<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)*
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 Air Group, 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)
February 14, 1996
-----------------
(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 [ ]. (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.)
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 1 of 42 Pages
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CUSIP Nos. 023650 302, 023650 203, 023650 112 13D
<TABLE>
<S> <C>
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Mesa Air Group, 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
</TABLE>
<TABLE>
<S> <C> <C> <C>
7 SOLE VOTING POWER
Class A Common Stock 100,000
Class B Common Stock 2,185,472
NUMBER OF Warrants to Purchase Class B Common Stock 799,767
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH Class A Common Stock 1,200,000
REPORTING Class B Common Stock 13,605,766
PERSON WITH Warrants to Purchase Class B Common Stock 4,898,765
9 SOLE DISPOSITIVE POWER
Class A Common Stock 100,000
Class B Common Stock 2,185,472
Warrants to Purchase Class B Common Stock 799,767
10 SHARED DISPOSITIVE POWER
Class A Common Stock 1,200,000
Class B Common Stock 13,605,766
Warrants to Purchase Class B Common Stock 4,898,765
</TABLE>
Page 2 of 42 Pages
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CUSIP Nos. 023650 302, 023650 203, 023650 112 13D
<TABLE>
<S> <C>
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
Class A Common Stock 1,200,000
Class B Common Stock 13,605,766
Warrants to Purchase Class B Common Stock 4,898,765
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 27.7%
Warrants to Purchase Class B Common Stock 47.2%
14 TYPE OF REPORTING PERSON*
CO
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 3 of 42 Pages
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This Amendment No. 3 (this "Amendment") amends and supplements
the Schedule 13D filed on September 6, 1994, as amended by Amendment No. 1
filed as of November 28, 1995 and Amendment No. 2 filed on February 1, 1996
(the "Schedule 13D") of Mesa Air Group, Inc. (formerly, Mesa Airlines, Inc.),
a New Mexico corporation ("Mesa"), with respect to the Class A Common Stock,
$0.01 par value per share (the "Class A Common"), the Class B Common Stock,
$0.01 par value per share (the "Class B Common"), and the Warrants to Purchase
Class B Common (the "Warrants") of America West Airlines, Inc., a Delaware
corporation (the "Company"). All capitalized terms used in this Amendment and
not otherwise defined herein shall have the meanings ascribed to them in the
Schedule 13D.
ITEM 4. PURPOSE OF TRANSACTION.
Item 4 of the Schedule 13D is hereby amended by inserting the
following paragraphs immediately prior to the final paragraph thereof.
On February 14, 1996, each of TPG, TPG Parallel, Air Partners
II, Continental, Mesa and Lehman (collectively, the "Selling Securityholders")
entered into and executed a Purchase Agreement (the "Purchase Agreement") and
related Pricing Agreement (the "Pricing Agreement") each dated February 14,
1996, among the Company, the Selling Securityholders and certain
underwriters represented by Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Donaldson, Lufkin & Jenrette Securities Corporation and Lehman Brothers Inc.
(together, the "Representatives"). The following is a brief description of the
Purchase Agreement and the Pricing Agreement, and is qualified in its entirety
by reference to such agreements, copies of which are filed as exhibits hereto
and incorporated herein by reference. Pursuant to the Purchase Agreement and
the Pricing Agreement, the Selling Securityholders have agreed to sell to the
underwriters, acting through the Representatives, for resale pursuant to the
Company's Registration Statement on Form S-1, File No. 33-54243, and the
related prospectus dated January 29, 1996 and prospectus supplement dated
February 14, 1996 to be filed pursuant to Rule 424(b) of the Securities Act of
1933, as amended, at a price of $19.50 per share, less an underwriting discount
of $0.93 per share. Of the total of 6,633,000 shares of Class B Common to be
sold, 2,404,178 shares are to be sold by TPG, 242,258 shares are to be sold by
TPG Parallel, 253,564 shares are to be sold by Air Partners II, 1,633,000
shares are to be sold by Mesa, 1,100,000 shares are to be sold by Continental
and 1,000,000 shares are to be sold by Lehman. The closing of the sale of the
6,633,000 shares of Class B Common pursuant to the Purchase Agreement and the
Pricing Agreement is expected to occur on February 21, 1996 and is subject to
the satisfaction or waiver of certain conditions set forth in the Purchase
Agreement. The Purchase Agreement provides that, in connection with the
offering, Mesa has granted to the underwriters an option to purchase up to
an additional 351,970 shares of Class B Common and Continental has granted to
the underwriters an option to purchase up to an additional 258,030 shares of
Class B Common, in each case solely to cover over-allotments in connection with
the sale of the shares of Class B Common.
ITEM 5. INTERESTS IN SECURITIES OF ISSUER.
The third paragraph of Item 5(a)-(b) of the Schedule 13D is
hereby amended and replaced in its entirety as follows:
On the basis of information contained in the Schedules 13D and
the amendments thereto filed by each of TPG, TPG Parallel, Air Partners II,
Continental, Mesa and GPA, as a group, such persons beneficially own
1,200,000 shares of the Class A Common, 8,707,001 shares of the Class B Common,
and 4,898,765 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 December 31, 1995, based on information
provided by the Company. The aggregate amount of the Class B Common
beneficially owned by the group represents approximately 19.7% of the
44,141,330 shares of the Class B Common outstanding as of December 31, 1995,
based on information provided by the Company. The aggregate amount of Warrants
beneficially owned by the group represents approximately 47.2% of the
10,380,286 Warrants outstanding as of
Page 4 of 42 Pages
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December 31, 1995, based on information provided by the Company. Assuming the
exercise by the group of its Warrants, the aggregate amount of the Class B
Common beneficially owned by the group represents approximately 27.7% of the
49,040,095 shares of the Class B Common which would be assumed to be
outstanding upon such exercise.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
Item 6 of the Schedule 13D is hereby amended by deleting the
two paragraphs immediately prior to the final paragraph thereof and replacing
them with the following paragraphs.
As set forth in Item 4, on February 14, 1996, the Selling
Securityholders entered into and executed the Purchase Agreement and the
related Pricing Agreement, each dated February 14, 1996, among the Company, the
Selling Securityholders and certain underwriters represented by the
Representatives. Each of the Purchase Agreement and the Pricing Agreement is
briefly described in Item 4 and copies of each such Agreement are attached as
exhibits hereto and incorporated herein by reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1 -- Purchase Agreement
Exhibit 2 -- Pricing Agreement
Page 5 of 42 Pages
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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: February 20, 1996
MESA AIR GROUP, INC.
By: /s/ W. Stephen Jackson
----------------------
Name: W. Stephen Jackson
Title: Chief Financial Officer
Page 6 of 42 Pages
<PAGE> 7
EXHIBIT 1
6,633,000 Shares
AMERICA WEST AIRLINES, INC.
(a Delaware corporation)
Class B Common Stock
(Par Value $.01 Per Share)
PURCHASE AGREEMENT
------------------
February 14, 1996
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Donaldson, Lufkin & Jenrette Securities Corporation
Lehman Brothers Inc.
as Representatives of the several Underwriters
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281
Dear Sirs:
America West Airlines, Inc., a Delaware corporation (the
"Company"), and the selling stockholders named in Schedule B hereto (each a
"Selling Stockholder" and collectively, the "Selling Stockholders") confirm
their agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch"), Donaldson, Lufkin & Jenrette Securities
Corporation ("DLJ"), Lehman Brothers Inc. ("Lehman Brothers") and each of the
other Underwriters named in Schedule A hereto (collectively, the
"Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom Merrill Lynch, DLJ and
Lehman Brothers are acting as representatives (in such capacity, Merrill Lynch,
DLJ and Lehman Brothers shall hereinafter be referred to as the
"Representatives"), with respect to the sale by the Selling Stockholders,
acting severally and not jointly, and the purchase by the Underwriters, acting
severally and not jointly, of the respective numbers of shares of Class B
Common Stock, par value $.01 per share, of the Company ("Common Stock") set
forth in said Schedule A (except as may otherwise be provided in the Pricing
Agreement, as hereinafter defined) and with respect to the grant by two Selling
Stockholders, acting severally and not jointly, as set forth in Schedule B
hereto, to the Underwriters, acting severally and not jointly, of the option
described in Section 2(b) hereof to purchase all or any part of 610,000
additional shares of Common Stock solely to cover over-allotments, if any, in
each case except as may otherwise be provided in the Pricing Agreement. The
aforesaid 6,633,000 shares of Common Stock (the "Initial Securities") to be
purchased by the Underwriters and all or any part of the 610,000 shares of
Common Stock subject to the option described in Section 2(b) hereof (the
"Option Securities") are collectively hereinafter called the "Securities."
Page 7 of 42 Pages
<PAGE> 8
Prior to the purchase and public offering of the Securities by
the several Underwriters, the Selling Stockholders, acting severally and not
jointly, and the Representatives, acting on behalf of the several Underwriters,
shall enter into an agreement substantially in the form of Exhibit A hereto
(the "Pricing Agreement") which agreement shall be acknowledged by the Company.
The Pricing Agreement may take the form of an exchange of any standard form of
written telecommunication among the Company, the Selling Stockholders and the
Representatives and shall specify such applicable information as is indicated
in Exhibit A hereto. The offering of the Securities will be governed by this
Agreement, as supplemented by the Pricing Agreement. From and after the date
of the execution and delivery of the Pricing Agreement, this Agreement shall be
deemed to incorporate the Pricing Agreement.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-1 (No.
33-54243), for the registration of certain securities of the Company including,
initially, 26,447,326 shares of Common Stock, 1,200,000 shares of the Company's
Class A Common Stock, par value $.01 (the "Class A Common Stock") and 5,872,108
warrants, each entitling the holder thereof to purchase one share of Common
Stock (the "Warrants"), under the Securities Act of 1933 (the "1933 Act"), on
June 23, 1994; and pre-effective amendments thereto on July 27, 1994, August 2,
1994, August 15, 1994 and August 23, 1994; and prospectus supplements thereto
on August 29, 1994, June 21, 1995, October 5, 1995, November 16, 1995, December
4, 1995 and January 29, 1996; and Post-Effective Amendments thereto on November
25, 1994, April 19, 1995, June 1, 1995, June 15, 1995, June 21, 1995 and
January 30, 1996 and will file such additional amendments thereto and such
amended or supplemental prospectuses as may hereafter be required. Such
registration statement (as amended, if applicable) and the prospectus
constituting a part thereof (including in each case the information, if any,
deemed to be part thereof pursuant to Rule 434 of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations")), as from time
to time amended or supplemented pursuant to the 1933 Act, are hereinafter
referred to as the "Registration Statement" and the "Prospectus," respectively,
except that if any revised prospectus shall be provided to the Underwriters by
the Company for use in connection with the offering of the Securities which
differs from the Prospectus on file at the Commission (whether or not such
revised prospectus is required to be filed by the Company pursuant to Rule
424(b) of the 1933 Act Regulations), the term "Prospectus" shall refer to such
revised prospectus from and after the time it is first provided to the
Underwriters for such use. Additionally, if the Company has elected to rely
upon Rule 434 of the 1933 Act Regulations, the Company will prepare and file a
term sheet (a "term sheet"), in accordance with the provisions of Rules 434 and
424(b) of such Regulations, promptly after execution of the Pricing Agreement.
The Company and the Selling Stockholders understand that the
Underwriters propose to make a public offering of the Securities as soon as the
Representatives deem advisable after the Pricing Agreement has been executed
and delivered.
Section 1. REPRESENTATIONS AND WARRANTIES. (a) The Company
represents and warrants to each Underwriter as of the date hereof and as of the
date of the Pricing Agreement (such latter date being hereinafter referred to
as the "Representation Date") as follows:
(i) At the time the Registration Statement became
effective and at the Representation Date (unless the term
"Prospectus" refers to prospectuses which have been provided
to the Underwriters by the Company for use in connection with
the offering of Securities which differs from the Prospectus
on file at the Commission, in which case at the time the
Prospectus is first provided to the Underwriters for their
use), the Registration Statement complied and will comply in
all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and did not contain and will not
contain 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. The
Prospectus, at the Representation Date, at the time it is
first provided
Page 8 of 42 Pages
<PAGE> 9
to the Underwriters for their use and at the Closing Time
referred to in Section 2 hereof, will not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; and if Rule 434 is used, the Prospectus shall not
be "materially different" as such term is used in Rule 434 of
the 1933 Act Regulations, from the prospectus first provided
to the Underwriters for their use; provided, however, that the
representations and warranties in this subsection shall not
apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in
writing by any Underwriter through the Representatives
expressly for use in the Registration Statement or Prospectus.
(ii) The accountants who certified the financial
statements and supporting schedules included in the
Registration Statement are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iii) The financial statements included in the
Registration Statement and the Prospectus present fairly the
financial position of the Company as at the dates indicated
and the results of its operations for the periods specified;
except as otherwise stated in the Registration Statement, said
financial statements have been prepared in conformity with
generally accepted accounting principles applied on a
consistent basis; and the supporting schedules included in the
Registration Statement present fairly the information required
to be stated therein.
(iv) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Company, whether or not arising in the
ordinary course of business, (B) there have been no
transactions entered into by the Company, other than those in
the ordinary course of business, which are required to be
disclosed therein under the 1933 Act and the 1933 Act
Regulations and are not so disclosed, and (C) there has been
no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock, except for
any distribution of securities upon the resolution of
bankruptcy-related claims.
(v) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the state of Delaware with corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement
and the Pricing Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure
to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company.
(vi) The Company has no subsidiaries.
(vii) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any,
pursuant to reservations, agreements, employee benefit plans
or the exercise of convertible securities and the warrants
referred to in the Prospectus); the shares of issued and
outstanding Common Stock have been duly authorized and validly
issued and are fully paid and nonassessable.
Page 9 of 42 Pages
<PAGE> 10
(viii) The Company is not in violation of its
charter or in default in the performance or observance of any
material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the
Company is a party or by which it may be bound, or to which
any of the property or assets of the Company is subject,
excluding in each case, violations or defaults which,
individually or in the aggregate would not have a material
adverse effect on the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the
Company; and the execution, delivery and performance of this
Agreement and the Pricing Agreement and the consummation of
the transactions contemplated herein and therein and
compliance by the Company with its obligations hereunder and
thereunder have been duly authorized by all necessary
corporate action and will not conflict with or constitute a
breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company is a party or by which it may
be bound, or to which any of the property or assets of the
Company is subject, excluding in each case, conflicts,
breaches, defaults or liens which, individually or in the
aggregate, would not have a material adverse effect on the
condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company, nor
will such action result in any violation of the provisions of
the charter or bylaws of the Company or any applicable law,
rule, regulation, judgment, order, consent or decree of any
government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its assets or
properties.
(ix) The Company is not in violation of any Federal,
state or local law relating to discrimination in the hiring,
promotion or pay of employees nor any applicable wage or hour
laws that, singly or in the aggregate, could have a material
adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the
Company. Except as disclosed in the Prospectus, there is (A)
no significant unfair labor practice complaint pending against
the Company or, to the best knowledge of the Company,
threatened against the Company, before the National Labor
Relations Board or any state or local labor relations board,
and no significant grievance or significant arbitration
proceeding arising out of or under any collective bargaining
agreement is so pending against the Company or, to the best
knowledge of the Company, threatened against the Company, and
(B) no labor dispute in which the Company is involved nor, to
the best knowledge of the Company, is any labor dispute
imminent, other than routine disciplinary and grievance
matters. The Company is in compliance with all presently
applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and the
regulations and published interpretations thereunder,
including but not limited to Sections 4975 and 4980B of the
Internal Revenue Code of 1986, as amended (the "Code") except
to the extent that such non-compliance would not, singly or in
the aggregate, have a material adverse effect on the
condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company. There are no
"pension plans" established or maintained by the Company that
are intended to be qualified under Section 401(a) of the Code.
Since September 26, 1980 the Company has not made or suffered
a "complete withdrawal" or a "partial withdrawal" as such
terms are respectively defined in Sections 4203 and 4205 of
ERISA with respect to any "multi-employer pension plans" to
which the Company is a contributor. On the Representation
Date, the Company would not have an aggregate withdrawal
liability (computed as if the Company made a complete
withdrawal on such date) with respect to any "multi-employer
pension plans" to which the Company is a contributor.
Page 10 of 42 Pages
<PAGE> 11
(x) There is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company, which is
required to be disclosed in the Registration Statement (other
than as disclosed therein), or which is reasonably expected to
result in any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs
or business prospects of the Company or is reasonably expected
to materially and adversely affect the properties or assets
thereof or which might materially and adversely affect the
consummation of this Agreement; there are no contracts or
documents of the Company which are required to be filed as
exhibits to the Registration Statement by the 1933 Act or by
the 1933 Act Regulations which have not been so filed.
(xi) The Company (i) has been subject to the
requirements of Section 12 of the 1934 Act for a period of at
least 12 calendar months, (ii) has filed in a timely manner
all reports required to be filed during the 12 calendar months
preceding the Representation Date, and (iii) the aggregate
market value of the voting stock held by non-affiliates of the
Company is $75 million or more.
(xii) No authorization, approval or consent of any
court or governmental authority or agency is necessary in
connection with the offering of and the sale of the Securities
hereunder, except such as may be required under the 1933 Act
or the 1933 Act Regulations or state securities laws.
(xiii) The Company possesses such certificates,
authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to
conduct the business now operated by it except as would not
materially and adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business
prospects of the Company, and the Company has not received any
notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit
which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and
adversely affect the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the
Company.
(xiv) The Company has sufficient title for the use
made and proposed to be made of all of its properties, whether
real or personal, free and clear of all liens, encumbrances
and defects, except as stated in the Prospectus or such as
would not have a material adverse effect on the condition,
financial or otherwise, or in the earnings, business affairs
or business prospects of the Company.
(xv) There are no persons with registration or other
similar rights to have any securities registered pursuant to
the Registration Statement or to participate in the offering
of the Securities contemplated by this Agreement, except such
as have been waived in writing or complied with by the
inclusion of such securities in the Registration Statement or
the inclusion of such persons as Selling Stockholders in
Schedule B hereto, as the case may be.
(xvi) This Agreement has been, and, at the
Representation Date the Pricing Agreement will have been, duly
executed and delivered by the Company.
Page 11 of 42 Pages
<PAGE> 12
(xvii) The Company has not and is not presently doing
business with the government of Cuba or with any person or any
affiliate located in Cuba.
(xviii) The Company is an "air carrier" and after
consummation of the transactions contemplated herein will be a
"citizen of the United States," in each case within the
meaning of the Federal Aviation Act of 1958, as amended.
(xix) There is no pending or threatened action, suit
or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or
its property and involving (A) licenses, certificates, permits
or other governmental authorizations issued by or from the
Department of Transportation, the Federal Aviation
Administration, the Federal Communications Commission or any
other federal or any state transportation or aviation
regulatory authority or (B) the Federal Aviation Act of 1958,
as amended ((A) and (B) together, "Aviation Laws") that is of
a character required to be disclosed in the Prospectus.
(xx) The descriptions in the Registration Statement
of laws, regulations and rules, of legal and governmental
proceedings and of contracts, agreements, leases and other
documents including, without limitation, under the headings
"Risk Factors -- Government Regulation," "Business -- Aircraft
and -- Government Regulation" are accurate in all material
respects, and comply as to form in all material respects with
the applicable requirements of the 1933 Act and the 1933 Act
Regulations.
(xxi) The Company is not in violation of any
Federal, state or local laws and regulations or in
noncompliance with any permits or other government
authorizations relating to pollution or protection of human
health or the environment (including, without limitation,
ambient air, surface water, ground water, land surface or
subsurface strata), including, without limitation, laws,
regulations permits or other government authorizations
relating to emissions, discharges, releases or threatened
releases of toxic or hazardous substances, materials or
wastes, or petroleum and petroleum products ("Materials of
Environmental Concern"), or otherwise relating to the
protection of human health and safety, or the storage,
disposal, transport or handling of Materials of Environmental
Concern (collectively, "Environmental Laws"), that
individually or in the aggregate would not have a material
adverse effect on the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the
Company. To the Company's knowledge, there is no pending or
threatened claim, action, investigation or notice (written or
oral) by any governmental authority, person or entity
alleging that the Company is liable for investigatory,
cleanup, or governmental responses costs, or natural resources
or property damages, or personal injuries, attorney's fees or
penalties relating to (x) the presence, or release into the
environment, of any Material of Environmental Concern at any
location owned or operated by the Company, now or in the past,
or (y) the violation, or alleged violation, of any
Environmental Law that individually or in the aggregate would
have material adverse effect on the condition, financial or
otherwise, or in the earnings, business affairs or prospects
of the Company (collectively, "Environmental Claims"); and
there are no past or present actions, activities,
circumstances, conditions, events or incidents, that could
form the basis of any Environmental Claim against the Company
or against any person or entity whose liability for any
Environmental Claim the Company has retained or assumed either
contractually or by operation of law.
(xxii) The Common Stock is listed on the New York
Stock Exchange and has been registered under Section 12(b) of
the Securities Exchange Act of 1934 Act, as amended (the "1934
Act").
Page 12 of 42 Pages
<PAGE> 13
(xxiii) All tax returns required to be filed by the
Company have been timely filed and such returns are true,
complete and correct in all material respects. All taxes due
or claimed to be due from the Company that are due and payable
have been paid, other than those (i) being contested in good
faith and for which an adequate reserve or accrual has been
established in accordance with GAAP or (ii) those currently
payable without penalty or interest for which an adequate
reserve or accrual has been established in accordance with
GAAP or extensions duly paid. Except as described in the
Prospectus, the Company does not know of (A) any actual or
proposed material additional tax assessments or (B) any
probable basis for the imposition of any material additional
tax assessments for any fiscal period against the Company.
(b) Each of the Selling Stockholders, solely in such Selling
Stockholder's capacity as a Selling Stockholder, severally and not
jointly represents and warrants to, and agrees with, each Underwriter
as follows:
(i) Such Selling Stockholder has reviewed and is
familiar with the Registration Statement and the Prospectus
contained therein or filed as supplements thereto and, such
Selling Stockholder has no reason to believe that the
Prospectus (and any amendment, supplement or term sheet
thereto) includes (and, as of the Closing Time, as defined in
Section 2 below, will include) an untrue statement of a
material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
such Selling Stockholder is not prompted to sell the
Securities to be sold by such Selling Stockholder by any
information concerning the Company that is not set forth in
the Prospectus or the term sheet.
(ii) On the date the Pricing Agreement is executed
and at the Closing Time, as defined in Section 2 below (and if
any Option Securities are purchased, at the Date of Delivery,
as defined in Section 2 below), and, unless the Company has
notified you as provided in Section 3(e) below, at all times
between the first delivery of the Prospectus and the term
sheet, if any, to the Underwriters for their use and the
Closing Time, as defined in Section 2 below, (and, if any
Option Securities are purchased, the Date of Delivery, as
defined in Section 2 below), such parts of the Registration
Statement and any amendments and supplements thereto as
specifically refer to such Selling Stockholder will not
contain 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 and
such parts of the Prospectus or term sheet, if any, as
specifically refer to such Selling Stockholder will not
include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
(iii) Certificates for all of the Securities to be
sold by such Selling Stockholder pursuant to this Agreement,
in suitable form for transfer by delivery or accompanied by
duly executed instruments of transfer or assignment in blank
have been deposited with First Interstate Bank of California,
as custodian (the "Custodian") pursuant to a Custody Agreement
dated as of February 13, 1996 (the "Custody Agreement") for
the purpose of effecting delivery pursuant to this Agreement.
(iv) This Agreement and the Custody Agreement have
been duly authorized, executed and delivered by such Selling
Stockholder. The execution and delivery of this Agreement and
the Custody Agreement by such Selling Stockholder and the sale
and delivery of the Securities to be sold by such Selling
Stockholder to the Underwriters pursuant to this Agreement do
not and will not conflict with, or result in a breach of any
of the terms or provisions of, or
Page 13 of 42 Pages
<PAGE> 14
constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of such Selling Stockholder under any
contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which such Selling
Stockholder is a party or by which it may be bound or to which
any of its properties may be subject (except for such
conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a material adverse effect on
the condition, financial or otherwise, or the earnings,
business affairs or business prospects of such Selling
Stockholder and its subsidiaries considered as one enterprise
and would not materially and adversely affect the consummation
of the transactions contemplated by this Agreement) or any
existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or
court, domestic or foreign, having jurisdiction over such
Selling Stockholder or any of its respective properties.
(v) Such Selling Stockholder will, at the Closing
Time, as defined in Section 2 below, (and, if any Option
Securities are purchased, on the Date of Delivery, as defined
in Section 2 below), have good and valid title to the
Securities to be sold by such Selling Stockholder pursuant to
this Agreement, free and clear of any pledge, lien, security
interest, charge, claim, equity or encumbrance of any kind,
other than pursuant to this Agreement; such Selling
Stockholder has full right, power and authority to sell,
transfer and deliver such Securities pursuant to this
Agreement; and, upon delivery of such Securities and payment
of the purchase price therefor as contemplated in this
Agreement, assuming each such Underwriter has no notice of any
adverse claim, each of the Underwriters will receive good and
valid title to the offered Securities purchased by it from
such Selling Stockholder, free and clear of any pledge, lien,
security interest, charge, claim, equity or encumbrance of any
kind, other than any such pledge, lien, security interest,
charge, claim, equity or encumbrance created by such
Underwriter or resulting from any actions taken by such
Underwriter.
(vi) For a period of 90 days from the date hereof,
such Selling Stockholder will not, except as described in the
Prospectus, without Merrill Lynch's prior written consent,
directly or indirectly, sell, offer to sell, grant any option
for the sale of, or otherwise dispose of (whether directly or
synthetically) or enter into any agreement to sell or
otherwise dispose of (whether directly or synthetically) any
Common Stock, Class A Common Stock or Warrants or any security
convertible into or exchangeable or exercisable for Common
Stock, Class A Common Stock or Warrants,except pursuant to a
transaction in which all holders of Common Stock may
participate on a pro rata basis at the same price per share
and on the same economic terms, including without limitation,
a tender offer or exchange offer, and except for transfers to
an affiliate (as such term is defined in Rule 405 of the 1933
Act Regulations).
(vii) Such Selling Stockholder has not taken and
will not take, directly or indirectly, any action designed to,
or that might reasonably be expected to, cause or result in
stabilization or manipulation of the price of the Common
Stock.
(viii) The offer and the sale of the Securities
being sold by such Selling Stockholder and the consummation
of any other of the transactions herein contemplated by such
Selling Stockholder, will not conflict with, or result in a
breach or violation of, any Aviation Law.
(ix) There are no transfer taxes or other similar
fees or charges required under any Aviation Law to be paid in
connection with the execution, delivery and performance of
this Agreement or the sale by such Selling Stockholder of the
Securities to be sold by such Selling Stockholder.
Page 14 of 42 Pages
<PAGE> 15
(x) Such Selling Stockholder will furnish each of
the Underwriters with any such certification or completed
forms that may be required under applicable Federal or state
tax laws that may be required in connection with the
transactions contemplated by this Agreement.
(c) Any certificate signed by any officer of the Company and
delivered to the Representatives or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company to each Underwriter as to
the matters covered thereby.
(d) Any certificate signed by any officer or partner, as the case may
be, of a Selling Stockholder and delivered to the Representatives or to counsel
for the Underwriters shall be deemed a representation and warranty by such
Selling Stockholder to each Underwriter as to the matters covered thereby.
Section 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING. (a)
On the basis of the representations and warranties herein contained and subject
to the terms and conditions herein set forth, the Selling Stockholders
severally and not jointly agree to sell the number of Initial Securities set
forth in Schedule B opposite the name of each such Selling Stockholder to each
Underwriter, severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Selling Stockholders, at the price per
share set forth in the Pricing Agreement, the number of Initial Securities set
forth in Schedule A opposite the name of such Underwriter (except as otherwise
provided in the Pricing Agreement), plus any additional number of Initial
Securities which such Underwriter may become obligated to purchase pursuant to
the provisions of Section 10 hereof.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
two Selling Stockholders identified on Schedule B hereby severally and not
jointly grant an option to the Underwriters to purchase up to all of the Option
Securities set forth in Schedule B opposite the name of each such Selling
Stockholder at the purchase price per share set forth in the Pricing Agreement.
The option granted will expire 30 days after the Representation Date and may be
exercised in whole or in part from at any one time only for the purpose of
covering over-allotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by the Representatives to
the Company and the Selling Stockholders setting forth the number of Option
Securities as to which the several Underwriters are then exercising the option
and the time and date of payment and delivery for such Option Securities. Such
time and date of delivery (the "Date of Delivery") shall be determined by the
Representatives, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined, unless otherwise agreed by the Representatives, the
Company and the Selling Stockholders set forth in Schedule B. If the option is
exercised as to all or any portion of the Option Securities, each of the
Underwriters, acting severally and not jointly, will purchase that proportion
of the total number of Option Securities then being purchased which the number
of Initial Securities set forth in Schedule A opposite the name of such
Underwriter bears to the total number of Initial Securities (except as
otherwise provided in the Pricing Agreement), subject in each case to such
adjustments as Merrill Lynch in its discretion shall make to eliminate any
purchases of fractional interests, plus any additional number of Option
Securities which such Underwriter may become obligated to purchase pursuant to
the provisions of Section 10 hereof. If the option is exercised as to all or
any portion of the Option Securities, each Selling Stockholder, granting such
option acting severally and not jointly, will sell that proportion of the total
number of Option Securities then being purchased which is the ratio of the
number of Option Securities set forth opposite the name of such Selling
Stockholder on Schedule B bears to the total number of Option Securities.
(c) Payment of the purchase price for the Securities shall be made at
the office of Skadden, Arps, Slate, Meagher & Flom, 300 South Grand Avenue, Los
Angeles, California, or at such other place as shall be agreed upon by the
Representatives, the Selling Stockholders and the Company, at 7:00 A.M.
California time on the third business day (unless postponed in accordance with
the provisions of Section 10) after execution of the Pricing Agreement, or such
other time not later than ten business days after such date as shall be agreed
upon
Page 15 of 42 Pages
<PAGE> 16
by the Representatives, the Selling Stockholders and the Company (such time and
date of payment and delivery being herein called the "Closing Time"). Payment
shall be made to the respective Selling Stockholders by certified or official
bank check or checks drawn in New York Clearing House funds or similar next day
funds payable to the order of the respective Selling Stockholders, against
delivery to the Representatives at Merrill Lynch's World Headquarters, North
Tower, World Financial Center, New York, New York 10281, for the respective
accounts of the Underwriters of certificates for the Securities to be purchased
by them. Certificates, if any, for the Securities shall be in such
denominations and registered in such names as the Representatives may request
in writing, of the Custodian on behalf of the Selling Stockholders, at least
two business days before the Closing Time. It is understood that each
Underwriter has authorized the Representatives, for their account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Securities which it has agreed to purchase. Merrill Lynch, individually and
not as representative of the Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Securities to be purchased by any
Underwriter whose check has not been received by the Closing Time, but such
payment shall not relieve such Underwriter from its obligations hereunder. The
certificates, if any, for the Securities will be made available, by the
Custodian on behalf of the Selling Stockholders, for examination and packaging
by the Representatives not later than 10:00 A.M. on the last business day prior
to the Closing Time at Merrill Lynch's World Headquarters, North Tower, World
Financial Center, New York, New York 10281.
(d) In addition, in the event that any or all of the Option
Securities are purchased by the Underwriters, payment of the purchase price for
such Option Securities shall be made at the above-mentioned offices of Skadden,
Arps, Slate, Meagher & Flom, or at such other place as shall be agreed upon by
the Representatives, the Selling Stockholders granting the option for the
Option Securities and the Company, on the Date of Delivery as specified in the
notice from the Representatives to the Company and the Selling Stockholders
granting the option for the Option Securities. Payment shall be made to the
respective Selling Stockholders named in Schedule B by certified or official
bank check or checks drawn in New York Clearing House funds or similar next day
funds payable to the order of such Selling Stockholders, against delivery to
the Representatives at the above mentioned offices of Merrill Lynch for
accounts of the Underwriters of certificates for the Option Securities to be
purchased by them. Certificates for the Option Securities, if any, shall be in
such denominations and registered in such names as the Representatives may
request in writing of the Custodian at least two business days before the
Closing Time or the Date of Delivery, as the case may be. It is understood
that each Underwriter has authorized the Representatives, for their accounts,
to accept delivery of, receipt for, and make payment of the purchase price for
the Option Securities, if any, which it has agreed to purchase. Merrill Lynch,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Option Securities,
if any, to be purchased by any Underwriter whose check has not been received by
the Date of Delivery, as the case may be, but such payment shall not relieve
such Underwriter from its obligations hereunder. The certificates for the
Option Securities, if any, will be made available, by the Custodian on behalf
of the Selling Stockholders granting the option for the Option Securities, for
examination and packaging by the Representatives not later than 10:00 A.M. on
the last business day prior to the Date of Delivery. For purposes of this
agreement "business day" means a day on which the New York Stock Exchange is
open for business.
Section 3. COVENANTS OF THE COMPANY. The Company covenants
with each Underwriter as follows:
(a) The Company will, for so long as the Underwriters are
required to deliver a prospectus in connection with the offer and sale
of the Securities, notify the Representatives immediately (i) of the
effectiveness of any post-effective amendment to the Registration
Statement filed after the date of this Agreement in connection with
the offering of the Securities, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and (iv)
Page 16 of 42 Pages
<PAGE> 17
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest
possible moment. The obligations of the Company pursuant to this
Section 3(a) shall be deemed to terminate 90 days after the date of
the Pricing Agreement unless the Representatives shall notify the
Company in writing that the Underwriters continue to be subject to
prospectus delivery requirements with respect to offers and sales of
the Securities, and in the event of any such notice the obligations of
the Company under this Section 3(a) shall be deemed to terminate 60
days after the date of such notice unless a further notice to such
effect is so provided.
(b) The Company will, for so long as the Underwriters are
required to deliver a prospectus in connection with the offer and sale
of the Securities, give the Representatives notice of its intention to
file or prepare any post-effective amendment to the Registration
Statement or any amendment or supplement to the Prospectus (including
any revised prospectus which the Company proposes for use by the
Underwriters in connection with the offering of the Securities or any
term sheet (whether or not such revised prospectus or term sheet is
required to be filed pursuant to Rules 424(b) or 434 of the 1933 Act
Regulations), whether pursuant to the 1933 Act, the 1934 Act or
otherwise), will furnish the Representatives with copies of any such
amendment or supplement or term sheet a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not
file any such amendment or supplement or term sheet or use any such
prospectus to which the Representatives or counsel for the
Underwriters shall object. In the event (a) the Underwriters shall
object to any such amendment, supplement, term sheet or prospectus and
(b) the Company shall have determined (based upon the written opinion
of outside counsel) that the failure to file with the Commission or
use in connection with the sale of the securities included in the
Registration Statement any such amendment, supplement, term sheet or
prospectus would make the Prospectus include a material misstatement
or omit to state a material fact in light of the circumstances
existing at the time it is delivered to a purchaser then, the Company
may file with the Commission any such amendment, supplement, term
sheet or prospectus. The obligations of the Company pursuant to this
Section 3(b) shall be deemed to terminate 90 days after the date of
the Pricing Agreement unless the Representatives shall notify the
Company in writing that the Underwriters continue to be subject to
prospectus delivery requirements with respect to offers and sales of
the Securities, and in the event of any such notice the obligations of
the Company under this Section 3(b) shall be deemed to terminate 60
days after the date of such notice unless a further notice to such
effect is so provided.
(c) The Company will deliver to each Representative a signed
copy of any post-effective amendment to the Registration Statement
made in connection with the offering of the Securities (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference
therein) and will also deliver to the Representatives a conformed copy
of the Registration Statement as originally filed and of each
amendment, post-effective amendment or supplement or term sheet
thereto (without exhibits) for each of the Underwriters.
(d) The Company will furnish to each Underwriter, from time
to time during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of copies of
the Prospectus (as amended or supplemented) and the term sheet, if
any, as such Underwriter may reasonably request for the purposes
contemplated by the 1933 Act or the 1934 Act or the respective
applicable rules and regulations of the Commission thereunder.
(e) If any event shall occur as a result of which it is
necessary, in the opinion of counsel for the Underwriters or counsel
for the Company, to amend or supplement the Prospectus in order to
make the Prospectus not misleading in the light of the circumstances
existing at the time it is delivered to a
Page 17 of 42 Pages
<PAGE> 18
purchaser, the Company will forthwith amend or supplement the
Prospectus (in form and substance satisfactory to counsel for the
Underwriters) so that, as so amended or supplemented, the Prospectus
will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the time it is
delivered to a purchaser, not misleading, and the Company will furnish
to the Underwriters a reasonable number of copies of such amendment or
supplement.
(f) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions
of the United States as the Representatives may designate; provided,
however, that the Company shall not be obligated to qualify as a
foreign corporation in any jurisdiction in which it is not so
qualified. In each jurisdiction in which the Securities have been so
qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from
the date of the Pricing Agreement. The Company will inform the
Florida Department of Banking and Finance if prior to the completion
of the distribution of the Securities by the Underwriters the Company
commences engaging in business with the government of Cuba or with any
person or affiliate located in Cuba. Such information will be
provided within 90 days of the commencement thereof or after a change
to any such previously reported information.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations)
covering a twelve-month period beginning not later than the first day
of the Company's fiscal quarter next following the "effective date"
(as defined in said Rule 158) of the Registration Statement.
(h) Immediately following the execution of the Pricing
Agreement, the Company will prepare, and file or transmit for filing
with the Commission in accordance with Rules 434 and 424(b) of the
1933 Act Regulations, copies of an amended Prospectus supplement and
term sheet, if any, to the Registration Statement, containing all
omitted information.
(i) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, will file
all documents required to be filed with the Commission pursuant to
Section 13, 14 or 15 of the 1934 Act within the time periods required
by the 1934 Act and the rules and regulations of the Commission under
the 1934 Act.
(j) During a period of 90 days from the Representation Date,
the Company will not, without Merrill Lynch's prior written consent,
directly or indirectly, sell, offer to sell, grant any option for the
sale of, or otherwise dispose of (whether directly or synthetically)
or enter into any agreement to sell or otherwise dispose of (whether
directly or synthetically) any Common Stock, Class A Common Stock or
Warrants or any security convertible into or exchangeable into or
exercisable for Common Stock (except for Common Stock issued pursuant
to reservations, agreements, employee benefit plans, the exercise of
Warrants or the exercise of convertible securities referred to in
Section 1(a)(vii) hereof), Class A Common Stock or Warrants.
(k) If the Company uses Rule 434 of the 1933 Act
Regulations, it will comply with the requirements of Rule 434 of such
regulations and the Prospectus will not be "materially different," as
such term is used in Rule 434 of the 1933 Act Regulations, from the
Prospectus first given to the Underwriters for their use.
Page 18 of 42 Pages
<PAGE> 19
Section 4. PAYMENT OF EXPENSES. The Company will pay all
expenses incident to the performance of its obligations under this Agreement,
including (i) the printing and filing of any post-effective amendment to the
Registration Statement required in connection with the sale of the Securities,
(ii) the preparation, issuance and delivery of the certificates for the
Securities to the Underwriters, (iii) the fees and disbursements of the
Company's counsel and accountants, (iv) the qualification of the Securities
under securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
the Blue Sky Survey and any Legal Investment Survey, (v) the printing and
delivery to the Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto, of each preliminary prospectus
supplement, and of the Prospectus and any amendments or supplements thereto,
(vii) the printing and delivery to the Underwriters of copies of the Blue Sky
Survey and any Legal Investment Survey, (viii) the fees and expenses of
continuing the listing of the Common Stock on the New York Stock Exchange and
(ix) the fee of the National Association of Securities Dealers, Inc.
If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the
Company shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters unless such termination occurs by reason of the failure to satisfy
the conditions contained in Section 5(b)(ii), 5(g) insofar it relates to
deliveries by the Selling Stockholders and 5(h)(iii) in which case such fees
and expenses shall be paid by the Selling Stockholder or Stockholders as to
which such failure of condition relates.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Selling Stockholders
herein contained, to the performance by the Company and the Selling
Stockholders of their obligations hereunder, and to the following further
conditions:
(a) The Registration Statement, as amended, shall have become
effective on or prior to the date of this Agreement. At the Closing
Time, no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission. The price of the
Securities and any price-related information previously omitted from
the effective Registration Statement and any term sheet used pursuant
to Rule 434 of the 1933 Act Regulations shall have been transmitted to
the Commission for filing pursuant to Rule 424(b) of the 1933 Act
Regulations within the prescribed time period and prior to the Closing
Time the Company shall have provided evidence satisfactory to the
Representatives of such timely filing, or a post-effective amendment
providing such information shall have been promptly filed and declared
effective.
(b) At the Closing Time, the Representatives shall have
received:
(i) The favorable opinion, dated as of the Closing
Time, of Andrews & Kurth L.L.P., counsel for the Company, in
form and substance satisfactory to counsel for the
Underwriters, addressed to the Representatives and each
Selling Stockholder to the effect that:
a. The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the state of Delaware.
b. The Company has corporate power and
authority to own, lease and operate its properties
and to conduct its business as described in the
Registration Statement and to enter into and perform
its obligations under this Agreement.
Page 19 of 42 Pages
<PAGE> 20
c. The authorized capital stock of the
Company is as set forth in the Prospectus under
"Capitalization" and the issued and outstanding
shares of Common Stock listed on the New York Stock
Exchange have been duly authorized and, assuming
payment therefor in accordance with the terms upon
which the issuance of such shares was authorized,
have been validly issued and are fully paid and
nonassessable.
d. The issuance of the Securities was not
subject, at the date of issue, to statutory
preemptive or, other similar rights arising by
operation of law, under the charter or bylaws of the
Company or, to the best of their knowledge and
information, after due inquiry, under any agreement
to which the Company is a party.
e. This Agreement has been duly authorized,
executed and delivered by the Company.
f. The Registration Statement and all post
effective amendments thereto were declared effective
under the 1933 Act and, to the best of their
knowledge and information, no stop order suspending
the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
g. The Registration Statement at its
effective time and at the Representation Date (other
than the financial statements, financial and
statistical information and supporting schedules
included therein, as to which no opinion need be
rendered) complied as to form in all material
respects with the requirements of the 1933 Act and
the 1933 Act Regulations.
h. The Common Stock and the Class A Common
Stock conform to the description thereof contained in
the Prospectus under the caption "Description of
Capital Stock" and the Warrants conform to the
description thereof contained in the Prospectus under
the caption "Description of Warrants" and the form of
certificate used to evidence the Common Stock
complies with the requirements of the Delaware
General Corporation Law.
i. To the best of their knowledge and
information, the Company is not in violation of its
charter or bylaws which violation could have a
material adverse effect on the condition, financial
or otherwise, or on the earnings, business affairs or
business prospects of the Company.
j. No authorization, approval, consent or
order of any court or governmental authority or
agency is required, as of the date of such opinion,
in connection with the execution and delivery of this
Agreement or the performance of the Company's
obligations hereunder, except such as may be required
under the 1933 Act or the 1933 Act Regulations or
state securities law.
k. To the best of their knowledge and
information, the execution, delivery and performance
of this Agreement and the Pricing Agreement and the
consummation of the transactions contemplated herein
and therein and compliance by the Company with its
obligations hereunder and thereunder will not
conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any
lien, charge or
Page 20 of 42 Pages
<PAGE> 21
encumbrance upon any property or assets of the
Company pursuant to any applicable contract (for the
purposes of said opinion an applicable contract is a
contract, indenture, mortgage, loan agreement, note,
lease or other instrument filed as an Exhibit to the
Company's Form 10-K for the year ended December 31,
1994 or filed as an exhibit to any subsequent report
filed by the Company pursuant to 1934 Act), nor will
such action result in any violation of the provisions
of the charter or bylaws of the Company, nor will
such action result in any violation of the provisions
of any applicable law (applicable law for this
purposes shall be limited to those United States
statutes, laws or regulations currently in effect
which, in such counsel's experience, are normally
applicable to transactions of the type contemplated
by this Agreement) except for such violations of
applicable law which will not have a material adverse
effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects
of the Company and would not materially and adversely
affect the consummation of the transactions
contemplated by this Agreement.
l. To such counsel's knowledge, there are no
persons with registration or other similar rights to
have any securities registered pursuant to the
Registration Statement or to participate in the
offering of the Securities contemplated by this
Agreement, except such as have been waived in writing
or complied with by the inclusion of such
Stockholders in the Registration Statement or the
inclusion of such persons as Selling Stockholders in
Schedule B hereto, as the case may be.
In addition such counsel shall state that
they have participated in conferences with officers
and other representatives of the Company, the
Representatives, the Company's independent
accountants, counsel for the Selling Stockholders and
counsel for the Underwriters, at which conferences
the contents of the Registration Statement and the
Prospectus and related matters were discussed and,
although they are not passing upon, and do not assume
any responsibility for, the accuracy, completeness or
fairness of the statements contained in the
Registration Statement or Prospectus, and they have
not made any independent check or verification
thereof, on the basis of the foregoing, nothing has
come to their attention that would lead them to
believe that the Registration Statement, as amended,
(except for financial statements and other financial
and statistical data included therein), at the time
it became effective, contained any untrue statement
of a material fact or omitted to state a material
fact required to be stated therein or necessary to
make the statements therein not misleading or that
the Prospectus (except for the financial statements
and other financial and statistical data contained
therein), at the Representation Date (unless the term
"Prospectus" refers to a prospectus which has been
provided to the Underwriters by the Company for use
in connection with the offering of the Securities
which differs from the Prospectus on file at the
Commission at the Representation Date, in which case
at the time it is first provided to the Underwriters
for such use) or at the Closing Time, included any
untrue statement of a material fact or omitted to
state a material fact required to be stated therein
or necessary to make the statements therein, in light
of the circumstances in which they were made, not
misleading.
(ii) The favorable opinion or opinions of
counsel to each of the Selling Stockholders (such counsel may
be counsel employed by such Selling Stockholder), dated as of
the Closing Time, such counsel and the form and substance of
such opinion being satisfactory to counsel for the
Underwriters, to the effect that:
Page 21 of 42 Pages
<PAGE> 22
a. Assuming that (i) the certificates for
the Securities are delivered in the State of New York
as contemplated in Section 2 of this Agreement and
(ii) that Merrill Lynch, as a representative of the
Underwriters, acquired its interest in the Securities
to be sold by the Selling Stockholders pursuant to
this Agreement in good faith and without any notice
of any adverse claim, upon delivery to the Merrill
Lynch as agent for the Underwriters in the State of
New York of such Securities registered in Merrill
Lynch's name, Merrill Lynch will acquire all of the
Selling Stockholders rights in the Securities free
and clear of any adverse claim (within the meaning of
Section 8-302 of the New York Uniform Commercial
Code). The owner of such Securities, if other than
such Selling Stockholder, is precluded from asserting
against the Underwriters the ineffectiveness of any
unauthorized endorsements.
b. This Agreement and the Custody Agreement
have been duly authorized, executed and delivered by
such Selling Stockholder. The execution and delivery
of this Agreement by such Selling Stockholder and the
sale and delivery of the Securities to be sold by
such Selling Stockholder to the several Underwriters
pursuant to this Agreement do not result in a breach
of any of the terms or provisions of, or constitute a
default under, or result in the creation or
imposition of any lien, charge or encumbrance upon
any property or assets of such Selling Stockholder
under any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or
instrument to which such Selling Stockholder is a
party or by which it may be bound or to which any of
its properties may be subject or, to the knowledge of
such counsel after due inquiry, any existing
applicable law (applicable law for this purpose shall
be limited to those United States statutes, laws or
regulations currently in effect which in such
counsel's experience are normally applicable to
transactions of the type contemplated by this
Agreement, but shall exclude Aviation Laws and
Federal and state securities laws), rule, regulation,
judgment, order or decree of any government,
governmental instrumentality or court, domestic or
foreign, having jurisdiction over such Selling
Stockholder or any of its respective properties
(except for such conflicts, breaches or defaults or
liens, charges or encumbrances that would not have a
material adverse effect on the condition, financial
or otherwise, or the earnings, business affairs or
business prospects of such Selling Stockholder and
its subsidiaries considered as one enterprise and
would not materially and adversely affect the
consummation of the transactions contemplated by this
Agreement).
(iii) The favorable opinion, dated as of the Closing
Time, of Winthrop, Stimson, Putnam and Roberts, special
aviation regulatory counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters,
addressed to the Representatives and each Selling Stockholder
to the effect that:
a. The Company is an "air carrier" and after
consummation of the transactions contemplated herein
will be a "citizen of the United States," within the
meaning of the Federal Aviation Act of 1958, as
amended;
b. The Company has such licenses,
certificates, permits and other governmental
authorizations from the Department of Transportation,
as successor to the Civil Aeronautics Board, the
Federal Aviation Administration and any other
federal, state or local transportation or aviation
regulatory authority as are necessary to conduct its
business in the manner described in the Prospectus,
and no such license, certificate, permit or other
governmental authorization is the subject of any
"show cause" or other
Page 22 of 42 Pages
<PAGE> 23
order of, or any proceeding before, or any
investigation by, any such authority (other than
proceedings for the renewal of temporary rights),
which in the opinion of such counsel might reasonably
result in a final order impairing the validity of
such licenses, certificates, permits and other
governmental authorizations;
c. To the best knowledge of such counsel,
there is no pending or threatened action, suit or
proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving
the Company or their property and involving (A)
licenses, certificates, permits or other governmental
authorizations issued by or from the Department of
Transportation, the Federal Aviation Administration
or any other federal or any state transportation or
aviation regulatory authority or (B) the Federal
Aviation Act of 1958, as amended ((A) and (B)
together, "Aviation Laws") that is of a character
required to be disclosed in the Prospectus; and the
statements in the Prospectus under the heading
"Business -- Government Regulation" fairly summarize
in all material respects the matters therein
described as they relate to Aviation Laws;
d. No consent, approval, authorization,
filing with or order of any court or governmental
agency or body involving Aviation Laws is required
for consummation of the transactions contemplated
herein, other than as has been obtained or performed;
e. Neither the offer and sale of the
Securities being sold by the Selling Stockholders nor
the consummation of any other of the transactions
herein contemplated by the Company and the Selling
Stockholders will conflict with, or result in a
breach or violation of, any Aviation Law;
f. There are no transfer taxes or other
similar fees or charges required under any Aviation
Law to be paid in connection with the execution,
delivery and performance of this Agreement or the
sale by the Selling Stockholders of the Securities;
and
g. The descriptions in the Registration
Statement of laws, regulations and rules, of legal
and governmental proceedings and of contracts,
agreements, leases and other documents, in so far as
they relate to Aviation Laws, including, without
limitation, under the headings "Risk Factors --
Government Regulation," "Risk Factors -- Limitation
on Voting by Foreign Owners," "Business -- Aircraft
and -- Government Regulation" have been reviewed by
such counsel and are accurate in all material
respects.
(iv) The favorable opinion, dated as of the Closing
Time, of Stephen L. Johnson, Senior Vice President - Legal
Affairs, in form and substance satisfactory to counsel for the
Underwriters, addressed to the Representatives and each
Selling Stockholder to the effect that:
a. To the best of his knowledge and
information, the Company is duly qualified as a
foreign corporation to transact business and is in
good standing in each jurisdiction in which such
qualification is required, except in jurisdictions
where the failure to be so qualified would not singly
or in the aggregate, have a material adverse effect
on the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of
the Company.
b. To the best of his knowledge and
information, there are no legal or governmental
proceedings pending or threatened which are required
to be disclosed in the Registration
Page 23 of 42 Pages
<PAGE> 24
Statement, other than those disclosed therein, and
all pending legal or governmental proceedings to
which the Company is a party or to which any of their
property is subject which are not described in the
Registration Statement, including ordinary routine
litigation incidental to the business, are,
considered in the aggregate, not material to the
financial condition of the Company.
c. The information in the Prospectus under
"Risk Factors -- Labor Negotiations," "Business --
Labor Relations, and -- Government Regulation," to
the extent that it constitutes matters of law,
summaries of legal matters, documents or proceedings,
or legal conclusions, has been reviewed by him and is
correct in all material respects, except as to
Aviation Laws as to which he need not express any
opinion.
d. To the best of his knowledge and
information, there are no contracts, indentures,
mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to
in the Registration Statement or to be filed as
exhibits thereto other than those described or
referred to therein or filed as exhibits thereto, the
descriptions thereof insofar as they purport to
summarize certain provisions thereof are in all
material respects accurate summaries thereof, and no
default (except for defaults which, individually or
in the aggregate would not materially and adversely
affect the condition, financial or otherwise, or the
earnings, business affairs or business prospects of
the Company) exists in the due performance or
observance of any obligation, agreement, covenant or
condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other
instrument so described, referred to, or filed.
He and lawyers under his supervision have
participated in conferences with directors, officers
and other representatives of the Company, the
Representatives, the Company's independent
accountants, counsel for the Selling Stockholders and
counsel for the Underwriters, at which conferences
the contents of the Registration Statement and the
Prospectus and related matters were discussed and,
although he is not passing upon, and does not assume
any responsibility for, the accuracy, completeness or
fairness of the statements contained in the
Registration Statement or Prospectus, and he has not
made any independent check or verification thereof,
on the basis of the foregoing, nothing has come to
his attention that would lead him to believe that the
Registration Statement, as amended (except for
financial statements and other financial and
statistical data included therein), at the time it
became effective, contained any untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make
the statements therein not misleading or that the
Prospectus (except for the financial statements and
other financial and statistical data contained
therein), at the Representation Date (unless the term
"Prospectus" refers to a prospectus which has been
provided to the Underwriters by the Company for use
in connection with the offering of the Securities
which differs from the Prospectus on file at the
Commission at the Representation Date, in which case
at the time it is first provided to the Underwriters
for such use) or at the Closing Time, included any
untrue statement of a material fact or omitted to
state a material fact required to be stated therein
or necessary to make the statements therein, in light
of the circumstances under which they were made, not
misleading.
(v) The favorable opinion, dated as of the Closing
Time, of Skadden, Arps, Slate, Meagher & Flom, counsel for the
Underwriters, with respect to the matters set forth in (a),
(c), (d) (solely as to preemptive rights arising by operation
of law or under the charter or bylaws of the Company), and
(h), of subsection (b)(i) of this Section, except that, with
respect to the matters referred to in (c), no opinion need be
expressed as to whether any of the Company's
Page 24 of 42 Pages
<PAGE> 25
outstanding shares of Common Stock, other than the Securities,
have been duly authorized or validly issued or are fully paid
or nonassessable.
In giving their opinions required by subsection
(b)(v) of this Section 5, Skadden, Arps, Slate, Meagher & Flom
shall additionally state that nothing has come to their
attention that would lead them to believe that the
Registration Statement (except for financial statements and
schedules and other financial or statistical data included
therein, as to which counsel need make no statement), at the
Representation Date, contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading or that the Prospectus (except for financial
statements and schedules and other financial or statistical
data included therein, as to which counsel need make no
statement), at the time it is first provided to the
Underwriters for such use or at the Closing Time, included or
includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
(c) At the Closing Time there shall not have been, since the
date hereof or since the respective dates as of which information is
given in the Registration Statement and the Prospectus, any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company,
whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the chairman of
the board and chief executive officer of the Company and of the chief
financial officer of the Company, dated as of the Closing Time,
addressed to the Representatives and each Selling Stockholder to the
effect that (i) there has been no such material adverse change, (ii)
the representations and warranties in Section 1 hereof are true and
correct with the same force and effect as though expressly made at and
as of the Closing Time, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or
threatened by the Commission.
(d) At the time of the execution of this Agreement, the
Representatives shall have received from KPMG Peat Marwick LLP a
letter dated such date, in form and substance satisfactory to the
Representatives, addressed to the Representatives and each Selling
Stockholder to the effect that (i) they are independent public
accountants with respect to the Company within the meaning of the 1933
Act and the 1933 Act Regulations; (ii) it is their opinion that the
financial statements and supporting schedule included in the
Registration Statement and covered by their opinions therein comply as
to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations; (iii) based
upon limited procedures set forth in detail in such letter, nothing
has come to their attention which causes them to believe that (A) the
unaudited condensed financial statements of the Company included in
the Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations or are not presented in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements
included in the Registration Statement, except that the financial
statements of the Company are presented on a different basis than
those of the Predecessor Company (as defined in such letter) for the
period January 1, 1994 to August 25, 1994, (B) the unaudited amounts
of revenues, net income and net income per share set forth under
"Selected Financial Data" in the Prospectus were not determined on a
basis substantially consistent with that used in determining the
corresponding amounts in the audited financial statements included in
the Registration Statement, except that the financial statements of
the Company are presented on a different basis than those of the
Predecessor Company for the period January 1, 1994 to August 25,
1994, or (C) at
Page 25 of 42 Pages
<PAGE> 26
a specified date not more than five days prior to the date of this
Agreement, there has been any change in the capital stock of the
Company or any increase in the long term debt of the Company or any
decrease in total assets or net assets as compared with the amounts
shown in the balance sheet included in the Registration Statement or,
during the period from September 30, 1995 to a specified date not more
than five days prior to the date of this Agreement, there were any
decreases, as compared with the corresponding period in the preceding
year, in revenues, net income or net income per share of the Company,
except in all instances for changes, increases or decreases which the
Registration Statement and the Prospectus disclose have occurred or
may occur; and (iv) in addition to the audit referred to in their
opinions and the limited procedures referred to in clause (iii) above,
they have carried out certain specified procedures, not constituting
an audit, with respect to certain amounts, percentages and financial
information which are included in the Registration Statement and
Prospectus and which are specified by the Representatives, and have
found such amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other records of
the Company identified in such letter.
(e) At the Closing Time the Representatives shall have
received from KPMG Peat Marwick LLP a letter, dated as of the Closing
Time, addressed to the Representatives and each Selling Stockholder to
the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (d) of this Section, except that the
specified date referred to shall be a date not more than five days
prior to the Closing Time and, to the further effect that they have
carried out procedures as specified in clause (iv) of subsection (d)
of this Section with respect to certain amounts, percentages and
financial information specified by the Representatives and have found
such amounts, percentages and financial information to be in agreement
with the records specified in such clause (iv).
(f) At the Closing Time and at the Date of Delivery, the
Securities shall continue to be listed on the New York Stock Exchange.
(g) At the Closing Time and at the Date of Delivery, if any,
counsel for the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require and have
specifically requested prior to such time for the purpose of enabling
them to pass upon the offer and sale of the Securities as herein
contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company and the Selling Stockholders in
connection with the offer and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(h) In the event that the Underwriters exercise their option
provided in Section 2(b) hereof to purchase all or any portion of the
Option Securities, the representations and warranties of the Company
contained herein and the statements in any certificates furnished by
the Company hereunder shall be true and correct as of the Date of
Delivery and, at the Date of Delivery, the Representatives shall have
received:
(i) A certificate, dated the Date of Delivery, of the
chairman and chief executive officer of the Company and of the
chief financial officer of the Company, addressed to the
Representatives and each Selling Stockholder, confirming that
the certificate delivered at the Closing Time pursuant to
Section 5(c) hereof remains true and correct as of such Date
of Delivery.
(ii) The favorable opinion of Andrews & Kurth L.L.P.,
counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, dated the Date of Delivery,
relating
Page 26 of 42 Pages
<PAGE> 27
to the Option Securities to be purchased on the Date of
Delivery addressed to the Representatives and each Selling
Stockholder and otherwise to the same effect as the opinion
required by Section 5(b)(i) hereof.
(iii) The favorable opinion or opinions of counsel for each
of the Selling Stockholders (such counsel may be counsel
employed by such Selling Stockholder), in form and substance
satisfactory to counsel for the Underwriters, dated the Date
of Delivery, relating to the Option Securities to be purchased
on the Date of Delivery and otherwise to the same effect as
the opinion required by Section 5(b)(ii) hereof.
(iv) The favorable opinion of Winthrop, Stimson, Putnam &
Roberts, special aviation regulatory counsel to the Company,
in form and substance satisfactory to counsel to Underwriters,
addressed to the Representatives and each Selling Stockholder,
confirming their opinion delivered at the Closing Time,
pursuant to Section 5(b)(iii) hereof, remains their opinion on
the Date of Delivery.
(v) The favorable opinion of Stephen L. Johnson, Senior
Vice President - Legal Affairs, in form and substance
satisfactory to counsel for the Underwriters, dated the Date
of Delivery, addressed to the Representatives and each Selling
Stockholder relating to the Option Securities to be purchased
on the Date of Delivery and otherwise to the same effect as
the statement required by Section 5(b)(iv) hereof.
(vi) The favorable opinion of Skadden, Arps, Slate,
Meagher & Flom, counsel for the Underwriters, dated the Date
of Delivery, relating to the Option Securities to be purchased
on the Date of Delivery and otherwise to the same effect as
the opinion required by Section 5(b)(v) hereof.
(vii) A letter from KPMG Peat Marwick LLP, in form and
substance satisfactory to the Representatives and dated the
Date of Delivery addressed to the Representatives and each
Selling Stockholder, substantially the same in form and
substance as the letter furnished to the Representatives and
the Selling Stockholders pursuant to Section 5(e) hereof,
except that the "specified date" in the letter furnished
pursuant to this Section 5(h)(vii) shall be a date not more
than five days prior to the Date of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Representatives by notice to the Company and each Selling
Stockholder at any time at or prior to the Closing Time, and such termination
shall be without liability of any party to any other party except as provided
in Section 4 hereof. The Representatives shall not have the right to waive
each Selling Stockholder's right to be the addressee of the documents referred
to in subsections (b) through (e), inclusive and subsection (h) of this Section
5.
Section 6. INDEMNIFICATION. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act as
follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of
any untrue statement or alleged untrue
Page 27 of 42 Pages
<PAGE> 28
statement of a material fact contained in any preliminary
prospectus, the Prospectus (or any amendment, supplement or
term sheet thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to Section 6(c) hereof, the fees
and disbursements of counsel chosen by Merrill Lynch),
reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or
omission, to the extent that any such expense is not paid
under (a)(i) or (a)(ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment, supplement or term sheet thereto).
(b) Each Selling Stockholder severally and not jointly,
agrees to indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the 1933 Act
as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of a
breach of such Selling Stockholder's representations and
warranties set forth in Section 1(b)(ii).
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such breach of such Selling Stockholder's
representations and warranties set forth in Section 1(b)(ii),
if such settlement is effected with the written consent of
such Selling Stockholder; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to Section 6(c) hereof, the fees
and disbursements of counsel chosen by Merrill Lynch),
reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such breach of such
Selling Stockholder's representations and warranties set forth
in Section 1(b)(ii), to the extent that any such expense is
not paid under (b)(i) or (b)(ii) above;
provided, however, that each Selling Stockholder's maximum aggregate liability
to indemnify or otherwise make payments to the Underwriters and each person, if
any, who controls any Underwriter within the meaning of
Page 28 of 42 Pages
<PAGE> 29
Section 15 of the 1933 Act pursuant to the indemnity agreement under this
Section 6(b) and for any breach of the representations and warranties of such
Selling Stockholder set forth in Section 1(b)(ii) of this Agreement shall be
limited to the aggregate amount of the gross proceeds (after deducting the
Underwriters' discount but before deducting expenses) received by such Selling
Stockholder from the sale of such Selling Stockholder's Securities pursuant to
this Agreement.
(c) The indemnity agreement contained in this Section 6,
with respect to any preliminary prospectus supplement, shall not inure to the
benefit of any Underwriter, or any person who controls an Underwriter within
the meaning of Section 15 of the 1933 Act to the extent that any loss,
liability, claim, damage or expense results from the fact that a copy of the
Prospectus (which at such time had been provided to the Underwriters for their
use) was not sent or given, at or prior to the written confirmation of the sale
of Common Stock, by or on behalf of such Underwriter to the person asserting
such loss, claim, damage or liability to the extent that delivery of the
Prospectus would have cured the defect giving rise to such loss, claim,
damages, liability or expense if such Underwriter shall have been provided with
copies of the Prospectus.
(d) Each Underwriter severally agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act, each Selling Stockholder and
each person who controls such Selling Stockholder within the meaning of Section
15 of the 1933 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment, supplement or term sheet thereto) in reliance upon and in conformity
with written information furnished to the Company by such Underwriter through
the Representatives expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment, supplement or term sheet thereto). In addition, each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors,
each of its officers who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
and each Selling Stockholder and each person who controls such Selling
Stockholder within the meaning of Section 15 of the 1933 Act against any and
all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with respect
to any loss, liability claim, damage and expense to the extent that any loss,
liability, claim, damage or expense results from the fact that a copy of the
Prospectus was not sent or given by or on behalf of such Underwriter to the
person asserting such loss, claim, damage or liability to the extent that
delivery of the Prospectus would have cured the defect giving rise to such
loss, claim, damage, liability or judgment if such Underwriter shall have been
provided with copies of the Prospectus.
(e) Each indemnified party shall give notice as promptly
as reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense
in the defense of any such action. In no event shall the indemnifying parties
be liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
(f) The provisions of this Section 6 and Section 7
hereof shall not affect any separate agreement among the Company and the
Selling Stockholders with respect to indemnification and contribution.
Section 7. CONTRIBUTION. In order to provide for just and
equitable contribution in circumstances in which the indemnity agreement
provided for in Section 6 hereof is for any reason held to be
Page 29 of 42 Pages
<PAGE> 30
unenforceable by the indemnified parties although applicable in accordance with
its terms, the Company, the Selling Stockholders and the Underwriters shall
contribute to the aggregate losses, liabilities, claims, damages and expenses
of the nature contemplated by said indemnity agreement incurred by the Company
and the Selling Stockholders and one or more of the Underwriters as incurred,
in such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus or term sheet, if applicable, bears to the initial
public offering price appearing thereon and the Company and the Selling
Stockholders are responsible for the balance, PROVIDED that the aggregate
liability of each Selling Stockholder under this Section 7 and for any breach
of any representation and warranty set forth in Section 1(b) of this Agreement
(to the extent such breach does not also constitute a breach of any other
representation and warranty of such Selling Stockholder) shall be limited to an
amount equal to the net proceeds (after deducting the aggregate Underwriters'
discount or commission, but before deducting expenses) received by such Selling
Stockholder from the sale of its Securities pursuant to this Agreement;
PROVIDED, HOWEVER, that no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation, and provided that the contribution provisions of this
Section 7 shall not inure to the benefit of any Underwriter to the extent that
the aggregate losses, liabilities, claims, damages and expenses result from the
circumstances described in Section 6(c). Notwithstanding the foregoing, no
indemnifying party shall be responsible for contributing any amount hereunder
unless indemnification from such indemnifying party under subsections (a) (b)
or (d) above, as the case may be, was called for in accordance with its terms.
For purposes of this Section, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as the Company and each person,
if any, who controls a Selling Stockholder within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as such Selling
Stockholder.
Section 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY. All representations, warranties and agreements contained in
this Agreement and the Pricing Agreement, or contained in certificates of
officers of the Company or the Selling Stockholders submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company or the Selling Stockholders, and shall survive
delivery of the Securities to the Underwriters.
Section 9. TERMINATION OF AGREEMENT. (a) The
Representatives may terminate this Agreement, by notice to the Company and each
Selling Stockholder, at any time at or prior to the Closing Time (i) if there
has been, since the date of this Agreement or since the respective dates as of
which information is given in the Registration Statement, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or elsewhere or any
outbreak of hostilities or escalation thereof or other calamity or crisis the
effect of which is such as to make it, in the judgment of the Representatives,
impracticable to market the Securities or to enforce contracts for the sale of
the Securities, or (iii) if trading in the Common Stock or the Warrants has
been suspended by the Commission, or if trading generally on either the
American Stock Exchange or the New York Stock Exchange has been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said Exchanges or by
order of the Commission or any other governmental authority, or if a banking
moratorium has been declared by either Federal, New York or Arizona
authorities.
(b) If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof.
Page 30 of 42 Pages
<PAGE> 31
Section 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If
one or more of the Underwriters shall fail at the Closing Time to purchase the
Securities which it or they are obligated to purchase under this Agreement and
the Pricing Agreement (the "Defaulted Securities"), the Representatives shall
have the right, within 24 hours thereafter, to make arrangements for one or
more of the non-defaulting Underwriters, or any other underwriters, to purchase
all, but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the Securities, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
Securities, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, any of the Representatives, the Selling
Stockholders (acting unanimously) or the Company shall have the right to
postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements.
Section 11. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to
the Underwriters shall be directed to the Representatives c/o Merrill Lynch &
Co. at 10900 Wilshire Boulevard, Suite 900, Los Angeles, California 90024,
attention of Robert Woolway, Director; notices to the Company shall be directed
to the Company at 4000 East Sky Harbor Boulevard, Phoenix, Arizona 85034,
attention of Stephen L. Johnson, Esquire, Senior Vice President; notices to
TPG, TPG Parallel and Air Partners II shall be directed to Texas Pacific Group
Partners, L.P., 201 Main Street, Suite 2420, Fort Worth, Texas 76102 attention
of James O'Brien; notices to Continental Airlines, Inc. shall be directed to
Continental Airlines, Inc.at 2929 Allen Parkway, Houston, Texas, 77019
attention of Jeffrey Smisek, Esquire, General Counsel; notices to Lehman
Brothers Holdings Inc. shall be directed to Lehman Brothers Inc. at 3 World
Financial Center, New York, New York 10285, attention of Steven Berkenfeld,
Esquire, Vice President and notices to Mesa Airlines Group, Inc. shall be
directed to Mesa Airlines, at 2323 30th Street, Farmington, New Mexico, 87401,
attention of Larry Risley, Chairman and Chief Executive Officer.
Section 12. PARTIES. This Agreement and the Pricing
Agreement shall each inure to the benefit of and be binding upon the
Underwriters, the Selling Stockholders and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement or the Pricing
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters, the Selling Stockholders and the
Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or
in respect of this Agreement or the Pricing Agreement or any provision herein
or therein contained. This Agreement and the Pricing Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole
and exclusive benefit of the Underwriters, the Selling Stockholders and the
Company and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
Page 31 of 42 Pages
<PAGE> 32
Section 13. GOVERNING LAW AND TIME. THIS AGREEMENT AND THE
PRICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN SAID STATE. Except as otherwise set forth herein, specified times of day
refer to New York City time.
Page 32 of 42 Pages
<PAGE> 33
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters, the Selling Stockholders and the Company in
accordance with its terms.
Very truly yours,
AMERICA WEST AIRLINES, INC.
By: /s/ William A. Franke
----------------------
Name: William A. Franke
Title: Chairman
TPG PARTNERS, L.P.
By: TPG Genpar, L.P.
General Partner
By: TPG Advisors, Inc.
General Partner
By: /s/ Richard P. Schifter
-----------------------
Name: Richard P. Schifter
Title: Vice President
TPG PARALLEL I, L.P.
By: TPG Genpar, L.P.
General Partner
By: TPG Advisors, Inc.
General Partner
By: /s/ Richard P. Schifter
-----------------------
Name: Richard P. Schifter
Title: Vice President
Page 33 of 42 Pages
<PAGE> 34
AIR PARTNERS II, L.P.
By: TPG Genpar, L.P.
General Partner
By: TPG Advisors, Inc.
General Partner
By: /s/ Richard P. Schifter
-----------------------
Name: Richard P. Schifter
Title: Vice President
CONTINENTAL AIRLINES, INC.
By: /s/ Jeffrey A. Smisek
---------------------
Name: Jeffrey A. Smisek
Title: Senior Vice President
MESA AIR GROUP, INC.,
for itself and its subsidiaries
By: /s/ W. Stephen Jackson
----------------------
Name: W. Stephen Jackson
Title: Chief Financial Officer
LEHMAN BROTHERS INC.
By: /s/ John K. Sweeney
-------------------
Name: John K. Sweeney
Title: Managing Director
Page 34 of 42 Pages
<PAGE> 35
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
LEHMAN BROTHERS INC.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By /s/ Robert Woolway
------------------
Authorized Signatory
For each of themselves and as Representatives of the other
Underwriters named in Schedule A hereto.
Page 35 of 42 Pages
<PAGE> 36
SCHEDULE A
<TABLE>
<CAPTION>
Number
Name of Underwriter of Securities
------------------- -------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith Incorporated . . . . . . . . . . . . . . . . 1,436,668
Donaldson, Lufkin & Jenrette Securities Corporation . . . . . . . . . . . . . . . 1,435,666
Lehman Brothers Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,435,666
CS First Boston Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150,000
Dean Witter Reynolds Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150,000
Dillion, Read & Co. Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150,000
Furman Selz LLC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150,000
Goldman, Sachs & Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150,000
Morgan Stanley & Co. Incorporated . . . . . . . . . . . . . . . . . . . . . . . . . . 150,000
NatWest Securities Limited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150,000
PaineWebber Incorporated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150,000
Smith Barney Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150,000
William Blair & Company, L.L.C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75,000
Dain Bosworth Incorporated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75,000
Legg Mason Wood Walker, Incorporated . . . . . . . . . . . . . . . . . . . . . . . . . 75,000
McDonald & Company Securities, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . 75,000
Monness, Crespi, Hardt & Co., Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . 75,000
Morgan Keegan & Company, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75,000
The Ohio Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75,000
Piper Jaffray Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75,000
Principal Financial Securities, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . 75,000
Raymond James & Associates, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75,000
The Robinson-Humphrey Company, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . 75,000
Sutro & Co. Incorporated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75,000
Wheat, First Securities, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75,000
------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,633,000
=========
</TABLE>
Page 36 of 42 Pages
<PAGE> 37
SCHEDULE B
<TABLE>
<CAPTION>
Number of Number of
Name of Selling Stockholder Initial Securities Option Securities
--------------------------- ------------------ -----------------
<S> <C> <C>
TPG Partners, L.P. . . . . . . . . . . . . 2,404,178 0
TPG Parallel I, L.P. . . . . . . . . . . . 242,258 0
Air Partners II, L.P. . . . . . . . . . . . 253,564 0
Continental Airlines, Inc. . . . . . . . . 1,100,000 258,030
Mesa Air Group, Inc. . . . . . . . . . . . 1,633,000 351,970
Lehman Brothers Inc . . . . . . . . . . . . 1,000,000 0
--------- ---------
Total . . . . . . . . . . . . . . . . . . . 6,633,000 610,000
========= =========
</TABLE>
Page 37 of 42 Pages
<PAGE> 38
EXHIBIT 2
EXHIBIT A 6,633,000 Shares
AMERICA WEST AIRLINES, INC.
(a Delaware corporation)
Class B Common Stock
(Par Value $.01 Per Share)
PRICING AGREEMENT
-----------------
February 14, 1996
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Donaldson, Lufkin & Jenrette Securities Corporation
Lehman Brothers Inc.
as Representatives of the several
Underwriters named in the within-
mentioned Purchase Agreement
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281
Dear Sirs:
Reference is made to the Purchase Agreement dated February 14, 1996
(the "Purchase Agreement") relating to the purchase by the several Underwriters
named in Schedule A thereto, for whom Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Donaldson, Lufkin & Jenrette Securities
Corporation and Lehman Brothers Inc. are acting as representatives (the
"Representatives"), of the above shares of Class B Common Stock (the
"Securities"), of America West Airlines, Inc., a Delaware corporation (the
"Company"), to be sold by certain stockholders named in Schedule B thereto (the
"Selling Stockholders").
Pursuant to Section 2 of the Purchase Agreement, the Selling
Stockholders severally and not jointly agree with each Underwriter as follows:
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $19.50.
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $18.57, being an amount equal to the initial
public offering price set forth above less $0.93 per share;
Page 38 of 42 Pages
<PAGE> 39
PROVIDED that the purchase price per share for any Option Securities
(as defined in the Purchase Agreement) purchased upon exercise of the
over-allotment option described in Section 2(b) of the Purchase
Agreement shall be reduced by an amount per share equal to any
dividends declared by the Company and payable on the Initial
Securities (as defined in the Purchase Agreement) but not payable on
the Option Securities.
Page 39 of 42 Pages
<PAGE> 40
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Underwriters and the Selling Stockholders in accordance with its terms. By
executing this agreement in the space provided below, the Company acknowledges
the execution and delivery of this Pricing Agreement by the Representatives and
the Selling Stockholders and the incorporation of this Pricing Agreement into
the Purchase Agreement
Very truly yours,
TPG PARTNERS, L.P.
By: TPG Genpar, L.P.
General Partner
By: TPG Advisors, Inc.
General Partner
By: /s/ Richard P. Schifter
-----------------------
Name: Richard P. Schifter
Title: Vice President
TPG PARALLEL I, L.P.
By: TPG Genpar, L.P.
General Partner
By: TPG Advisors, Inc.
General Partner
By: /s/ Richard P. Schifter
-----------------------
Name: Richard P. Schifter
Title: Vice President
Page 40 of 42 Pages
<PAGE> 41
AIR PARTNERS II, L.P.
By: TPG Genpar, L.P.
General Partner
By: TPG Advisors, Inc.
General Partner
By: /s/ Richard P. Schifter
-----------------------
Name: Richard P. Schifter
Title: Vice President
CONTINENTAL AIRLINES, INC.
By: /s/ Jeffrey A. Smisek
---------------------
Name: Jeffrey A. Smisek
Title: Senior Vice President
MESA AIR GROUP, INC.,
for itself and its subsidiaries
By: /s/ W. Stephen Jackson
----------------------
Name: W. Stephen Jackson
Title: Chief Financial Officer
LEHMAN BROTHERS INC.
By: /s/ John K. Sweeney
-------------------
Name: John K. Sweeney
Title: Managing Director
Page 41 of 42 Pages
<PAGE> 42
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
LEHMAN BROTHERS INC.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By /s/ Robert Woolway
------------------
Authorized Signatory
For each of themselves and as Representatives of the other
Underwriters named in Schedule A of the Purchase Agreement
ACKNOWLEDGED
as of the date first above written
AMERICA WEST AIRLINES, INC.
By: /s/ William A. Franke
---------------------
Name: William A. Franke
Title: Chairman
Page 42 of 42 Pages
