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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 23, 1995
REGISTRATION NO. _____________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICA WEST AIRLINES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 86-0418245
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
4000 EAST SKY HARBOR BOULEVARD
PHOENIX, ARIZONA 85304
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
AMERICA WEST AIRLINES, INC.
1994 INCENTIVE EQUITY PLAN
(FULL TITLE OF THE PLAN)
STEPHEN L. JOHNSON
AMERICA WEST AIRLINES, INC.
4000 EAST SKY HARBOR BOULEVARD
PHOENIX, ARIZONA 85304
(602) 693-0800
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
____________________________________________
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CALCULATION OF REGISTRATION FEE
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PROPOSED
MAXIMUM
OFFERING PROPOSED MAXIMUM AMOUNT OF
AMOUNT TO BE PRICE PER AGGREGATE REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED SHARE OFFERING PRICE FEE
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CLASS B COMMON STOCK, PAR VALUE
$0.01 PER SHARE 3,500,000 SHARES $12.50 (1) $43,750,000(1) $15,087(1)
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(1) ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE REGISTRATION FEE,
BASED UPON THE AVERAGE OF THE HIGH AND LOW PRICES OF A SHARE OF THE
COMPANY'S COMMON STOCK ON THE NEW YORK STOCK EXCHANGE ON JUNE 21, 1995
PURSUANT TO RULE 457(C).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in the Registration
Statement:
(a) Annual Report on Form 10-K for the fiscal year ended December 31,
1994 of America West Airlines, Inc. (the Company or America West).
(b) The Company's Quarterly Report on Form 10-Q for the period ended
March 31, 1995.
(c) The description of the Company's Class B Common Stock, par value
$0.01 per share, as described in the Company's Registration Statement on
Form 8-A.
(d) All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the date hereof.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") and Section
8.02 of America West's By-Laws, a copy of which is filed as Exhibit 3.2 to this
Registration Statement, contain provisions authorizing indemnification of
directors, officers, employees or agents against certain liabilities and
expenses which they might incur as directors, officers, employees or agents of
America West or of certain other entities. Section 145 also provides that any
indemnification shall be made only as authorized in each specific case upon a
determination by the (i) stockholders, (ii) board of directors by a majority
vote of a quorum of disinterested directors so directs, that indemnification of
the indemnitee is proper because he has met the applicable standard of conduct.
Section 174 of the DGCL and Article 12.0 of America West's Restated Certificate
of Incorporation provides that directors of the Company will not be personally
liable for monetary damages for breach of a director's fiduciary duty as a
director, except for liability (i) for any breach of the director s duty of
loyalty to the Company or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) for unlawful payments of dividends
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or unlawful stock repurchase or redemptions as provided in Section 174 of the
DGCL or (iv) for any transaction from which the director derived any improper
personal benefit. The Company intends to enter into indemnification agreements
with certain of its directors providing for indemnification to the fullest
extent permitted by the law of the State of Delaware.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
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Exhibit
Number Description
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4.1 Restated Certificate of Incorporation of America West Airlines, Inc. (incorporated by reference to the
Company's Report on Form 8-K dated September 8, 1994).
4.2 Restated By Laws of America West Airlines, Inc.(incorporated by reference to the Company's Report on
Form 10-K dated December 31, 1994).
5.1* Opinion of Andrews & Kurth L.L.P.
23.1* Consent of Andrews & Kurth L.L.P. (included in the Opinion filed as Exhibit 5.1).
23.2* Consent of KPMG Peat Marwick.
24.1* Power of Attorney (set forth on the signature page contained in Part II of this Registration Statement).
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* Filed with this Registration Statement.
ITEM 9. UNDERTAKINGS.
The registrant hereby undertakes:
(1) To file during any period in which offers or sales are being made,
post effective amendment(s) to this Registration Statement to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement;
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(2) That, for the purpose of determining any liability under the
Securities Act, each such post effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
(4) That for purposes of determining any liability under the Securities
Act, each filing of the Company s annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan s annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of
the Company in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy is expressed in the Securities Act, and will be governed
by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Phoenix, State of Arizona on June 23, 1995.
AMERICA WEST AIRLINES, INC.
By: /s/ WILLIAM A. FRANKE
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William A. Franke,
Chairman of the Board and
Chief Executive Officer
Each of the undersigned directors and officers of America West
Airlines, Inc. does hereby constitute and appoint William A. Franke, A.
Maurice Myers and Raymond T. Nakano, and each of them severally, the
undersigned's true and lawful attorneys in fact and agents, with full power of
substitution and resubstitution in each of them, to do any and all acts and
things in the undersigned's name and on the undersigned's behalf in the
capacities indicated below that any of them may deem necessary or advisable to
enable America West Airlines, Inc. to comply with the Securities Act of 1933,
as amended, and any rules, regulations and requirements of the Securities and
Exchange Commission, in connection with this Registration Statement, including
specifically, but not limited to, the power and authority to sign for the
undersigned in the capacity indicated below any and all amendments (including
post effective amendments) hereto and file the same, with all exhibits thereto
and other documents therewith, with the Securities and Exchange Commission; and
the undersigned does hereby ratify and confirm all that said attorneys in fact,
or any of them, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on June 23, 1995.
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SIGNATURE TITLE
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/s/ WILLIAM A. FRANKE Chairman of the Board and
- ------------------------------------- Chief Executive Officer
William A. Franke (Principal Executive Officer)
/s/ A. MAURICE MYERS President, Chief Operating
- ------------------------------------- Officer and Director
A. Maurice Myers
/s/ RAYMOND T. NAKANO Vice President and Controller
- ------------------------------------- (Principal Financial and
Raymond T. Nakano Accounting Officer)
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/s/ JULIA CHANG BLOCH Director
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Julia Chang Bloch
/s/ STEPHEN BOLLENBACH Director
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Stephen Bollenbach
/s/ FREDERICK W. BRADLEY Director
- -------------------------------------
Frederick W. Bradley
Director
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James G. Coulter
/s/ JOHN F. FRASER Director
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John F. Fraser
/s/ JOHN L. GOOLSBY Director
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John L. Goolsby
/s/ RICHARD C. KRAEMER Director
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Richard C. Kraemer
/s/ JOHN R. POWER, JR. Director
- -------------------------------------
John R. Power, Jr.
Director
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Larry L. Risley
/s/ FRANK B. RYAN Director
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Frank B. Ryan
/s/ RICHARD P. SCHIFTER Director
- -------------------------------------
Richard P. Schifter
/s/ JOHN F. TIERNEY Director
- -------------------------------------
John F. Tierney
/s/ RAYMOND S. TROUBH Director
- -------------------------------------
Raymond S. Troubh
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EXHIBIT 5.1
June 23, 1995
Board of Directors
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, Arizona 85034
Gentlemen:
We have acted as counsel for America West Airlines, Inc., a Delaware
corporation (the "Company"), in connection with the Company's Registration
Statement on Form S-8, dated June 23, 1995 (the "Registration Statement"),
relating to the registration under the Securities Act of 1933, as amended, of
the issuance of up to 3,500,000 shares of Common Stock, par value $0.01 per
share ("Common Stock"), of the Company (the "Shares") issuable pursuant to the
America West Airlines, Inc., 1994 Incentive Equity Plan (the "Plan").
As the basis for the opinion hereinafter expressed, we have examined
such corporate records and documents, certificates of corporate and public
officials and such other instruments as we have deemed necessary for the
purposes of the opinion contained herein. As to all matters of fact material
to such opinion, we have relied upon the representations of officers of the
Company. We have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, and the conformity with the
original documents of all documents submitted to us as copies.
Based upon the foregoing and having due regard for such legal
considerations as we deem relevant, we are of the opinion that the Shares to be
offered under the Plan have been duly authorized, and that the Shares, when
properly issued under the Plan, will be validly issued, fully paid and
nonassessable.
We hereby consent to the inclusion of this opinion as an exhibit to
the Registration Statement.
ANDREWS & KURTH L.L.P.
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors and Stockholders
America West Airlines, Inc.:
We consent to the use of our reports dated February 24, 1995,
incorporated herein by reference.
Our reports dated February 24, 1995 contain an explanatory paragraph
that states that as discussed in Notes 1 and 2 to the financial statements, on
August 25, 1994, America West Airlines, Inc. emerged from bankruptcy. The
financial statements of the Reorganized Company reflect the impact of
adjustments to reflect the fair value of assets and liabilities under fresh
start reporting. As a result, the financial statements of the Reorganized
Company are presented on a different basis than those of the Predecessor
Company and, therefore, are not comparable in all respects.
KPMG Peat Marwick LLP
Phoenix, Arizona
June 22, 1995
