,
commission, official or other instrumentality of the United
States, any foreign country or any domestic or foreign
state, county, city or other political subdivision.
"Related Agreements" shall have the meaning specified in
Section 3.
"Securities" shall mean the securities of the Company
issued to the Unsecured Parties, Investor and its assigns
and GPA under this Agreement. The Securities are described
in Section 4.
"Unsecured Creditors" shall mean, as of any date, the
Persons holding of record as of such date the allowed or
<PAGE>allowable prepetition unsecured claims without
priority of the Company.
"Unsecured Parties" shall mean the Equity Holders and
the Unsecured Creditors.
"Warrants" shall have the meaning specified in the
second paragraph of this Agreement.
SECTION 2. Commitment to Make Investment. Subject to
the terms and conditions of this Agreement and the Procedures
Agreement, on the Effective Date, the Company shall issue and
sell and Investor shall purchase Securities in accordance with
this Agreement and the Plan. Such Securities shall be issued,
sold and delivered to Investor, its designees and/or one or more
third party investors, and the $244,857,000 purchase price
therefor, as such purchase price may be adjusted pursuant hereto
(the "Purchase Price"), shall be paid by wire transfer of
immediately available funds on the Effective Date.
SECTION 3. Related Agreements.
The agreements necessary to effect the Investment (the "Related
Agreements", such term to include the Alliance Agreements and the
Governance Agreements) shall be in form and substance reasonably
satisfactory to Investor and the Company, and shall contain terms
and provisions, including representations, warranties, covenants,
warranty termination periods, materiality exceptions, cure
opportunities, conditions precedent, anti-dilution provisions (as
appropriate), and indemnities, as are in form and substance
reasonably satisfactory to such parties; provided, however, that
the Related Agreements shall contain provisions called for by, or
otherwise consistent with, this Agreement.
SECTION 4. Capitalization. (a) Upon consummation of
the Plan, the capitalization of the Company shall be as follows:
(1) Class A Common. There shall be 1,200,000 shares of
Class A Common, all of which shares shall, in accordance
with the Plan, be issued to Investor. Investor shall pay
$8,960,400 for the Class A Common. At the option of the
holders thereof, shares of Class A Common shall be
convertible into shares of Class B Common on a share for
share basis.
<PAGE> (2) Class B Common. There shall be 43,800,000
shares of Class B Common, all of which shares shall, in
accordance with the Plan, be issued as follows:
(i) Investor. Investor shall be issued 13,875,000
shares plus the number of shares (if any) to be acquired
by Investor pursuant to clause (ii) below minus the
number of shares, if any, purchased by the Equity
Holders pursuant to the second sentence of clause (iii)
below. For each share of Class B Common issued to it,
Investor shall pay $7.467; provided that (A) for each
share acquired by Investor pursuant to clause (ii) below
and (B) for each share not purchased by the Equity
Holders pursuant to clause (iii) below, Investor shall
pay $8.889.
(ii) Unsecured Creditors. The Unsecured
Creditors (or a trust created for their benefit) shall
be issued 26,775,000 shares. Notwithstanding the
foregoing, each Unsecured Creditor shall have the right
to elect to receive cash equal to $8.889 for each share
of Class B Common otherwise allocable to it under this
clause (ii). The election of each such Person (the
"Electing Party") must be made on or before the date
fixed by the Bankruptcy Court for voting with respect to
the Plan; provided, however, that in the event that such
elections of all Electing Parties aggregate to more than
$100 million, then (A) the amount of cash so paid shall
be limited to $100 million and (B) the Electing Parties
shall each receive proportionate amounts of cash and
Class B Common in accordance with the Plan. Subject to
the foregoing proviso, Investor shall increase the
Investment by the amount necessary to pay all Electing
Parties the cash amounts payable to them under this
clause (ii) in respect of the shares of Class B Common
specified in their elections and, upon payment of such
amounts, such shares shall be issued to Investor without
further consideration. Notwithstanding the foregoing,
Investor's acquisition of shares of Class B Common
pursuant to this clause (ii) shall, if permitted by
applicable securities and other laws, be consummated
immediately after the issuance of such shares to the
Electing Parties on the Effective Date. If such shares
are not so acquired post-consummation of the Plan, all
shares of Class B Common acquired by Investor pursuant
to this clause (ii) shall, for all purposes hereof, be
deemed to be part of the Securities acquired by Investor
hereunder.
<PAGE> (iii) Equity Holders. The Equity Holders (or
a trust created for their benefit) shall be issued
2,250,000 shares. In addition, the Equity Holders
shall have the right to purchase up to 1,615,179
shares allocable to Investor pursuant to clause (i)
above at $8.889 per share. Such election must be
made by each Equity Holder on or before the date
fixed by the Bankruptcy Court for voting with
respect to the Plan. The Plan shall set forth the
terms and conditions on which the foregoing rights
may be exercised.
(iv) GPA. 900,000 shares shall be issued to GPA.
(3) Warrants. There shall be Warrants to purchase
10,384,615 shares of Class B Common at the exercise price as
specified in and subject to the terms of Exhibit A hereto,
and such Warrants shall, in accordance with the Plan, be
issued as follows:
(i) Warrants to purchase up to 2,769,231 shares of
Class B Common shall be issued to Investor; and
(ii) Warrants to purchase up to 6,230,769 shares
of Class B Common shall be issued to the Equity Holders
or a trust or trusts created for their benefit; and
(iii) Warrants to purchase up to 1,384,615 shares
of Class B Common shall be issued to GPA.
(4) Senior Unsecured Notes. Investor shall, in
accordance with the Plan and subject to the terms of Exhibit
B hereto, be issued $100 million principal amount of Notes
against payment in cash of not less than 100% of the
principal amount thereof to the Company; provided, however,
that the Company shall have the right, exercised at any time
prior to the date fixed by the Bankruptcy Court for voting
with respect to the Plan, to increase the principal amount
of the Notes to be so purchased by Investor to up to $130
million. GPA shall, in accordance with the Plan, be issued
$30,525,000 principal amount of Notes; provided, however,
that GPA shall have the right to elect to receive cash in
lieu of all or any portion of the Notes otherwise issuable
to it under this paragraph (4), such election to be made on
or before the date fixed by the Bankruptcy Court for voting
with respect to the Plan.
(b) Holders of the Class A Common shall have fifty votes
per share. Holders of Class B Common shall have one vote per
share. Holders of Class A Common and holders of Class B Common
<PAGE>shall vote together as a single class except as otherwise
required by law or the provisions of this Agreement. Investor
may elect, with respect to any shares of Class B Common held by
it, to suspend the voting rights relating to such shares by
giving prior written notice to the Company, which notice shall
describe such shares in reasonable detail and state whether or
not the voting suspension is permanent or temporary and, if
temporary, specify the period thereof.
(c) Neither Investor nor any Affiliate of Investor or of
any partner of Investor will transfer or otherwise dispose of any
Common Stock (other than to an Affiliate of the transferor) if,
after giving effect thereto and to any concurrent transaction,
the total number of shares of Class B Common beneficially owned
by the transferor is less than 200% of the total number of shares
of Class A Common beneficially owned by the transferor; provided,
however, than nothing in this paragraph (c) shall prohibit any
Person from transferring or otherwise disposing, in a single
transaction or a series of concurrent transactions, of all shares
of Common Stock owned by such Person.
SECTION 5. Business Alliance Agreements. Continental
and the Company shall enter into mutually acceptable business
alliance agreements on the Effective Date, which agreements may
include, but shall not be limited to, agreements to share ticket
counter space, ground handling agreements, agreements to link
frequent flier programs, and combined purchasing agreements, and
schedule coordination and code sharing agreements. On the
Effective Date, Mesa shall enter into agreements with the Company
extending the existing contractual arrangements between the
Company and Mesa for five years from the Effective Date and
modifying the termination provisions thereof consistent with such
extension. Such agreements with Continental and Mesa are herein
collectively referred to as the "Alliance Agreements".
SECTION 6. Governance Agreements. On the Effective
Date, the Company, Investor and Investor's partners (other than
any such partner holding shares of Class B Common the voting
rights with respect to which have been suspended as contemplated
by Section 4(b)) shall enter into one or more written agreements
(the "Governance Agreements") effectively providing as follows:
(a) At all times during the three-year period commencing
on the Effective Date, the Company's board of directors
shall consist of 15 members designated as follows:
(i) nine members (at least 8 of whom are U.S.
citizens) shall be designated by Investor, with certain
of the partners of Investor having the right to
designate certain of Investor's designated directors;
<PAGE>
(ii) three members (at least two of whom are U.S.
citizens) shall be designated bythe Creditors'
Committee; provided that each such member shall be
reasonably acceptable to Investor at the time of his or
her initial designation;
(iii) one member shall be designated by the Equity
Committee; provided that such member shall be a U.S.
citizen reasonably acceptable to Investor at the time of
his or her initial designation;
(iv) one member shall be designated by the
Company's board of directors as constituted on the date
preceding the Effective Date; provided that such member
shall be a U.S. citizen reasonably acceptable to
Investor at the time of his or her initial designation;
and
(v) one member shall be designated by GPA for so
long as GPA shall own at least 2% of the voting equity
securities of the Company; provided that such member
shall be reasonably acceptable to Investor at the time
of his or her initial designation.
The directors (and their successors) referred to in clauses
(ii), (iii) and (iv) above are hereinafter referred to
collectively as the "Independent Directors".
(b) In the case of the death, resignation, removal or
disability of an Independent Director after the Effective
Date, his or her successor shall be designated by the
Stockholder Representatives, except that if such Independent
Director was initially designated by the Creditors'
Committee or the Equity Committee and if, at the time of
such Independent Director's death, resignation, removal or
disability (as the case may be), the Creditors' Committee or
the Equity Committee (as the case may be) remains in effect,
the successor to such Independent Director shall be
designated by the Creditors' Committee or the Equity
Committee (as the case may be). As used herein,
"Stockholder Representatives" shall mean, collectively, (A)
one individual who, on the date hereof, is serving as a
director of the Company, (B) one individualwho, on the date
hereof, is serving as a member of the Creditors' Committee
and (C) one individual who, on the date hereof, is serving
as a member of the Equity Committee. The initial
Stockholder Representatives shall be selected on or before
the Effective Date (x) by the Company's board of directors
in the case of the individual referred to in clause (A)
<PAGE>above, (y) by the Creditors' Committee in the case of
the individual referred to in clause (B) above and (z) by
the Equity Committee in the case of the individual referred
to in clause (C) above. In case of the death, resignation,
removal or disability of a Stockholder Representative after
the Effective Date, his or her successor shall be designated
by the remaining Stockholder Representatives.
(c) Until the third anniversary of the Effective Date,
Investor will vote and cause to be voted all shares of
Common Stock (other than those the voting rights of which
have been suspended) owned by Investor or any of its
partners or by the assignees or transferees of all or
substantially all of the Common Stock owned by Investor or
any of its partners (other than a Person who acquires such
stock pursuant to a tender or exchange offer open to all
stockholders of the Company) in favor of the election as
directors of any and all individuals designated for such
election as contemplated by clauses (ii), (iii), (iv) and
(v) of paragraph (a) above.
(d) No director nominated by Investor shall be an
officer or employee of Continental. All Company directors,
if any, who are selected by, or who are directors of,
Continental shall recuse themselves from voting on, or
otherwise receiving any confidential Company information
regarding, matters in connection with negotiations between
Continental and the Company (including, without limitation,
those relating to the Alliance Agreements) and matters in
connection with any action involving direct competition
between Continental and the Company. All Company directors,
if any, who are selected by, or who are directors, officers
or employees of, Mesa shall recuse themselves from voting
on, or otherwise receiving any confidential Company
information regarding, matters in connection with
negotiations between Mesa and the Company (including,
without limitation, those relating to the Alliance
Agreements) and matters in connection with any action
involving direct competition between Mesa and the Company.
(e) During the three-year period commencing on the
Effective Date, the Company will not consummate any Business
Combination unless such transaction shall be approved in
advance by at least three Independent Directors or by a
majority of the stock voted at the meeting held to consider
such transaction which is owned by stockholders of the
Company other than Investor or any of its Affiliates;
provided, however, that neither Mesa nor any fund or account
managed or advised by Fidelity Management Trust Company or
its Affiliates (or any of their non-Affiliated transferees)
<PAGE>will be deemed an Affiliate of Investor for purposes
of voting on any Business Combination involving Continental.
SECTION 7. Plan of Reorganization. The Plan shall (i)
be proposed jointly by the Company and Investor, (ii) contain
terms and conditions reasonably satisfactory to Investor and the
Company, and (iii) include the following provisions; provided
that Investor and the Company may, by mutual agreement, modify
the Plan or otherwise restructure the Investment in a manner
consistent with the contemplated economic consequences to the
Company, Investor, the Unsecured Parties and GPA in order to
enable the Company, as reorganized, to more fully utilize its
existing tax attributes:
(a) Debtor-in-Possession Financing. The Company's
debtor-in-possession financing shall be repaid in full in
cash on the Effective Date.
(b) Administrative Claims. All allowed administrative
claims shall be paid as required pursuant to Section 1129(a)
of the Bankruptcy Code, provided that such claims do not
exceed the amount set forth in Plan R-2 plus $15 million,
and provided further that payment of such claims in excess
of those set forth in Plan R-2 would not, if payment was to
be made in the month immediately preceding the Effective
Date, cause the Company to fail to meet any of the Monthly
Targets for such month.
(c) Tax Claims. All priority tax claims shall be paid
over the maximum term permitted by the Bankruptcy Code, as
determined by the Bankruptcy Court, with interest accruing
at a rate determined by the Bankruptcy Court, provided that
such claims do not exceed the amounts set forth in Plan R-2
plus $8.5 million, and provided further that payment of such
claims in excess of those set forth in Plan R-2 would not,
if payment was to be made in the month immediately preceding
the Effective Date, cause the Company to fail to meet any of
the Monthly Targets for such month .
(d) Nontax Priority Claims. All nontax priority claims
shall be paid as required pursuant to Section 507 of the
Bankruptcy Code, provided that such claims do not exceed the
amounts set forth in Plan R-2.
(e) Secured Claims. Secured debt claims shall be
treated as provided in Plan R-2 subject to (i) modification
based on updated appraisals of collateral values to be
conducted by the Company and consistent with the applicable
provisions of the Bankruptcy Code, or (ii) such other terms
<PAGE>as shall be reasonably satisfactory to the Company and
Investor.
(f) Unsecured Creditors. In consideration for the
shares and cash issued or paid, as the case may be, to the
Unsecured Creditors pursuant to Section 4(a)(2)(ii), the
unsecured claims of the Unsecured Creditors shall be
cancelled as specified in the Plan.
(g) Equity Holders. In consideration for (A) the right
to purchase shares pursuant to Section 4(a)(2)(iii), (B) the
shares issued to the Equity Holders pursuant to Section
4(a)(2)(iii), and (C) the Warrants issued to the Equity
Holders pursuant to Section 4(a)(3)(ii), the equity
interests of the Equity Holders shall be cancelled as
specified in the Plan.
(h) Leases. All aircraft leases which have been assumed
prior to the date hereof will be honored by the Company in
accordance with their terms and without reduction of rentals
thereunder, provided that with the consent of the Company,
Investor and any applicable lessor, any such lease may be
amended to reduce the rentals payable thereunder, it being
understood that, in consideration of any such amendment and
with the consent of the Creditors' Committee, securities of
the Company may be issued to such lessors from securities
otherwise allocable to the Unsecured Parties to the extent
consistent with any agreement in writing entered into by
Investor and the Equity Committee on or before the date
hereof.
(i) Kawasaki. The contractual right of Kawasaki Leasing
International Inc. ("Kawasaki") to require the Company to
lease certain aircraft and aircraft engines shall be
modified on terms satisfactory to the Company, Investor and
Kawasaki or, in the absence of such modification, honored.
(j) GPA. In consideration for (A) the shares issued to
GPA pursuant to Section 4(a)(2)(iv), (B) the Warrants issued
to GPA pursuant to Section 4(a)(3)(iii), (C) the Notes and
cash issued or paid, as the case may be, to GPA pursuant to
Section 4(a)(4) and (D) the granting to GPA on the Effective
Date of the right (the "New GPA Put") to require the Company
to lease from GPA on or prior to June 30, 1999, up to eight
aircraft of types consistent with the fleet currently
operated by the Company, GPA shall, as specified in the
Plan, cancel and waive all rights to put any aircraft to the
Company which it may have pursuant to the Put Agreement
between GPA and the Company, dated as of June 25, 1991 (the
"GPA Put Agreement") and/or the related Agreement Regarding
<PAGE>Rights of First Refusal for A320 Aircraft, dated as of
September 1, 1992 (the "First Refusal Agreement") and all
other claims of any kind or nature arising out of or in
connection with the GPA Put Agreement and/or the First
Refusal Agreement (other than claims for reimbursement of
expenses incurred by GPA in connection therewith). Each
such lease shall provide for the payment by the Company of a
fair market rental (determined at or about the time of
delivery of the related aircraft to the Company on the basis
of rentals then prevailing in the marketplace for comparable
leases of comparable aircraft to lessees of comparable
creditworthiness); and each such lease shall have such other
terms and provisions and be in such form as is agreed upon
by the Company and GPA with the approval of Investor (which
approval shall not be unreasonably withheld or delayed) and
attached to the agreement pursuant to which GPA is granted
the New GPA Put.
(k) Prepetition Aircraft Purchase Contracts. The
prepetition contract for the purchase of aircraft between
the Company and The Boeing Company shall either be modified
on terms satisfactory to Investor, the Company and The
Boeing Company or, in the absence of such agreement,
rejected. The Company's aircraft purchase contract with
AVSA, S.A.R.L. ("Airbus") shall be amended on terms
consistent with the provisions of the AmWest - A320 Term
Sheet, dated as of February 23, 1994 by and between Investor
and Airbus.
(l) Employees. The Company shall have the right to
release employees from all currently existing obligations to
the Company in respect of shares of Company stock purchased
by such employees pursuant to the Company's stock purchase
plan, such release to be in consideration for the
cancellation of such shares.
(m) Exculpation. The Plan will contain customary
exculpation provisions for the benefit of the Creditors'
Committee and the Equity Committee and their respective
professionals.
SECTION 8. Conditions to Investor's Obligations
Relating to the Investment. The obligations of Investor to
consummate the Investment and the other transactions contemplated
herein shall be subject to the satisfaction, or the written
waiver by Investor, of the following conditions:
<PAGE> (a) an initial order approving the Procedures
Agreement, which order shall be in form and substance
reasonably satisfactory to Investor (the "Initial
Order"), shall have been entered by the Bankruptcy Court
on or prior to May 6, 1994 and, once entered, shall be
in effect and shall not be modified in any material
respect or stayed;
(b) subject to Section 10(b), the Company and Investor,
as applicable, shall have received all Regulatory Approvals,
which shall have become final and nonappealable or any
period of objection by Regulatory Authorities shall have
expired, as applicable, and all other material approvals,
permits, authorizations, consents, licenses and agreements
from other third parties that are necessary or appropriate
to permit the Investment and the other transactions
contemplated hereby and by the Related Agreements and to
permit the Company to carry on its business after the
Effective Date in a manner consistent in all material
respects with the manner in which it was carried on prior to
the Effective Date (collectively with Regulatory Approvals,
the "Approvals"), which Approvals shall not contain any
condition or restriction that, in Investor's reasonable
judgment, materially impairs the Company's ability to carry
on its business in a manner consistent in all material
respects with prior practice or as proposed to be carried on
by the reorganized Company;
(c) the certificate of incorporation and bylaws of the
Company shall contain the terms contemplated by this
Agreement and shall otherwise be reasonably satisfactory to
Investor;
(d) there shall be in effect no injunction, stay,
restraining order or decree issued by any court of competent
jurisdiction, whether foreign or domestic, staying the
effectiveness of any of the Approvals, the Initial Order or
the Confirmation Order, and there shall not be pending any
request or motion for any such injunction, stay, restraining
order or decree; provided, however, that the foregoing
condition shall not apply to any such injunction, stay,
order or decree requested, initiated or supported by
Investor or any of its partners or other Affiliates or to
any such request or motion made, initiated or supported by
Investor or any its partners or other Affiliates;
(e) there shall not be threatened or pending any suit,
action, investigation, inquiry or other proceeding
(collectively, "Proceedings") by or before any court of
competent jurisdiction or Regulatory Authority (excluding
<PAGE>the Company's bankruptcy case, but including adversary
proceedings and contested matters in such bankruptcy case,
and excluding any such Proceedings fully and accurately
disclosed by the Company in Schedule I hereto), or any
adverse development occurring since December 31, 1993 in any
such Proceedings, which Proceedings or development, singly
or in the aggregate, in the good faith judgment of Investor,
are reasonably likely to have a material adverse effect on
the Company's ability to carry on its business in a manner
consistent in all material respects with prior practices or
are reasonably likely to impair in any material respect
Investor's ability to realize the intended benefits and
value of this Agreement, the Procedures Agreement or any
Related Agreement; provided, however, that the foregoing
condition shall not apply to any such Proceeding or
development requested, initiated or supported by Investor or
any of its partners or other Affiliates;
(f) the Company shall have delivered to Investor
appropriate closing documents, including the instruments
evidencing the Securities being issued to Investor,
certifications of the Company officers (including, but not
limited to, incumbency certificates, and certificates as to
the truth and correctness of statements made in the
Disclosure Statement or any other offering document
distributed in connection with any securities issued in
respect of this Agreement or the Related Agreements) and
opinions of legal counsel, all of which shall be reasonably
satisfactory to Investor;
(g) by no later than March 31, 1994, the Company shall
have delivered to Investor audited financial statements as
of December 31, 1993, and for the year then ended, which
statements shall reflect a financial performance and a
financial position of the Company consistent in all material
respects with the unaudited results previously announced by
the Company for such year, and, if requested by Investor,
the Company shall have discussed such financial statements
with Investor and provided an opportunity for Investor to
discuss such financial statements with the Company's
auditors;
(h) since December 31, 1993, except for the matters
disclosed in Schedule I hereto, no material adverse change
in the Company's condition (financial or otherwise),
business, assets, properties, operations or relations with
employees or labor unions shall have occurred and no matter
(except for the matters disclosed in Schedule I hereto)
shall have occurred or come to the attention of Investor
<PAGE>that, in the reasonable judgment of Investor, is
likely to have any such material adverse effect;
(i) the following shall be true in all material respects
(in each case based on the Company's actual monthly or daily
financial statements, which shall be prepared by the Company
in a manner consistent in all material respects with its
historical monthly and daily financial statements previously
furnished to Investor): (A) the Company's actual monthly
Operating Cash Flow (as defined on the Monthly Targets
Schedule) shall not, in any month, be less than the minimum
amount therefor established as part of the Monthly Targets,
(B) the Company's actual 4 month Rolling Cash Flow (as
defined on the Monthly Targets Schedule) shall not be less,
as of the end of any four calendar month period, than the
minimum amount therefor established as part of the Monthly
Targets, (C) the Company's actual end of month Reported Cash
Balance (as defined in the Monthly Targets Schedule) shall
not, as of the end of any calendar month, be less than the
minimum amount therefor established as part of the Monthly
Targets, (D) the Company's actual five-day average Minimum
Cash Balance (as defined in the Monthly Targets Schedule)
shall not be, as of the end of any five day period, less
than the minimum amount therefor established as part of the
Monthly Targets; (E) the Company shall not have taken any
actions which the Company knew or reasonably should have
known would likely impair or hinder in any material respect
the Company's ability to achieve the Projections; (F) the
amount and nature of the obligations and liabilities
(including, without limitation, tax liabilities and
administrative expense claims) required to be paid by the
Company on the Effective Date or to be paid by the Company
following the Effective Date pursuant to obligations assumed
by the Company during the course of its bankruptcy
proceedings shall not be in excess of the amounts reflected
in Plan R-2 plus any additional allowances provided in
Section 7 (as reduced by any repayments of the existing
debtor-in-possession loan made on or prior to the Effective
Date) and shall not be materially different in nature than
those specified in Plan R-2 (except with respect to
administrative claims not known to the Company when Plan R-2
was developed); and (G) the Company shall have paid all fees
and expenses due Investor under the Procedures Agreement;
(j) since the date hereof, there shall have occurred no
outbreak or escalation of hostilities or other international
or domestic calamity, crisis or change in political,
financial or economic conditions or other adverse change in
the financial markets that impairs (or could reasonably be
expected to impair) in any material respect the Company's
<PAGE>ability to carry on its business in a manner
consistent in all material respects with prior practice or
impairs (or could reasonably be expected to impair) in any
material respect Investor's ability to realize the intended
benefits and value of this Agreement or any Related
Agreement;
(k) the Related Agreements, including all Alliance
Agreements, to be executed by the Company shall have been
executed by the Company on or before the Effective Date and,
once executed, shall not have been modified without the
consent of Investor, shall be in effect and shall not have
been stayed;
(l) the Company shall have performed in all material
respects all obligations on its part required to be
performed on or before the Effective Date under this
Agreement, the Procedures Agreement and the Related
Agreements and all orders of the Bankruptcy Court in respect
thereof that are consistent with the provisions of such
intruments;
(m) all representations and warranties of the Company
under this Agreement, the Procedures Agreement and the
Related Agreements shall be true in all material respects as
of the Effective Date;
(n) the Plan and Disclosure Statement each shall have
been filed by the Company on or prior to May 15, 1994, and,
once filed, shall have been served by the Company on all
appropriate parties and, once served, shall not have been
modified in any material respect without the prior consent
of Investor (which consent shall not be unreasonably
withheld), withdrawn by the Company or dismissed;
(o) the Disclosure Statement (in the form approved by
the Bankruptcy Court and as amended or supplemented, if
applicable) shall have been true and correct in all material
respects as of the date first mailed to Unsecured Parties
and as of the date fixed by the Bankruptcy Court for voting
on the Plan and such Disclosure Statement shall not contain
any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements made
therein (taken as a whole), in light of the circumstances
under which they were made, not misleading; provided,
however, that the foregoing condition shall not apply to
statements or other information furnished or provided by
Investor or any of its Affiliates for use in the Disclosure
Statement;
<PAGE> (p) the order approving the Disclosure Statement
shall have been entered by the Bankruptcy Court on or
prior to June 30, 1994, and, once entered, shall not
have been modified in any material respect, shall be in
effect and shall not have been stayed;
(q) the Plan (including all securities of the Company to
be issued pursuant thereto and all contracts, instruments,
agreements and other documents to be entered into in
connection therewith), the Disclosure Statement and the
Confirmation Order shall be consistent with the terms of
this Agreement and otherwise reasonably satisfactory in form
and substance to Investor;
(r) the Confirmation Order shall have been entered by
the Bankruptcy Court in form reasonably satisfactory to
Investor on or before August 15, 1994, and, once entered,
shall not have been modified in any material respect, shall
be in effect and shall not have been stayed and shall not be
subject to any appeal;
(s) the Effective Date shall have occurred on or prior
to the Outside Date unless the reason therefor shall be
attributable to the breach by Investor or its Affiliates of
any of their respective representations, warranties,
covenants or obligations contained herein or in the
Procedures Agreement or any Related Agreement;.
(t) either pursuant to the Confirmation Order or
otherwise, the Bankruptcy Court shall have established one
or more bar dates for administrative expense claims pursuant
to an order reasonably acceptable to Investor, which bar
date or dates shall occur on or before dates reasonably
acceptable to Investor; and
(u) the Securities and Exchange Commission shall have
declared effective a shelf registration statement with
respect to the Securities issuable to Investor.
In the event any of the conditions set forth in clause (a) (n),
(p) or (r) is not satisfied by the date specified in such clause
(the "Deadline"), then, on the 15th day following the then
current Deadline, the Deadline shall be automatically extended on
a day-to-day basis unless the Company and Investor otherwise
agree in writing or unless Investor gives a notice of termination
to the Company pursuant to Section 20(b) of the Procedures
Agreement within such 15-day period. If any Deadline is
automatically extended as aforesaid, Investor may thereafter
establish a new Deadline by giving notice to the Company
<PAGE>specifying the new Deadline, provided that the new Deadline
may not be sooner than 30 days after the date of such notice.
SECTION 9. Conditions to Company's Obligations Relating
to Investment. The Company's obligations to consummate or to
cause the consummation of the issuance and sale of the Securities
and the other transactions contemplated by this Agreement shall
be subject to the satisfaction, or to the effective written
waiver by the Company, of the condition described in Section 8(b)
and the following additional conditions:
(a) payment of the Purchase Price;
(b) Investor shall have delivered to the Company
appropriate closing documents, including, but not limited
to, executed counterparts of the Related Agreements and
certifications of officers, and opinions of legal counsel,
all of which shall be reasonably satisfactory to the
Company;
(c) there shall be in effect no injunction, stay,
restraining order or decree issued by any court of competent
jurisdiction, whether foreign or domestic, staying the
effectiveness of any of the Approvals, the Initial Order or
the Confirmation Order, and there shall not be pending any
request or motion for any such injunction, stay, restraining
order or decree; provided, however, that the foregoing
condition shall not apply to any such injunction, stay,
order or decree requested, initiated or supported by the
Company or to any such request or motion made, initiated or
supported by the Company;
(d) the Related Agreements to be executed by Investor
or any of its partners shall have been executed by such
parties on or before the Effective Date and, once executed,
shall not have been modified without the consent of the
Company, shall be in effect and shall not have been stayed;
(e) Investor, Continental and Mesa shall have performed
in all material respects all obligations on their part
required to be performed on or before the Effective Date
under this Agreement, the Procedures Agreement and the
Related Agreements and all orders of the Bankruptcy Court in
respect thereof that are consistent with the provisions of
such instruments;
(f) all representations and warranties of Investor,
Continental and Mesa under this Agreement, the Procedures
Agreement and the Related Agreements shall be true and
correct in all material respects as of the Effective Date;
<PAGE>
(g) the Company shall be reasonably satisfied that the
Alliance Agreements, when fully implemented, shall result in
an increase to the Company's pretax income of not less than
$40 million per year; provided, however, that Investor shall
have no liability for any failure of the Company to achieve
any such increase in net income except to the extent such
failure results from a default by Investor or its partners
pursuant to the terms of such Alliance Agreements;
(h) since the date hereof, there shall have occurred (A)
no outbreak or escalation of hostilities or other
international or domestic calamity, crisis or change in
political, financial or economic conditions or other adverse
change in the financial markets or (B) any adverse change in
the condition (financial or otherwise), business, assets,
properties or prospects of Continental or Mesa, in each case
that materially impairs the ability of either Continental or
Mesa to perform its obligations under the Alliance
Agreements or the Company's ability to realize the intended
benefits and value of this Agreement, the Alliance
Agreements (as contemplated by clause (g) above) or the
other Related Agreements;
(i) since the time of their initial filing by the
Company, neither the Plan nor the Disclosure Statement shall
have been modified in any material respect without the prior
consent of the Company (which consent shall not be
unreasonably withheld or delayed), withdrawn by Investor or
dismissed;
(j) the certificate of incorporation and bylaws of the
Company shall contain the terms contemplated by this
Agreement and shall otherwise be reasonably satisfactory to
the Company;
(k) the Plan (including all Securities to be issued
pursuant thereto and all contracts, instruments, agreements
and other documents to be entered into in connection
therewith), the Disclosure Statement and the Confirmation
Order shall be consistent with the terms of this Agreement
and otherwise reasonably satisfactory in form and substance
to the Company;
(l) the Confirmation Order shall have been entered by
the Bankruptcy Court in form reasonably acceptable to the
Company and, once entered, shall not have been modified in
any material respect, shall be in effect and shall not have
been stayed and shall not be subject to any appeal; and
<PAGE> (m) the Effective Date shall have occurred on or
prior to the Outside Date unless the reason therefor
shall be attributable to the breach by the Company of
any of its representations, warranties, covenants or
obligations contained herein or in the Procedures
Agreement or any Related Agreement.
SECTION 10. Cooperation. (a) The Company and Investor
will cooperate in a commercially reasonable manner, and will use
their respective commercially reasonable efforts, to consummate
the transactions contemplated hereby, including all commercially
reasonable efforts to satisfy the conditions specified in this
Agreement. The Company will use commercially reasonable efforts,
and Investor will cooperate in a commercially reasonable manner
in seeking, to obtain all Approvals.
(b) Notwithstanding anything in Section 8 or 9 to the
contrary, if prior to the Outside Date, the Department of Justice
or any other Regulatory Authority raises any antitrust objection
to the consummation of the Investment or the implementation of
any Alliance Agreement, which objection has not been resolved on
or before the Outside Date, Investor nevertheless shall be
required to consummate the Investment and, to that end, agrees
to timely make such adjustment to the composition of its
partnership and to the Alliance Agreements as required to resolve
such antitrust objection; provided, however, that nothing in this
paragraph (b) shall affect the rights of the Company under
Section 9(g) or obligate the Company to enter into or approve any
adjustment or modification of the Alliance Agreements which, in
the Company's reasonable judgment, is prejudicial to the Company
or the Unsecured Parties in any material respect and which, if
entered into or approved, would materially impair the Company's
ability to realize the reasonably anticipated benefits of such
Alliance Agreements.
SECTION 11. Registration Rights Agreement. Investor
and the Company will enter into a registration rights agreement
on terms acceptable to Investor and the Company. The
registration rights agreement will reflect the understanding of
the parties with respect to their registration rights and
obligations and will provide that Investor, its partners and any
assignees and transferees, shall have the right to cause the
Company to (i) include the Securities issuable to Investor
pursuant to the Plan (including any such Securities issued or
issuable in respect of the Warrants or by way of any stock
dividend or stock split or in connection with any combination of
shares, merger, consolidation or similar transaction), on
customary terms, in "piggyback" underwritings and registrations
and (ii) to effect, on customary terms, one demand registration
under the Securities Act for the public offering and sale of the
<PAGE>Securities issued to Investor under the Plan at any time
after the third anniversary of the Effective Date.
SECTION 12. Applicable Provisions of Law and
Regulations. It is understood and agreed that this Agreement
shall not create any obligation of, or restriction upon, the
Company or Investor or the partners of Investor that would
violate applicable provisions of law or regulation relating to
ownership or control of a U.S. air carrier. At all times after
the Effective Date, the certificate of incorporation of the
Company shall provide that, in the event persons who are not U.S.
citizens shall own (beneficially or of record) or have voting
control over shares of Common Stock, the voting rights of such
persons shall be subject to automatic suspension as required to
ensure that the Company is in compliance with applicable
provisions of law or regulation relating to ownership or control
of a U.S. air carrier.
SECTION 13. Representations and Warranties of the
Company. The Company represents and warrants to Investor as
follows:
(a) The Company has complied in all material respects
with the terms of all orders of the Bankruptcy Court in
respect of the Investment, this Agreement and the Procedures
Agreement.
(b) The Company has delivered to Investor copies of the
audited balance sheets of the Company as of December 31,
1992 and the statements of income, stockholders' equity and
cash flows for the years then ended, together with the notes
thereto. Such financial statements, and when delivered to
Investor the financial statements of the Company referred to
in Section 8(g) will, present fairly, in accordance with
generally accepted accounting principles (applied on a
consistent basis except as disclosed in the footnotes
thereto), the financial position and results of operations
of the Company as of the dates and for the periods therein
set forth.
(c) When delivered to Investor, the unaudited financial
statements of the Company referred to in Section 15(b)(ii)
will (i) present fairly, in accordance with generally
accepted accounting principles (applied on a consistent
basis except as disclosed therein and subject to normal
year-end audit adjustments), the financial position and
results of operations of the Company as of the date and for
the period therein set forth, it being understood and
agreed, however, that the foregoing representation relating
to conformity with generally accepted accounting principles
<PAGE>is being made only to the extent such principles are
applicable to interim unaudited reports and (ii) reflect a
financial position and results of operations not materially
worse than those set forth in the pro forma financial
statements contained in Plan 9.
(d) The Projections and the Monthly Targets were
prepared in good faith on a reasonable basis, and when
prepared represented the Company's best judgment as to the
matters set forth therein, taking into account all relevant
facts and circumstances known to the Company. Nothing has
come to the Company's attention since the dates on which the
Projections and the Monthly Targets, respectively, were
prepared which causes the Company to believe that any of the
projections and other information contained therein were
misleading or inaccurate in any material respect as of such
dates. It is specifically understood and agreed that the
delivery of the Projections and the Monthly Targets shall
not be regarded as a representation, warranty or guarantee
that the particular results reflected therein will in fact
be achieved or are likely to be achieved.
(e) No written statement, memorandum, certificate,
schedule or other written information provided (or to be
provided) to Investor or any of its representatives by or on
behalf of the Company in connection with the transactions
contemplated hereby, when viewed together with all other
written statements and information provided to Investor and
its representatives by or on behalf of the Company, in light
of the circumstances under which they were made, (i)
contains or will contain any materially misleading statement
or (ii) omits or will omit to state any material fact
necessary to make the statements therein not misleading.
(f) The board of directors of the Company has approved
the Investment and Investor's acquisition of Securities
hereunder for purposes of, and in accordance with the
provisions and requirements of, Section 203(a)(1) of the
General Corporation Law of the State of Delaware and, as a
consequence, Investor will not be subject to the provisions
of such Section with respect to any "business combination"
between Investor and the Company (as such term is defined in
said Section 203).
SECTION 14. Representations and Warranties of Investor.
Investor represents and warrants to the Company as follows:
(a) The general and limited partners of Investor (other
than one such partner which will elect to suspend the voting
rights of its Securities as contemplated by Section 4(b))
<PAGE>are U.S. citizens within the meaning of Section
101(16) of the Federal Aviation Act of 1958, as amended.
(b) Investor has, or has commitments for, sufficient
funds to pay the Purchase Price and otherwise perform its
obligations under this Agreement.
(c) No written statement, memorandum, certificate,
schedule or other written information provided (or to be
provided) to the Company or any of its representatives by or
on behalf of Investor in connection with the transactions
contemplated by the Alliance Agreements, when viewed
together with all other written statements and information
provided to the Company and its representatives by or on
behalf of Investor, in light of the circumstances under
which they were made, (i) contains or will contain any
materially misleading statement or (ii) omits or will omit
to state any material fact necessary to make the statements
therein not misleading.
SECTION 15. Covenants. (a) Investor covenants (i) to
support, subject to management's recommendation, increases in
employee compensation through 1995 at least equal to those set
forth in Plan R-2 and (ii) after the Effective Date, to cause the
board of directors of the Company to consider implementation of a
broad based employee incentive compensation plan and a management
stock incentive plan.
(b) The Company covenants (i) to use commercially
reasonable efforts to cause the shelf registration statement
referred to in Section 8(u) to remain effective for three years
following its effective date and (ii) as soon as available, to
deliver to Investor a copy of the unaudited balance sheet of the
Company as of the end of each fiscal quarter of the Company prior
to the Effective Date and the unaudited statements of income and
cash flows for the periods then ended.
SECTION 16. Certain Taxes. The Company shall bear and
pay all transfer, stamp or other similar taxes (if any are not
exempted under Section 1146 of the Bankruptcy Code) imposed in
connection with the issuance and sale of the Securities.
SECTION 17. Administrative Expense. All amounts owed to
Investor or its assignees by the Company under this Agreement,
the Related Agreements, the Procedures Agreement and all orders
of the Bankruptcy Court in respect thereof shall be treated as an
allowed administrative expense priority claim under Section
507(a)(1) of the Bankruptcy Code.
<PAGE> SECTION 18. Incorporation by Reference. The
provisions set forth in the Procedures Agreement, including, but
not limited to, the provisions regarding confidentiality,
liability indemnity and termination, are hereby incorporated by
reference and such provisions shall have the same force and
effect herein as if they were expressly set forth herein in full.
SECTION 19. Notices. All notices, requests and other
communications hereunder must be in writing and will be deemed to
have been duly given only if delivered personally or by facsimile
transmission or mailed (first class postage prepaid) or by
prepaid express courier to the parties at the following addresses
or facsimile numbers:
If to the Company: America West Airlines, Inc. 4000
East Sky Harbor Boulevard Phoenix,
Arizona 85034 Attention: William
A. Franke and
Martin J. Whalen Fax Number:
(602) 693-5904
with a copy to: LeBoeuf, Lamb, Greene & MacRae
633 17th Street, Suite 2800 Denver,
Colorado 80202
Attention: Carl A. Eklund Fax
Number: (303) 297-0422
and a copy to: Andrews & Kurth L.L.P. 4200 Texas
Commerce Tower Houston, Texas
77002 Attention: David G. Elkins
Fax Number: (713) 220-4285
and a copy to: Murphy, Weir & Butler
101 California Street, 39th Floor
San Francisco, California 94111
Attention: Patrick A. Murphy
Fax Number: (415) 421-7879
and a copy to: Lord, Bissell and Brook 115 South
LaSalle Street
Chicago, IL 60603
Attention: Benjamin Waisbren
Fax Number: (312) 443-0336
If to Investor: AmWest Partners, L.P. 201 Main
Street, Suite 2420 Fort Worth,
Texas 76102 Attention: James G.
Coulter Fax Number: (817) 871-4010
<PAGE> with a copy to: Arnold & Porter
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036
Attention: Richard P. Schifter
Fax Number: (202) 872-6720
and a copy to: Jones, Day, Reavis & Pogue
North Point 901 Lakeside Avenue
Cleveland, Ohio 44114
Attention: Lyle G. Ganske
Fax Number: (216) 586-7864
and a copy to: Goodwin, Procter &Hoar
Exchange Place
Boston, MA 02109
Attention: Laura Hodges Taylor,
P.C.
Fax Number: (617) 523-1231
and a copy to: Murphy, Weir & Butler
101 California Street, 39th Floor
San Francisco, California 94111
Attention: Patrick A. Murphy
Fax Number: (415) 421-7879
and a copy to: Lord, Bissell and Brook 115 South
LaSalle Street
Chicago, IL 60603
Attention: Benjamin Waisbren
Fax Number: (312) 443-0336
All such notices, requests and other communications will (i) if
delivered personally to the address as provided in this Section,
be deemed given upon delivery, (ii) if delivered by facsimile
transmission to the facsimile number as provided in this Section,
be deemed given upon receipt, and (iii) if delivered by mail or
by express courier in the manner described above to the address
as provided in this Section, be deemed given upon receipt (in
each case regardless of whether such notice is received by any
other person to whom a copy of such notice, request or other
communication is to be delivered pursuant to this Section).
Either party from time to time may change its address, facsimile
number or other information for the purpose of notices to that
party by giving notice specifying such change to the other party
hereto.
SECTION 20. Governing Law. Except to the extent
inconsistent with the Bankruptcy Code, this Agreement shall in
all respects be governed by and construed in accordance with the
laws of the State of Arizona, without reference to principles of
<PAGE>conflicts or choice of law under which the law of any other
jurisdiction would apply.
SECTION 21. Amendment. This Agreement may only be
amended, waived, supplemented or modified by a written instrument
signed by authorized representatives of Investor and the Company.
Investor may extend the time for satisfaction of the conditions
set forth in Section 8 (prior to or after the relevant date) by
notifying the Company in writing. The Company may extend the
time for satisfaction of the conditions set forth in Section 9
(prior to or after the relevant date) by notifying Investor in
writing.
SECTION 22. No Third Party Beneficiary. This Agreement
and the Procedures Agreement are made solely for the benefit of
the Company and Investor and their respective permitted assigns,
and no other Person (including, without limitation, employees,
stockholders and creditors of the Company) shall have any right,
claim or cause of action under or by virtue of this Agreement or
the Procedures Agreement, except to the extent such Person is
entitled to protection as contemplated by Section 28(b) or to
expense reimbursement pursuant to the Procedures Agreement or may
assert a claim for indemnity pursuant to the Procedures
Agreement.
SECTION 23. Assignment. Except as otherwise provided
herein, Investor may assign all or part of its rights under this
Agreement to any of its partners (each of whom may assign all or
part to its Affiliates) or to any fund or account managed or
advised by Fidelity Management Trust Company or any of its
Affiliates and may assign any Securities (or the right to
purchase any Securities) to any lawfully qualified Person or
Persons, and the Company may assign this Agreement to any Person
with which it may be merged or consolidated or to whom
substantially all of its assets may be transferred in
facilitation of the consummation of the Plan and the effectuation
of the issuance and sale of the Securities as contemplated hereby
or by the Related Agreements. None of such assignments shall
relieve the Company or Investor of any obligations hereunder,
under the Procedures Agreement or under the Related Agreements.
SECTION 24. Counterparts. This Agreement may be
executed by the parties hereto in counterparts and by telecopy,
each of which shall be deemed to constitute an original and all
of which together shall constitute one and the same instrument.
With respect to signatures transmitted by telecopy, upon request
by either party to the other party, an original signature of such
other party shall promptly be substituted for its facsimile.
<PAGE> SECTION 25. Invalid Provisions. If any provision of
this Agreement is held to be illegal, invalid or unenforceable
under any present or future laws, rules or regulations, and if
the rights or obligations of Investor and the Company under this
Agreement will not be materially and adversely affected thereby,
(a) such provision will be fully severable, (b) this Agreement
will be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof, (c)
the remaining provisions of this Agreement will remain in full
force and effect and will not be affected by the illegal, invalid
or unenforceable provision or by its severance herefrom, and (d)
in lieu of such illegal, invalid or unenforceable provision,
there will be added automatically as a part of this Agreement a
legal, valid and enforceable provision as similar in terms to
such illegal, invalid or unenforceable provision as may be
possible. If the rights and obligations of Investor or the
Company will be materially and adversely affected by any such
provision held to be illegal, invalid or unenforceable, then
unless such provision is waived in writing by the affected party
in its sole discretion, this Agreement shall be null and void.
SECTION 26. Tagalong Rights. On the Effective Date,
Investor shall enter into a written agreement for the benefit of
all holders of Class B Common (other than Investor and its
Affiliates) whereby Investor shall agree, for a period of three
years after the Effective Date, not to sell, in a single
transaction or related series of transactions, shares of Common
Stock representing 51% or more of the combined voting power of
all shares of Common Stock then outstanding unless such holders
shall have been given a reasonable opportunity to participate
therein on a pro rata basis and at the same price per share and
on the same economic terms and conditions applicable to Investor;
provided, however, that such obligation of Investor shall not
apply to any sale of shares of Common Stock made by Investor (i)
to any Affiliate of Investor, (ii) to any Affiliate of Investor's
partners, (iii) pursuant to a bankruptcy or insolvency
proceeding, (iv) pursuant to judicial order, legal process,
execution or attachment, (v) in a widespread distribution
registered under the Securities Act of 1933, as amended
("Securities Act") or (vi) in compliance with the volume
limitations of Rule 144 (or any successor to such Rule) under the
Securities Act.
SECTION 27. Stock Legend. All securities issued to
Investor pursuant to the Plan shall be conspicuously endorsed
with an appropriate legend to the effect that such securities may
not be sold, transferred or otherwise disposed of except in
compliance with (i) Section 26 and (ii) applicable securities
laws.
<PAGE> SECTION 28. Directors' Liability and
Indemnification. (a) Upon, and at all times after, consummation
of the Plan, the certificate of incorporation of the Company
shall contain provisions which (i) eliminate the personal
liability of the Company's former, present and future directors
for monetary damages resulting from breaches of their fiduciary
duties to the fullest extent permitted by applicable law and (ii)
require the Company, subject to appropriate procedures, to
indemnify the Company's former, present and future directors and
executive officers to the fullest extent permitted by applicable
law. In addition, upon consummation of the Plan, the Company
shall enter into written agreements with each person who is a
director or executive officer of the Company on the date hereof
providing for similar indemnification of such person and
providing that no recourse or liability whatsoever with respect
to this Agreement, the Procedures Agreement, the Related
Agreements, the Plan or the consummation of the transactions
contemplated hereby or thereby shall be had, directly or
indirectly, by or in the right of the Company against such
person. Notwithstanding anything contained herein to the
contrary, the provisions of this Section 28(a) shall not be
applicable to any person who ceased being a director of the
Company at any time prior to March 1, 1994.
(b) Investor agrees, on behalf of itself and its
partners, that no recourse or liability whatsoever (except as
provided by applicable law for intentional fraud, bad faith or
willful misconduct) shall be had, directly or indirectly, against
any person who is a director or executive officer of the Company
on the date hereof with respect to this Agreement, the Procedures
Agreement, the Related Agreements, the Plan or the consummation
of the transactions contemplated hereby or thereby, such recourse
and liability, if any, being expressly waived and released by
Investor and its partners as a condition of, and in consideration
for, the execution and delivery of this Agreement.
SECTION 29. Jurisdiction of Bankruptcy Court. The
parties agree that the Bankruptcy Court shall have and retain
exclusive jurisdiction to enforce and construe the provisions of
this Agreement.
SECTION 30. Interpretation. In this Agreement, unless
a contrary intention appears, (i) the words "herein", "hereof"
and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Section or other
subdivision and (ii) reference to any Section means such Section
hereof. The Section headings herein are for convenience only and
shall not affect the construction hereof. No provision of this
Agreement shall be interpreted or construed against either party
<PAGE>solely because such party or its legal representative
drafted such provision.
SECTION 31. Termination. This Agreement shall
terminate concurrently with the termination of the Procedures
Agreement.
SECTION 32. Entire Agreement. The Agreement supersedes
any and all other agreements (oral or written) between the
parties in respect to the subject matter hereof other than the
Procedures Agreement.
AMWEST PARTNERS, L.P.
By: AmWest Genpar, Inc.,
its General Partner
By: /s/ James G. Coulter
Title: President
Accepted and Agreed to
this 21th day of April, 1994.
AMERICA WEST AIRLINES, INC.
as Debtor and Debtor-in-Possession
By: /s/ William A. Franke
Title: Chairman<
<PAGE> TERMINATION AGREEMENT
This Termination Agreement (this "Agreement") is made and
entered into effective and dated as of August 25, 1994, by and
among AmWest Genpar, Inc., a Texas corporation ("Genpar"), Apcal,
L.P., a Texas limited partnership ("Apcal"), and Mesa Airlines,
Inc., a New Mexico corporation ("Mesa"). All capitalized terms
used in this Agreement without definition shall have the meanings
assigned to them in the Limited Partnership Agreement of AmWest
Partners, L.P., dated as of March 16, 1994, as amended (the
"Partnership Agreement").
WITNESSETH:
WHEREAS, each of the parties hereto is a Partner in AmWest
Partners, L.P. (the "Partnership"), a Texas limited partnership,
formed for the purpose of investing in Securities of America West
Airlines, Inc., including its successor as reorganized pursuant
to Chapter 11 of the United States Bankruptcy Code ("AWA");
WHEREAS, the Partnership previously has assigned to the
Partners the Partnership's rights and obligations to purchase the
Securities pursuant to notices dated August 23, 1994 and which
rights and obligations have been assumed by the Partners as
provided for in such notices;
WHEREAS, the parties desire to terminate and dissolve the
Partnership and to assign to the Partners and certain affiliates
of the Partners the Securities and certain rights and obligations
of the Partnership under the Securities Agreements and certain
related agreements as provided herein; and
WHEREAS, the parties desire to delegate to Genpar the
obligations specified herein requiring Genpar to serve as agent
for the Partners for the mutual benefit of each of them.
NOW THEREFORE, in consideration of the mutual covenants set
forth herein and for other good and valuable consideration, the
adequacy, receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
SECTION 1. Dissolution of the Partnership.
(a) Pursuant to Section 6.02(c) of the Partnership
Agreement, the Partnership is hereby dissolved. The execution
and delivery of this Agreement shall constitute the written
consent of each Partner to the dissolution of the Partnership
pursuant to said Section 6.02(c). The rights and obligations of
each Partner relating to dissolution of the Partnership set forth
in this Agreement shall control any contrary provision in the
Partnership Agreement. Genpar is authorized to take all actions
necessary or advisable for the dissolution and termination of the
<PAGE>Partnership, and each Limited Partner constitutes and
appoints Genpar, with full power of substitution, as its true and
lawful attorney-in-fact for the limited purpose of dissolution of
the Partnership and the specific obligations contemplated by this
Agreement and empowers and authorizes such attorney, in the name,
place and stead of such Limited Partner, to make, execute, sign,
swear to, acknowledge and file in all necessary or appropriate
places all documents necessary or appropriate in the dissolution
of the Partnership.
(b) In connection with the dissolution of the Partnership,
Genpar shall prepare and file a final federal income tax return
for the 1994 taxable year, as well as any other reports required
to be prepared and filed under Section 4.04 of the Partnership
Agreement on behalf of the Partnership and shall exercise on
behalf of the Partnership and the Partners the responsibilities
set forth in Section 2.08 of the Partnership Agreement. In
connection with an audit of the Partnership by the U.S. Internal
Revenue Service, each Partner shall have all rights under
Sections 6221-6233 of the Code to have notice of and participate
in any such audit. Genpar shall not extend the statute of
limitations nor enter into a settlement agreement with respect to
any issue raised in an audit of the Partnership without the prior
written consent of each Partner. Any direct, out-of-pocket
expense incurred by Genpar in carrying out its responsibilities
and duties under this Section 1(b) shall be allocated and charged
to the Partners as an Expense under Section 3(b) of this
Agreement.
SECTION 2. Distribution of Securities. Pursuant to Section
23 of the Investment Agreement, the Partnership has notified AWA
of its assignment of the right and obligation to purchase
Securities thereunder to the Partners or their Affiliates (as
such term is defined in the Investment Agreement, hereinafter
"Affiliates") and other third parties. Pursuant to prior notice,
the Partnership has assigned to each Partner, and each Partner
has assumed, the following rights and obligations of the
Partnership under the Investment Agreement to purchase
Securities:
Name of Class A Class B
Partner Common Common Warrants Price
Genpar 12,000 83,328 26,357 $ 727,639
Apcal 1,088,000 6,066,067 1,806,619 53,337,272
Mesa 100,000 2,183,343 799,767 18,698,983
Genpar and Apcal's rights and obligations to purchase Securities
have been assigned to their Affiliates in accordance with
Subscription Agreements, as amended, entered into between such
Affiliates and the Partnership. Each Partner (and/or such
Affiliates) has been notified by Genpar of its assignment of
rights and obligations under the Investment Agreement to purchase
<PAGE>Securities and agrees to remit, or cause its Affiliates to
remit, cash to AWA, via wire transfer or otherwise, in
consideration of such right in the amount and manner set forth in
the notices received by each Partner (and/or Affiliate).
Notwithstanding anything to the contrary in the Partnership
Agreement, each Partner, or its Affiliates or designees, shall
receive its Securities directly from AWA and will not acquire any
Indirect Shares under the Partnership Agreement.
SECTION 3. Expenses.
(a) Any Expenses of any Partner not heretofore reimbursed
by or submitted to Genpar under Section 2.05(b) of the
Partnership Agreement shall be submitted to Genpar. Upon receipt
of appropriate documentation, setting forth in reasonable detail
the amount for which reimbursement is sought and the basis on
which the charges were incurred, Genpar shall reimburse such
expenses to the requesting Partner. Each Partner agrees that it
(or, in the case of Apcal, its constituent partners) shall
contribute to Genpar its respective percentage (as set forth
below) of all Expenses and of all similar expenses of Fidelity
not reimbursed by AWA; provided, however, that Genpar shall first
seek reimbursement of all Expenses and all similar expenses of
Fidelity from AWA in accordance with Section 2 of the Third
Revised Interim Procedures Agreement dated as of April 21, 1994,
by and between AWA and the Partnership (the "Procedures
Agreement"). As soon as practicable following the Effective
Date, Genpar shall seek reimbursement from AWA of all Expenses
incurred on or after March 1, 1994 by or on behalf of each
Partner and of all similar expenses of Fidelity, without regard
to the limitations set forth in Section 2(a) of the Procedures
Agreement. Genpar shall notify each Partner of any sums due
Genpar pursuant to the third sentence of this Section 3(a) and
may set off from any amounts due any Partner any amount owing
from such Partner under this Section 3(a).
For Unreimbursed Expenses as to Which
Fidelity is Obligated to Contribute
Name of Partner or Affiliate Reimbursement Percentage
Genpar 1.00%
TPG Partners, L.P. 37.10%
Continental Airlines, Inc. 19.05%
Mesa 19.05%
<PAGE>
For Unreimbursed Expenses as to Which
Fidelity is Not Obligated to Contribute
Name of Partner or Affiliate Reimbursement Percentage
Genpar 1.32%
TPG Partners, L.P. 48.68%
Continental Airlines, Inc. 25.00%
Mesa 25.00%
(b) Attached hereto as Schedule A is a summary of all
Expenses which have been submitted to the Partnership for
reimbursement as of the date hereof. Each Partner (or, in the
case of Apcal, its constituent partners) shall have the right,
from time to time and upon reasonable request to Genpar, to
receive information concerning the amount of any reimbursement
for Expenses sought on behalf of each Partner or the Partnership
or for similar expenses sought on behalf of Fidelity, the amount
of Expenses previously paid to or on behalf of each Partner or
the Partnership and of similar expenses previously paid to or on
behalf of Fidelity, and the amount of Expenses owing to or on
behalf of each Partner or the Partnership and of similar expenses
previously paid to or on behalf of Fidelity.
(c) Each Partner (or Affiliate) shall pay or reimburse
Genpar and the Tax Matters Partner its respective percentage
(based on the percentages set forth in the second table under
Section 3(a) hereof) of all direct, out-of-pocket expenses
incurred by such parties with respect to the formation, operation
and dissolution of the Partnership, including, without
limitation, third-party accounting expenses, legal fees and other
direct costs associated with the formation, operation and
dissolution of the Partnership. All payments or reimbursements
of such expenses shall not exceed $12,500 in any calendar quarter
or $50,000 in the aggregate.
SECTION 4. Indemnification and Confidentiality.
(a) Rights and Obligations Regarding Indemnification and
Liability of the Partnership Pursuant to the Interim Procedures
Agreement.
(1) Genpar hereby assigns to each Partner the rights of the
Partnership pursuant to Section 8 of the Procedures Agreement,
with respect to elimination of the Partnership's liability to
AWA.
(2) Genpar hereby assigns to each Partner the rights of the
Partnership pursuant to Section 9 of the Procedures Agreement,
with respect to any claim that such Partner may have against AWA
as an Investor Indemnified Party (as such term is defined in the
<PAGE>Procedures Agreement, hereinafter, an "Investor Indemnified
Party").
(3) Each Partner (or, in the case of Apcal, its constituent
partners) agrees that to the extent that the Partnership is found
to be liable to AWA under the Investment Agreement or under
Section 8 or Section 9 of the Procedures Agreement as a result
solely of any action or omission of a particular Partner or any
of its Affiliates, such Partner (or such Affiliate, as the case
may be) shall indemnify and hold harmless the Partnership and
each other Partner (and its Affiliates, if any) against any and
all claims or liabilities of any nature whatsoever, including
reasonable legal fees and other expenses reasonably incurred,
arising out of or in connection with any such liability;
provided, however, that no Partner or Affiliate shall have any
obligation to indemnify the Partnership and each other Partner
(and its Affiliates, if any) in an amount, singly or in the
aggregate, in excess of the lesser of (i) the purchase price of
the Securities acquired by such Partner (or its Affiliates) on
the Effective Date (as such term is defined in the Investment
Agreement, hereinafter, the "Effective Date") from AWA or (ii)
the Value (as defined without regard to the definition of
"Valuation Date" as set forth in the Partnership Agreement) of
any such Securities held by such Partner (or such Affiliate(s))
at the time that such Partner (or such Affiliate(s)) becomes
obligated to indemnify the Partnership and each other Partner
(and its Affiliates, if any) pursuant to this Section 4(a)(iii).
In addition, in the event that the Partnership shall be found in
a final judgment by a court of competent jurisdiction to be
liable for any breach of the Investment Agreement or the
Procedures Agreement for any action or omission not solely the
responsibility of a particular Partner (or its Affiliates), each
Partner (or its Affiliate(s) which purchased Securities pursuant
to any assignment by a Partner of its right to purchase
Securities under the Investment Agreement) shall contribute to
any judgment owed by the Partnership in the respective percentage
set forth opposite its name (or, in the case of Apcal, its
constituent partners' name) in the second table under Section
3(a) hereof; provided, however, that such contribution shall in
no event exceed, singly or in the aggregate, the lesser of (i)
the purchase price of the Securities acquired by such Partner (or
such Affiliates) on the Effective Date from AWA or (ii) the Value
of any such Securities held by such Partner (or such
Affiliate(s)) at the time that such Partner (or such
Affiliate(s)) becomes obligated to contribute to any such
judgment.
(b) Rights and Obligations Regarding Indemnification and
Liability of the Partners. Each Partner (or, in the case of
Apcal, its constituent partners) shall, to the fullest extent
permitted by law, indemnify and hold harmless (in such capacity,
an "Indemnifying Partner") the Partnership and each other
Partner, its directors, officers, shareholders, employees, agents
and Affiliates (each, an "Indemnified Party") from and against
<PAGE>any and all claims or liabilities of any nature whatsoever,
including reasonable legal fees and other expenses reasonably
incurred, arising out of, or in connection with the registration
and or sale of all or any portion of the Indemnifying Partner's
Securities if, and only to the extent that, such claims and
liabilities arise out of or in connection with any information
provided by such Indemnifying Partner in writing for use in any
registration statement utilized by AWA in connection with any
such registration or sale; provided, however, that no Partner
(or, in the case of Apcal, its constituent partners) shall have
any obligation to indemnify the Partnership and each other
Partner (or, in the case of Apcal, its constituent partners) in
an amount, singly or in the aggregate, in excess of the lesser of
(i) the purchase price of the Securities acquired by such Partner
(or its Affiliates) on the Effective Date from AWA or (ii) the
Value of any such Securities held by such Partner (or such
Affiliate(s)) at the time that such Partner (or such
Affiliate(s)) becomes obligated to indemnify an Indemnified Party
pursuant to this Section 4(b). If an Indemnified Party becomes
involved in any capacity in any suit, action, proceeding, or
investigation in connection with any matter which an Indemnifying
Partner is required to provide indemnification pursuant to this
Section 4(b), the Indemnifying Partner periodically shall, upon
the request of such Indemnified Party and receipt of invoices and
such supporting documentation as the Indemnifying Partner
reasonably may request, reimburse such Indemnified Party for its
reasonable legal and other expenses (including the cost of any
investigation and preparation) incurred in connection therewith;
provided, however, that prior to any such advancement of expenses
(i) such Indemnified Party shall provide the Indemnifying Partner
with an undertaking in form and substance satisfactory to the
Indemnifying Partner to repay promptly the amount of any such
expenses paid to it if it shall ultimately be determined by a
court or arbitrator of competent jurisdiction that such
Indemnified Party is not entitled to be indemnified by the
Indemnifying Partner as herein provided in connection with such
suit, action, proceeding, or investigation; and provided further
that the failure for any reason of the Indemnifying Partner to
advance funds to any Indemnified Party shall in no way affect
such Indemnified Party's right to reimbursement of such costs if
it is ultimately determined that such Indemnified Party is
entitled to indemnification pursuant to the terms hereof.
(c) Genpar hereby assigns to each Partner the rights of the
Partnership pursuant to Section 7 of the Procedures Agreement,
with respect to the retention and protection of Confidential
Information (as defined in the Procedures Agreement, hereafter
"Confidential Information"). Each of the Partners hereby agrees
to be bound by the provisions of said Section 7 with respect to
any Confidential Information obtained from any other Partner.
(d) Genpar hereby assigns to each Partner the rights of the
Partnership pursuant to Section 21 of the Procedures Agreement,
with respect to the sharing of certain attorney-client privileged
<PAGE>communications. Each of the Partners hereby agrees to be
bound by the provisions of said Section 21 with respect to any
confidential communications received from any other Partner.
SECTION 5. Stockholders' Agreement. Pursuant to Section 6
of the Investment Agreement, the Partnership, AWA and certain
other parties on the Effective Date shall enter into a
Stockholders' Agreement relating to certain matters concerning
the composition and voting of the board of directors of AWA and
the transfer of Securities by certain shareholders of AWA. The
Partnership hereby assigns to the Partners (and, in the case of
Apcal, to its constituent partners), and such Partners (and, in
the case of Apcal, its constituent Partners) hereby assume the
Partnership's rights and obligations under the Stockholders'
Agreement as follows:
(a) The Partnership hereby assigns to TPG Partners, L.P.
("TPG"), an Affiliate of Genpar, the Partnership's right under
the Stockholders' Agreement to designate the AmWest Directors (as
such term is defined in the Stockholders' Agreement, hereinafter,
"AmWest Directors") and any replacement of any AmWest Director;
provided, however, that for so long as Mesa owns, directly or
indirectly, securities representing at least 2% of the aggregate
voting power of the outstanding voting equity securities of AWA,
TPG shall cause one person identified by Mesa, who shall be
reasonably satisfactory to TPG (the "Mesa Director"), to be
included among the Partnership's or TPG's, as the case may be,
designees to the AWA board of directors. Mesa agrees that the
Mesa Director shall be a "Citizen of the United States," as such
term is defined in accordance with Section 40102, Title 49,
United States Code, as now in effect or as it may hereafter from
time to time be amended. For so long as Mesa owns, directly or
indirectly, securities representing at least 2% of the aggregate
voting power of the outstanding voting equity securities of AWA
and provided that TPG complies with its obligation to cause one
person identified by Mesa to be included among the Partnership's
or TPG's designees to the AWA board of directors, Mesa hereby
agrees to vote its Securities in favor of the Partnership's or
TPG's designees, as the case may be, to the board of directors of
AWA. Each of TPG and Mesa, to the extent that it shall be
entitled hereunder to identify a person to be designated to the
AWA board of directors, agrees to nominate or cause the
nomination of such directors in accordance with the Bylaws of
AWA.
(b) For so long as the Stockholders' Agreement is in
effect, each of the Partners (and, in the case of Apcal, its
constituent partners) agrees to vote the Securities held and
controlled by such Partner (or, in the case of Apcal, its
constituent partners) and to cause any directors of AWA
designated by such Partner (or, in the case of Apcal, its
constituent partners) to vote or provide written consents in
favor of each Independent Director (as such term is defined in
<PAGE>the Stockholders' Agreement, hereinafter, an "Independent
Director") and to take any other action necessary to elect such
Independent Directors.
(c) For so long as the Stockholders' Agreement or the GPA
Voting Agreement dated as of August 25, 1994 by and between GPA
Group plc and the Partnership is in effect, subject to the
conditions set forth in Section 2.1(c) of the Stockholders'
Agreement, each of the Partners agrees (and, in the case of
Apcal, its constituent partners) to vote the Securities held and
controlled by such Partner (or, in the case of Apcal, its
constituent partners) and to cause any directors of AWA
designated by such Partner (or, in the case of Apcal, its
constituent partners) to vote or provide written consents in
favor of the GPA Director (as such term is defined in the
Stockholders' Agreement, hereinafter, the "GPA Director") and to
take any other action necessary to elect such GPA Director;
provided, however, that the obligation of Mesa to so vote its
Securities in such fashion shall exist only for so long as the
Stockholders' Agreement is in effect. To the extent that GPA is
obligated to vote its Securities in favor of the Partnership's or
TPG's, as the case may be, designees to the AWA board of
directors, TPG shall enforce its rights against GPA equally on
behalf of each TPG designee to the AWA board of directors
including, without limitation, the Mesa Director.
(d) For so long as the Stockholders' Agreement is in
effect, none of the Partners nor any of their constituent
partners or Affiliates shall sell or otherwise transfer any
common stock of AWA owned by them (other than to an Affiliate of
the transferror) if, after giving effect thereto and to any
related transaction by such person, the total number of shares of
Class B Common Stock of AWA beneficially owned by the transferor
will be less than twice the total number of Class A Common Stock
of AWA beneficially owned by the transferor; provided, however,
that nothing contained in this Section 5(d) shall prohibit any
owner of common stock of AWA from selling or otherwise
transferring, in a single transaction or related series of
transactions, all shares of common stock of AWA owned by it,
subject to the remaining provisions of the Stockholders'
Agreement.
(e) For so long as the Stockholders' Agreement is in
effect, each of the Partners (and, in the case of Apcal, its
constituent partners) agrees to be bound by Section 4.2 of the
Stockholders' Agreement. Each of the Partners (and, in the case
of Apcal, its constituent partners) agrees to be bound by Section
4.3 of the Stockholders' Agreement and to cause any Affiliates
that may own Securities to agree to be bound by said Section 4.3.
TPG further agrees that it shall not transfer or assign all or
substantially all of the shares of AWA held by it in a single
transaction or related series of transactions unless the
transferee (including any Affiliate of TPG) agrees in writing to
be bound by the terms of Section 5(a) hereof.
<PAGE>
(f) For so long as the Stockholders' Agreement is in
effect, each of the Partners (and, in the case of Apcal, its
constituent partners) agrees to vote the Securities held and
controlled by such Partner (or, in the case of Apcal, its
constituent partners) in compliance with Section 2.1(h) of the
Stockholders' Agreement.
SECTION 6. Registration Rights Agreement. Pursuant to
Section 11 of the Investment Agreement, the Partnership and AWA
shall enter into a registration rights agreement (the "Rights
Agreement") on the Effective Date pursuant to which the
Partnership, its Affiliates (including the Partners) and
transferees and assignees shall have the right to cause AWA to
register the Securities issued or issuable to the Partnership
under the Investment Agreement and such other Persons under the
Securities Laws. The Partnership hereby assigns the rights of
the Partnership under the Rights Agreement to the Partners as
follows:
(a) Pursuant to Section 11 of the Rights Agreement, the
Partnership hereby assigns to TPG the right and authority to
exercise any notice and consent rights on the part of the
Partnership under the Rights Agreement including, without
limitation, the issuance of any Notice of Demand (as such term is
defined in the Rights Agreement, hereinafter, a "Notice of
Demand"); provided, however, that during the Shelf Period (as
such term is defined in the Rights Agreement, hereinafter, the
"Shelf Period"), TPG shall provide prior written notice to each
other Partner (or Affiliate of each other Partner known to it) of
any intention of TPG to provide AWA with a Notice of Demand and
thereafter shall not provide AWA with such Notice of Demand
unless Mesa shall consent to such action, which consent shall not
be unreasonably withheld; and provided further, that after the
Shelf Period, TPG shall provide prior written notice to each
other Partner (or Affiliate of each other Partner known to it) of
any intention of TPG to provide AWA with a Notice of Demand and
thereafter, for so long as Mesa shall be an "affiliate" of AWA
within the meaning of Rule 144 under the U.S. Securities Act of
1933, as amended, shall not provide AWA with such Notice of
Demand unless Mesa shall consent to such action, which consent
shall not be unreasonably withheld.
(b) With regard to any notice, demand, request, action or
consent effected by TPG under the Rights Agreement (other than a
Notice of Demand) that TPG effects as the designated transferee
Affiliate of the Partnership pursuant to Section 11 of the Rights
Agreement, TPG agrees, if and to the extent that the consent of
or notice to Fidelity or Lehman (as such terms are defined in the
Rights Agreement) is required by the Rights Agreement with regard
to such notice, demand, request, action or consent, then TPG,
acting on behalf of the Partnership, shall provide notice to and
consult with Mesa prior to effecting any such notice, demand,
<PAGE>request, action or consent, and shall not effect such
notice, demand, request, action or consent without the consent of
Mesa. Subject to the limitation contained in the preceding two
sentences, if, and to the extent that, any Partner is entitled to
receive notice pursuant to the provisions of any Securities
Agreement, including, without limitation, the GPA Registration
Rights Agreement (as such term is defined in the Rights
Agreement), and an equivalent notice is not required to be
provided to each of the other Partners by virtue of such
Securities Agreement, each Partner who receives such notice shall
use its best efforts to provide such notice pursuant to Section
7(a) of this Agreement to each other Partner who holds Securities
and does not receive such equivalent notice .
(c) As soon as reasonably practicable following the
Effective Date, but in no event later than ten days following the
Effective Date, each of the Partners shall use its reasonable
efforts to prepare jointly and file, as necessary, a Schedule 13D
with the Securities and Exchange Commission, and to amend such
filing as required by Regulation 13D-G under the Securities Act
of 1934, as amended. Each of the Partners (or, in the case of
Apcal, its constituent partners) agrees to provide promptly all
necessary information pertaining to such Partner (or, in the case
of Apcal, its constituent partners) necessary to make such
amendments. Each of the Partners (and, in the case of Apcal, its
constituent partners) of any changes in facts or circumstances
that would require the filing of any such amendments.
SECTION 7. Miscellaneous.
(a) Notice. All notices, demands, or requests provided for
or permitted to be given pursuant to this Agreement must be in
writing. All notices, demands, and requests to be sent to a
Partner or any assignee of a Partner pursuant to this Agreement
shall be deemed to have been properly given or served if:
(i) personally delivered; (ii) deposited prepaid for next day
delivery by a nationally recognized overnight courier service,
addressed to such Partner; (iii) deposited in the United States
mail, addressed to such Partner, prepaid and registered or
certified with return receipt requested; or (iv) transmitted via
telecopier or other similar device to the attention of such
Partner. All notices, demands, and requests so given shall be
deemed received: (i) when personally delivered; (ii) twenty-four
(24) hours after being deposited for next day delivery with an
overnight courier; (iii) forty-eight (48) hours after being
deposited in the United States mail; or (iv) twelve (12) hours
after being telecopied or otherwise transmitted and receipt has
been confirmed. The Partners and their respective assignees
shall have the right from time to time, and at any time during
the term of this Agreement, to change their respective addresses
and each shall have the right to specify as his or its address
any other address within the United States of America by giving
to the other parties at least thirty (30) days' written notice
<PAGE>thereof; provided, however, that to be effective, any such
notice must be actually received (as evidenced by a return
receipt).
(b) Amendments. Amendments and supplements to this
Agreement shall require the written consent of each Partner.
(c) Governing Law. Except to the extent that any agreement
of the Partners to vote Securities owned by them may be governed
by Delaware law, this Agreement is made under, and the rights and
obligations of the Partners hereunder shall be interpreted,
construed, and enforced in accordance with, the laws of the State
of Texas, without reference to its conflicts of laws provisions.
(d) Rules of Construction. The general rule of
construction for interpreting a contract, which provides that the
provisions of a contract should be construed against the party
preparing the contract, is waived by the parties. Each party
acknowledges that it was represented by separate legal counsel in
this matter who participated in the preparation of this Agreement
or it had the opportunity to retain counsel to participate in the
preparation of this Agreement but chose not to do so.
(e) Gender, Etc. Unless the context clearly indicates
otherwise, the singular shall include the plural and vice versa.
Whenever the masculine, feminine, or neuter gender is used
inappropriately in this Agreement, this Agreement shall be read
as if the appropriate gender was used.
(f) Captions. Captions are included solely for convenience
of reference and if there is any conflict between captions and
the text of this Agreement, the text shall control. Unless
otherwise specifically stated, references to Sections refer to
the Sections of this Agreement.
(g) Entire Agreement. This Agreement contains the entire
agreement among the parties relative to the matters contained in
this Agreement.
(h) Waiver. No consent or waiver, express or implied, by
any Partner to or for any breach or default by any other Partner
in the performance by such other Partner of its obligations under
this Agreement shall be deemed or construed to be a consent or
waiver to or of any other breach or default in the performance by
such other Partner of the same or any other obligations of such
other Partner under this Agreement. Failure on the part of any
Partner to complain of any act or failure to act of any of the
other Partners or to declare any of the other Partners in
default, regardless of how long such failure continues, shall not
constitute a waiver by such Partner of its rights hereunder.
(i) Severability. If any provision of this Agreement or
the application thereof to any person or circumstance shall be
invalid or unenforceable to any extent, the remainder of this
<PAGE>Agreement and the application of such provisions to other
persons or circumstances shall not be affected thereby, and the
intent of this Agreement shall be enforced to the greatest extent
permitted by law.
(j) Binding Agreement. Subject to the restrictions on
transfers and encumbrances set forth in this Agreement, this
Agreement shall inure to the benefit of and be binding upon the
undersigned Partners and their respective legal representatives,
successors, and assigns. This Agreement shall be binding upon,
and enforceable by the other parties hereto (including, without
limitation, by Mesa) against, TPG or Continental only to the
extent that (i) as of the date of this Agreement, TPG or
Continental have any obligations to the Partnership including,
without limitation, pursuant to Subscription Agreements entered
into by the Partnership with TPG and Continental, or (ii) TPG or
Continental has specifically assumed obligations to the
Partnership or to Mesa pursuant to this Agreement.
(k) Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original
for all purposes and all of which when taken together shall
constitute a single counterpart instrument. Executed signature
pages to any counterpart instrument may be detached and affixed
to a single counterpart, which single counterpart with multiple
executed signature pages affixed thereto constitutes the original
counterpart instrument. All of these counterpart pages shall be
read as though one and they shall have the same force and effect
as if all of the parties had executed a single signature page.
<PAGE>
<PAGE> Each of the undersigned has executed and delivered or
caused this Agreement to be executed and delivered as of the date
set forth above.
AMWEST GENPAR, INC., individually and in its capacity as General
Partner of the Partnership
By: /s/ Richard Ekleberry
Name: Richard Ekleberry
Title: Vice President
Address: 201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James J. O'Brien
Telecopier: (817) 871-4010
APCAL, L.P.
By: AMWEST GENPAR, INC.,
a Texas corporation
By: /s/ Richard Ekleberry
Name: Richard Ekleberry
Title: Vice President
Address: 201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James J. O'Brien
Telecopier: (817) 871-4010
MESA AIRLINES, INC.
By: /s/ Gary E. Risley
Name: Gary E. Risley
Title: Vice President
Address: 2325 30th Street
Farmington, New Mexico
87401
Attention: Gary E. Risley, Esq.
Telecopier: (505) 326-4485
<PAGE>
<PAGE>
ACKNOWLEDGED AND AGREED
AS TO SECTIONS 3, 4, 5, 6 and 7(j):
TPG PARTNERS, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By: /s/ Richard Ekleberry
Name: Richard Ekleberry
Title: Vice President
Address: 201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James J. O'Brien
Telecopier: (817) 871-4010
CONTINENTAL AIRLINES, INC.
By: /s/ Cynthia R. Creager-Jones
Name: Cynthia R. Creager-Jones
Title: Vice President
Address: 2929 Allen Parkway, Suite 1466
Houston, Texas 77019
Attention: Charles Goolsbee
Telecopier: (713) 834-5161
<PAGE>
<PAGE>
<TABLE>
8/24/94
EXPENSES SUBMITTED TO DATE RELATED TO AMERICAN
WEST SECURITIES ACQUISITION
<CAPTION>
Name of
Professional Thru February
28, 1994 March, 1994 April, 1994 May, 1994 June, 1994 Total
<S> <C> <C> <C> <C> <C> <C>
TPG Partners,
L.P. $ 58,773.66 $ 35,738.72 $ 27,147.35 $ 14,888.04 pending $ 136,547.77
Arnold & Porter $339,228.06 $269,054.18 $280,562.14 $256,462.21 $232,143.08 $1,377,449.67
Merrill Lynch $116,834.00 $ 58,152.36 $ 63,272.12 $ 65,677.29 $ 54,191.23 $ 358,127.00
Jones, Day $ 64,002.72 $ 75,889.72 $ 61,388.53 $113,715.61 $ 39,001.46 $ 353,998.04
Cleary,
Gottlieb -- $ 53,495.00 $ 80,982.86 $ 92,722.05 $ 27,575.91 $ 254,775.82
Continental
Airlines,
Inc. $11,451.53 pending pending pending pending $ 11,451.53
Bear Stearns
& Co. -- $ 165.31 $ 95.44 $ 33,338.82 pending $ 3,599.57
Goodwin,
Proctor -- $ 42,985.25 $ 89,231.07 $112,854.52 $ 50,013.26 $ 295,084.10
Kelly, Hart -- -- -- $ 2,375.98 pending $ 2,375.98
Total $590,289.97 $535,480.54 $602,679.51 $662,034.52 $402,924.94 $2,793,409.48
Reimbursed 550,000.00 300,000.00 300,000.00 300,000.00 300,000.00 1,750,000.00
Balance 40,289.97 235,480.54 302,679.51 362,034.52 102,924.94 1,043,409.48
</TABLE>
<PAGE>
Execution Copy
REGISTRATION RIGHTS AGREEMENT
among
AMERICA WEST AIRLINES, INC.,
AMWEST PARTNERS, L.P.
and
THE OTHER HOLDERS NAMED HEREIN
Dated as of August 25, 1994
<PAGE>
<PAGE> TABLE OF CONTENTS
Page
1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . 2
2. Registration under the Securities Act. . . . . . . . . . . 8
2.1 Shelf Registration Statements. . . . . . . . . . . . 8
2.2 Demand Registration . . . . . . . . . . . . . . . . . 10
2.3 Piggyback Registration . . . . . . . . . . . . . . . 12
2.4 Trust Indenture Act Qualification; Rating. . . . . . 15
2.5 Registration Terms and Procedures. . . . . . . . . . 15
2.6 Underwritten Offerings . . . . . . . . . . . . . . . 22
2.7 Preparation; Reasonable Investigation. . . . . . . . 23
2.8 Indemnification. . . . . . . . . . . . . . . . . . . 24
2.9 Liquidated Damages . . . . . . . . . . . . . . . . . 28
3. Rule 144 and Rule 144A . . . . . . . . . . . . . . . . . . 31
4. Term . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5. Amendments and Waivers . . . . . . . . . . . . . . . . . . 31
6. Entire Agreement . . . . . . . . . . . . . . . . . . . . . 32
7. No Third-Party Beneficiary . . . . . . . . . . . . . . . . 32
8. Invalid Provisions . . . . . . . . . . . . . . . . . . . . 32
9. Nominees for Beneficial Owners . . . . . . . . . . . . . . 32
10. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . 33
11. Assignment . . . . . . . . . . . . . . . . . . . . . . . . 35
12. Descriptive Headings . . . . . . . . . . . . . . . . . . . 35
13. Specific Performance . . . . . . . . . . . . . . . . . . . 36
14. Governing Law. . . . . . . . . . . . . . . . . . . . . . . 36
15. Registration Rights to Others. . . . . . . . . . . . . . . 36
16. Attorneys' Fees. . . . . . . . . . . . . . . . . . . . . . 36
17. Limitation of Liability. . . . . . . . . . . . . . . . . . 37
18. Termination of Certain Rights. . . . . . . . . . . . . . . 37
19. No Inconsistent Agreements . . . . . . . . . . . . . . . . 37
20. Requisite Holders. . . . . . . . . . . . . . . . . . . . . 37
<PAGE>
21. Counterparts . . . . . . . . . . . . . . . . . . . . . . . 37
22. Repurchase Arrangement . . . . . . . . . . . . . . . . . . 38
SCHEDULES
Schedule 1 - GPA Registration Rights Agreement
<PAGE>
<PAGE>
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of August 25,
1994 among AMERICA WEST AIRLINES, INC., a Delaware corporation
(including its successor, as reorganized pursuant to Chapter 11,
Title 11 of the United States Bankruptcy Code (the "Bankruptcy
Code"), the "Company"), AMWEST PARTNERS, L.P., a Texas limited
partnership ("Investor"), LEHMAN BROTHERS INC., a Delaware
corporation ("Lehman"), and the funds or accounts managed or
advised by Fidelity Management Trust Company or its affiliates
listed on the signature pages hereto (each, a "Fidelity Fund" and
collectively, "Fidelity").
W I T N E S S E T H :
WHEREAS, the Company is a Debtor and
Debtor-in-Possession in the case (the "Chapter 11 Case") filed in
the United States Bankruptcy Court for the District of Arizona
(the "Bankruptcy Court"), entitled "In re America West Airlines,
Inc., Debtor," Chapter 11 Case No. 91-07505-PHX-RGM, under the
Bankruptcy Code;
WHEREAS, the Company and Investor have entered into
that certain Third Revised Investment Agreement dated as of
April 21, 1994 (as it may be further amended, modified or
supplemented from time to time, the "Investment Agreement") and
the Company and Fidelity have entered into a Note Purchase
Agreement dated as of August 25, 1994 (as amended, modified or
supplemented from time to time, the "Note Purchase Agreement"),
which agreements among other things provide for the purchase of
the Securities (as defined in the Investment Agreement) in
connection with and as part of the transactions to be consummated
pursuant to the confirmation of a Plan of Reorganization (as
amended, modified or supplemented from time to time) of the
Company in the Chapter 11 Case (the "Plan");
WHEREAS, the Company has filed with the SEC (as
hereinafter defined) a shelf registration statement with respect
to the Securities issued or issuable to Investor, Lehman,
Fidelity and their respective Affiliates, among others, and the
SEC has declared such shelf registration statement effective;
WHEREAS, by Order dated August 10, 1994, the Bankruptcy
Court confirmed the Plan and
WHEREAS, the Investment Agreement, the Note Purchase
Agreement and the Plan contemplate that the Company, Investor,
Lehman and Fidelity will enter into certain agreements,
including, without limitation, this Registration Rights
Agreement;
NOW THEREFORE, the parties hereby agree as follows:
<PAGE> 1. Definitions. Capitalized terms used herein
that are not otherwise defined herein shall have the meanings
ascribed to them in the Investment Agreement. In addition, the
following terms, as used herein, have the following meanings (all
terms defined herein in the singular to have the correlative
meanings when used in the plural and vice versa):
"Affiliate" means (i) when used with reference to any
partnership, any Person that, directly or indirectly, owns or
controls 10% or more of either the capital or profit interests of
such partnership or is a partner of such partnership or is a
Person in which such partnership has a 10% or greater direct or
indirect equity interest and (ii) when used with reference to any
corporation, any Person that, directly or indirectly owns or
controls 10% or more of the outstanding voting securities of such
corporation or is a Person in which such corporation has a 10% or
greater direct or indirect equity interest. In addition, the
term "Affiliate," when used with reference to any Person, shall
also mean any other Person that, direct or indirectly, controls
or is controlled by or is under common control with such Person.
As used in the preceding sentence, (A) the term "control" means
the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of the entity
referred to, whether through ownership of voting securities, by
contract or otherwise and (B) the terms "controlling" and
"controls" shall have meanings correlative to the foregoing.
Notwithstanding the foregoing, the Company will be deemed not to
be an Affiliate of AmWest or any of its partners and each of
AmWest GenPar, Inc., Continental Airlines, Inc., Mesa Airlines,
Inc. ("Mesa"), TPG Partners, L.P., TPG Parallel I, L.P. and Air
Partners II, L.P. shall be deemed to be an Affiliate of AmWest.
"Agreement" means this Registration Rights Agreement,
as the same shall be amended, modified or supplemented from time
to time.
"Business Day" means any day, other than a Saturday or
Sunday, that is not a day on which banking institutions are
authorized or required by law or regulation to be closed in
(a) New York, New York or (b) Phoenix, Arizona.
"Chapter 11 Case" has the meaning ascribed to it in the
preamble.
"Class A Common" means the Class A Common Stock of the
Company, par value $.01 per share, of the Company.
"Class B Common" means the Class B Common Stock of the
Company, par value $.01 per share, of the Company.
"Commercially Reasonable Efforts", when used with
respect to any obligation to be performed or term or provision to
<PAGE>be observed hereunder, means such efforts as a prudent
Person seeking the benefits of such performance or action would
make, use, apply or exercise to preserve, protect or advance its
rights or interests, provided, that such efforts do not require
such Person to incur a material financial cost or a substantial
risk of material liability unless such cost or liability (i)
would customarily be incurred in the course of performance or
observance of the relevant obligation, term or provision, (ii) is
caused by or results from the wrongful act or negligence of the
Person whose performance or observance is required hereunder or
(iii) is not excessive or unreasonable in view of the rights or
interests to be preserved, protected or advanced. Such efforts
may include, without limitation, the expenditure of such funds
and retention by such Person of such accountants, attorneys or
other experts or advisors as may be necessary or appropriate to
effect the relevant action; the undertaking of any special audit
or internal investigation that may be necessary or appropriate to
effect the relevant action; and the commencement, termination or
settlement of any action, suit or proceeding involving such
Person to the extent necessary or appropriate to effect the
relevant action.
"Demand Registration" means any registration of
Registrable Securities under the Securities Act effected in
accordance with Section 2.2.
"Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, or any successor statute, and
the rules and regulations promulgated thereunder.
"Fidelity" has the meaning ascribed to it in the
preamble. With respect to any action, demand or election as to
which "Fidelity" has the right or obligation to take action
pursuant to this Agreement, such action shall be valid if taken
by the Holders of a majority in interest of the Registrable
Equity Securities and/or a majority in principal amount of the
Registrable Debt Securities, as the case may be, held by the
Fidelity Funds as of the date of such action.
"Fidelity Fund" has the meaning ascribed to it in the
preamble.
"GPA" means GPA Group plc and any legal successor
thereto, and includes GPA's permitted assigns pursuant to the GPA
Registration Rights Agreement.
"GPA Demand" has the meaning ascribed to it in Section
2.2(c).
"GPA Registration Rights Agreement" means the
Registration Rights Agreement of even date herewith between the
Company and GPA attached hereto as Schedule 1, as amended from
<PAGE>time to time in accordance with the provisions thereof and
hereof.
"Holders" means, subject to Section 9 hereof, the
holders of record of Registrable Securities, or, in the case of
references to holders of securities of the Company other than
Registrable Securities, the record holders of such securities.
"Indemnified Party" has the meaning ascribed to it in
Section 2.8(a).
"Indenture" means that certain Indenture between the
Company and American Bank National Association, as Trustee, dated
as of August 25, 1994 and relating to up to $130 million
principal amount of the Notes.
"Initial Effective Date" means the date upon which the
Restated Certificate of Incorporation becomes effective in
accordance with the Plan and the General Corporation Law of the
State of Delaware.
"Initial Registrable Debt Securities" means the $100
million principal amount of the Notes issued on the date of this
Agreement and held by any Fidelity Fund or any of their
respective assignees or Affiliates or any transferee (direct or
indirect) of such Persons.
"Initial Shelf Registration Statement" has the meaning
ascribed to it in Section 2.1(a).
"Loss" has the meaning ascribed to it in Section
2.8(a).
"Material Adverse Change" means (i) any general
suspension of trading in, or limitation on prices for, securities
on any national securities exchange or in the over-the-counter
market in the United States of America, (ii) the declaration of a
banking moratorium or any suspension of payments in respect of
banks in the United States of America, (iii) the commencement of
a war, armed hostilities or other international or national
calamity involving the United States of America, (iv) any
limitation (whether or not mandatory) by any governmental
authority on, or any other event which materially affects the
extension of credit by banks or other financial institutions, (v)
any material adverse change in the Company's business, condition
(financial or otherwise) or prospects or (vi) a 15% or more
decline in the Dow Jones Industrial average or the Standard and
Poor's Index of 400 Industrial Companies, in each case from the
date a Notice of Demand is made.
"Notes" has the meaning ascribed to it in the Note
Purchase Agreement.
<PAGE> "Notice of Demand" means a request by Investor or
Fidelity, as the case may be, pursuant to Section 2.2 that the
Company effect the registration under the Securities Act of all
or part of the Registrable Securities held by it and its
Affiliates and, at its option, any direct or indirect transferee
of Registrable Securities held by it, and any other Holder that
requests to have its Registrable Securities included in such
registration pursuant to Section 2.2(d). A Notice of Demand
shall specify (i) the type and amount of Registrable Securities
proposed to be registered, (ii) the intended method or methods
and plan of disposition thereof and (iii) whether or not such
requested registration is to be an underwritten offering.
"Participating Holders" means, with respect to any
registration of Registrable Securities by the Company pursuant to
this Agreement, the Requesting Holder and any other Holders that
are entitled to participate in, and are participating in or
seeking to participate in, such registration.
"Person" means a natural person, a corporation, a
partnership, a trust, a joint venture, any regulatory authority
or any other entity or organization.
"Piggyback Registration" means any registration of
Registrable Equity Securities under the Securities Act effected
in accordance with Section 2.3.
"Piggyback Registration Notice" has the meaning
ascribed to it in Section 2.3(a).
"Plan" has the meaning ascribed to it in the preamble.
"Registrable Debt Securities" means, collectively, the
Initial Registrable Debt Securities and the Secondary Registrable
Debt Securities. As to any particular Registrable Debt
Securities, once issued such securities shall cease to be
Registrable Debt Securities when (a) such securities shall have
been distributed pursuant to the Plan without registration or
qualification under the Securities Act or any similar state law
then in force pursuant to Section 1145 of the Bankruptcy Code,
(b) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act
and such securities shall have been disposed of in accordance
with the plan of distribution set forth in such registration
statement, (c) such securities shall have been distributed in
accordance with Rule 144 or (d) such securities shall have been
otherwise transferred, new certificates therefor not bearing a
legend restricting further transfer shall have been delivered in
exchange therefor by the Company and subsequent disposition of
such securities shall not require registration or qualification
under the Securities Act or any similar state law then in force.
<PAGE> "Registrable Equity Securities" means the equity
securities acquired by Investor, Lehman, any Fidelity Fund or any
of their respective assignees or Affiliates pursuant to the Plan
or held by any transferee (direct or indirect) of such Persons,
including, without limitation, (a) any shares of Class A Common
or Class B Common issued or issuable on the Effective Date,
(b) any Warrant, (c) any shares of Class B Common issued or
issuable upon the exercise of a Warrant and (d) any securities
issued or issuable with respect to any such Class A Common,
Class B Common or Warrants by way of stock dividend or stock
split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization
or otherwise. As to any particular Registrable Equity
Securities, once issued such securities shall cease to be
Registrable Equity Securities when (i) such securities shall have
been distributed pursuant to the Plan without registration or
qualification under the Securities Act or any similar state law
then in force pursuant to Section 1145 of the Bankruptcy Code,
(ii) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act
and such securities shall have been disposed of in accordance
with the plan of distribution set forth in such registration
statement, (iii) such securities shall have been distributed in
accordance with Rule 144 or (iv) such securities shall have been
otherwise transferred, new certificates therefor not bearing a
legend restricting further transfer shall have been delivered in
exchange therefor by the Company and subsequent disposition of
such shares shall not require registration or qualification under
the Securities Act or any similar state law then in force.
"Registrable Securities" means the Registrable Debt
Securities and the Registrable Equity Securities.
"Registration Expenses" means all expenses incident to
the Company's performance of or compliance with this Agreement,
including, without limitation, (a) all registration, filing,
securities exchange listing, rating agency and National
Association of Securities Dealers fees, (b) all registration,
filing, qualification and other fees and expenses of complying
with securities or blue sky laws of all jurisdictions in which
the securities are to be registered and any legal fees and
expenses incurred in connection with the blue sky qualifications
of the Registrable Securities and the determination of their
eligibility for investment under the laws of all such
jurisdictions, (c) all word processing, duplicating, printing,
messenger and delivery expenses, (d) the fees and disbursements
of counsel for the Company and of its independent public
accountants, including, without limitation, the expenses of any
special audits or "cold comfort" letters required by or incident
to such performance and compliance, (e) the reasonable fees and
disbursements incurred by the Holders of the Registrable
Securities being registered (including, without limitation, the
<PAGE>reasonable fees and disbursements for one counsel or firm
of counsel selected by the Requisite Holders of Registrable Debt
Securities and Registrable Equity Securities acting together),
(f) premiums and other costs of policies of insurance against
liabilities arising out of the public offering of the Registrable
Securities being registered to the extent the Company elects to
obtain such insurance, (g) any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities
(but excluding underwriting discounts and commissions and
transfer taxes, if any, relating to the Registrable Securities
being registered) and (h) fees and expenses of other Persons
retained or employed by the Company.
"Requesting Holder" means the party providing a Notice
of Demand to the Company pursuant to Section 2.2(a).
"Requisite Holders" means (a) with respect to any
Registrable Equity Securities, any Holder or Holders of a
majority in interest of the Registrable Equity Securities
included or to be included in a registration or other relevant
action, as the case may be, and (b) with respect to any
Registrable Debt Securities, any Holder or Holders of a majority
of the aggregate principal amount of the Registrable Debt
Securities included or to be included in a registration or other
relevant action, as the case may be.
"Restated Certificate of Incorporation" means the
restated Certificate of Incorporation adopted by the Company
pursuant to the Plan in accordance with Section 303 of the
General Corporation Law of the State of Delaware.
"Rule 144" means Rule 144 promulgated by the SEC under
the Securities Act, and any successor provision thereto.
"Rule 144A" means Rule 144A promulgated by the SEC
under the Securities Act, and any successor provision thereto.
"SEC" means the United States Securities and Exchange
Commission, or any successor governmental agency or authority
thereto.
"Secondary Effective Date" means the date upon which
the Secondary Registrable Debt Securities are issued by the
Company.
"Secondary Registrable Debt Securities" means the
Notes, if any, issued subsequent to the date of this Agreement
and held by any Fidelity Fund, Lehman or any of their respective
assignees or Affiliates or any transferee (direct or indirect) of
such Persons.
<PAGE> "Secondary Shelf Registration Statement" has the
meaning ascribed to it in Section 2.1(b).
"Securities Act" means the Securities Act of 1933, as
amended from time to time, or any successor statute, and the
rules and regulations promulgated thereunder.
"Shelf Period" has the meaning ascribed to it in
Section 2.1(c).
"Shelf Registration Statements" shall mean,
collectively, the Initial Shelf Registration Statement and the
Secondary Shelf Registration Statement, and in singular form
shall mean either the Initial Shelf Registration Statement or the
Secondary Shelf Registration Statement.
"Successor" means, with respect to any Person, a
successor to such Person by merger, consolidation, liquidation or
other similar transaction.
"Suspension Notice" has the meaning ascribed to it in
Section 2.5(h).
"Suspension Period" has the meaning ascribed to it in
Section 2.5(h).
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended from time to time, or any successor statute, and
the rules and regulations promulgated thereunder.
"Warrant" means a Warrant to Purchase Class B Common
Stock of America West Airlines, Inc. issued pursuant to the
Warrant Agreement dated as of even date herewith between the
Company and First Interstate Bank of California, as Warrant
Agent, and any warrant issued in substitution or exchange
therefor.
2. Registration under the Securities Act.
2.1 Shelf Registration Statements.
(a) Filing of Initial Shelf Registration Statement.
If, as of the Initial Effective Date, (i) the effectiveness of
the shelf registration statement covering all of the Registrable
Equity Securities and the Initial Registrable Debt Securities
(the "Initial Shelf Registration Statement") has been suspended
or the Initial Shelf Registration Statement is otherwise not
effective or (ii) the securities covered under the Initial Shelf
Registration Statement shall not qualify under all blue sky or
other securities laws, the Company shall use Commercially
Reasonable Efforts to cause such Initial Shelf Registration
Statement to be effective as soon as practicable and to qualify
<PAGE>such securities under all blue sky and other securities
laws as soon as practicable.
(b) Filing of Secondary Shelf Registration Statement.
If, as of the Secondary Effective Date, (i) the effectiveness of
the shelf registration statement covering all of the Secondary
Registrable Debt Securities (the "Secondary Shelf Registration
Statement") has been suspended or the Secondary Shelf
Registration Statement is otherwise not effective or (ii) the
securities covered under the Secondary Shelf Registration
Statement shall not qualify under all bue sky or other securities
laws, the Company shall use Commercially Reasonable Efforts to
cause such Secondary Shelf Registration Statement to be effective
as soon as practicable and to qualify such securities under all
blue sky and other securities laws as soon as practicable.
(c) Continuous Effectiveness of Shelf Registration
Statements. Once a Shelf Registration Statement is effective
pursuant to Section 2.1(a) or 2.1(b), the Company shall use
Commercially Reasonable Efforts to cause such Shelf Registration
Statement to remain continuously effective until the earlier of
(i) the third (3rd) anniversary of (A) in the case of the Initial
Shelf Registration Statement, the Initial Effective Date or (B)
in the case of the Secondary Shelf Registration Statement, the
Secondary Effective Date and (ii) in either case, the date on
which all of the Registrable Securities covered by such Shelf
Registration Statement have been sold, but in no event prior to
the expiration of the applicable period referred to in Section
4(3) of the Securities Act and Rule 174 thereunder (such period
with respect to the Initial Shelf Registration Statement or the
Secondary Shelf Registration being defined as the "Shelf Period"
with respect to such Shelf Registration Statement); provided,
however, that with respect to each such Shelf Registration
Statement (x) the Company may (no more than twice during any
twelve (12) month period and for a period not to exceed forty-
five (45) days on any one occasion, and not in any event to
exceed sixty (60) days in the aggregate) suspend use of such
Shelf Registration Statement at any time if the continued
effectiveness thereof would require the Company to disclose a
material financing, acquisition or other corporate transaction,
which disclosure the Board of Directors of the Company shall have
determined in good faith is not in the best interests of the
Company and its stockholders and (y) the Company may suspend use
of each such Shelf Registration Statement during any period (not
to exceed forty-five (45) days in the aggregate) if each of the
Company and the Requisite Holders of each of the Registrable
Equity Securities, if any, and the Registrable Debt Securities
covered by such Shelf Registration Statement consents in writing
to such suspension for such period, provided, further, that
Investor and any of its Affiliates (other than Mesa) shall not
participate in any such consent and that any Registrable Equity
<PAGE>Securities or Registrable Debt Securities held by such
parties shall not be taken into account for the purpose of such
consent.
(d) Underwritten Offering. If the Requisite Holders
of each of the Registrable Equity Securities and the Registrable
Debt Securities covered by the Initial Shelf Registration
Statement and the Secondary Shelf Registration Statement, if any,
acting together, so elect, the offering of Registrable Securities
pursuant to such Shelf Registration Statements shall be in the
form of an underwritten offering, with such book-running managing
underwriter or underwriters as they shall jointly select with the
approval of the Company, such approval not to be unreasonably
withheld.
2.2 Demand Registration.
(a) Registration on Request. Except as provided in
subsection (b) below,
(i) at any time after the Shelf Period applicable
to the Initial Shelf Registration Statement, Investor
may provide the Company with a Notice of Demand (with a
copy to GPA); and
(ii) if at any time during the Shelf Period the
Initial Shelf Registration Statement is not effective
during a continuous period of ten (10) days for any
reason (other than under the circumstances and during
the periods permitted by the first proviso in Section
2.1(c)), each of Investor and Fidelity may, at any time
prior to the renewed effectiveness of such Initial
Shelf Registration Statement or any replacement Shelf
Registration Statement for such Initial Shelf
Registration Statement, provide the Company with a
Notice of Demand (with a copy to GPA) (which, in the
case of Investor, shall be in addition to its right to
provide the Company with a Notice of Demand pursuant to
clause (i) above).
Upon receipt of a Notice of Demand, the Company shall use
Commercially Reasonable Efforts to effect at the earliest
practicable date the registration under the Securities Act of the
Registrable Securities that the Company has been so requested to
register (whether pursuant to the Notice of Demand or pursuant to
notice provided under Section 2.2(d)), for disposition in
accordance with the intended method or methods of disposition
specified in the Notice of Demand or such other notice.
(b) Limitations on Demand Registration. The Company
shall not be obligated to take any action to effect any
registration pursuant to this Section 2.2: (i) after the Company
<PAGE>has, in accordance with the provisions of Section 2.5(c),
effected (A) one (1) registration of Registrable Securities with
respect to a registration requested pursuant to Section 2.2(a)(i)
and (B) two (2) registrations of Registrable Securities with
respect to a registration requested pursuant to Section
2.2(a)(ii); and (ii) in any period during which the Company has
suspended registration pursuant to the first proviso in Section
2.1(c).
(c) GPA Demand Registration. If GPA exercises its
right to a demand registration (the "GPA Demand") pursuant to
Section 2.2 of the GPA Registration Rights Agreement, then the
Company shall provide Investor and each of its Affiliates which
have been designated by Investor by notice to the Company to be
given notice of the GPA Demand (pursuant to the proviso to
Section 11 or otherwise), with a copy of such demand within five
(5) Business Days of its receipt thereof, and Investor may (but
shall not be obligated to) provide the Company with a Notice of
Demand pursuant to Section 2.2(a) within twenty-one (21) days of
Investor's receipt of a copy of the GPA Demand and thereby void
the GPA Demand and obligate the Company to effect a registration
of Registrable Securities pursuant to Section 2.2(a)
(d) Notice to certain non-Requesting Holders. Upon
receipt of any Notice of Demand from a Requesting Holder or any
GPA Demand, the Company will give prompt (but in any event within
fifteen (15) days after such receipt) notice to all Holders of
Registrable Securities of such Notice of Demand or GPA Demand and
of such Holders' rights under this Section 2.2. Upon the request
of any such Holder made within fifteen (15) days after the
receipt by such Holder of any such notice (which request shall
specify the Registrable Securities intended to be disposed of by
such Holder and the intended method or methods of disposition
thereof), the Company will use Commercially Reasonable Efforts to
effect the registration of all Registrable Securities which the
Company has been so requested to register pursuant to the Notice
of Demand or GPA Demand. The participation of Investor, any
Fidelity Fund, Lehman or any of their respective Affiliates or
transferees, direct or indirect, in a GPA Demand pursuant to this
Section 2.2(d) shall (i) be subject to the provisions of Section
2.3(a) and 2.3(c) hereof and (ii) with respect to Investor, or
Fidelity shall not be considered a Notice of Demand pursuant to
Section 2.2(a) and shall have no effect on such parties' right to
provide the Company with a Notice of Demand pursuant thereto.
(e) Priority in Demand Registrations. If (i) a
registration pursuant to this Section 2.2 involves an
underwritten offering of the securities being registered to be
distributed (on a firm commitment basis) by or through one or
more underwriters of recognized standing under underwriting terms
appropriate for such a transaction and (ii) the managing
underwriter of such underwritten offering shall inform the
<PAGE>Company and the Requesting Holder by letter of its belief
that the amount of securities requested to be included in such
registration exceeds the amount which can be sold in (or during
the time of) such offering within a price range acceptable to the
Requesting Holder, then the Company will include in such
registration such amount of securities which the Company is so
advised can be sold in (or during the time of) such offering as
follows: first, such Registrable Securities requested to be
included in such registration by each of Investor, any Fidelity
Fund, Lehman or their respective Affiliates pro rata on the basis
of the amount of such securities so proposed to be sold and so
requested to be included by such parties; second, such
Registrable Securities requested to be included in such
registration by the direct or indirect transferees of Registrable
Securities held by Investor, any Fidelity Fund, Lehman, or their
respective Affiliates pro rata on the basis of the amount of such
securities so proposed to be sold and so requested to be included
by such parties; third, such securities requested to be included
in such registration by GPA or any of its Affiliates, pursuant to
the GPA Registration Rights Agreement, pro rata on the basis of
the amount of such securities so proposed to be sold and so
included by such parties; fourth, such securities requested to be
included in such registration by the direct or indirect
transferees of securities held by GPA or any of its Affiliates,
pursuant to the GPA Registration Rights Agreement, pro rata on
the basis of the amount of such securities so proposed to be sold
and so included by such parties, and fifth, such Registrable
Securities requested to be included in such registration by all
other Holders pro rata on the basis of the amount of such
securities so proposed to be sold and so requested to be included
by such parties.
2.3 Piggyback Registration.
(a) Right to Include Registrable Securities. If the
Company at any time proposes to register any of its equity
securities under the Securities Act (other than by a registration
on Form S-4 or Form S-8 or any successor or similar form then in
effect and other than pursuant to Section 2.1 or 2.2, with the
exception of a registration pursuant to a GPA Demand) in a form
and in a manner that would permit registration of the Registrable
Equity Securities, whether or not for sale for its own account,
it will give prompt (but in no event less than thirty (30) days
prior to the proposed date of filing the registration statement
relating to such registration) notice to all Holders of
Registrable Equity Securities of the Company's intention to do so
and of such Holders' rights under this Section 2.3. Upon the
request of any such Holder made within twenty (20) days after the
receipt by such Holder of any such notice (which request shall
specify the Registrable Equity Securities intended to be disposed
of by such Holder and the intended method or methods of
disposition thereof) (the "Piggyback Registration Notice"), the
<PAGE>Company will use Commercially Reasonable Efforts to effect
the registration under the Securities Act of all Registrable
Equity Securities which the Company has been so requested to
register by the Holders thereof, to the extent required to permit
the disposition (in accordance with the intended method or
methods thereof as aforesaid) of the Registrable Equity
Securities so to be registered, provided that if, at any time
after giving notice of its intention to register any equity
securities and prior to the effective date of the registration
statement filed in connection with such registration, the Company
shall determine for any reason not to register or to delay
registration of such equity securities, the Company may, at its
election, give notice of such determination to each such Holder
and, thereupon, (i) in the case of a determination not to
register, shall be relieved of its obligation to register any
Registrable Equity Securities in connection with such
registration (but not from its obligation to pay all Registration
Expenses in connection therewith as provided in Section 2.5(b)),
without prejudice, however, to the right of Investor to request
that such registration be effected as a registration under
Section 2.2, and (ii) in the case of a determination to delay
registering, shall be permitted to delay registering any
Registrable Equity Securities for the same period as the delay in
registering such other equity securities. No registration
effected under this Section 2.3 shall be deemed to have been
effected pursuant to Section 2.1 or 2.2 (except for any right to
demand registration which may be exercised pursuant to the last
clause of subsection (i) of the preceding sentence) or shall
relieve the Company of its obligation to effect any registration
under such Sections.
(b) Priority in Piggyback Registrations. If (i) a
registration pursuant to this Section 2.3 (other than a
registration made pursuant to a GPA Demand) involves an
underwritten offering of the securities being registered, whether
or not for sale for the account of the Company, to be distributed
(on a firm commitment basis) by or through one or more
underwriters of recognized standing under underwriting terms
appropriate for such a transaction and (ii) the managing
underwriter of such underwritten offering shall inform the
Company and the Holders requesting such registration by letter of
its belief that the amount of securities requested to be included
in such registration exceeds the amount which can be sold in (or
during the time of) such offering within a price range acceptable
to the Company, then the Company will include in such
registration such amount of securities which the Company is so
advised can be sold in (or during the time of) such offering as
follows: first, all securities proposed by the Company to be
sold for its own account; second, such Registrable Equity
Securities requested to be included in such registration by
Investor, Lehman, any Fidelity Fund or any of their respective
Affiliates pro rata on the basis of the amount of such securities
<PAGE>so proposed to be sold and so requested to be included by
such parties; third, such Registrable Equity Securities requested
to be included in such registration by the direct or indirect
transferees of Registrable Equity Securities held by Investor,
Lehman, any Fidelity Fund or any of their respective Affiliates
pro rata on the basis of the amount of such securities so
proposed to be sold and so requested to be included by such
parties; fourth, such securities requested to be included in such
registration by GPA or any of its Affiliates pro rata on the
basis of the amount of such securities so proposed to be sold and
so requested to be included by such parties; fifth, such
securities requested to be included in such registration by the
direct and indirect transferees of such securities held by GPA or
any of its Affiliates pro rata on the basis of the amount of such
securities so proposed to be sold and so requested to be included
by such parties; and sixth, all other securities of the Company
requested to be included in such registration pro rata on the
basis of the amount of such securities so proposed to be sold and
so requested to be included.
(c) Priority in Piggyback Registrations Pursuant to a
GPA Demand. If (i) a registration pursuant to this Section 2.3
is made pursuant to a GPA Demand and involves an underwritten
offering of the securities being registered to be distributed (on
a firm commitment basis) by or through one or more underwriters
of recognized standing under underwriting terms appropriate for
such a transaction and (ii) the managing underwriter of such
underwritten offering shall inform the Company and the Holders
requesting such registration by letter of its belief that the
amount of securities requested to be included in such
registration exceeds the amount which can be sold in (or during
the time of) such offering within a price range acceptable to the
Company, then the Company will include in such registration such
amount of securities which the Company is so advised can be sold
in (or during the time of) such offering as follows: first, such
securities requested to be included in such registration by GPA
or any of its Affiliates pro rata on the basis of the amount of
such securities so proposed to be sold and so requested to be
included by such parties; second, such securities requested to be
included in such registration by the direct and indirect
transferees of such securities held by GPA or any of its
Affiliates pro rata on the basis of the amount of such securities
so proposed to be sold and so requested to be included by such
parties; third, such Registrable Equity Securities requested to
be included in such registration by Investor, Lehman, any
Fidelity Fund or any of their respective Affiliates pro rata on
the basis of the amount of such securities so proposed to be sold
and so requested to be included by such parties; fourth, such
Registrable Equity Securities requested to be included in such
registration by the direct or indirect transferees of Registrable
Equity Securities held by Investor, Lehman, any Fidelity Fund or
any of their respective Affiliates pro rata on the basis of the
<PAGE>amount of such securities so proposed to be sold and so
requested to be included by such parties; and fifth, all other
securities of the Company requested to be included in such
registration pro rata on the basis of the amount of such
securities so proposed to be sold and so requested to be
included.
2.4 Trust Indenture Act Qualification; Rating. At or
prior to the date the SEC declares the Initial Shelf Registration
Statement to be effective, the Company shall qualify the
Indenture under the Trust Indenture Act, and shall use
Commercially Reasonable Efforts to effect such registration to
permit the sale of the Notes thereunder in accordance with the
intended method or methods of disposition thereof. If notified
by a nationally recognized rating agency that the Notes are being
rated, the Company shall cooperate in providing information and
making a presentation to such agency in connection therewith.
2.5 Registration Terms and Procedures.
(a) Registration Statement Form. Registrations under
Section 2.2 shall be on such appropriate registration forms of
the SEC (i) as shall be acceptable to the Requesting Holder (such
acceptance not to be unreasonably withheld) and (ii) as shall
permit the disposition of such Registrable Securities in
accordance with the intended method or methods of disposition.
The Company agrees to include in any such registration statement
all information that any Participating Holder shall reasonably
request (to the extent such information relates to such
Participating Holder).
(b) Registration Expenses. Subject to Section 2.5(f),
the Company will pay all Registration Expenses incurred in
connection with a registration to be effected (whether or not
effected or deemed effected pursuant to subsection (c) below)
pursuant to Sections 2.1, 2.2 or 2.3.
(c) Effectiveness of Demand Registration. A
registration will not be deemed to have been effected under
Section 2.2 unless the registration statement with respect
thereto has been declared effective by the SEC and, subject to
the first proviso in Section 2.1(c) hereof and to Section
2.5(g)(vii) hereof, remains effective for the earlier of six (6)
months (subject to extension as contemplated by the last sentence
of Section 2.5(h)(ii)) or the distribution of the securities
covered by such registration statement; provided, however, that
if (i) after such registration statement has been declared
effective, the marketing of Registrable Securities offered
pursuant to such registration statement is materially disrupted
or adversely affected as a result of any stop order, injunction
or other order or requirement of the SEC or any other
governmental agency or court (for reasons other than a
<PAGE>misrepresentation or omission by the Requesting Holder or
any Participating Holder) or (ii) the conditions to closing
specified in the purchase agreement or underwriting agreement
entered into in connection with such registration have not been
satisfied (for reasons other than a wrongful or bad faith act,
omission or misrepresentation by the Requesting Holder or any
Participating Holder), such registration statement will be deemed
not to have become effective. If a registration pursuant to
Section 2.2 is deemed not to have been effected hereunder, then
the Company shall continue to be obligated to effect a
registration pursuant to such Section.
(d) Selection of Underwriter. If, in connection with
a registration effected pursuant to Section 2.2, the Requesting
Holder so elects, the offering of Registrable Securities pursuant
to such Section shall be in the form of an underwritten offering.
If the Requesting Holder so elects, it shall select one or more
nationally recognized firms of investment bankers to act as the
book-running managing underwriter or underwriters in connection
with such offering, provided that such selection shall be subject
to the consent of the Company, which consent shall not be
unreasonably withheld.
(e) Registration of Securities. Participating Holders
may seek to register different types of Registrable Securities
and/or different classes of the same type of Registrable
Securities simultaneously and the Company shall use its, and in
the case of an underwritten offering, shall cause the managing
underwriter or underwriters to use Commercially Reasonable
Efforts to effect such registration and sale in accordance with
the intended method or methods of disposition specified by such
Holders.
(f) Withdrawal. Any Holder participating in a
registration pursuant to this Agreement shall be permitted to
withdraw all or part of its Registrable Securities from such
registration at any time prior to the effective date of the
registration statement covering such securities; provided that,
in the event of a withdrawal from a registration effected
pursuant to Section 2.2, such registration shall be deemed to
have been effected for purposes of Section 2.5(c) unless (i) the
Requesting Holder and any Participating Holders shall have paid
or reimbursed the Company for fifty percent (50)% of the
reasonable out-of-pocket fees and expenses paid by the Company
hereunder or (ii) the Requesting Holder elects to terminate such
registration due to the occurrence of a Material Adverse Change;
provided, however, that during the term of this Agreement only
one such withdrawal shall be permitted pursuant to the preceding
proviso.
(g) Registration Procedures. In connection with the
Company's obligations to register Registrable Securities pursuant
<PAGE>to this Agreement, the Company will use Commercially
Reasonable Efforts to effect such registration so as to permit
the sale of any Registrable Securities included in such
registration in accordance with the intended method or methods of
distribution thereof, and pursuant thereto the Company will as
expeditiously as possible:
(i) prepare and (as soon thereafter as practicable)
file with the SEC the requisite registration statement
containing all information required thereby to effect such
registration and thereafter use Commercially Reasonable
Efforts to cause such registration statement to become and
remain effective in accordance with the terms of this
Agreement, provided that as far in advance as practicable
before filing such registration statement or any amendment,
supplement or exhibit thereto (but, with respect to the
filing of such registration statement, in no event later
than seven (7) days prior to such filing), the Company will
furnish to the Participating Holders or their counsel copies
of reasonably complete drafts of all such documents proposed
to be filed (excluding exhibits, which shall be made
available upon request by any Participating Holder), and any
such Holder shall have the opportunity to object to any
information contained therein and the Company will make the
corrections reasonably requested by such Holder with respect
to information relating to such Holder or the plan of
distribution of the Registrable Securities prior to filing
any such registration statement, amendment, supplement or
exhibit;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the
prospectus used in connection therewith (A) as reasonably
requested by any Participating Holder to which such
registration statement relates (but only to the extent such
request relates to information with respect to such Holder)
and (B) as may be necessary to keep such registration
statement effective for the applicable Shelf Period in the
case of a Shelf Registration Statement or six (6) months in
the case of a registration effected pursuant to Section 2.2
or 2.3 (or such shorter period as shall be necessary to
complete the distribution of the securities covered thereby,
but not before the expiration of the applicable period
referred to in Section 4(3) of the Securities Act and Rule
174 thereunder), and comply with the provisions of the
Securities Act with respect to the sale or other disposition
of all securities covered by such registration statement
during such period in accordance with the intended method or
methods of disposition by the seller or sellers thereof set
forth in such registration statement;
<PAGE> (iii) furnish to each Holder covered by, and each
underwriter or agent participating in the
disposition of securities under, such registration
statement such number of conformed copies of such
registration statement and of each such amendment
and supplement thereto (in each case excluding all
exhibits and documents incorporated by reference,
which exhibits and documents shall be furnished to
any such Person upon request), such number of copies
of the prospectus (which in the case of Shelf
Registration Statements, shall be substantially the
same prospectus for both such Shelf Registration
Statements) contained in such registration statement
(including each preliminary prospectus and any
summary prospectus) and any other prospectus filed
under Rule 424 under the Securities Act relating to
such Holder's Registrable Securities, in conformity
with the requirements of the Securities Act, and
such other documents as such Holder, underwriter or
agent may reasonably request to facilitate the
disposition of such Registrable Securities;
(iv) use Commercially Reasonable Efforts to register
or qualify all Registrable Securities and other securities
covered by such registration statement under (A) with
respect to the Shelf Registration Statements, all blue sky
and other securities laws and (B) with respect to a
registration effected pursuant to Section 2.2, all
applicable blue sky and other securities laws, and to keep
such registration or qualification in effect for so long as
such registration statement remains in effect, and take any
other action which may be reasonably necessary or advisable
to enable such Holder to consummate the disposition of the
securities owned by such Holder, except that the Company
shall not for any such purpose be required to (a) qualify
generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements
of this clause (iv) be obligated to be so qualified, (b)
subject itself to taxation in any such jurisdiction or (c)
consent to general service of process in any jurisdiction;
(v) use Commercially Reasonable Efforts to cause all
Registrable Securities covered by such registration
statement to be registered with or approved by such other
governmental agencies or authorities applicable to the
Company as may be reasonably necessary to enable the seller
or sellers thereof (or underwriter or agent, if any) to
consummate the disposition of such Registrable Securities in
accordance with the plan of distribution set forth in such
registration statement;
<PAGE> (vi) furnish to each Holder of Registrable Equity
Securities or Registrable Debt Securities covered by
such registration statement a signed counterpart,
addressed to such Holder (and underwriter or agent,
if any) of:
(A) an opinion of counsel to the Company, dated
the effective date of such registration statement (and,
if such registration includes an underwritten public
offering, dated the date of the closing under the
underwriting agreement), and
(B) unless otherwise precluded under applicable
accounting rules, a "comfort" letter, dated the effec-
tive 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 accoun-
tants' 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 circum-
stances under which they were made;
<PAGE> (viii) otherwise use Commercially Reasonable
Efforts to comply with all applicable rules and
regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable
(but not more than fifteen (15) months) after the
effective date of the registration statement, an
earnings statement satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158
promulgated thereunder, and furnish to each Holder
covered by such registration statement or any
participating underwriter or agent at least five (5)
business days prior to the filing a copy of any
amendment or supplement to such registration
statement or prospectus;
(ix) provide and cause to be maintained a transfer
agent and registrar for all Registrable Securities covered
by such registration statement from and after a date not
later than the effective date of such registration
statement;
(x) use Commercially Reasonable Efforts to (A) list,
on or prior to the effective date of such registration
statement, all Registrable Equity Securities covered by such
registration statement on any securities exchange on which
any of the Registrable Equity Securities is then listed, if
any or (B) have authorized for quotation and/or listing, as
applicable, on the National Association of Securities
Dealers, Inc. Automated Quotation ("NASDAQ") of the National
Market System of NASDAQ if the Registrable Equity Securities
so qualify; in each case subject to the applicable listing
requirements of the respective securities exchange or
NASDAQ;
(xi) cooperate with each seller of Registrable
Securities and each underwriter or agent participating in
the disposition of such Registrable Securities and their
respective counsel in connection with any filings required
to be made with the National Association of Securities
Dealers;
(xii) use Commercially Reasonable Efforts to prevent
the issuance by the SEC or any other governmental agency or
court of a stop order, injunction or other order suspending
the effectiveness of such registration statement and, if
such an order is issued, use Commercially Reasonable Efforts
to cause such order to be lifted as promptly as practicable;
(xiii) take such other actions as the Requisite Holders
of such Registrable Securities shall reasonably request in
order to expedite or facilitate the disposition of such
Registrable Securities;
<PAGE> (xiv) promptly notify each seller and the
underwriter or agent, if any:
(A) when such registration statement or any
prospectus used in connection therewith, or any
amendment or supplement thereto, has been filed and,
with respect to such registration statement or any
post-effective amendment thereto, when the same has
become effective;
(B) of any written comments from the SEC with
respect to any filing referred to in clause (A) and of
any written request by the SEC for amendments or
supplements to such registration statement or
prospectus;
(C) of the notification to the Company by the SEC
of its initiation of any proceeding with respect to, or
of the issuance by the SEC of, any stop order
suspending the effectiveness of such registration
statement; and
(D) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of any Registrable Securities for sale
under the applicable securities or blue sky laws of any
jurisdiction;
(xv) cooperate with each seller of Registrable
Securities and each underwriter or agent participating in
the distribution of such Registrable Securities to
facilitate the timely preparation and delivery of
certificates (which shall not bear any restrictive legends,
other than as required by applicable law, the Investment
Agreement or the Note Purchase Agreement or the agreement
pursuant to which the Secondary Registrable Debt Securities
are acquired on an initial issue by any Fidelity Fund or
Lehman) representing securities sold under a registration
statement hereunder, and enable such securities to be in
such denominations and registered in such names as such
seller, underwriter or agent may request and keep available
and make available to the Company's transfer agent, prior to
the effectiveness of such registration statement, an
adequate supply of such certificates;
(xvi) not later than the effective date of such
registration statement, provide a CUSIP number for all
Registrable Securities covered by a registration statement
hereunder;
(xvii) incorporate in the registration statement or any
amendment, supplement or post-effective amendment thereto
<PAGE>such information as each Holder, the underwriter or
agent (if any) or their respective counsel may reasonably
request to be included therein with respect to any
Registrable Securities being sold by such Holder to such
underwriter or agent, the purchase price being paid therefor
by such underwriter or agent and any other terms of the
offering of such Registrable Securities;
(xviii) during any period when a prospectus is required
to be delivered under the Securities Act, make periodic
filings with the SEC pursuant to and containing the
information required by the Exchange Act (whether or not the
Company is required to make such filings pursuant to such
Act); and
(xix) in connection with an underwritten offering,
participate, to the extent reasonably requested by the
Requisite Holders of the securities included in the offering
or the managing underwriter for the offering, in customary
efforts to sell the securities under the offering.
(h) Agreements of Certain Holders. (i) Each Holder
of Registrable Securities as to which any registration is being
effected shall furnish to the Company such information regarding
such Holder, the Registrable Securities held by such Holder and
the intended plan of distribution of such securities as the
Company may from time to time reasonably request in writing in
connection with such registration. If any registration statement
refers to Investor, Lehman, any Fidelity Fund or any of their
respective Affiliates by name or otherwise as the holder of any
securities of the Company, then such Holder shall have the right
to require that such reference be in a form reasonably
satisfactory to such Holder or in the event that such reference
to such Holder by name or otherwise is not required by the
Securities Act or any similar federal or state blue sky statute
and the rules and regulations thereunder then in force, the
deletion of the reference to such Holder.
(ii) Each Holder of Registrable Securities as to which
any registration is being effected agrees, by acquisition of such
Registrable Securities, that upon receipt of any notice (a
"Suspension Notice") from the Company of the happening of any
event of the kind described in clause (vii) of Section 2.5(g),
such Holder will forthwith discontinue such Holder's disposition
of Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until such Holder's
receipt of the copies of the supplemented or amended prospectus
contemplated by clause (vii) of Section 2.5(g) (the period from
the date on which such Holder receives a Suspension Notice to the
date on which such Holder receives copies of the supplemental or
amended prospectus being herein called the "Suspension Period").
The Company shall take such actions as are necessary to end the
<PAGE>Suspension Period as promptly as practicable. In the event
the Company shall give any such notice, the periods referred to
in Section 2.5(c) and clause (ii) of Section 2.5(g) shall be
extended by a number of days equal to the number of days of the
Suspension Period.
2.6 Underwritten Offerings.
(a) Underwritten Offerings in Connection with a Shelf
or a Demand Registration. If requested by the underwriters for
any underwritten offering in connection with a registration
pursuant to Section 2.1 or 2.2, the Company will enter into an
underwriting agreement with such underwriters for such offering,
such agreement (i) to be satisfactory in substance and form to
(A) the Company and (B) to the Requisite Holders of each of the
Registrable Equity Securities and the Registrable Debt Securities
included in such offering, acting together, (provided that the
Company shall not be required to have in effect more than one
underwriting agreement at any one time in connection with the
Shelf Registration Statements) and (ii) to contain such
representations and warranties by the Company and such Holders
and such other terms as are generally prevailing in agreements of
such type, including, without limitation, indemnities to the
effect and to the extent provided in Section 2.8. Each of
Investor, Lehman and each Fidelity Fund (so long as it or any of
its Affiliates holds Registrable Securities to be included in
such registration) shall be a party to such underwriting
agreement and may, at its option, require that any or all of the
representations and warranties by, and the other agreements on
the part of, the Company to and for the benefit of such
underwriters shall also be made to and for its benefit and that
any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions
precedent to its obligations thereunder.
(b) Underwritten Offerings in Connection with
Piggyback Registrations. If the Company at any time proposes to
register any of its equity securities under the Securities Act as
contemplated by Section 2.3 and such securities are to be
distributed by or through one or more underwriters, the Company
will, if requested by any Participating Holder and subject to
Sections 2.3(b) and 2.3(c), arrange for such underwriters to
include all of the Registrable Equity Securities to be offered
and sold by such Holder or Holders among the securities to be
distributed by such underwriters. The Holders of Registrable
Equity Securities to be distributed by such underwriters shall be
parties to the underwriting agreement between the Company and
such underwriters, provided that such agreement is reasonably
satisfactory in substance and form to the Company and the
Requisite Holders of each of the Registrable Equity Securities
included in such offering, and may, at their option, require that
any or all of the representations and warranties by, and the
<PAGE>other agreements on the part of, the Company to and for the
benefit of such underwriters shall also be made to and for the
benefit of such Holders and that any or all of the conditions
precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations
of such Holders thereunder.
2.7 Preparation; Reasonable Investigation. In
connection with the preparation and filing of each registration
statement under the Securities Act pursuant to this Agreement,
the Company will give the Holders of Registrable Securities to be
registered under such registration statement, their underwriters
or agents, if any, and their respective counsel and accountants
reasonable access to its books and records and such opportunities
to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial
statements as shall be necessary, in the opinion of such Holders'
and such underwriters' or agents' respective counsel, to conduct
a reasonable investigation within the meaning of the Securities
Act.
2.8 Indemnification.
(a) Indemnification by the Company. The Company
agrees to indemnify and hold harmless, to the full extent
permitted by law, each Holder participating in an offering of
securities provided for as described herein (including, without
limitation, under a Shelf Registration Statement or any
replacement Shelf Registration Statement), its directors,
officers, shareholders, employees, investment advisers, agents
and Affiliates, either direct or indirect (and each such
Affiliate's directors, officers, shareholders, employees,
investment advisers and agents), and each other Person, if any,
who controls such Persons within the meaning of the Securities
Act (each such Person, an "Indemnified Party"), from and against
any losses, claims, damages, liabilities or expenses, joint or
several (each a "Loss" and collectively, "Losses"), to which such
Indemnified Party may become subject under the Securities Act or
otherwise, to the extent that such Losses (or actions or
proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any
registration statement under which such securities were
registered under the Securities Act (including all documents
incorporated therein by reference), any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and the Company will reimburse such Indemnified Party
for any legal or any other expenses reasonably incurred by it in
connection with investigating or defending against any such Loss,
<PAGE>action or proceeding; provided that in any such case the
Company shall not be liable to any particular Indemnified Party
to the extent that such Loss (or action or proceeding in respect
thereof) arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in
such registration statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information
furnished to the Company by such Indemnified Party specifically
for inclusion therein; and provided, further, that the Company
shall not be liable in any such case to the extent it is finally
determined by a court of competent jurisdiction that any such
Loss (or action or proceeding in respect thereof) arises out of
or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made
(i) in any such preliminary prospectus, if (A) it was
the responsibility of such Indemnified Party to provide the
Person asserting such Loss with a current copy of the
prospectus and such Indemnified Party failed to deliver or
cause to be delivered a copy of the prospectus to such
Person after the Company had furnished such Indemnified
Party with a sufficient number of copies of the same prior
to the sale of Registrable Securities to the Person
asserting such Loss and (B) the prospectus corrected such
untrue statement or omission; or
(ii) in such prospectus, if such untrue statement or
omission is corrected in an amendment or supplement to such
prospectus and such amendment or supplement has been
delivered to the Indemnified Party prior to the sale of
Registrable Securities to the Person asserting such Loss and
the Indemnified Party thereafter fails to deliver the
prospectus as so amended or supplemented prior to or
concurrently with such sale after the Company had furnished
such Indemnified Party (in accordance with the notice
provisions contained in Section 10 for Persons who are
parties to this Agreement) with a sufficient number of
copies of the same for delivery to purchasers of securities.
Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of such Indemnified
Party and shall survive the transfer of such securities by such
Indemnified Party. The Company shall also indemnify each other
Person who participates (including as an underwriter) in the
offering or sale of Registrable Securities hereunder, their
officers and directors and each other Person, if any, who
controls any such participating Person within the meaning of the
Securities Act to the same extent as provided above with respect
to Indemnified Parties.
<PAGE> (b) Indemnification by the Sellers. Each Holder
participating in a Shelf Registration Statement filed pursuant to
Section 2.1 agrees to (and the Company may require, as a
condition to including any Registrable Securities in any
registration statement filed pursuant to Sections 2.2 or 2.3 and
as a condition to indemnifying such sellers pursuant to this
Section 2.8, that the Company shall have received an undertaking
reasonably satisfactory to it from each prospective seller of
securities included in any such offering regarding its agreement
to) indemnify and hold harmless and reimburse (in the same manner
and to the same extent as set forth in paragraph (a) of this
Section 2.8) the Company, each director, officer, employee and
agent of the Company, and each other Person, if any, who controls
the Company within the meaning of the Securities Act, from and
against any Losses (or actions or proceedings, whether commenced
or threatened, in respect thereof) arising out of or based upon
any untrue statement or alleged untrue statement of a material
fact contained in any such Shelf Registration Statement or other
registration statement pursuant to which securities of such
Holder are registered under the Securities Act (including all
documents incorporated therein by reference), any preliminary
prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission
or alleged omission from such registration statement, preliminary
prospectus, final prospectus or summary prospectus, or any
amendment or supplement thereto required to be stated therein or
necessary to make the statements therein not misleading, if (but
only if) such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by
such prospective seller specifically for inclusion therein;
provided, however, that such prospective seller shall not be
obligated to provide such indemnity to the extent that such
Losses result, directly or indirectly, from the failure of the
Company to promptly amend or take action to correct or supplement
any such registration statement, prospectus, amendment or
supplement based on corrected or supplemental information
provided in writing by such prospective seller to the Company
expressly for such purpose; and provided further, that the
obligation to provide indemnification pursuant to this Section
2.8(b) shall be several, and not joint and several, among such
indemnifying parties. Notwithstanding anything in this Section
2.8(b) to the contrary, in no event shall the liability of any
prospective seller under such indemnity be greater in amount than
the amount of the proceeds received by such seller upon the sale
of its Registrable Securities in the offering to which the Losses
relate. Such indemnity shall remain in full force and effect,
regardless of any investigation made by or on behalf of the
Company or any such director, officer, employee, agent or
participating or controlling Person and shall survive the
transfer of such securities by such prospective seller.
<PAGE> (c) Notices of Claims, etc. Promptly after
receipt by an indemnified party of notice of the commencement of
any action or proceeding involving a claim referred to in
paragraph (a) or (b) of this Section 2.8, such indemnified party
will, if a claim in respect thereof is to be made against an
indemnifying party, give prompt written notice to the latter of
the commencement of such action, provided that the failure of any
indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under this
Section 2.8, except to the extent that the indemnifying party is
actually and materially prejudiced by such failure to give
notice. In case any such action is brought against an
indemnified party, the indemnifying party shall be entitled to
participate in and to assume the defense thereof (such assumption
to constitute its acknowledgement of its agreement to indemnify
the indemnified party with respect to such matters), jointly with
any other indemnifying party similarly notified to the extent
that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party
to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to
such indemnified party for any legal fees or other expenses
subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation;
provided, however, that if, in such indemnified party's
reasonable judgment, a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such
claim, such indemnified party shall be entitled to separate
counsel at the expense of the indemnifying party; and provided,
further, that, unless there exists a conflict of interest among
indemnified parties, all indemnified parties in respect of such
claim shall be entitled to only one counsel or firm of counsel
for all such indemnified parties. In the event an indemnifying
party shall not be entitled, or elects not, to assume the defense
of a claim, such indemnifying party shall not be obligated to pay
the fees and expenses of more than one counsel or firm of counsel
for all parties indemnified by such indemnifying party in respect
of such claim, unless in the reasonable judgment of any such
indemnified party a conflict of interest exists between such
indemnified party and any other of such indemnified parties in
respect of such claim, in which event the indemnifying party
shall be obligated to pay the fees and expenses of one additional
counsel or firm of counsel for such indemnified parties. No
indemnifying party shall, without the consent of the indemnified
party, consent to entry of any judgment or enter into any
settlement that (i) does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all Losses in respect of such
claim or litigation or (ii) would impose injunctive relief on
such indemnified party. No indemnifying party shall be subject
to any Losses for any settlement made without its consent, which
consent shall not be unreasonably withheld.
<PAGE>
(d) Other Indemnification. The provisions of this
Section 2.8 shall be in addition to any other rights to
indemnification or contribution which an indemnified party may
have pursuant to law, equity, contract or otherwise.
(e) Indemnification Payments. The indemnification
required by this Section 2.8 shall be made by periodic payments
of the amount thereof during the course of the investigation or
defense, promptly as and when bills are received or Losses are
incurred.
(f) Contribution. If for any reason the foregoing
indemnity and reimbursement is unavailable or is insufficient to
hold harmless an indemnified party under paragraph (a) or (b) of
this Section 2.8, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a
result of any Loss (or actions or proceedings, whether commenced
or threatened, in respect thereof), including, without
limitation, any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such Loss,
action or proceeding, in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one
hand and the indemnified party on the other. The relative fault
shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party or the indemnified
party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue
statement or omission. Notwithstanding anything in this Section
2.8(f) to the contrary, no indemnifying party (other than the
Company) shall be required pursuant to this Section 2.8(f) to
contribute any amount in excess of the amount by which the net
proceeds received by such indemnifying party from the sale of
Registrable Securities in the offering to which the Losses of the
indemnified parties relate exceeds the amount of any damages
which such indemnifying party has otherwise been required to pay
by reason of such untrue statement or omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution
from any Person who was not guilty of such fraudulent
misrepresentation.
2.9 Liquidated Damages.
(a) If, (i) as of the Initial Effective Date, the
Initial Shelf Registration Statement has been suspended or is not
otherwise effective or (ii) as of the Secondary Effective Date,
the Secondary Shelf Registration Statement has been suspended or
is not otherwise effective, the Company shall pay liquidated
damages to each Holder covered or to be covered by each such
<PAGE>suspended or ineffective Shelf Registration Statement in an
amount equal to (A) in the case of Registrable Debt Securities,
$.10 per $1,000 outstanding principal amount of such Registrable
Debt Securities and (B) in the case of Registrable Equity
Securities, $.40 per 1,000 shares (or, in the case of any
Warrant, $.40 per 1,000 shares based on the number of shares
issuable upon exercise of such Warrant), for each week specified
in subsection (g) below.
(b) If the suspension or ineffectiveness referred to
in clause (a) above shall not have been cured within ninety (90)
days after the Initial Effective Date or the Secondary Effective
Date, as the case may be, the daily liquidated damages set forth
in clause (a) above shall increase to an amount equal to (i) in
the case of Registrable Debt Securities, $.15 per $1,000
outstanding principal amount of such Registrable Debt Securities
and (ii) in the case of Registrable Equity Securities, $.65 per
1,000 shares (or in the case of any Warrant, $.65 per 1,000
shares based on the number of shares issuable upon exercise of
the Warrant), for each week specified in subsection (g) below.
(c) If the suspension or ineffectiveness referred to
in clause (a) above shall not have been cured within one hundred
and eighty (180) days after the Initial Effective Date or the
Secondary Effective Date, as the case may be, the daily
liquidated damages set forth in clause (a) above shall increase
to an amount equal to (i) in the case of Registrable Debt
Securities, $.20 per $1,000 outstanding principal amount of such
Registrable Debt Securities and (ii) in the case of Registrable
Equity Securities, $.90 per 1,000 shares (or in the case of any
Warrant, $.90 per 1,000 shares based on the number of shares
issuable upon exercise of the Warrant), for each week specified
in subsection (g) below.
(d) If a stop order is imposed or if for any other
reason the effectiveness of a Shelf Registration Statement is
suspended during the Shelf Period applicable to such Shelf
Registration Statement, the Company shall pay liquidated damages
to each Holder covered or to be covered by such Shelf
Registration Statement in an amount equal to (i) in the case of
Registrable Debt Securities, $.10 per $1,000 outstanding
principal amount of such Registrable Debt Securities and (ii) in
the case of Registrable Equity Securities, $.40 per 1,000 shares
(or in the case of any Warrant, $.40 per 1,000 shares based on
the number of shares issuable upon exercise of the Warrant), for
each week specified in subsection (g) below.
(e) If the stop order or other suspension of
effectiveness of a Shelf Registration Statement referred to in
clause (d) above shall not have been cured within ninety (90)
days after such stop order was imposed or the effectiveness of
such Shelf Registration Statement was otherwise suspended, the
<PAGE>daily liquidated damages set forth in clause (d) above
shall increase to an amount equal to (i) in the case of
Registrable Debt Securities, $.15 per $1,000 outstanding
principal amount of such Registrable Debt Securities and (ii) in
the case of Registrable Equity Securities, $.65 per 1,000 shares
(or in the case of any Warrant, $.65 per 1,000 shares based on
the number of shares issuable upon exercise of the Warrant), for
each week specified in subsection (g) below.
(f) If the stop order or other suspension of
effectiveness of a Shelf Registration Statement referred to in
clause (d) above shall not have been cured within one hundred and
eighty (180) days after such stop order was imposed or the
effectiveness of such Shelf Registration Statement was otherwise
suspended, the daily liquidated damages set forth in clause (d)
above shall increase to an amount equal to (i) in the case of
Registrable Debt Securities, $.20 per $1,000 outstanding
principal amount of such Registrable Debt Securities and (ii) in
the case of Registrable Equity Securities, $.90 per 1,000 shares
(or in the case of any Warrant, $.90 per 1,000 shares based on
the number of shares issuable upon exercise of the Warrant), for
each week specified in subsection (g) below.
(g) The liquidated damages payable to any Holder set
forth in this Section 2.9 shall begin accruing on the date on
which the event triggering such liquidated damages occurs and
shall cease to accrue on the earlier of the date after the SEC
reinstates the effectiveness of the relevant Shelf Registration
Statement or otherwise declares such Shelf Registration Statement
to be effective and the date after the SEC declares effective a
registration statement effected pursuant to Section 2.2 covering
such Holder's Registrable Securities. The Company will pay the
liquidated damages due with respect to any Registrable Securities
at the end of each month during which such damages accrue.
Liquidated damages shall be paid in immediately available funds
by wire transfer to each Holder of at least ten percent (10%) of
Registrable Equity Securities (but not less than an aggregate of
2,000,000 shares of Class A Common, Class B Common and shares
issuable upon exercise of Warrants) or at least ten percent (10%)
of the aggregate principal amount of Registrable Debt Securities
(but not less than $10 Million of aggregate principal amount of
Registrable Debt Securities) entitled to receive such liquidated
damages to the accounts designated by such Holders, and all other
Holders entitled to receive such funds, shall be paid by check
mailed to such other Holders at the address shown in the records
of the Company for such Holders; provided that for purposes of
this Section 2.9(g), all Fidelity Funds shall be considered a
single Holder.
(h) Notwithstanding any of the provisions of this
Section 2.9, no liquidated damages shall be payable (i) during
any period of time that (A) a Shelf Registration Statement or any
<PAGE>replacement Shelf Registration Statement is suspended by
the Company pursuant to the first proviso in Section 2.1(c), or
(B) the Company is precluded from using or qualifying a Shelf
Registration Statement as a result of a change to the rules or
regulations of the SEC applicable thereto with which the Company
is unable to comply after exercising Commercially Reasonable
Efforts to so comply; and (ii) to any party, if, as a result of
such party's acts or omissions, the Company is precluded from
using or qualifying a Shelf Registration Statement.
(i) The parties hereto agree that (i) the liquidated
damages provided for in this Section 2.9 constitute a reasonable
estimate of the damages that will be suffered by each Holder
covered or to be covered by a Shelf Registration Statement by
reason of the failure of such Shelf Registration Statement to be
declared effective and to remain effective in accordance with
this Agreement and (ii) such liquidated damages shall be the sole
remedy of each such Holder with respect to the matters set forth
in this Section 2.9.
3. Rule 144 and Rule 144A. (a) The Company will file
the reports required to be filed by it under the Securities Act
and the Exchange Act and the rules and regulations adopted by the
SEC thereunder and will take such further action as Investor,
Lehman and/or any Fidelity Fund may reasonably request, all to
the extent required from time to time to enable Investor, Lehman
and/or such Fidelity Fund to sell Registrable Securities without
registration under the Securities Act within the limitation of
the exemptions provided by (i) Rule 144, (ii) Rule 144A or (iii)
any similar rule or regulation hereafter adopted by the SEC.
Upon the request of Investor, Lehman and/or any Fidelity Fund,
the Company will deliver to Investor, Lehman and/or such Fidelity
Fund a written statement as to whether it has complied with such
requirements and will, at its expense, forthwith upon the request
of Investor, Lehman and/or such Fidelity Fund, deliver to
Investor, Lehman and/or such Fidelity Fund a certificate, signed
by the Company's principal financial officer, stating (A) the
Company's name, address and telephone number (including area
code), (B) the Company's Internal Revenue Service identification
number, (C) the Company's SEC file number, (D) the amount of
shares of each class of capital stock outstanding as shown by the
most recent report or statement published by the Company, and (E)
whether the Company has filed the reports required to be filed
under the Exchange Act for a period of at least ninety (90) days
prior to the date of such certificate and in addition has filed
the most recent annual report required to be filed thereunder.
(b) If at any time the Company is not required to file
reports in compliance with either Section 13 or Section 15(d) of
the Exchange Act, the Company at its expense will, forthwith upon
the request of Investor, Lehman and/or any Fidelity Fund, (i)
make available adequate current public information with respect
<PAGE>to the Company within the meaning of paragraph (c)(2) of
Rule 144 and (ii) deliver the information required by Section (d)
of Rule 144A (such information to be "reasonably current" within
the meaning of Section (d)(4)(ii) of Rule 144A).
4. Term. This Agreement shall enter into force on the
date hereof and shall continue in full force and effect, subject
to Section 18 hereof, until the eighth (8th) anniversary of the
date hereof.
5. Amendments and Waivers. This Agreement may be
amended, supplemented or modified at any time; provided that each
of (i) the Requisite Holders of each of the Registrable Equity
Securities and the Registrable Debt Securities then outstanding
and (ii) the Company has provided its written consent to such
amendment, supplement or modification; provided, however, that no
such amendment, supplement or modification which would prejudice
the rights expressly granted to Fidelity or any Fidelity Fund as
a named party hereto shall be effective without the written
consent of Fidelity or such Fidelity Fund, as the case may be;
and provided further, that no such amendment, supplement or
modification which would prejudice the rights expressly granted
to Lehman as a named party hereto shall be effective without the
written consent of Lehman. Any term or condition of this
Agreement may be waived at any time by the party that is entitled
to the benefit thereof, but no such waiver shall be effective
unless set forth in a written instrument duly executed by or on
behalf of the party waiving such term or condition. No waiver by
any party of any term or condition of this Agreement, in any one
or more instances, shall be deemed to be or construed as a waiver
of the same term or condition of this Agreement on any future
occasion.
6. Entire Agreement. This Agreement supersedes all
prior discussions and agreements between the parties with respect
to the subject matter hereof (including, without limitation,
Section 11 of the Investment Agreement) and contains the sole and
entire agreement between the parties hereto with respect to the
subject matter hereof.
7. No Third-Party Beneficiary. The terms and
provisions of this Agreement are intended solely for the benefit
of each party, their respective Successors or permitted assigns
and it is not the intention of the parties to confer third-party
beneficiary rights upon any other Person other than (i) any
Affiliate of Investor, Lehman, any Fidelity Fund, (ii) any
transferee, direct or indirect, of any of the Registrable
Securities held by Investor, Lehman, any Fidelity Fund or any of
their respective Affiliates, or (iii) any other Person entitled
to notice of the registration of Registrable Securities under
Sections 2.2(d) or 2.3(a), to indemnity under Section 2.8 or to
liquidated damages under Section 2.9.
<PAGE>
8. Invalid Provisions. If any provision of this
Agreement is held to be illegal, invalid or unenforceable under
any present or future law, (i) such provision will be fully
severable, (ii) this Agreement will be construed and enforced as
if such illegal, invalid or unenforceable provision had never
comprised a part hereof, (iii) the remaining provisions of this
Agreement will remain in full force and effect and will not be
affected by the illegal, invalid or unenforceable provision or by
its severance herefrom and (iv) in lieu of such illegal, invalid
or unenforceable provision, there will be added automatically as
a part of this Agreement a legal, valid and enforceable provision
as similar in terms to such illegal, invalid or unenforceable
provision as may be possible.
9. Nominees for Beneficial Owners. In the event that
any Registrable Securities are held by a nominee for the
beneficial owner thereof, the beneficial owner thereof may, at
its election, be treated as the holder of such Registrable
Securities for purposes of request or other action by any Holder
or Holders pursuant to this Agreement or any determination of any
amount of shares of Registrable Securities held by any Holder or
Holders of Registrable Securities contemplated by this Agreement.
If the beneficial owner of any Registrable Securities so elects,
the Company may require assurances reasonably satisfactory to it
of such owner's beneficial ownership of such Registrable
Securities. For purposes of this Agreement, "beneficial
ownership" and "beneficial owner" refer to beneficial ownership
as defined in Rule 13d-3 (without regard to the 60-day provision
in paragraph (d)(1)(i) thereof) under the Exchange Act.
10. Notices. All notices, requests and other
communications hereunder must be in writing and will be deemed to
have been duly given only if (i) delivered personally, (ii) by
facsimile transmission, (iii) by Federal Express or other
nationally recognized courier service or (iv) mailed (first class
postage prepaid) to the parties at the following addresses or
facsimile numbers:
If to the Company, to:
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J.
Whalen, Esq.
Fax No.: (602) 693-5904
with a copy to:
Andrews & Kurth L.L.P.
4200 Texas Commerce Tower
<PAGE> Houston, Texas 77002
Attention: David G. Elkins, Esq.
If to Investor, to:
AmWest Partners, L.P.
201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James G. Coulter
Fax No.: (817) 871-4010
and to:
Mesa Airlines, Inc.
2325 30th Street
Farmington, New Mexico 87401
Attention: Gary E. Risley, Esq.
with a copy to:
Jones, Day, Reavis & Pogue
901 Lakeside Avenue
Cleveland, Ohio 44114
Attention: Lyle G. Ganske, Esq.
Fax No: (216) 586-7864
If to Lehman, to:
Lehman Brothers Inc.
Three World Financial Center
New York, NY 10285
Attention: John K. Sweeney
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10023
Attention: John R. Cannell, Esq.
Fax No: (212) 455-2502
If to Fidelity, to:
Fidelity Management Trust Company
82 Devonshire Street, MS F7E
Boston, Massachusetts 02109
Attention: Daniel S. Harmetz
Fax No.: (617) 227-2536
<PAGE> and to:
Fidelity Management Trust Company
82 Devonshire Street, MS F7D
Boston, Massachusetts 02109
Attention: Wendy Schnipper-Clayton, Esq.
Fax No.: (617) 570-7688
with a copy to:
Goodwin, Procter & Hoar
Exchange Place
Boston, Massachusetts 02109-2881
Attention: Laura C. Hodges Taylor, P.C.
Fax No.: (617) 523-1231
With respect to any other holder of Registrable
Securities entitled to receive notice, requests or other
communications hereunder, such notices, requests and other
communications shall be sent to the addresses and telecopy
numbers provided to the Company and the other parties hereto by
notice as herein provided and referencing this Agreement. All
such notices, requests and other communications will (i) if
delivered personally to the address as provided in this Section
10, be deemed given upon delivery, (ii) if delivered by facsimile
transmission to the facsimile number as provided in this
Section 10, be deemed given upon receipt, and (iii) if delivered
by courier service or by mail in the manner described above to
the address as provided in this Section 10, be deemed given upon
receipt (in each case regardless of whether such notice, request
or other communication is received by any other Person to whom a
copy of such notice is to be delivered pursuant to this Section
10). Any Person from time to time may change its address,
facsimile number or other information for the purpose of notices
to that Person by giving notice in accordance with this Section
10 specifying such change to each of the other parties executing
this Agreement.
11. Assignment. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties and
their respective Successors (including, in the case of the
Company, the Company as reorganized pursuant to the Plan) and
permitted assigns. In addition, each of Investor, Lehman, any
Fidelity Fund, and each of their respective Affiliates may assign
any of its rights hereunder (in whole or in part) to one or more
Affiliates or to one or more direct or indirect transferees of
its Registrable Securities, provided, however, that any such
assignment by Investor to one or more of its Affiliates which
results in the liquidation of its entire interest in the
Registrable Securities, either upon dissolution or otherwise,
shall include a designation of the transferee Affiliate or
Affiliates who shall thereafter have the right and authority to
<PAGE>exercise any notice or consent rights on the part of
Investor set forth in this Agreement, and each other holder of
Registrable Securities by means of an assignment by Investor
shall be bound by the actions taken by such designated
Affiliate(s), and provided further that any assignee which
accepts the benefits of this Agreement shall be deemed to have
accepted and be bound by all obligations on the part of the
assignor hereunder. No such assignment shall be binding upon or
obligate the Company to any such assignee unless and until (A)
the Company shall have received notice of such assignment as
herein provided, which notice shall (i) reference this Agreement
and (ii) set forth the name and address of any assignee for the
purpose of any notices hereunder or (B) such assignee can
establish its beneficial or record ownership of any Registrable
Securities and shall have provided the Company with the
information called for by clause (A)(ii) of this Section 11.
12. Descriptive Headings. The descriptive headings of
the several sections and paragraphs of this Agreement are
inserted for convenience of reference only and do not define or
limit the provisions hereof or otherwise affect the meaning
hereof.
13. Specific Performance. Except with respect to the
matters set forth in Section 2.9, the parties agree that, to the
extent permitted by law, (i) the obligations imposed on them in
this Agreement are special, unique and of an extraordinary
character, and that in the event of a breach by any such party
damages would not be an adequate remedy; and (ii) each of the
other parties shall be entitled to specific performance and
injunctive and other equitable relief in addition to any other
remedy to which it may be entitled at law or in equity.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REFERENCE TO THE CONFLICTS OF LAW PRINCIPLES
THEREOF.
15. Registration Rights to Others. Except for
registration rights granted by the Company to GPA under that
certain Registration Rights Agreement of even date herewith (the
"GPA Registration Rights Agreement"), the Company shall not
provide to any other holder of its securities rights with respect
to the registration of such securities under the Securities Act
without the prior written consent of the Requisite Holders of
each of the Registrable Equity Securities and the Registrable
Debt Securities then outstanding, which consent shall not be
unreasonably withheld; provided, however, that the foregoing
restriction shall not be applicable (i) to the grant by the
Company of "piggyback" registration rights which are subordinate
in priority to the rights of Holders of Registrable Securities
pursuant to Sections 2.2(d) and 2.3(b), and (ii) to any grant of
<PAGE>any demand registration rights by the Company after
exercise or termination of all demand registration rights set
forth in Section 2.2, provided, however, that in regard to any
such grant of demand registration rights each of Investor, each
Fidelity Fund, Lehman and each of their respective Affiliates
shall have the right during the term of this Agreement to
subscribe to or otherwise participate in such rights on equal
terms, and on a pro rata basis, with the parties granted such
rights. The Company represents and warrants that, other than as
provided herein, it has not granted to any other Person rights
with respect to the registration of any Registrable Securities or
any other securities issued or to be issued by it.
16. Attorneys' Fees. In any action or proceeding
brought to enforce any provision of this Agreement or where any
provision hereof is validly asserted as a defense, the successful
party shall, to the extent permitted by applicable law, be
entitled to recover reasonable attorneys' fees in addition to any
other available remedy.
17. Limitation of Liability. Each party to this
Agreement acknowledges and agrees that (i) this Agreement is not
executed on behalf of or binding upon any of the trustees,
officers, directors, partners or shareholders of any Fidelity
Fund individually, but is binding only upon the assets and
property of each Fidelity Fund and (ii) the obligations of each
Fidelity Fund hereunder are several and not joint. With respect
to the obligations of any Fidelity Fund arising out of this
Agreement, each party to this Agreement shall look for payment or
satisfaction of any claim solely to the assets and property of
such Fidelity Fund.
18. Termination of Certain Rights. The rights and
obligations hereunder of each of Investor, Lehman and each
Fidelity Fund shall terminate with respect to such party at such
time when neither it nor any of its respective Affiliates holds
Registrable Securities, provided that the provisions of Section
2.8 hereof, the rights of any party hereto with respect to the
breach of any provision hereof, and any obligation accrued as of
the date of termination (including any obligation accrued under
Section 2.9 hereof) shall survive termination of this Agreement.
19. No Inconsistent Agreements. The Company will not
hereafter enter into, modify, amend or waive any agreement with
respect to its securities if such agreement, modification,
amendment or waiver would conflict with the rights granted
pursuant to this Agreement to the Holders of Registrable
Securities. Without limiting the generality of the foregoing and
subject to Section 18 hereof, the Company will not amend, modify
or waive, or permit the amendment, modification or waiver of
Sections 2.1, 2.2 or 2.3 of the GPA Registration Rights Agreement
without the prior written consent of the Requisite Holders of
<PAGE>each of the Registrable Equity Securities and the
Registrable Debt Securities then outstanding, provided, however,
that Investor and any of its Affiliates (other than Mesa) shall
not participate in any such consent and that any Registrable
Equity Securities or Registrable Debt Securities held by such
parties shall not be taken into account for the purpose of such
consent.
20. Requisite Holders. Each of the parties hereto
agrees that the Company may, in connection with the taking of any
action permitted to be taken hereunder with the consent or
approval of the Requisite Holders of the Registrable Equity
Securities or Registrable Debt Securities, rely in good faith on
a certificate from any such holder or holders stating that it
holds or is acting on behalf of a majority in interest of the
Registrable Equity Securities or a majority in principal amount
of the Registrable Debt Securities, as the case may be.
21. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall
be deemed an original, but all of which shall together constitute
one and the same instrument.
22. Repurchase Arrangement. Notwithstanding anything
contained in this Agreement to the contrary, the parties hereto
agree and acknowledge that all rights of Fidelity Copernicus
Fund, L.P. ("Copernicus") under this Agreement in respect of
Registrable Debt Securities held by Copernicus shall inure to the
benefit of and be enforceable by Copernicus, Lehman Government
Securities Inc. or any other transferee (including any
counterparty) of such Registrable Debt Securities, in each case
as contemplated by the repurchase arrangement described under
"Plan of Distribution" as set forth in the Company's S-1
Registration Statement filed with the SEC on June 26, 1994, as
amended, provided that the Company shall have no obligations
under this Agreement with respect to any such Person other than
Copernicus unless and until it shall have been provided the
notice of assignment or information regarding ownership as set
forth in Section 11 of this Agreement.
<PAGE>
<PAGE> IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed and delivered by their respective
officers thereunto duly authorized as of the date first above
written.
AMERICA WEST AIRLINES, INC.
By: /s/ Martin J. Whelan
Name: Martin J. Whelan
Title: Senior Vice President
AMWEST PARTNERS, L.P.
By AmWest GenPar Inc.,
its General Partner
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
LEHMAN BROTHERS INC.
By: /s/ John K. Sweeney
Name: John K. Sweeney
Title: Managing Director
<PAGE>
<PAGE>
BELMONT CAPITAL PARTNERS II, L.P.
By:Fidelity Capital Partners
II Corp., its general
partner
By: /s/ Daniel G. Harmetz
Name: Daniel G. Harmetz
Title: Sr. Vice President
BELMONT FUND, L.P.
By: Fidelity Managment Trust
Company, pursuant to a
Power of Attorney for
Fidelity International
Services Limited, its
managing general partner
By: /s/ Daniel G. Harmetz
Name: Daniel G. Harmetz
Title: Sr. Vice President
FIDELITY COPERNICUS FUND, L.P.
By: Fidelity Copernicus
Corp., its general
partner
By: /s/ Daniel G. Harmetz
Name: Daniel G. Harmetz
Title: Sr. Vice President
<PAGE>
<PAGE>
REGISTRATION RIGHTS AGREEMENT
between
AMERICA WEST AIRLINES, INC.,
and
GPA GROUP plc
Dated as of August 25, 1994
<PAGE>
<PAGE>TABLE OF CONTENTS
1. Definitions 1
2. Registration under the Securities Act 5
2.1. Shelf Registration Statement 5
2.3. Piggyback Registration 8
2.4. Registration Terms and Procedures 10
2.5. Underwritten Offerings 16
2.6. Preparation; Reasonable Investigation 16
2.7. Indemnification 17
3. Rule 144 and Rule 144A 20
4. Term 21
5. Amendments and Waivers 21
6. Entire Agreement 21
7. No Third-Party Beneficiary 21
8. Invalid Provisions 21
9. Notices 21
10. Assignment 23
11. Descriptive Headings 23
12. GOVERNING LAW 23
13. Registration Rights to Others 23
14. Attorneys' Fees 23
15. Termination of Certain Rights and Obligations 23
16. No Inconsistent Agreements 24
17. Specific Performance 24
18. Requisite Holders 24
19. Counterparts 24
<PAGE>
<PAGE>
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of August 25,
1994 between AMERICA WEST AIRLINES, INC., a Delaware corporation
(including its successor, as reorganized pursuant to Chapter 11,
Title 11 of the United States Bankruptcy Code (the "Bankruptcy
Code") (the "Company"), and GPA Group plc, an Irish public limited
company ("GPA").
W I T N E S S E T H :
WHEREAS, the Company is a Debtor and Debtor-in-Possession
in the case (the "Chapter 11 Case") filed in the United States
Bankruptcy Court for the District of Arizona (the "Bankruptcy
Court"), entitled "In re America West Airlines, Inc., Debtor,"
Chapter 11 Case No. 91-07505-PHX-RGM, under the Bankruptcy Code;
WHEREAS, in connection with and as part of the
transactions to be consummated pursuant to the confirmation of a
Plan of Reorganization (as amended, modified or supplemented from
time to time) of the Company in the Chapter 11 Case (the "Plan of
Reorganization"), the Company will issue to GPA and its respective
Affiliates (as defined herein) (i) 900,000 shares of Class B Common
Stock of the Company and (ii) 1,384,615 Warrants to purchase Class
B Common Stock of the Company (collectively, the "GPA Securities");
WHEREAS, as a condition to GPA's participation in the
transactions contemplated by the Plan of Reorganization, the
Company has filed with the SEC (as hereinafter defined) a shelf
registration statement that includes the GPA Securities and is
undertaking to have such shelf registration statement declared
effective;
WHEREAS, by Order dated August 10, 1994, the Bankruptcy
Court confirmed the Plan of Reorganization; and
WHEREAS, the Plan of Reorganization contemplates that the
Company and GPA will enter into certain agreements, including,
without limitation, this Registration Rights Agreement;
NOW THEREFORE, the parties hereby agree as follows:
1. Definitions. The following terms, as used herein,
have the following meanings (all terms defined herein in the
singular to have the correlative meanings when used in the plural
and vice versa):
"Affiliate" means (i) when used with reference to any
partnership, any Person that, directly or indirectly, owns or
controls 10% or more of either the capital or profit interests of
such partnership or is a partner of such partnership or is a Person
in which such partnership has a 10% or greater direct or indirect
<PAGE>equity interest and (ii) when used with reference to any
corporation, any Person that, directly or indirectly, owns or
controls 10% or more of the outstanding voting securities of such
corporation or is a Person in which such corporation has a 10% or
greater direct or indirect equity interest. In addition, the term
"Affiliate," when used with reference to any Person, shall also
mean any other Person that, directly or indirectly, controls or is
controlled by or is under common control with such Person. As used
in the preceding sentence, (A) the term "control" means the
possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of the entity referred
to, whether through ownership of voting securities, by contract or
otherwise and (B) the terms "controlling" and "controls" shall have
meanings correlative to the foregoing. Notwithstanding the
foregoing, the Company will be deemed not to be an Affiliate of GPA
or any of its Affiliates and each of AmWest GenPar, Inc.,
Continental Airlines, Inc., Mesa Airlines, Inc., TPG Partners,
L.P., TPG Parallel I, L.P. and Air Partners II, L.P. shall be
deemed to be an Affiliate of AmWest.
"Agreement" means this Registration Rights Agreement, as
the same shall be amended, modified or supplemented from time to
time.
"AmWest" means AmWest Partners, L.P., a Texas limited
partnership or, if applicable, any partner, Affiliate, direct or
indirect subsidiary or any Successor thereof.
"AmWest Registration Rights Agreement" means the
Registration Rights Agreement of even date herewith among the
Company, AmWest and the other holders named therein, as amended
from time to time in accordance with the provisions thereof and
hereof.
"Chapter 11 Case" has the meaning ascribed to it in the
preamble.
"Class B Common" means the class B Common Stock, par
value $.01 per share, of the Company.
"Commercially Reasonable Efforts", when used with respect
to any obligation to be performed or term or provision to be
observed hereunder, means such efforts as a prudent Person seeking
the benefits of such performance or action would make, use, apply
or exercise to preserve, protect or advance its rights or
interests, provided, that such efforts do not require such Person
to incur a material financial cost or a substantial risk of
material liability unless such cost or liability (i) would
customarily be incurred in the course of performance or observance
of the relevant obligation, term or provision, (ii) is caused by or
results from the wrongful act or negligence of the Person whose
performance or observance is required hereunder or (iii) is not
excessive or unreasonable in view of the rights or interests to be
preserved, protected or advanced. Such efforts may include, without
limitation, the expenditure of such funds and retention by such
<PAGE>Person of such accountants, attorneys or other experts or
advisors as may be necessary or appropriate to effect the relevant
action; the undertaking of any special audit or internal
investigation that may be necessary or appropriate to effect the
relevant action; and the commencement, termination or settlement of
any action, suit or proceeding involving such Person to the extent
necessary or appropriate to effect the relevant action.
"Demand Registration" means any registration of
Registrable Securities under the Securities Act effected in
accordance with Section 2.2.
"Effective Date" means the date upon which the Restated
Certificate of Incorporation becomes effective in accordance with
the Plan of Reorganization and the General Corporation Law of the
State of Delaware.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time, or any successor statute, and the
rules and regulations promulgated thereunder.
"Fidelity" and "Fidelity Fund" shall have the meanings
given such terms in the AmWest Registration Rights Agreement.
"Holders" means the holders of record of Registrable
Securities, or, in the case of references to holders of securities
of the Company other than Registrable Securities, the record
holders of such securities.
"Indemnified Party" has the meaning ascribed to it in
Section 2.7(a).
"Loss" has the meaning ascribed to it in Section 2.7(a).
"Material Adverse Change" means (i) any general
suspension of trading in, or limitation on prices for, securities
on any national securities exchange or in the over-the-counter
market in the United States of America, (ii) the declaration of a
banking moratorium or any suspension of payments in respect of
banks in the United States of America, (iii) the commencement of a
war, armed hostilities or other international or national calamity
involving the United States of America, (iv) any limitation
(whether or not mandatory) by any governmental authority on, or any
other event which materially affects the extension of credit by
banks or other financial institutions, (v) any material adverse
change in the Company's business, condition (financial or
otherwise) or prospects or (vi) a 15% or more decline in the Dow
Jones Industrial average or the Standard and Poor's Index of 400
Industrial Companies, in each case from the date a Notice of Demand
is made.
"Notice of Demand" means a request by GPA pursuant to
Section 2.2 that the Company effect the registration under the
Securities Act of all or part of the Registrable Securities held
<PAGE>by it and its Affiliates and at its option, any direct or
indirect transferee of Registrable Securities held by it, and any
other Holder that requests to have its securities included in such
registration pursuant to Section 2.2(d). A Notice of Demand shall
specify (i) the type and amount of Registrable Securities proposed
to be registered, (ii) the intended method or methods and plan of
disposition thereof and (iii) whether or not such requested
registration is to be an underwritten offering.
"Participating Holders" means, with respect to any
registration of securities by the Company pursuant to this
Agreement, GPA and any other Holders that are entitled to
participate in, and are participating in or seeking to participate
in, such registration.
"Person" means a natural person, a corporation, a
partnership, a trust, a joint venture, any regulatory authority
or any other entity or organization.
"Piggyback Registration" means any registration of
Registrable Securities under the Securities Act effected in
accordance with Section 2.3.
"Piggyback Registration Notice" has the meaning ascribed
to it in Section 2.3(a).
"Registrable Equity Securities" shall have the meaning
given such term in the AmWest Registration Rights Agreement.
"Registrable Securities" means the equity securities
acquired by GPA or any of its Affiliates pursuant to the Plan of
Reorganization or subsequently acquired by any transferee (direct
or indirect) of such Person, including, without limitation, (a) any
shares of Class B Common issued or issuable on the Effective Date,
(b) any Warrant, (c) any shares of Class B Common issued or
issuable upon the exercise of a Warrant and (d) any securities
issued or issuable with respect to any such Class B Common or
Warrants by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise. As to any
particular Registrable Securities, once issued such securities
shall cease to be Registrable Securities when (i) a registration
statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall
have been disposed of in accordance with the plan of distribution
set forth in such registration statement, (ii) such securities
shall have been distributed in accordance with Rule 144, (iii) the
Company has caused to be delivered an opinion of counsel in
accordance with Section 2.2(b) that such securities are
distributable (without volume limitation) in accordance with Rule
144 or (iv) such securities shall have been otherwise transferred,
new certificates therefor not bearing a legend restricting further
transfer shall have been delivered in exchange therefor by the
Company and subsequent disposition of such securities shall not
<PAGE>require registration or qualification under the Securities
Act or any similar state law then in force.
"Registration Expenses" means all expenses incident to
the Company's performance of or compliance with this Agreement,
including, without limitation, (a) all registration, filing,
securities exchange listing, rating agency and National Association
of Securities Dealers fees, (b) all registration, filing,
qualification and other fees and expenses of complying with
securities or blue sky laws of all jurisdictions in which the
securities are to be registered and any legal fees and expenses
incurred in connection with the blue sky qualifications of the
Registrable Securities and the determination of their eligibility
for investment under the laws of all such jurisdictions, (c) all
word processing, duplicating, printing, messenger and delivery
expenses, (d) the fees and disbursements of counsel for the Company
and of its independent public accountants, including, without
limitation, the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and compliance,
(e) the reasonable fees and disbursements incurred by the Holders
of the Registrable Securities being registered (including, without
limitation, the reasonable fees and disbursements for one counsel
or firm of counsel selected by the Requisite Holders of Registrable
Securities), (f) premiums and other costs of policies of insurance
against liabilities arising out of the public offering of the
Registrable Securities being registered to the extent the Company
elects to obtain such insurance, (g) any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities
(but excluding underwriting discounts and commissions and transfer
taxes, if any, relating to the Registrable Securities being
registered) and (h) fees and expenses of other Persons retained or
employed by the Company.
"Requisite Holders" means any Holder or Holders of a
majority in interest of the securities to be included in the
relevant registration or, in the case of a registration pursuant to
Section 2.2(a) hereof, a majority in interest of Registrable
Securities.
"Restated Certificate of Incorporation" means the
restated Certificate of Incorporation adopted by the Company
pursuant to the Plan of Reorganization in accordance with Section
303 of the General Corporation Law of the State of Delaware.
"Rule 144" means Rule 144 promulgated by the SEC under
the Securities Act, and any successor provision thereto.
"Rule 144A" means Rule 144A promulgated by the SEC under
the Securities Act, and any successor provision thereto.
"SEC" means the United States Securities and Exchange
Commission, or any successor governmental agency or authority
thereto.
<PAGE> "Securities Act" means the Securities Act of 1933,
as amended from time to time, or any successor statute, and the
rules and regulations promulgated thereunder.
"Shelf Period" has the meaning ascribed to it in Section
2.1(b).
"Shelf Registration Statement" has the meaning ascribed
to it in Section 2.1(a).
"Successor" means, with respect to any Person, a
successor to such Person by merger, consolidation, liquidation or
other similar transaction.
"Suspension Notice" has the meaning ascribed to it in
Section 2.4(h).
"Suspension Period" has the meaning ascribed to it in
Section 2.4(h).
"Warrant" means a Warrant to Purchase Class B Common
Stock of America West Airlines, Inc. issued pursuant to the Warrant
Agreement dated as of even date herewith between the Company and
First Interstate Bank of California, as Warrant Agent, and any
warrant issued in substitution or exchange therefor.
2. Registration under the Securities Act.
2.1. Shelf Registration Statement.
(a) Filing of Shelf Registration Statement. If, as of
the Effective Date, (i) the effectiveness of the shelf registration
statement covering all of the Registrable Securities (the "Shelf
Registration Statement") has been suspended or the Shelf
Registration Statement is otherwise not effective or (ii) the
securities covered under the Shelf Registration Statement shall not
qualify under all blue sky or other securities laws, the Company
shall use Commercially Reasonable Efforts to cause such Shelf
Registration Statement to be effective as soon as practicable and
to qualify such securities under all blue sky and other securities
laws as soon as practicable.
(b) Continuous Effectiveness of Shelf Registration
Statement. Once the Shelf Registration Statement is effective
pursuant to Section 2.1(a), the Company shall use Commercially
Reasonable Efforts to cause the Shelf Registration Statement to
remain continuously effective until the earlier of (i) the third
(3rd) anniversary of the Effective Date and (ii) the date on which
all of the securities covered by such Shelf Registration Statement
have been sold, but in no event prior to the expiration of the
applicable period referred to in Section 4(3) of the Securities Act
and Rule 174 thereunder (the "Shelf Period"); provided, however,
that (x) the Company may (no more than twice during any twelve (12)
month period and for a period not to exceed forty-five (45) days on
<PAGE>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
<PAGE>(1) registration of Registrable Securities with respect to a
registration requested pursuant to Section 2.2(a)(ii); (ii) during
any period in which the Company would be permitted to suspend
registration pursuant to the proviso in Section 2.1(b); (iii)
during any period if the Company and GPA agree in writing to
suspend such registration for such period; or (iv) if (A) within
fourteen (14) days after the giving of a Notice of Demand, the
Company causes to be delivered to GPA and each transfer agent for
the Registrable Securities an opinion of counsel in form and
substance reasonably acceptable to GPA, and acceptable to each such
transfer agent for the purpose of permitting the transfer by GPA of
securities proposed to be sold without registration under the
Securities Act or the legending of such securities, to the effect
that the proposed disposition of such securities by GPA will not
require registration or qualification under the Securities Act;
provided, however that GPA will promptly furnish to the Company and
such counsel all information such counsel may reasonably request in
order to enable such counsel to determine whether it would be able
to render such an opinion and (B) promptly (and in any event within
a further fourteen (14) days thereafter) the Company causes to be
delivered to GPA, in exchange for all of GPA's Registrable
Securities, new certificates therefor duly issued and not bearing
any legend restricting further transfer.
(c) AmWest Demand Registration Rights. If the Company
is unable to furnish the opinion of counsel pursuant to Section
2.1(b)(iv) and if within twenty-one (21) days after AmWest's
receipt of a Notice of Demand by GPA, AmWest (or any successor or
other holder of such right) exercises its right to a demand
registration pursuant to Section 2.2(a) of the AmWest Registration
Rights Agreement, then GPA's Notice of Demand shall be deemed
revoked; provided, however that GPA shall have the right to request
that the Company include Registrable Securities held by GPA in the
demand registration requested by AmWest in accordance with and
subject to Section 2.3 hereof and Section 2.2 of the AmWest
Registration Rights Agreement. If a Notice of Demand made by GPA
is deemed revoked pursuant to this Section 2.2(c), the Company
shall continue to be obligated to effect a registration requested
by GPA pursuant to Section 2.2(a).
(d) Notice to certain non-Requesting Holders. Upon
receipt of any Notice of Demand from GPA, the Company will give
prompt (but in any event within fifteen (15) days after such
receipt) notice to all Holders of Registrable Securities and all
other Holders of securities entitled to participate in such
registration including holders of Registrable Equity Securities
under the AmWest Registration Rights Agreement, of such Notice of
Demand and of such Holders' rights to have securities included in
such registration (subject to priorities in registration rights set
forth in this Agreement and the AmWest Registration Rights
Agreement). Upon the request of any such Holder made within
fifteen (15) days after the receipt by such Holder of any such
notice (which request shall specify the securities intended to be
disposed of by such Holder and the intended method or methods of
<PAGE>disposition thereof), the Company will (subject to any
priorities in registration rights among the various Holders) use
Commercially Reasonable Efforts to effect the registration of all
securities which the Company has been so requested to register
pursuant to the Notice of Demand.
(e) Priority in Demand Registrations. If (i) a
registration pursuant to this Section 2.2 involves an underwritten
offering of the securities being registered to be distributed (on
a firm commitment basis) by or through one or more underwriters of
recognized standing under underwriting terms appropriate for such
a transaction and (ii) the managing underwriter of such
underwritten offering shall inform the Company and GPA by letter of
its belief that the amount of securities requested to be included
in such registration exceeds the amount which can be sold in (or
during the time of) such offering within a price range acceptable
to GPA, then the Company will include in such registration such
amount of securities which the Company is so advised can be sold in
(or during the time of) such offering as follows: first, such
Registrable Securities requested to be included in such
registration by GPA and its Affiliates; pro rata on the basis of
the amount of such securities so proposed to be sold and so
requested to be included by such parties; second, such Registrable
Securities requested to be included in such registration by all
other Holders of Registrable Securities pro rata on the basis of
the amounts of such securities to be sold and so proposed to be
sold and so requested to be included by such Holders; third such
Registrable Equity Securities requested to be included in such
registration by AmWest, Fidelity, Lehman Brothers Inc. ("Lehman")
or any of their respective Affiliates under the AmWest Registration
Rights Agreement pro rata on the basis of the amount of such
securities so proposed to be sold and so requested to be included
by such parties; and fourth, such Registrable Equity Securities
requested to be included in such registration by other Holders of
Registrable Equity Securities under the AmWest Registration Rights
Agreement pro rata on the basis of the amounts of such securities
so proposed to be sold and so requested to be included by such
parties, and fifth, such other securities of the Company whose
holders have registration rights which would permit inclusion in
such offering and which are requested to be included in such
registration by all other holders pro rata on the basis of the
amount of such securities so proposed to be sold and so requested
to be included by such holders.
2.3. Piggyback Registration.
(a) Right to Include Registrable Securities. If the
Company at any time proposes to register any of its equity
securities under the Securities Act (other than by a registration
on Form S-4 or Form S-8 or any successor or similar form then in
effect and other than pursuant to Section 2.1 or 2.2) in a form and
in a manner that would permit registration of the Registrable
Securities, whether or not for sale for its own account, it will
give prompt (but in no event less than thirty (30) days prior to
<PAGE>the proposed date of filing the registration statement
relating to such registration) notice to all Holders of Registrable
Securities of the Company's intention to do so and of such Holders'
rights under this Section 2.3. Upon the request of any such Holder
made within twenty (20) days after the receipt by such Holder of
any such notice (which request shall specify the Registrable
Securities intended to be disposed of by such Holder and the
intended method or methods of disposition thereof) (the "Piggyback
Registration Notice"), the Company will use Commercially Reasonable
Efforts to effect the registration under the Securities Act of all
Registrable Securities which the Company has been so requested to
register by the Holders thereof, to the extent required to permit
the disposition (in accordance with the intended method or methods
thereof as aforesaid) of the Registrable Securities so to be
registered, provided that if, at any time after giving notice of
its intention to register any equity securities and prior to the
effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason
not to register or to delay registration of such equity securities,
the Company may, at its election, give notice of such determination
to each such Holder and, thereupon, (i) in the case of a
determination not to register, shall be relieved of its obligation
to register any Registrable Securities in connection with such
registration (but not from its obligation to pay all Registration
Expenses in connection therewith as provided in Section 2.5(b)),
without prejudice, however, to the right of GPA to request that
such registration be effected as a registration under Section 2.2,
and (ii) in the case of a determination to delay registering, shall
be permitted to delay registering any Registrable Securities for
the same period as the delay in registering such other equity
securities. No registration effected under this Section 2.3 shall
be deemed to have been effected pursuant to Section 2.1 or 2.2
(except for any right to demand registration which may be exercised
pursuant to the last clause of subsection (i) of the preceding
sentence) or shall relieve the Company of its obligation to effect
any registration under such Sections.
(b) Priority in Primary Piggyback Registrations. If (i)
a registration pursuant to this Section 2.3 involves an
underwritten offering of the securities being registered for sale
for the account of the Company to be distributed (on a firm
commitment basis) by or through one or more underwriters of
recognized standing under underwriting terms appropriate for such
a transaction and (ii) the managing underwriter of such
underwritten offering shall inform the Company and the Holders
requesting such registration by letter of its belief that the
amount of securities requested to be included in such registration
exceeds the amount which can be sold in (or during the time of)
such offering within a price range acceptable to the Company, then
the Company will include in such registration such amount of
securities which the Company is so advised can be sold in (or
during the time of) such offering as follows: first, all
securities proposed by the Company to be sold for its own account;
second, such Registrable Equity Securities requested to be included
<PAGE>in such registration by AmWest, Lehman, or any Fidelity Fund
or any of their respective Affiliates under the AmWest Registration
Rights Agreement pro rata on the basis of the amount of such
securities so proposed to be sold and so requested to be included
by such parties; third, such Registrable Equity Securities
requested to be included in such registration by other holders of
such securities under the AmWest Registration Rights Agreement pro
rata on the basis of the amount of such securities so proposed to
be sold and so requested to be included by such parties; fourth,
such Registrable Securities requested to be included in such
registration by GPA or any of its Affiliates pro rata on the basis
of the amount of such securities so proposed to be sold and so
requested to be included by such parties; fifth such Registrable
Securities requested to be included in such registration by all
other Holders pro rata on the basis of the amount of such
securities so proposed to be sold and so requested to be included
by such holders; and sixth, all other securities of the Company
requested to be included in such registration pro rata on the basis
of the amount of such securities so proposed to be sold and so
requested to be included.
(c) Priority in Secondary Piggyback Registrations. If
(i) a registration pursuant to this Section 2.3 involves an
underwritten secondary offering of the securities being registered
for sale for the account of AmWest, Fidelity or any of their
respective Affiliates or transferees pursuant to the AmWest
Registration Rights Agreement, to be distributed (on a firm
commitment basis) by or through one or more underwriters of
recognized standing under underwriting terms appropriate for such
a transaction and (ii) the managing underwriter of such
underwritten offering shall inform the Company and Persons
requesting such registration by letter of its belief that the
amount of securities requested to be included in such registration
exceeds the amount which can be sold in (or during the time of)
such offering within a price range acceptable to such Persons, then
the Company will include in such registration such amount of
securities which the Company is so advised can be sold in (or
during the time of) such offering as follows: first, such
securities proposed to be sold for the account of AmWest, Lehman,
any Fidelity Fund or any of their respective Affiliates under the
AmWest Registration Rights Agreement pro rata on the basis of the
amount of such securities so proposed to be sold and so requested
to be included by such parties; second, such Registrable Equity
Securities requested to be included in such registration by other
holders of such securities under the AmWest Registration Rights
Agreement pro rata on the basis of the amount of such securities so
proposed to be sold and so requested to be included by such
parties; third, such Registrable Securities requested to be
included in such registration by GPA or any of its Affiliates pro
rata on the basis of the amount of such securities so proposed to
be sold and so requested to be included by such parties; fourth,
such Registrable Securities requested to be included in such
registration by all other Holders pro rata on the basis of the
amount of such securities so proposed to be sold and so requested
<PAGE>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).
the Company will pay all Registration Expenses incurred in
connection with a registration to be effected (whether or not
effected or deemed effected pursuant to subsection (c) below)
pursuant to Sections 2.1, 2.2 or 2.3.
(c) Effectiveness of Demand Registration. A
registration will not be deemed to have been effected under Section
2.2 unless the registration statement with respect thereto has been
declared effective by the SEC and, subject to the proviso in
Section 2.1(b) and to Section 2.5(g)(vii) hereof, remains effective
for the earlier of six (6) months or the distribution of the
securities covered by such registration statement; provided,
however, that if (i) after such registration statement has
been declared effective, the marketing of Registrable Securities
offered pursuant to such registration statement is materially
disrupted or adversely affected as a result of any stop order,
injunction or other order or requirement of the SEC or any other
governmental agency or court (for reasons other than a
misrepresentation or omission by GPA or any Participating Holder)
or (ii) the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection with
such registration have not been satisfied (for reasons other than
a wrongful or bad faith act, omission or misrepresentation by GPA
or any Participating Holder), such registration statement will be
deemed not to have become effective. If a registration pursuant to
Section 2.2 is deemed not to have been effected hereunder, then the
Company shall continue to be obligated to effect a registration
pursuant to such Section.
(d) Selection of Underwriter. If, in connection with a
registration effected pursuant to Section 2.2, GPA so elects, the
offering of Registrable Securities pursuant to such Section shall
be in the form of an underwritten offering. If GPA so elects, it
shall select one or more nationally recognized firms of investment
bankers to act as the book-running managing underwriter or
underwriters in connection with such offering, provided that such
<PAGE>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
<PAGE>plan of distribution of the Registrable Securities prior
to filing any such registration statement, amendment,
supplement or exhibit;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus
used in connection therewith (A) as reasonably requested by
any Participating Holder to which such registration statement
relates (but only to the extent such request relates to
information with respect to such Holder) and (B) as may be
necessary to keep such registration statement effective for
the period referred to in Section 2.1(b) in the case of a
Shelf Registration Statement or six (6) months in the case of
a registration effected pursuant to Section 2.2 or 2.3 (or
such shorter period as shall be necessary to complete the
distribution of the securities covered thereby, but not before
the expiration of the applicable period referred to in Section
4(3) of the Securities Act and Rule 174 thereunder), and
comply with the provisions of the Securities Act with respect
to the sale or other disposition of all securities covered by
such registration statement during such period in accordance
with the intended method or methods of disposition by the
seller or sellers thereof set forth in such registration
statement;
(iii) furnish to each Holder covered by, and each
underwriter or agent participating in the disposition of
securities under, such registration statement such number of
conformed copies of such registration statement and of each
such amendment and supplement thereto (in each case excluding
all exhibits and documents incorporated by reference, which
exhibits and documents shall be furnished to any such Person
upon request), such number of copies of the prospectus
contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and any
other prospectus filed under Rule 424 under the Securities Act
relating to such Holder's Registrable Securities, in
conformity with the requirements of the Securities Act, and
such other documents as such Holder, underwriter or agent may
reasonably request to facilitate the disposition of such
Registrable Securities;
(iv) use Commercially Reasonable Efforts to register or
qualify all Registrable Securities and other securities
covered by such registration statement under (A) with respect
to the Shelf Registration Statement, all blue sky and other
securities laws and (B) with respect to a registration
effected pursuant to Section 2.2, all applicable blue sky and
other securities laws, and to keep such registration or
qualification in effect for so long as such registration
statement remains in effect, and take any other action which
may be reasonably necessary or advisable to enable such Holder
to consummate the disposition of the securities owned by such
Holder, except that the Company shall not for any such purpose
<PAGE>be required to (a) qualify generally to do business as
a foreign corporation in any jurisdiction wherein it would not
but for the requirements of this clause (iv) be obligated to
be so qualified, (b) subject itself to taxation in any such
jurisdiction or (c) consent to general service of process in
any jurisdiction;
(v) use Commercially Reasonable Efforts to cause all
Registrable Securities covered by such registration statement
to be registered with or approved by such other governmental
agencies or authorities applicable to the Company as may be
reasonably necessary to enable the seller or sellers thereof
(or underwriter or agent, if any) to consummate the
disposition of such Registrable Securities in accordance with
the plan of distribution set forth in such registration
statement;
(vi) furnish to each Holder of Registrable Securities
covered by such registration statement a signed counterpart,
addressed to such Holder (and underwriter or agent, if any)
of:
(A) an opinion of counsel to the Company, dated the
effective date of such registration statement (and, if
such registration includes an underwritten public
offering, dated the date of the closing under the
underwriting agreement), and
(B) unless otherwise precluded under applicable
accounting rules, a "comfort" letter, dated the effective
date of such registration statement (and, if such
registration includes an underwritten public offering,
dated the date of the closing under the underwriting
agreement), signed by the independent public accountants
who have certified the Company's financial statements
included in such registration statement,
in each case, reasonably satisfactory in form and substance to
such Holder (and underwriter or agent and their respective
counsel) and covering substantially the same matters with
respect to such registration statement (and the prospectus
included therein) and, in the case of the accountants' letter,
with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions
of issuer's counsel and in accountants' letters delivered to
the underwriter or agent in underwritten public offerings of
securities;
(vii) promptly notify each Holder and any underwriter
or agent participating in the disposition of Registrable Secu-
rities 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
<PAGE>which, the prospectus included in such registration
statement, as then in effect, includes an untrue statement of
a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under
which they were made, and promptly prepare and furnish to such
Holder (or underwriter or agent, if any) a reasonable number
of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such
prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were
made;
(viii) otherwise use Commercially Reasonable Efforts
to comply with all applicable rules and regulations of the
SEC, and make available to its security holders, as soon as
reasonably practicable (but not more than fifteen (15) months)
after the effective date of the registration statement, an
earnings statement satisfying the provisions of Section 11(a)
of the Securities Act and Rule 158 promulgated thereunder, and
furnish to each Holder covered by such registration statement
or any participating underwriter or agent at least five (5)
business days prior to the filing a copy of any amendment or
supplement to such registration statement or prospectus;
(ix) provide and cause to be maintained a transfer agent
and registrar for all Registrable Securities covered by such
registration statement from and after a date not later than
the effective date of such registration statement;
(x) use Commercially Reasonable Efforts to (A) list, on
or prior to the effective date of such registration statement,
all Registrable Securities covered by such registration
statement on any securities exchange on which any of the
Registrable Securities is then listed, if any or (B) have
authorized for quotation and/or listing, as applicable, on the
National Association of Securities Dealers, Inc. Automated
Quotation ("NASDAQ") of the National Market System of NASDAQ
if the Registrable Securities so qualify;
(xi) cooperate with each seller of Registrable Securities
and each underwriter or agent participating in the disposition
of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the
National Association of Securities Dealers;
(xii) use Commercially Reasonable Efforts to prevent
the issuance by the SEC or any other governmental agency or
court of a stop order, injunction or other order suspending
the effectiveness of such registration statement and, if such
<PAGE>an order is issued, use Commercially Reasonable Efforts
to cause such order to be lifted as promptly as practicable;
(xiii) take such other actions as the Requisite
Holders of such Registrable Securities shall reasonably
request in order to expedite or facilitate the disposition of
such Registrable Securities;
(xiv) promptly notify each seller and the underwriter
or agent, if any:
(A) when such registration statement or any
prospectus used in connection therewith, or any amendment
or supplement thereto, has been filed and, with respect
to such registration statement or any post-effective
amendment thereto, when the same has become effective;
(B) of any written comments from the SEC with
respect to any filing referred to in clause (A) and of
any written request by the SEC for amendments or
supplements to such registration statement or prospectus;
(C) of the notification to the Company by the SEC
of its initiation of any proceeding with respect to, or
of the issuance by the SEC of, any stop order suspending
the effectiveness of such registration statement; and
(D) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of any Registrable Securities for sale
under the applicable securities or blue sky laws of any
jurisdiction;
(xv) cooperate with each seller of Registrable Securities
and each underwriter or agent participating in the
distribution of such Registrable Securities to facilitate the
timely preparation and delivery of certificates (which shall
not bear any restrictive legends, other than as required by
applicable law) representing securities sold under a
registration statement hereunder, and enable such securities
to be in such denominations and registered in such names as
such seller, underwriter or agent may request and keep
available and make available to the Company's transfer agent,
prior to the effectiveness of such registration statement, an
adequate supply of such certificates;
(xvi) not later than the effective date of such
registration statement, provide a CUSIP number for all
Registrable Securities covered by a registration statement
hereunder;
(xvii) incorporate in the registration statement or
any amendment, supplement or post-effective amendment thereto
such information as each Holder, the underwriter or agent (if
<PAGE>any) or their respective counsel may reasonably request
to be included therein with respect to any Registrable
Securities being sold by such Holder to such underwriter or
agent, the purchase price being paid therefor by such
underwriter or agent and any other terms of the offering of
such Registrable Securities;
(xviii) during any period when a prospectus is required
to be delivered under the Securities Act, make periodic
filings with the SEC pursuant to and containing the
information required by the Exchange Act (whether or not the
Company is required to make such filings pursuant to such
Act); and
(xix) in connection with an underwritten offering,
participate, to the extent reasonably requested by the
Requisite Holders or the managing underwriter for the
offering, in customary efforts to sell the securities under
the offering.
(h) Agreements of Certain Holders. (i) Each Holder of
Registrable Securities as to which any registration is being
effected shall furnish to the Company such information regarding
such Holder, the Registrable Securities held by such Holder and the
intended plan of distribution of such securities as the Company may
from time to time reasonably request in writing in connection with
such registration. If any registration statement refers to GPA or
any of its Affiliates by name or otherwise as the holder of any
securities of the Company, then such Holder shall have the right to
require that such reference be in a form reasonably satisfactory to
such Holder or in the event that such reference to such Holder by
name or otherwise is not required by the Securities Act or any
similar federal or state blue sky statute and the rules and
regulations thereunder then in force, the deletion of the reference
to such Holder.
(ii) Each Holder of Registrable Securities as to which
any registration is being effected agrees, by acquisition of such
Registrable Securities, that upon receipt of any notice (a
"Suspension Notice") from the Company of the happening of any event
of the kind described in clause (vii) of Section 2.5(g), such
Holder will forthwith discontinue such Holder's disposition of
Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until such Holder's receipt
of the copies of the supplemented or amended prospectus
contemplated by clause (vii) of Section 2.5(g) (the period from the
date on which such Holder receives a Suspension Notice to the date
on which such Holder receives copies of the supplemented or amended
prospectus being herein called the "Suspension Period"). The
Company shall take such actions as are necessary to end the
Suspension Period as promptly as practicable. In the event the
Company shall give any such notice, the periods referred to in
Section 2.5(c) and clause (ii) of Section 2.5(g) shall be extended
<PAGE>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
<PAGE>agents, if any, and their respective counsel and accountants
reasonable access to its books and records and such opportunities
to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial
statements as shall be necessary, in the opinion of such Holders'
and such underwriter s' or agents' respective counsel, to conduct
a reasonable investigation within the meaning of the Securities
Act.
2.7. Indemnification.
(a) Indemnification by the Company. The Company agrees
to indemnify and hold harmless, to the full extent permitted by
law, each Holder participating in an offering provided for as
described herein (including, without limitation, under the Shelf
Registration Statement or any replacement Shelf Registration
Statement), its directors, officers, shareholders, employees,
investment advisers, agents and Affiliates, either direct or
indirect (and each such Affiliate's directors, officers,
shareholders, employees, investment advisers and agents), and each
other Person, if any, who controls such Persons within the meaning
of the Securities Act (each such Person, an "Indemnified Party"),
from and against any losses, claims, damages, liabilities or
expenses, joint or several (each a "Loss" and collectively,
"Losses"), to which such Indemnified Party may become subject under
the Securities Act or otherwise, to the extent that such Losses (or
actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any
registration statement under which such securities were registered
under the Securities Act (including all documents incorporated
therein by reference), any preliminary prospectus, final prospectus
or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and the Company will
reimburse such Indemnified Party for any legal or any other
expenses reasonably incurred by it in connection with investigating
or defending against any such Loss, action or proceeding; provided
that in any such case the Company shall not be liable to any
particular Indemnified Party to the extent that such Loss (or
action or proceeding in respect thereof) arises out of or is based
upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Indemnified
Party specifically for inclusion therein; and provided, further,
that the Company shall not be liable in any such case to the extent
it is finally determined by a court of competent jurisdiction that
any such Loss (or action or proceeding in respect thereof) arises
out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made
<PAGE> (i) in any such preliminary prospectus, if (A) it
was the responsibility of such Indemnified Party to
provide the Person asserting such Loss with a current
copy of the prospectus and such Indemnified Party failed
to deliver or cause to be delivered a copy of the
prospectus to such Person after the Company had furnished
such Indemnified Party with a sufficient number of copies
of the same prior to the sale of Registrable Securities
to the Person asserting such Loss and (B) the prospectus
corrected such untrue statement or omission; or
(ii) in such prospectus, if such untrue statement or
omission is corrected in an amendment or supplement to such
prospectus and such amendment or supplement has been delivered
to the Indemnified Party prior to the sale of Registrable
Securities to the Person asserting such Loss and the
Indemnified Party thereafter fails to deliver the prospectus
as so amended or supplemented prior to or concurrently with
such sale after the Company had furnished such Indemnified
Party (in accordance with the notice provisions contained in
Section 10 for Persons who are parties to this Agreement) with
a sufficient number of copies of the same for delivery to
purchasers of securities.
Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of such Indemnified Party
and shall survive the transfer of such securities by such
Indemnified Party. The Company shall also indemnify each other
Person who participates (including as an underwriter) in the
offering or sale of Registrable Securities hereunder, their
officers and directors and each other Person, if any, who controls
any such participating Person within the meaning of the Securities
Act to the same extent as provided above with respect to
Indemnified Parties.
(b) Indemnification by the Sellers. (i) The Company
may require, as a condition to including any Registrable Securities
in any registration statement filed pursuant to Sections 2.1, 2.2
or 2.3 and as a condition to indemnifying such sellers pursuant to
this Section 2.7, that the Company shall have received an
undertaking reasonably satisfactory to it from each prospective
seller of such securities, and (ii) each Holder participating in
the Shelf Registration Statement or any replacement Shelf
Registration Statement agrees, to indemnify and hold harmless and
reimburse (in the same manner and to the same extent as set forth
in paragraph (a) of this Section 2.7) the Company, each director,
officer, employee and agent of the Company, and each other Person,
if any, who controls the Company within the meaning of the
Securities Act, from and against any Losses (or actions or
proceedings, whether commenced or threatened, in respect thereof)
arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any registration
statement under which such securities were registered under the
Securities Act (including all documents incorporated therein by
<PAGE>reference), any preliminary prospectus, final prospectus or
summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission from such
registration statement, preliminary prospectus, final prospectus or
summary prospectus, or any amendment or supplement thereto required
to be stated therein or necessary to make the statements therein
not misleading, if (but only if) such untrue statement or alleged
untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished
to the Company by such prospective seller specifically for
inclusion therein; provided, however, that such prospective seller
shall not be obligated to provide such indemnity to the extent that
such Losses result, directly or indirectly, from the failure of the
Company to promptly amend or take action to correct or supplement
any such registration statement, prospectus, amendment or
supplement based on corrected or supplemental information provided
in writing by such prospective seller to the Company expressly for
such purpose; and provided further, that the obligation to provide
indemnification pursuant to this Section 2.7(b) shall be several,
and not joint and several, among such indemnifying parties.
Notwithstanding anything in this Section 2.7(b) to the contrary, in
no event shall the liability of any prospective seller under such
indemnity be greater in amount than the amount of the proceeds
received by such seller upon the sale of its Registrable Securities
in the offering to which the Losses relate. Such indemnity shall
remain in full force and effect, regardless of any investigation
made by or on behalf of the Company or any such director, officer,
employee, agent or participating or controlling Person and shall
survive the transfer of such securities by such prospective seller.
(c) Notices of Claims, etc. Promptly after receipt by
an indemnified party of notice of the commencement of any action or
proceeding involving a claim referred to in paragraph (a) or (b) of
this Section 2.7, such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party, give
prompt written notice to the latter of the commencement of such
action, provided that the failure of any indemnified party to give
notice as provided herein shall not relieve the indemnifying party
of its obligations under this Section 2.7, except to the extent
that the indemnifying party is actually and materially prejudiced
by such failure to give notice. In case any such action is brought
against an indemnified party, the indemnifying party shall be
entitled to participate in and to assume the defense thereof (such
assumption to constitute its acknowledgement of its agreement to
indemnify the indemnified party with respect to such matters),
jointly with any other indemnifying party similarly notified to the
extent that it may wish, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal fees or other expenses subsequently
incurred by the latter in connection with the defense thereof other
than reasonable costs of investigation; provided, however, that if,
in such indemnified party's reasonable judgment, a conflict of
<PAGE>interest between such indemnified and indemnifying parties
may exist in respect of such claim, such indemnified party shall be
entitled to separate counsel at the expense of the indemnifying
party; and provided, further, that, unless there exists a conflict
of interest among indemnified parties, all indemnified parties in
respect of such claim shall be entitled to only one counsel or firm
of counsel for all such indemnified parties. In the event an
indemnifying party shall not be entitled, or elects not, to assume
the defense of a claim, such indemnifying party shall not be
obligated to pay the fees and expenses of more than one counsel or
firm of counsel for all parties indemnified by such indemnifying
party in respect of such claim, unless in the reasonable judgment
of any such indemnified party a conflict of interest exists between
such indemnified party and any other of such indemnified parties in
respect of such claim, in which event the indemnifying party shall
be obligated to pay the fees and expenses of one additional counsel
or firm of counsel for such indemnified parties. No indemnifying
party shall, without the consent of the indemnified party, consent
to entry of any judgment or enter into any settlement that (i) does
not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from
all Losses in respect of such claim or litigation or (ii) would
impose injunctive relief on such indemnified party. No
indemnifying party shall be subject to any Losses for any
settlement made without its consent, which consent shall not be
unreasonably withheld.
(d) Other Indemnification. The provisions of this
Section 2.7 shall be in addition to any other rights to
indemnification or contribution which an indemnified party may have
pursuant to law, equity, contract or otherwise.
(e) Indemnification Payments. The indemnification
required by this Section 2.7 shall be made by periodic payments of
the amount thereof during the course of the investigation or
defense, promptly as and when bills are received or Losses are
incurred.
(f) Contribution. If for any reason the foregoing
indemnity and reimbursement is unavailable or is insufficient to
hold harmless an indemnified party under paragraph (a) or (b) of
this Section 2.7, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of
any Loss (or actions or proceedings, whether commenced or
threatened, in respect thereof), including, without limitation, any
legal or other expenses reasonably incurred by them in connection
with investigating or defending any such Loss, action or
proceeding, in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and the
indemnified party on the other. The relative fault shall be
determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the indemnifying party or the indemnified party and the
<PAGE>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.
<PAGE> 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:
<PAGE> If to the Company, to:
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J. Whalen
Fax No.: (602) 693-5904
With a copy to:
Andrews & Kurth L.L.P.
4200 Texas Commerce Tower
600 Travis
Houston, Texas 77002
Attention: David G. Elkins
If to AmWest, to:
AmWest Partners, L.P.
201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James G. Coulter
Fax No.: (817) 871-4010
If to GPA, to:
GPA Group plc
GPA House
Shannon, County Clare
Ireland
Telecopier: 011-353-61-360503
Attention: Patrick H. Blaney and
Corporate Secretary
With a copy to:
Paul, Hastings, Janofsky & Walker
399 Park Avenue
New York, New York 10022
Telecopier: (212) 319-4090
Attention: Marguerite R. Kahn
With respect to any other Holder of Registrable
Securities or other holder of securities entitled to receive
notice, requests or other communications hereunder, such notices,
requests and other communications shall be sent to the addresses
and facsimile numbers provided to the Company and the other parties
hereto by notice as herein provided and referencing this Agreement.
All such notices, requests and other communications will (i) if
delivered personally to the address as provided in this Section 10,
be deemed given upon delivery, (ii) if delivered by facsimile
transmission to the facsimile number as provided in this Section 9,
<PAGE>be deemed given upon receipt, and (iii) if delivered by
courier service or mail in the manner described above to the
address as provided in this Section 9, be deemed given upon receipt
(in each case regardless of whether such notice, request or other
communication is received by any other Person to whom a copy of
such notice is to be delivered pursuant to this Section 9). Any
Person from time to time may change its address, facsimile number
or other information for the purpose of notices to that Person by
giving notice in accordance with this Section 9 specifying such
change to each of the other parties executing this Agreement.
10. Assignment. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties, the
Holders of Registrable Securities and their respective Successors
(including, in the case of the Company, the Company as reorganized
pursuant to the Plan of Reorganization) and permitted assigns. GPA
may assign (by written instruments in form reasonably acceptable to
the parties) any of its rights hereunder (in whole or in part) to
one or more Affiliates, but otherwise may not assign any of its
rights hereunder to any Person, provided, however, that each
transferee of Registrable Securities shall be entitled (subject to
priorities in registration rights) to participate in an
underwritten offering of securities being registered pursuant to
Sections 2.2(d) and 2.3 hereof and, with respect to any such
participation, to have all of the rights of a Holder of Registrable
Securities provided in this Agreement.
11. Descriptive Headings. The descriptive headings of
the several sections and paragraphs of this Agreement are inserted
for convenience of reference only and do not define or limit the
provisions hereof or otherwise affect the meaning hereof.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REFERENCE TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
13. Registration Rights to Others. As of the date
hereof, the Company has not granted to any other holder of its
securities rights with respect to the registration of securities of
the Company under the Securities Act other than rights granted
pursuant to the AmWest Registration Rights Agreement.
14. Attorneys' Fees. In any action or proceeding
brought to enforce any provision of this Agreement or where any
provision hereof is validly asserted as a defense, the successful
party shall, to the extent permitted by applicable law, be entitled
to recover reasonable attorneys' fees in addition to any other
available remedy.
15. Termination of Certain Rights and Obligations. The
rights and obligations hereunder of GPA shall terminate with
respect to GPA at such time as neither GPA nor any of its
Affiliates holds Registrable Securities, provided that the
provisions of Section 2.7, the rights of any party hereto with
<PAGE>respect to the breach of any provision hereof and any
obligation accrued as of the date of termination shall survive
termination of this Agreement.
16. No Inconsistent Agreements. The Company will not
hereafter enter into, modify, amend or waive any agreement with
respect to its securities if such agreement, modification or waiver
would conflict with the rights granted pursuant to this Agreement
to the Holders of Registrable Securities. Specifically, and
subject to Section 15 hereof, the Company (i) will not amend, or
modify or permit the amendment or modification of provisions
contained in Sections 2.2 or 2.3 of the AmWest Registration Rights
Agreement and dealing with priority of participation in
registrations without the prior written consent of GPA, and (ii)
the Company will give prompt notice to GPA of any demand
registration rights hereafter granted by the Company to any Person
during the term of this Agreement.
17. Specific Performance. The parties agree that, to
the extent permitted by law, (i) the obligations imposed on them in
this Agreement are special, unique and of an extraordinary
character, and that in the event of a breach by any such party
damages would not be an adequate remedy and (ii) each of the other
parties shall be entitled to specific performance and injunctive
and other equitable relief in addition to any other remedy to which
it may be entitled at law or in equity.
18. Requisite Holders. Each of the parties hereto
agrees that the Company may, in connection with the taking of any
action permitted to be taken hereunder with the consent or approval
of the Requisite Holders of the securities to be included in the
relevant registration, rely in good faith on a certificate from
such holder or holders stating that it holds or is acting on behalf
of a majority in interest of such securities.
19. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall
be deemed an original, but all of which shall together constitute
one and the same instrument.
<PAGE> IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed and delivered by their respective officers
thereunto duly authorized as of the date first above written.
AMERICA WEST AIRLINES, INC.
By: /s/ Martin J. Whalen
Name: Martin J. Whalen
Title: Senior Vice President
GPA GROUP plc
By: /s/ Michael Walsh
Name: Michael Walsh
Title: Vice President-Legal
<PAGE> STOCKHOLDERS' AGREEMENT FOR
AMERICA WEST AIRLINES, INC.
THIS STOCKHOLDERS' AGREEMENT FOR AMERICA WEST AIRLINES,
INC. (this "Agreement") is entered into as of this 25th day of
August, 1994 by and among AmWest Partners, L.P., a Texas limited
partnership, GPA Group plc, a corporation organized under the
laws of Ireland ("GPA"), Robert A. Ewert, David T. Obergfell and
William A. Franke (collectively, the "Stockholder
Representatives"), and America West Airlines, Inc., a Delaware
corporation (the "Company").
RECITALS:
WHEREAS, on June 27, 1991, the Company filed a case
seeking relief under Chapter 11 of the Bankruptcy Code in the
United States Bankruptcy Court for the District of Arizona (the
"Bankruptcy Court"); and
WHEREAS, on December 8, 1993, the Bankruptcy Court
entered an Order on Motion to Establish Procedures for Submission
of Investment Proposals (the "Procedures Order"); and
WHEREAS, pursuant to the Procedures Order, AmWest and
the Company have entered into that certain Third Revised
Investment Agreement dated April 21, 1994 (the "Investment
Agreement"), contemplating an investment by AmWest in the Company
(the "Investment") and providing for the consummation of the
Company's Plan of Reorganization (the "Plan"); and
WHEREAS, on August 10, 1994, the Bankruptcy Court
entered an order confirming the Plan; and
WHEREAS, in consideration of the Investment, the Company
has issued common stock of the Company ("Common Stock")
consisting of Class A Common Stock ("Class A Common") and Class B
Common Stock ("Class B Common") and warrants to purchase Class B
Common to AmWest and others; and
WHEREAS, in exchange for the release and modification of
certain agreements and claims, the Company has issued shares of
Class B Common and warrants to purchase Class B Common to GPA;
and
WHEREAS, pursuant to Section 6(b) of the Investment
Agreement, the Official Committee of Equity Holders of America
West Airlines, Inc., appointed in the Company's Chapter 11 case
(the "Equity Committee") has appointed Robert A. Ewert as a
Stockholder Representative; and
WHEREAS, pursuant to Section 6(b) of the Investment
Agreement, the Official Committee of Unsecured Creditors of
America West Airlines, Inc., appointed in the Company's Chapter
<PAGE>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> "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> "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>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>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>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> 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>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>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>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> 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>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>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>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> 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> 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>
<PAGE>
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>
AMERICA WEST AIRLINES, INC.
By: /s/ M.J. Whalen
Name: M.J. Whalen
Title: Senior Vice President
<PAGE>
<PAGE>
EXHIBIT A
AmWest Directors
Julia Chang Bloch
Frederick W. Bradley, Jr.
James G. Coulter
John F. Fraser
John L. Goolsby
Richard C. Kraemer
A. Maurice Myers
Larry L. Risley
Richard P. Schifter
GPA Director
John F. Tierney
Independent Company Director
William A. Franke
Creditors' Committee Directors
Harrison J. Goldin
Stephen F. Bollenbach
Raymond S. Troubh
Equity Committee Director
John R. Power
<PAGE>
August 24, 1994
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J. Whalen
RE: AmWest Partners, L.P.
Dear Sirs:
Reference is made to Section 23 of the Third Revised
Investment Agreement dated April 21, 1994 by and between America
West Airlines, Inc. and AmWest Partners, L.P. (the "Investment
Agreement"). Capitalized terms used herein and not otherwise
defined herein are used herein as defined in the Investment
Agreement.
Pursuant to Section 23 of the Investment Agreement,
the Investor hereby notifies the Company of its assignment of its
rights and obligations to purchase certain Securities under
Section 4(a) of the Investment Agreement.
Under Section 4(a) of the Investment Agreement, the
Investor is obligated to purchase 1,200,000 shares of Class A
Common plus certain additional shares of Class B Common as
contemplated by Section 4(a)(2)(i) and (ii) of the Investment
Agreement minus certain shares of Class B Common which may be
subscribed for under Section 4(a)(iii) by the Equity Holders.
You have informed us that the number of shares of Class B Common
to be purchased by the Investor pursuant to Section 4(a)(2)(ii)
is 721,815, and we understand that the Equity Holders will
purchase 1,615,179 shares of Class B Common under said Section
4(a)(2)(iii). Accordingly, the Investor is obligated to purchase
12,981,636 shares of Class B Common. In addition, the Investor
is entitled to receive Warrants to purchase 2,769,231 shares of
Class B Common.
The Investor hereby notifies the Company of the
following assignments of the Investor's right to purchase
Securities under the Investment Agreement:
1. Mesa Airlines, Inc. The Investor has assigned to
Mesa Airlines, Inc. ("Mesa") the following of the Investor's
rights and obligations under the Investment Agreement:
<PAGE>
America West Airlines, Inc.
August 24, 1994
Page 2
<PAGE> (i) The Investor has assigned to Mesa the right to
purchase 100,000 shares of Class A Common;
(ii) The Investor has assigned to Mesa the right to
purchase 2,183,343 shares of Class B Common; and
(iii) The Investor has assigned to Mesa the right to
be issued Warrants to purchase 799,767 shares of Class B Common.
The address of Mesa is Mesa Airlines, Inc., 2325 30th
Street, Farmington, New Mexico 87401, Attention: Gary E. Risley.
Please issue the above-described shares of Class A
Common, Class B Common and Warrants in the name of Mesa.
2. Continental Airlines, Inc. The Investor has
assigned to Continental Airlines, Inc. ("Continental") the
following of the Investor's rights and obligations under the
Investment Agreement:
(i) The Investor has assigned to Continental the
right to purchase 325,505 shares of Class A Common;
(ii) The Investor has assigned to Continental the
right to purchase 1,508,234 shares of Class B Common; and
(iii) The Investor has assigned to Continental the
right to be issued Warrants to purchase 802,860 shares of Class B
Common.
The address of Continental is Continental Airlines,
Inc., 2929 Allen Parkway, Suite 1466, Houston, Texas 77019.,
Attention: Charles Goolsbee, Esq.
Please issue the above-described shares of Class A
Common, Class B Common and Warrants in the name of Continental.
3. TPG Partners, L.P. The Investor has assigned to
TPG Partners, L.P. ("TPG") the following of the Investor's rights
and obligations under the Investment Agreement:
<PAGE>
America West Airlines, Inc.
August 24, 1994
Page 3
<PAGE> (i) The Investor has assigned to TPG the right to
purchase 642,078 shares of Class A Common;
(ii) The Investor has assigned to TPG the right to
purchase 3,829,101 shares of Class B Common; and
(iii) The Investor has assigned to TPG the right to
be issued Warrants to purchase 706,508 shares of Class B Common.
The address of TPG is TPG Partners, L.P., 201 Main
Street, Suite 2420, Forth Worth, Texas 76102, Attention: James
J. O'Brien.
Please issue the above-described shares of Class A
Common, Class B Common and Warrants in the name of TPG.
4. TPG Parallel I, L.P. The Investor has assigned
to TPG Parallel I, L.P. ("Parallel") the following of the
Investor's rights and obligations under the Investment Agreement:
(i) The Investor has assigned to Parallel the right
to purchase 64,699 shares of Class A Common;
(ii) The Investor has assigned to Parallel the right
to purchase 418,758 shares of Class B Common; and
(iii) The Investor has assigned to Parallel the
right to be issued Warrants to purchase 159,580 shares of Class B
Common.
The address of Parallel is TPG Parallel I, L.P., 201
Main Street, Suite 2420, Forth Worth, Texas 76102, Attention:
James J. O'Brien.
Please issue the above-described shares of Class A
Common, Class B Common and Warrants in the name of Parallel.
5. Air Partners II, L.P. The Investor has assigned
to Air Partners II, L.P. ("APII") the following of the Investor's
rights and obligations under the Investment Agreement:
<PAGE>
America West Airlines, Inc.
August 24, 1994
Page 4
<PAGE>
(i) The Investor has assigned to APII the right to
purchase 67,718 shares of Class A Common;
(ii) The Investor has assigned to APII the right to
purchase 438,302 shares of Class B Common; and
(iii) The Investor has assigned to APII the right to
be issued Warrants to purchase 167,028 shares of Class B Common.
The address of APII is Air Partners II, L.P., 201
Main Street, Suite 2420, Forth Worth, Texas 76102, Attention:
James J. O'Brien.
Please issue the above-described shares of Class A
Common, Class B Common and Warrants in the name of APII.
6. Belmont Fund, L.P. The Investor has assigned to
Belmont Fund, L.P. ("Belmont") the following of the Investor's
rights and obligations under the Investment Agreement:
(i) The Investor has assigned to Belmont the right
to purchase 637,124 shares of Class B Common;
(ii) The Investor has assigned to Belmont the right
to be issued Warrants to purchase 33,372 shares of Class B
Common;
(iii) The Investor has assigned to Belmont the right
to acquire $25,000,000 principal amount in Notes; and
(iv) The Investor has assigned to Belmont the right
to purchase 180,454 shares of Class B Common pursuant to Section
4(a)(2)(ii) of the Investment Agreement.
The address of Belmont is Belmont Fund, L.P., c/o
Fidelity Management Trust Company, 82 Devonshire Street, MS C7A,
Boston, Massachusetts 02109, Attention: Daniel J. Harmetz, with
a copy to Wendy Schnipper Clayton, Esq., Fidelity Management
Trust Company, 82 Devonshire Street, MS F7D, Boston,
Massachusetts 02109.
<PAGE>
America West Airlines, Inc.
August 24, 1994
Page 5
<PAGE>
Please issue the above-described shares of Class B
Common and Warrants in the following name and address: Dol & Co.,
Brown Brothers Harriman & Co., Securities Department, 3 Hanover
Street, Ground Floor, New York, New York, 10005, Account No.
8118572, for the account of Belmont Fund, L.P., Attention: Dan
Zibinskas.
7. Fidelity Copernicus Fund, L.P. The Investor has
assigned to Fidelity Copernicus Fund, L.P. ("Copernicus") the
following of the Investor's rights and obligations under the
Investment Agreement:
(i) The Investor has assigned to Copernicus the
right to purchase 1,911,372 shares of Class B Common;
(ii) The Investor has assigned to Copernicus the
right to be issued Warrants to purchase 100,116 shares of Class B
Common;
(iii) The Investor has assigned to Copernicus the
right to acquire $75,000,000 principal amount in Notes; and
(iv) The Investor has assigned to Copernicus the
right to purchase 541,361 shares of Class B Common pursuant to
Section 4(a)(2)(ii) of the Investment Agreement.
The address of Copernicus is Fidelity Copernicus
Fund, L.P., c/o Fidelity Management Trust Company, 82 Devonshire
Street, MS C7A, Boston, Massachusetts 02109, Attention: Daniel
J. Harmetz, with a copy to Wendy Schnipper Clayton, Esq.,
Fidelity Management Trust Company, 82 Devonshire Street, MS F7D,
Boston, Massachusetts 02109.
Please issue the above-described shares of Class B
Common and Warrants in the following name and address: Dol &
Co., Brown Brothers Harriman & Co., Securities Department, 3
Hanover Street, Ground Floor, New York, New York, 10005, Account
No. 8136715, for the account of Fidelity Copernicus Fund, L.P.,
Attention: Dan Zibinskas.
<PAGE>
America West Airlines, Inc.
August 24, 1994
Page 6
<PAGE>
8. Lehman Brothers, Inc. The Investor has assigned
to Lehman Brothers, Inc. ("Lehman") the following of the
Investor's rights and obligations under the Investment Agreement:
(i) The Investor has assigned to Lehman the right to
purchase 1,333,587 shares of Class B Common.
The address of Lehman is Lehman Brothers Inc., 3
World Financial Center, New York, New York 10285, Attention:
John Sweeney.
Please issue the above-described shares of Class B
Common in the name of Smith Barney Inc., 388 Greenwich Street,
New York, New York, Attention: Bob Fannon, Reorganization
Department, 17th Floor.
With regards.
Sincerely,
AMWEST PARTNERS, L.P.
By: AmWest Genpar, Inc.
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
cc: LeBoeuf, Lamb, Greene & MacRae
Andrews & Kurth L.L.P.
Murphy, Weir & Butler
Lord, Bissell and Brook
<PAGE>
<PAGE>
August 25, 1994
America West Airlines, Inc.
and the others parties to the
Stockholder's Agreement referred to below
c/o America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J. Whalen
RE: AmWest Partners, L.P.
Dear Sirs:
Reference is made to that certain Stockholders'
Agreement dated as of August 25, 1994, by and among AmWest
Partners, L.P., GPA Group plc, America West Airlines, Inc., and
the other parties thereto (the "Agreement"). Capitalized terms
not otherwise defined herein shall have the respective meanings
ascribed to them in the Agreement.
Pursuant to separate instrument of assignment, which
assignment has been notified to the Company by AmWest, the
undersigned has purchased certain shares of Common Stock, which
shares are subject to the Agreement. As a condition to such
assignment, the undersigned is obligated under Section 4.2 of the
Agreement to provide a written acknowledgment to the other
parties to the Agreement that it accepts and is bound by and
subject to the terms of the Agreement.
The undersigned hereby assumes and agrees to be bound
by the terms of the Agreement and subject to the terms of the
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 2
<PAGE>Agreement. This agreement shall be binding on the
undersigned, and the undersigned acknowledges and agrees that
this covenant and agreement is made for the benefit of, and may
be enforced by, the other parties to the Agreement.
Sincerely,
TPG PARTNERS, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 1
<PAGE>
August 25, 1994
America West Airlines, Inc.
and the others parties to the
Stockholder's Agreement referred to below
c/o America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J. Whalen
RE: AmWest Partners, L.P.
Dear Sirs:
Reference is made to that certain Stockholders'
Agreement dated as of August 25, 1994, by and among AmWest
Partners, L.P., GPA Group plc, America West Airlines, Inc., and
the other parties thereto (the "Agreement"). Capitalized terms
not otherwise defined herein shall have the respective meanings
ascribed to them in the Agreement.
Pursuant to separate instrument of assignment, which
assignment has been notified to the Company by AmWest, the
undersigned has purchased certain shares of Common Stock, which
shares are subject to the Agreement. As a condition to such
assignment, the undersigned is obligated under Section 4.2 of the
Agreement to provide a written acknowledgment to the other
parties to the Agreement that it accepts and is bound by and
subject to the terms of the Agreement.
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 2
<PAGE> The undersigned hereby assumes and agrees to be bound
by the terms of the Agreement and subject to the terms of the
Agreement. This agreement shall be binding on the undersigned,
and the undersigned acknowledges and agrees that this covenant
and agreement is made for the benefit of, and may be enforced by,
the other parties to the Agreement.
Sincerely,
TPG PARALLEL I, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 1
<PAGE>
August 25, 1994
America West Airlines, Inc.
and the others parties to the
Stockholder's Agreement referred to below
c/o America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J. Whalen
RE: AmWest Partners, L.P.
Dear Sirs:
Reference is made to that certain Stockholders'
Agreement dated as of August 25, 1994, by and among AmWest
Partners, L.P., GPA Group plc, America West Airlines, Inc., and
the other parties thereto (the "Agreement"). Capitalized terms
not otherwise defined herein shall have the respective meanings
ascribed to them in the Agreement.
Pursuant to separate instrument of assignment, which
assignment has been notified to the Company by AmWest, the
undersigned has purchased certain shares of Common Stock, which
shares are subject to the Agreement. As a condition to such
assignment, the undersigned is obligated under Section 4.2 of the
Agreement to provide a written acknowledgment to the other
parties to the Agreement that it accepts and is bound by and
subject to the terms of the Agreement.
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 2
<PAGE> The undersigned hereby assumes and agrees to be bound
by the terms of the Agreement and subject to the terms of the
Agreement. This agreement shall be binding on the undersigned,
and the undersigned acknowledges and agrees that this covenant
and agreement is made for the benefit of, and may be enforced by,
the other parties to the Agreement.
Sincerely,
AIR PARTNERS II, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 1
<PAGE>
August 25, 1994
America West Airlines, Inc.
and the others parties to the
Stockholder's Agreement referred to below
c/o America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J. Whalen
RE: AmWest Partners, L.P.
Dear Sirs:
Reference is made to that certain Stockholders'
Agreement dated as of August 25, 1994, by and among AmWest
Partners, L.P., GPA Group plc, America West Airlines, Inc., and
the other parties thereto (the "Agreement"). Capitalized terms
not otherwise defined herein shall have the respective meanings
ascribed to them in the Agreement.
Pursuant to separate instrument of assignment, which
assignment has been notified to the Company by AmWest, the
undersigned has purchased certain shares of Common Stock, which
shares are subject to the Agreement. As a condition to such
assignment, the undersigned is obligated under Section 4.2 of the
Agreement to provide a written acknowledgment to the other
parties to the Agreement that it accepts and is bound by and
subject to the terms of the Agreement.
The undersigned hereby assumes and agrees to be bound
by the terms of the Agreement and subject to the terms of the
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 2
<PAGE>Agreement. This agreement shall be binding on the
undersigned, and the undersigned acknowledges and agrees that
this covenant and agreement is made for the benefit of, and may
be enforced by, the other parties to
the Agreement.
Sincerely,
CONTINENTAL AIRLINES, INC.
By: /s/ Cynthia R. Creager-Jones
Name: Cynthia R. Creager-Jones
Title: Vice President
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 1
<PAGE>
August 25, 1994
America West Airlines, Inc.
and the others parties to the
Stockholder's Agreement referred to below
c/o America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Attention: William A. Franke and Martin J. Whalen
RE: AmWest Partners, L.P.
Dear Sirs:
Reference is made to that certain Stockholders'
Agreement dated as of August 25, 1994, by and among AmWest
Partners, L.P., GPA Group plc, America West Airlines, Inc., and
the other parties thereto (the "Agreement"). Capitalized terms
not otherwise defined herein shall have the respective meanings
ascribed to them in the Agreement.
Pursuant to separate instrument of assignment, which
assignment has been notified to the Company by AmWest, the
undersigned has purchased certain shares of Common Stock, which
shares are subject to the Agreement. As a condition to such
assignment, the undersigned is obligated under Section 4.2 of the
Agreement to provide a written acknowledgment to the other
parties to the Agreement that it accepts and is bound by and
subject to the terms of the Agreement.
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 2
<PAGE> The undersigned hereby assumes and agrees to be bound
by the terms of the Agreement and subject to the terms of the
Agreement. This agreement shall be binding on the undersigned,
and the undersigned acknowledges and agrees that this covenant
and agreement is made for the benefit of, and may be enforced by,
the other parties to the Agreement.
Sincerely,
MESA AIRLINES, INC.
By: /s/ Gary Risley
Name: Gary Risley
Title: V.P. Legal Affairs
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 3
<PAGE>
ASSIGNMENT AND ASSUMPTION
Reference is made to that certain Registration Rights
Agreement ("Agreement") dated as of August 25, 1994, among
America West Airlines, Inc. (the "Company"), AmWest Partners,
L.P. ("AmWest") and the other Holders named therein. Capitalized
terms used but not defined in this instrument shall have the
meanings set forth in the Agreement.
By this instrument of Assignment and Assumption (this
"Instrument") and as permitted by Section 11 of the Agreement,
AmWest hereby assigns and transfers to the Person whose name and
address are shown in the space below provided for such purpose
(the "Assignee") those of its rights under the Agreement which
relate to the Registrable Securities of the Company described
below, which Registrable Securities are issuable to or have been
issued to AmWest:
Class A Common 642,078 Shares
Class B Common 3,829,101 Shares
Warrants 706,508 Shares
The Assignee hereby assumes and agrees to fully and
promptly perform, discharge and satisfy all covenants and
obligations on the part of AmWest under the Agreement to the
extent that such convenants and obligations relate to the
Registrable Securities of the Company acquired by Assignee from
AmWest pursuant to this Instrument.
By acknowledging this Instrument in the space
provided below, the Company hereby acknowledges the assignment
and assumption of rights and obligations effected hereby.
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 4
<PAGE> This Instrument is binding upon Assignor, Assignee
and the Company, and their respective Successors and assigns, and
shall inure to the benefit of, and may be enforced by each such
party and its respective Successors and assigns.
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 5
<PAGE>
This Instrument may be executed in any number of
counterparts, each of which shall be an original and all of which
shall together constitute one instrument.
Executed this 25th day of August, 1994
AMWEST PARTNERS, L.P.
Assignor
By: AmWest Genpar, Inc.
its General Partner
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
TPG PARTNERS, L.P.
Assignee
By: TPG GenPar, L.P.
By: TPG Advisors, Inc.
its General Partner
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
Address of Assignee:
201 Main Street
Suite 2420Fort Worth, Texas 76102
Telecopy No: (817) 871-4010
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 6
<PAGE>
Acknowledged and Agreed by the Company Date: August 25, 1994
AMERICA WEST AIRLINES, INC.
By: /s/ Martin J. Whalen
Name: Martin J. Whalen
Title: Senior Vice President
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 7
<PAGE>
ASSIGNMENT AND ASSUMPTION
Reference is made to that certain Registration Rights
Agreement ("Agreement") dated as of August 25, 1994, among
America West Airlines, Inc. (the "Company"), AmWest Partners,
L.P. ("AmWest") and the other Holders named therein. Capitalized
terms used but not defined in this instrument shall have the
meanings set forth in the Agreement.
By this instrument of Assignment and Assumption (this
"Instrument") and as permitted by Section 11 of the Agreement,
AmWest hereby assigns and transfers to the Person whose name and
address are shown in the space below provided for such purpose
(the "Assignee") those of its rights under the Agreement which
relate to the Registrable Securities of the Company described
below, which Registrable Securities are issuable to or have been
issued to AmWest:
Class A Common 64,699 Shares
Class B Common 418,758 Shares
Warrants 159,580 Shares
The Assignee hereby assumes and agrees to fully and
promptly perform, discharge and satisfy all covenants and
obligations on the part of AmWest under the Agreement to the
extent that such convenants and obligations relate to the
Registrable Securities of the Company acquired by Assignee from
AmWest pursuant to this Instrument.
By acknowledging this Instrument in the space
provided below, the Company hereby acknowledges the assignment
and assumption of rights and obligations effected hereby.
This Instrument is binding upon Assignor, Assignee
and the Company, and their respective Successors and assigns, and
shall inure to the benefit of, and may be enforced by each such
party and its respective Successors and assigns.
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 8
<PAGE>
This Instrument may be executed in any number of
counterparts, each of which shall be an original and all of which
shall together constitute one instrument.
Executed this 25th day of August, 1994
AMWEST PARTNERS, L.P.
Assignor
By: AmWest Genpar, Inc.
its General Partner
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
TPG PARALLEL I, L.P.
Assignee
By: TPG GenPar, L.P.
By: TPG Advisors, Inc.
its General Partner
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
Address of Assignee:
201 Main Street
Suite 2420
Fort Worth, Texas 76102
Telecopy No: (817) 871-4010
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 9
<PAGE>
Acknowledged and Agreed by the Company Date: August 25, 1994
AMERICA WEST AIRLINES, INC.
By: /s/ Martin J. Whalen
Name: Martin J. Whalen
Title: Senior Vice President
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 10
<PAGE>
ASSIGNMENT AND ASSUMPTION
Reference is made to that certain Registration Rights
Agreement ("Agreement") dated as of August 25, 1994, among
America West Airlines, Inc. (the "Company"), AmWest Partners,
L.P. ("AmWest") and the other Holders named therein. Capitalized
terms used but not defined in this instrument shall have the
meanings set forth in the Agreement.
By this instrument of Assignment and Assumption (this
"Instrument") and as permitted by Section 11 of the Agreement,
AmWest hereby assigns and transfers to the Person whose name and
address are shown in the space below provided for such purpose
(the "Assignee") those of its rights under the Agreement which
relate to the Registrable Securities of the Company described
below, which Registrable Securities are issuable to or have been
issued to AmWest:
Class A Common 67,718 Shares
Class B Common 438,302 Shares
Warrants 167,028 Shares
The Assignee hereby assumes and agrees to fully and
promptly perform, discharge and satisfy all covenants and
obligations on the part of AmWest under the Agreement to the
extent that such convenants and obligations relate to the
Registrable Securities of the Company acquired by Assignee from
AmWest pursuant to this Instrument.
By acknowledging this Instrument in the space
provided below, the Company hereby acknowledges the assignment
and assumption of rights and obligations effected hereby.
This Instrument is binding upon Assignor, Assignee
and the Company, and their respective Successors and assigns, and
shall inure to the benefit of, and may be enforced by each such
party and its respective Successors and assigns.
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 11
<PAGE>
This Instrument may be executed in any number of
counterparts, each of which shall be an original and all of which
shall together constitute one instrument.
Executed this 25th day of August, 1994
AMWEST PARTNERS, L.P.
Assignor
By: AmWest Genpar, Inc.
its General Partner
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
AIR PARTNERS II, L.P.
Assignee
By: TPG GenPar, L.P.
By: TPG Advisors, Inc.
its General Partner
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
Address of Assignee:201 Main Street
Suite 2420
Fort Worth, Texas 76102
Telecopy No: (817) 871-4010
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 12
<PAGE>
Acknowledged and Agreed by the Company Date: August 25, 1994
AMERICA WEST AIRLINES, INC.
By: /s/ Martin J. Whalen
Name: Martin J. Whalen
Title: Senior Vice President
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 13
<PAGE>
ASSIGNMENT AND ASSUMPTION
Reference is made to that certain Registration Rights
Agreement ("Agreement") dated as of August 25, 1994, among
America West Airlines, Inc. (the "Company"), AmWest Partners,
L.P. ("AmWest") and the other Holders named therein. Capitalized
terms used but not defined in this instrument shall have the
meanings set forth in the Agreement.
By this instrument of Assignment and Assumption (this
"Instrument") and as permitted by Section 11 of the Agreement,
AmWest hereby assigns and transfers to the Person whose name and
address are shown in the space below provided for such purpose
(the "Assignee") those of its rights under the Agreement which
relate to the Registrable Securities of the Company described
below, which Registrable Securities are issuable to or have been
issued to AmWest:
Class A Common 100,000 Shares
Class B Common 2,183,343 Shares
Warrants 799,967 Shares
The Assignee hereby assumes and agrees to fully and
promptly perform, discharge and satisfy all covenants and
obligations on the part of AmWest under the Agreement to the
extent that such convenants and obligations relate to the
Registrable Securities of the Company acquired by Assignee from
AmWest pursuant to this Instrument.
By acknowledging this Instrument in the space
provided below, the Company hereby acknowledges the assignment
and assumption of rights and obligations effected hereby.
This Instrument is binding upon Assignor, Assignee
and the Company, and their respective Successors and assigns, and
shall inure to the benefit of, and may be enforced by each such
party and its respective Successors and assigns.
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 14
<PAGE>
This Instrument may be executed in any number of
counterparts, each of which shall be an original and all of which
shall together constitute one instrument.
Executed this 25th day of August, 1994
AMWEST PARTNERS, L.P.
Assignor
By: AmWest Genpar, Inc.
its General Partner
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
MESA AIRLINES, INC.
Assignee
By: /s/ Gary Risley
Name: Gary Risley
Title: V.P. Legal Affairs
Address of Assignee:
2325 30th Street
Farmington, New Mexico 87401
Telecopy No.: (505) 326-4402
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 15
<PAGE>
Acknowledged and Agreed by the Company Date: August 25, 1994
AMERICA WEST AIRLINES, INC.
By: /s/ Martin J. Whalen
Name: Martin J. Whalen
Title: Senior Vice President
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 16
<PAGE>
ASSIGNMENT AND ASSUMPTION
Reference is made to that certain Registration Rights
Agreement ("Agreement") dated as of August 25, 1994, among
America West Airlines, Inc. (the "Company"), AmWest Partners,
L.P. ("AmWest") and the other Holders named therein. Capitalized
terms used but not defined in this instrument shall have the
meanings set forth in the Agreement.
By this instrument of Assignment and Assumption (this
"Instrument") and as permitted by Section 11 of the Agreement,
AmWest hereby assigns and transfers to the Person whose name and
address are shown in the space below provided for such purpose
(the "Assignee") those of its rights under the Agreement which
relate to the Registrable Securities of the Company described
below, which Registrable Securities are issuable to or have been
issued to AmWest:
Class A Common 325,505 Shares
Class B Common 1,508,234 Shares
Warrants 802,860 Shares
The Assignee hereby assumes and agrees to fully and
promptly perform, discharge and satisfy all covenants and
obligations on the part of AmWest under the Agreement to the
extent that such convenants and obligations relate to the
Registrable Securities of the Company acquired by Assignee from
AmWest pursuant to this Instrument.
By acknowledging this Instrument in the space
provided below, the Company hereby acknowledges the assignment
and assumption of rights and obligations effected hereby.
This Instrument is binding upon Assignor, Assignee
and the Company, and their respective Successors and assigns, and
shall inure to the benefit of, and may be enforced by each such
party and its respective Successors and assigns.
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 17
<PAGE>
This Instrument may be executed in any number of
counterparts, each of which shall be an original and all of which
shall together constitute one instrument.
Executed this 25th day of August, 1994
AMWEST PARTNERS, L.P.
Assignor
By: AmWest Genpar, Inc.
its General Partner
By: /s/ Richard P. Schifter
Name: Richard P. Schifter
Title: Vice President
CONTINENTAL AIRLINES, INC.
Assignee
By: /s/ Cynthia R. Creager-Jones
Name: Cynthia R. Creager-Jones
Title: Vice President
Address of Assignee:
2929 Allen Parkway
Suite 1466
Houston, Texas 77019
Telecopy No.: (713) 834-2448
<PAGE>
America West Airlines, Inc.
August 25, 1994
Page 18
<PAGE>
Acknowledged and Agreed by the Company Date: August 25, 1994
AMERICA WEST AIRLINES, INC.
By: /s/ Martin J. Whalen
Name: Martin J. Whalen
Title: Senior Vice President<
<PAGE>
____________________________________________________________
VOTING AGREEMENT
Dated as of August 25, 1994
Between
GPA Group plc
and
AmWest Partners, L.P.
____________________________________________________________
<PAGE>
<PAGE>
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is
entered into as of August 25, 1994 between AmWest Partners,
L.P., a Texas limited partnership, and GPA Group plc, an
Irish public limited company ("GPA").
RECITALS
WHEREAS, on June 27, 1991, America West Airlines,
Inc., a Delaware corporation ("AWA"), filed a petition in
the United States Bankruptcy Court for the District of
Arizona (the "Bankruptcy Court") entitled "In re America
West Airlines, Inc., Debtor" commencing Chapter 11 Case No.
9107505-PHX-RGM (the "Case") under Chapter 11 of the United
States Bankruptcy Code, as amended from time to time;
WHEREAS, on August 10, 1994, the Bankruptcy Court
confirmed that certain Plan of Reorganization under Chapter
11 of the United States Bankruptcy Code (the "Plan") with
respect to the Case;
WHEREAS, the GPA Term Sheet attached as Exhibit C
to the Plan describes, among other things, the arrangement
agreed upon between GPA and AmWest (as such term is
hereinafter defined) whereby (i) GPA shall vote for AmWest's
nominees to the Board of Directors of the reorganized AWA
and (ii) AmWest shall vote for GPA's nominee to the Board of
Directors of the reorganized AWA, in each case, for so long
as (x) AmWest owns at least five percent (5%) of the voting
equity securities of AWA (on a fully diluted basis) and (y)
GPA owns at least two percent (2%) of the voting equity
securities of AWA (on a fully diluted basis);
WHEREAS, each of GPA and AmWest desires to give
effect to the voting arrangement described immediately above
on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual
agreements herein contained and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
<PAGE> 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.
<PAGE> "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.
<PAGE> "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
<PAGE>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
<PAGE>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
<PAGE>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).
<PAGE> (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
<PAGE>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.
<PAGE> (c) Each of the parties bound by this
Agreement hereby agrees that so long as both the Stockholder
Agreement and this Agreement are in effect, nothing
contained in this Agreement shall be construed to limit or
otherwise affect the obligations, rights or remedies of any
party under the Stockholder Agreement.
Section 6. Miscellaneous.
(a) Notices. All notices or other communications
hereunder shall be in writing and delivered by registered
airmail, return receipt requested, next-day air courier
delivery, personal service or telecopier at the respective
addresses and to the attention of the respective parties set
forth below. All notices hereunder shall be effective when
received.
If to GPA: GPA Group plc
GPA House
Shannon, County Clare
Ireland
Telecopier: 011-353-61-360220
Attention: Patrick H. Blaney
With a copy to: GPA Group plc
GPA House
Shannon, County Clare
Ireland
Telecopier: 011-353-61-360503
Attention: Corporate Secretary
With a copy to: Paul, Hastings, Janofsky &
Walker
399 Park Avenue, 31st Floor
New York, New York 10022
Telecopier: (212) 319-4090
Attention: Marguerite R. Kahn
If to AmWest: AmWest Partners, L.P.
201 Main Street, Suite 2420
Fort Worth, Texas 76102
Telecopier: (817) 871-4010
Attention: James G. Coulter
With a copy to: Arnold & Porter
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036
Telecopier: (202) 872-6720
Attention: Richard Schifter
<PAGE> (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.
<PAGE> (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.<PAGE>
<PAGE> 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
